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6915319

Roland JOHNSON, Appellant, v. STATE of Alaska, Appellee

Johnson v. State

2014-09-12

No. A-11068

701

707

334 P.3d 701

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge.

Roland JOHNSON, Appellant, v. STATE of Alaska, Appellee.

Roland JOHNSON, Appellant, v. STATE of Alaska, Appellee. No. A-11068. Court of Appeals of Alaska. Sept. 12, 2014. David K. Allen, Sechelt, British Columbia, for the Appellant. Nancy Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge. Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).

3766

23330

OPINION ALLARD, Judge. In April 2009, pursuant to a plea agreement, Roland Johnson pleaded guilty to one count of sexual assault in the third degree and was sentenced to an agreed-upon term of 22 years with 10 years suspended, 12 years to serve. In exchange for Johnson's plea, the State dismissed two counts of sexual abuse of a minor in the second degree and one count of sexual assault in the second degree. Johnson later filed an application for post-conviction relief, alleging that the court-appointed attorney who represented him in negotiating the plea agreement was ineffective. Among other claims, Johnson argued that his attorney was ineffective in failing to seek appellate review of his sentence, despite Johnson's request for such an appeal. While Johnson's application was pending in the superior court, the Alaska Supreme Court issued its decision in Stone v. State. Based on Stone, Johnson argued that his attorney had been required to file a petition for sentence review at his request, even though the sentence was specifically bargained for as part of his plea agreement. The superior court dismissed Johnson's post-conviction relief application. The court concluded that Johnson's attorney was not ineffective in refusing to petition the supreme court for review of Johnson's sentence because Stone had not been decided at the time the attorney made that decision. Johnson now appeals, asserting that this decision was error and that Stone should apply retroactively to his case. We conclude that we need not resolve whether Stone is retroactive because Stone does not govern Johnson's case. More specifically, we conclude that Stone applies only to cases in which: (1) the plea agreement gives the sentencing court some discretion regarding what sentence to impose and (2) the filing of the petition for sentence review will not constitute a breach of the plea agreement. These conditions are not met here. Johnson bargained for, and received, a specific, fixed sentence, and the sentencing court's discretion was limited to accepting or rejecting the plea agreement as a whole. Moreover, any modification of Johnson's sentence would have required rescission of the plea agreement. Stone therefore did not require Johnson's attorney to file a petition for sentence review. We accordingly affirm the superior court's dismissal of Johnson's application for post-conviction relief. Why we conclude that Stone v. State did not require Johnson's attorney to pursue appellate review of Johnson's bargained-for sentence In Stone, the Alaska Supreme Court addressed what it called the "narrow question" of whether, under the Sixth Amendment to the United States Constitution, "a criminal defendant's court-appointed counsel must, upon the defendant's demand after [a] lawful sentencing pursuant to a plea agreement, file a petition for discretionary sentence review by [the supreme court] when AS 12.55.120(a) precludes an appeal of right to the court of appeals." The supreme court concluded that the answer to this narrow question in Stone's case was "yes." The court reasoned that when defendants have no right to appeal their sentence to this Court under Alaska law, a petition for discretionary sentence review to the Alaska Supreme Court is effectively the "first tier" of appellate review-thus entitling the defendant to the assistance of counsel, at public expense if the defendant is indigent, under the United States Supreme Court's decision in Halbert v. Michigan. The supreme court therefore concluded that Stone had a right to demand that his court-appointed attorney pursue a petition for sentence review. The court explained that if Stone's attorney believed that Stone's excessive sentence claim was "wholly frivolous," the attorney had the option of filing an Anders brief and moving to withdraw, but the attorney did not have the option of refusing to file anything. In the present case, Johnson argues that he, like the defendant in Stone, had the right to demand that his attorney file a petition asking the supreme court to review his sentence for excessiveness, even though his sentence was part of a bargained-for plea agreement. But there is a material distinction between Johnson's case and the facts of Stone. (a) Unlike Stone, Johnson's plea agreement gave the sentencing court no discretion regarding what sentence to impose Both Johnson and the defendant in Stone were sentenced under a plea agreement. But unlike Johnson's plea agreement, the plea agreement in Stone did not call for a specific, fixed sentence. Instead, Stone's plea agreement called for Stone to receive a sentence within a specified range-5 to 12 years to serve-at the discretion of the sentencing judge. Thus, the sentence Stone received (9 years to serve) was the result of the judge's exercise of sentencing discretion-an exercise of discretion that theoretically could have been "clearly mistaken" as that term is used in Alaska sentence review law. In contrast, Johnson's plea agreement specified the exact sentence he was to receive: 22 years' imprisonment with 10 years suspended, 12 years to serve. There was nothing left to the judge's discretion other than the judge's option under Criminal Rule 11(e) to reject the plea agreement as a whole. We conclude that this difference between the sentencing process in Stone and the sentencing process in Johnson's case makes the holding in Stone inapplicable to Johnson's case. (b) Unlike Stone, Johnson's proposed petition for sentence review would clearly be a repudiation of his plea agreement-therefore, under Alasko law, Johnson must seek rescission of the entire agreement rather than attacking his sentence separately As noted above, the plea agreement in Stone called for Stone to receive a sentence within a specified range of possible sentences. Thus, Stone's appellate attack on his sentence was not necessarily a repudiation of his plea agreement. Indeed, it was arguably consistent with the plea agreement for Stone to contend that the particular sentence he received was excessive, and that he should receive a lesser sentence, as long as this requested lesser sentence was still within the agreed-upon range. In footnote 28 of Stone, the Alaska Supreme Court noted that, earlier in the case, the State had expressly taken the position that Stone's attack on his sentence would constitute a repudiation of his plea agreement with the State-apparently under the theory that, by agreeing to be sentenced within the specified range, Stone had also implicitly agreed not to challenge the sentence he ultimately received, as long as that sentence was within the agreed-upon range. But the supreme court declared that the State's contention was "not before us at this time." In other words, the supreme court declared that it was deciding Stone's case under the working assumption that Stone's intended petition for sentence review was at least plausibly consistent with the terms of his plea agreement. This reasoning is consistent with the general legal principle that "the parties to a contract retain their legal rights relating to the transaction covered by the contract unless either (1) the contract specifically states that a party is relinquishing a legal right as part of the bargain; or (2) the terms of the contract are clearly premised on the relinquishment of this right (%.e., the party's exercise of the legal right would be clearly inconsistent with the provisions of the contract)." In Stone's case, the parties were not in agreement about whether filing a petition for sentence review constituted a breach of the plea agreement. Further litigation on this issue was therefore needed. Notably, there is nothing in the record in Stone to suggest that Stone wanted to rescind any part of the plea agreement. Instead, it appears that Stone just wanted a lower sentence, presumably one more in line with the lower end of the range he had agreed to. In contrast, in Johnson's case, the record is clear that Johnson wanted to repudiate the terms of his plea agreement, as the other claims raised in his application for post-conviction relief demonstrate. Moreover, unlike in Stone any reduction in Johnson's fixed, agreed-upon sentence of 22 years' imprisonment with 10 years suspended would necessarily require rescission of a specific bargained-for term of his plea agreement. Alaska law does not permit this type of piecemeal attack on the terms of a plea agreement. As this Court explained in Woodbury v. State, "[when . a defendant wishes to challenge an already consummated plea agreement as being unlawful, the defendant must seek rescission of the agreement-not selective enforcement of only those provisions favorable to the defendant." We ar ticulated a similar principle in Grasser v. State : "Because Grasser negotiated a plea agreement with the government, and because he was sentenced under the terms of that agreement, Grasser can not now claim the benefit of the portions of the agreement that he likes while, at the same time, mounting an appellate attack on the portions that he does not like." Thus, under both Grasser and Woodbury, if Johnson believed that his bargained- for sentence was excessive, he was required to seek rescission of the entire plea agreement, rather than attacking one term of his plea agreement on appeal. We note that after Johnson's trial attorney refused to file a sentence petition on his behalf, this is precisely what Johnson did: he sought rescission of the entire plea agreement through an application for post-convietion relief in which he was represented by court-appointed counsel. The superior court ruled against Johnson on these claims, and Johnson has not appealed any of these rulings-exeept the ruling that Johnson's attorney was not ineffective when she declined to file a petition for sentence review. By not appealing these rulings Johnson is, in effect, conceding that he has no ground to seek rescission of the plea agreement as a whole, and that he simply wants an appellate court to reduce his bargained-for sentence while leaving the remainder of the plea agreement intact. Under Alaska law, Johnson is not entitled to do this. (e) Because Johnson bargained for a specific fixed sentence, there is an inadequate record from which an appellate court could conduct an excessive sentence review There is an additional factor that influences our decision in this case. As the concurrence points out, the record of a change of plea and sentencing normally will not reveal all of the cirenmstances that factored into the plea agreement. This is particularly true in cases such as Johnson's, where the parties have agreed to a specific, fixed sentence and the sentencing court's discretion is limited to accepting or rejecting the plea agreement as a whole. In this type of situation, the superior court may proceed to sentencing without ordering a pre-sen-tence report, without holding a separate sentencing hearing, and without giving a full explanation under Chaney of why the agreed-upon sentence is reasonable. The situation is different in cases like Stone, where the plea agreement leaves critical terms of the sentence up to the sentencing court's discretion. In those cases, the sentencing court may need to conduct an inquiry into the defendant's background and the facts of the offense in order to exercise its sentencing authority in a meaningful way. The court is also required to explain and justify the sentence it imposes under the Chaney criteria,. Those cases are therefore more likely to provide a sentencing record from which an appellate court can review whether the sentence imposed by the judge is excessive. Here, in contrast, there is essentially no sentencing record from which an appellate court could meaningfully review Johnson's sentence. Moreover, Johnson received significant benefits from the plea agreement: the dismissal of three felony-level sexual abuse and sexual assault charges. Without knowing the details of Johnson's background, the facts of his offense, and the facts pertaining to the dismissed charges, it would be all but impossible for an appellate court to review the agreed-upon sentence. Conclusion For the reasons explained here, we conclude that the Alaska Supreme Court's decision in Stone v. State does not govern Johnson's case. Johnson bargained for and received a specific, fixed sentence. Under Alaska law, Johnson is not allowed to seek a reduction of that sentence while leaving the other provisions of his plea agreement intact. Instead, his remedy is to seek rescission of the entire agreement. Accordingly, Johnson was not deprived of the effective assistance of counsel when his attorney declined to file a petition for sentence review. We AFFIRM the superior court's judgment. Senior Judge COATS, concurring. . 255 P.3d 979 (Alaska 2011). . Id. at 980. . Id. . See id. at 982-83; see also Halbert v. Michigan, 545 U.S. 605, 611, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). In Halbert, the United States Supreme Court explained that "first-tier review" differs from subsequent appellate review because by the latter stages, claims have already been presented by appellate counsel and passed upon by an appellate court. Id. . Stone, 255 P.3d at 983; see also Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (if court-appointed appellate counsel reviews trial record and finds no non-frivolous issue for appeal, counsel may request to withdraw, but withdrawal request must be accompanied by a brief that refers to anything in the record that might arguably support the appeal). . Stone, 255 P.3d at 980. . See McClain v. State, 519 P.2d 811, 813 (Alaska 1974) (under "clearly mistaken" standard, trial court's sentence will be upheld unless, after independently reviewing the record, the appellate court is convinced that the sentence is outside the permissible range of reasonable sentences). . See Stone, 255 P.3d at 983 n. 23. . Id. . This is where we part ways with Senior Judge Coats's concurring opinion. Judge Coats concludes that the supreme court took no account of the procedural posture of Stone's case when it ruled that a petition for sentence review is "First tier" appellate review under Halbert. In Judge Coats's view, even Stone would have no right under Stone to file a petition for review of his sentence, because the sentence was imposed as part of a plea agreement. . State v. Henry, 240 P.3d 846, $49 (Alaska App.2010); see also Simon v. State, 121 P.3d 815, 821-22 (Alaska App.2005) (where the plea agreement did not include an express waiver of appellate rights, ambiguity in the agreement was inter- « preted in the defendant's favor, so that the right to appeal the severity of the sentence was preserved). . Stone, 255 P.3d at 983 n. 23. . Johnson claimed, among other things, that his attorney was ineffective in negotiating the plea, that the trial judge failed to comply with the requirements of Criminal Rule 11 in accepting the plea, and that he should be allowed to withdraw the plea. . See, eg., Woodbury v. State, 151 P.3d 528, 532 (Alaska App.2007); Grasser v. State, 119 P.3d 1016, 1018 (Alaska App.2005). . 151 P.3d 528 (Alaska App.2007). . Id. at 532. . 119 P.3d 1016 (Alaska App.2005). . Id. at 1018. . See Alaska R.Crim. P. 11(e)(1) and Alaska R.Crim. P. 32.1(a)(2); see also State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (providing the sentencing goals a court must normally consider before imposing sentence, now codified in AS 12.55.0035).

10364973

CITY OF HYDABURG, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg Fisheries, Inc., Appellees; ECONOMIC DEVELOPMENT ADMINISTRATION, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg

City of Hydaburg v. Hydaburg Cooperative Ass'n

1993-08-27

Nos. S-4613, S-4615

1131

1139

858 P.2d 1131

858

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:37:00.219536+00:00

CAP

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

CITY OF HYDABURG, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg Fisheries, Inc., Appellees. ECONOMIC DEVELOPMENT ADMINISTRATION, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg Fisheries, Inc., Appellees.

CITY OF HYDABURG, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg Fisheries, Inc., Appellees. ECONOMIC DEVELOPMENT ADMINISTRATION, Appellant, v. HYDABURG COOPERATIVE ASSOCIATION, Mary E. Guss, Clifford H. Smith, Hydaburg Fisheries and Hydaburg Fisheries, Inc., Appellees. Nos. S-4613, S-4615. Supreme Court of Alaska. Aug. 27, 1993. Patrick E. Murphy, Batchelor, Murphy & Brinkman, Juneau, for appellant, City of Hydaburg in No. S-4613, for appellees in No. S-4615. Susan Lindquist, Asst. U.S. Atty., Wev-ley Wm. Shea, U.S. Atty., Anchorage, and Stuart M. Gerson, Asst. Atty. Gen., Robert S. Greenspan, and Michael E. Robinson, Attys., Appellate Staff, Civ. Div., Dept, of Justice, for appellant Economic Development Admin., in No. S-4615. Paul L. Dillon, Dillon and Findley, Juneau, and Anthony L. Rafel, Culp, Guter-son & Grader, Seattle, for appellees in No. S-4613 and S-4615. Before MOORE, C.J., and RABINO WITZ, BURKE and MATTHEWS, JJ.

4992

31012

OPINION RABINOWITZ, Justice. Hydaburg Fisheries and Hydaburg Fisheries, Inc. ("Hydaburg Fisheries") obtained a judgment against Hydaburg Cooperative Association ("HCA") and proceeded to execute against HCA's property. The Economic Development Administration ("EDA") and the City of Hydaburg ("City") claimed interests in HCA's property and sought to block the execution or to establish the superiority of their claims as against Hydaburg Fisheries. The superior court rejected their claims. This appeal followed. In 1974 the City received from the State of Alaska title to tidelands identified in Alaska Tidelands Patent No. 270 and Alaska Tidelands Survey No. 270. Additionally, the City received title by quitclaim deed to a small portion of Lot 1, Block 14 from HCA. In 1983 the City leased these properties to the Hydaburg Indian Reorganization Act Council ("Hydaburg IRA Council") pursuant to a plan whereby the City could obtain federal Economic Development Administration funds to rockfill the Site and the Hyda-burg Indian Reorganization Act Council (hereinafter IRA) has tentative approval, dependent upon this lease, to secure a block grant from the federal department of Housing and Urban Development to construct a fish processing facility.... One of the conditions of the lease stated: Permanent building and utilities on expiration, termination or cancellation of this lease shall become the property of the City. Provided, if this lease be declared void by a court of law, all improvements of whatever nature on Site shall become the property of the City that the City may best give effect to the purposes for which this lease is granted. In 1987, as part of an "Overall Economic Development Plan" the City applied for a Community Development Block Grant from the State of Alaska for the purpose of funding a "project" which was to provide the City of Hydaburg with funds to complete the new processing plant and cold storage facility. When completed the facility will operate year round and provide a significant boost to the economy. The new fish processing plant is located on an industrial landfill, constructed on city owned tidelands, under an agree ment with the Hydaburg IRA Tribal Council, owner of adjacent property. In accordance with this community development project, the City signed a Property Management Agreement with EDA and HCA which stipulated, among other things: 3. The real property acquired as part of the Project or specifically improved and included as a part of the Project . and including any interest therein, shall not be sold, leased, transferred, conveyed or mortgaged without prior written consent of the Assistant Secretary. HCA constructed a fish processing plant with a $500,000 grant from the U.S. Department of Housing and Urban Development ("HUD") and purchased and installed a cold storage facility for use in the fish processing plant with a $600,000 grant from EDA. The EDA grant agreement to HCA expressly provided that it was "subject to" the "Standard Terms and Conditions" required for Public Works and Development facilities, including the Public Works Act regulations set forth at 13 C.F.R. Chapter III and the property management standards set forth in Office of Management and Budget ("OMB") Circular No. A-102. Under the provisions of Circular No. A-102, the grantee may dispose of an item of nonexpendable personal property ("tangible personal property" purchased with grant funds) costing more than $1,000 only after compensating EDA to the extent of its participation in the original project. HCA and EDA also entered into a Property Management Agreement with the City which stated in part: [T]o assure that the benefits of the Project will accrue to the public and be used as intended by both EDA and the Grantee [HCA], the Grantee and Owner [City of Hydaburg] hereby covenant and agree as follows: 2. During its expected useful life the Project shall not be used for other than the purposes for which the Project was financed by EDA, as stated in the application, unless prior written approval of the Assistant Secretary is obtained. 3. The real property acquired as part of the Project or specifically improved and included as a part of the Project . shall not be sold, leased, transferred, conveyed or mortgaged without prior written consent of the Assistant Secretary. 4. Whenever real property is sold, leased or otherwise conveyed pursuant to 13 CFR 314.3(a)(1), the transferor shall add to the document conveying such interest a covenant, which has been previously approved by the Assistant Secretary, prohibiting the use of such property for any purpose other than the general and special purpose of the Grant as determined by the Assistant Secretary. The instrument containing this covenant shall be recorded in the pertinent county public records affecting real property or filed with the appropriate office in the Bureau of Indian Affairs in the case of Indian Projects. The Property Management Agreement was recorded in the Ketchikan Recording .Office. The events which precipitated the subject foreclosure proceedings by Hydaburg Fisheries against HCA are detailed in a letter dated October 17, 1988 from John Woodward, EDA Regional Director, to Sylvester Peele, President of HCA: On July 23, 1987, the Hydaburg Cooperative Association executed a "Joint Management Agreement" with Hydaburg Fisheries, which provided the processing equipment, among other things. HCA submitted a copy of the executed agreement to EDA for approval, along with its letter of February 19, 1988. Those documents never reached EDA. Copies of the letter and Agreement were finally received by EDA on April 19, 1988. EDA requested clarification and additional documentation concerning the Agreement in its letters of June 1, July 8 and September 28, 1988. Upon receiving documentation clarifying the joint-agreement between Hydaburg Fisheries and HCA, EDA terminated its grant to HCA on the ground that the "Joint Management Agreement" between HCA and Hydaburg Fisheries was in violation of the EDA grant because it was "more than a mere management agreement and [constituted] a transfer of such incidents of ownership as possession, use and control of the facility." EDA demanded "full repayment, with interest, in a reasonable time (i.e., within six months)." Hydaburg Fisheries requested that HCA give assurances that it would repay the grant pursuant to EDA's letter. In the alternative, Hydaburg Fisheries wanted HCA to provide a written assurance from EDA that EDA would not initiate foreclosure proceedings during the remainder of the joint venture agreement's term. HCA did not comply with Hydaburg Fisheries' request. Hydaburg Fisheries subsequently terminated its joint venture agreement with HCA and sued to recover its investment. Procedural History Hydaburg Fisheries' claim against HCA was referred to a panel of arbitrators pursuant to an arbitration provision in their joint venture agreement. The arbitrators found in favor of Hydaburg Fisheries. Thereafter, the superior court confirmed the arbitration award and entered judgment in favor of Hydaburg Fisheries. Hydaburg Fisheries then filed a creditor's affidavit against HCA claiming a total judgment of $228,420.74 and requesting issuance of a writ of execution. The affidavit listed the following property as nonexempt properties of HCA: 1. The specialty seafood plant building located on Lot 1, Block 14, U.S. Survey No. 1570, Hydaburg townsite, Ketchikan Recording District and adjacent tidelands identified in Alaska Tidelands Patent No. 270 and Alaska Tidelands Survey No. 270. 2. All of the contents of the specialty seafood plant building described in paragraph 1 above, including but not limited to the cold storage facility and related cold storage equipment within said building. 3. Lot 1, Block 14, U.S. Survey No. 1570, Hydaburg Townsite, Ketchikan Recording District, except that portion conveyed to the City of Hydaburg under a quitclaim deed filed with the Ketchikan Recording District on May 11, 1980 and recorded in Book 138, pages 100-101, a copy of which is attached hereto as Exhibit A. 4. All other property of Hydaburg Cooperative Association subject to execution. The City and EDA then filed Notices of Third-Party Claim pursuant to AS 09.35.-130. The superior court denied the City's claim of interest, ruling in part that the City's interest "is at most that of an unliq-uidated, unsecured creditor. The city also lacks standing to raise many of its claims: it does not stand on [sic] the shoes of other government grantors who may claim a superior interest in the property." In explaining its denial of EDA's third party claim of interest, the superior court stated: The following personal property is at issue in this proceeding: insulated panels that form the walls and ceilings of chilling, cold storage, and freezing rooms within a larger processing plant building owned by HCA; compressor units that cool the just-described rooms; an ice-making machine; control panels; and an extractor unit on a concrete pad outside but immediately adjacent to the plant building owned by HCA. Based upon the evidence presented at the evidentiary hearing, the court is satisfied that the property just described constitutes movable equipment or machinery that is personal property, not real property. For the reasons set out in Hydaburg Fisheries' brief in opposition filed February 25, 1991, the third-party claim of EDA will be denied and Hydaburg Fisheries will be permitted to proceed with the execution sale. Pursuant to the judgment of execution, the Department of Public Safety conducted three successive public sales on July 2, July 9, and July 16, 1991. At the third sale, the property was sold to Hydaburg Fisheries. On October 11, 1991, the superior court entered an order confirming the sale. Standards of Review We review the trial court's factual findings regarding EDA's and the City's claimed interests under a "clearly erroneous" standard. A finding is clearly erroneous if it leaves this court with "a definite and firm conviction on the entire record that a mistake has been made." Parker v. Northern Mixing Co., 756 P.2d 881, 891 n. 23 (Alaska 1988). In matters of statutory interpretation this court exercises its independent judgment. Waller v. Richardson, 757 P.2d 1036, 1039 n. 4 (Alaska 1988). Arguments I. DID THE SUPERIOR COURT ERR IN ITS RULING THAT THE CITY OF HYDABURG LACKED STANDING TO RAISE MANY OF ITS CLAIMS? The City argues that the superior court erred as a matter of law in holding that it lacked standing to raise many of its claims. The City relies on Trustees For Alaska v. State, 736 P.2d 324, 327 (Alaska 1987), cert, denied, 486 U.S. 1032, 108 S.Ct. 2013, 100 L.Ed.2d 601 (1988), which holds that the basic requirement for standing in Alaska is adversity, and AS 09.35.130 in support of its argument. Appellees do not address the standing argument. The superior court denied the City standing on the basis that "it does not stand on [sic] the shoes of other government grantors who may claim a superior interest in the property." See State Dep't of Transp. and Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 (Alaska 1989) (noting that under limited circumstances, a litigant may assert the rights of another). We need not reach the issue of third-party standing, however, because we find that the City claims the property in its own right. The City has legal title to lands underlying the seafood processing plant and claims title to the processing building itself upon expiration of its lease with HCA. Since these are the types of interests which are protected under AS 09.35.-130, the superior court erred in concluding that the City lacked standing to raise its claims. II. DID THE SUPERIOR COURT ERR IN HOLDING THAT THE CITY OF HYDABURG LACKED ANY EQUITABLE, LEGAL OR POSSESSORY INTEREST IN THE PROPERTY SOUGHT TO BE EXECUTED UPON BY A JUDGMENT CREDITOR PURSUANT TO AS 09.35.130? Appellees argue that the City failed to submit proof of an interest superior to Hydaburg Fisheries' judgment lien. More particularly, Appellees assert that the City failed to make the argument that its ownership of the land under the HCA building could prevent execution on the building, and claim that this argument is raised for the first time on appeal. Appellees contend that they executed solely against HCA's land, building and equipment and the City offered the superior court no documentary or testimonial evidence of a mortgage, security, lien or title interest in the land, building or equipment. "Likewise, HCA's continued ownership of the portion of Lot 1, Block 14 not conveyed to the City in 1980 was confirmed by the City's silence on that point." The City responds that it presented the superior court with evidence which documented its ownership interests in the land underlying the fish processing plant. The City further asserts that the buildings and facilities located on City-owned land come within the meaning of "real property," since that term has been defined to include things that are permanent, fixed, and immovable. We have adopted a liberal approach in determining whether a particular theory of a case was raised in a lower court proceeding. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). Thus, we will consider a theory if "it is closely related to [plaintiff's] trial court theory and could have been gleaned from the pleadings." Id. Moreover, "[t]he appellant need not have expressly presented every theory supporting an argument before the trial court, but can expand or refine details of an argument otherwise preserved on appeal." Id.; see also Deal v. State, 626 P.2d 1073, 1077 (Alaska 1980). Review of the record indicates that the City owns title to all of the land underlying the seafood processing complex. The fish processing plant was built on City-owned tidelands identified in Alaska Tidelands Patent No. 270 and Alaska Tidelands Survey No. 270, and on that portion of Lot 1, Block 14, which was conveyed by quitclaim deed to the City by HCA. The City leased these lands to Hydaburg IRA Council. The lease agreement contained the following provision: Permanent building and utilities on expiration, termination or cancellation of this lease shall become property of the City. Provided, if this lease be declared void by a court of law, all improvements of whatever nature on Site shall become the property of the City that the City may best give effect to the purposes for which this lease is granted. In Interior Energy v. Alaska Statebank, 771 P.2d 1352, 1356 (Alaska 1989), we approved of the approach taken by the Restatement (Second) of Property § 12.2(4) regarding the right of a tenant to remove permissible annexations to real estate. "Section 12.2(4) would allow the tenant to remove any permissible annexations so long as the landlord and tenant have not agreed otherwise and so long as the freehold can be restored to its former condition." (Emphasis added). In this case it is clear from the lease provisions quoted above that it was the parties' intent that "[p]ermanent buildings and utilities on expiration, termination, or cancellation of this lease shall become the property of the City." Thus, in Restatement terms, the parties have "agreed otherwise" and the tenant, HCA, loses any claim of ownership to the permanent buildings and utilities when the lease ends. For the above reasons, we conclude that the superior court erred in holding that the City did not have an equitable or legal interest in the property sought to be executed on by Hydaburg Fisheries. III. DID THE SUPERIOR COURT ERR IN HOLDING THAT EDA DID NOT HAVE A REVERSION-ARY INTEREST IN THE COLD STORAGE EQUIPMENT? EDA argues first that "no property interest of the United States can be subjected to judicial process without consent of the sovereign." See Buchanan v. Alexander, 45 U.S. (4 How.) 20, 20-21, 11 L.Ed. 857 (1846). EDA asserts that the federal government has not given its consent in this case. See 42 U.S.C. § 3211(11) (1977). EDA further asserts that the Public Works Act does not authorize the federal government to allow appropriated funds to be used to pay creditors of the grantee unless a creditor incurs an expense specifically authorized by the grant and applicable regulations. See 13 C.F.R. § 305.62-305.63. EDA supports this proposition by emphasizing the detailed regulations which governed HCA's expenditure of federal funds in order to ensure that such funds were used for approved purposes. EDA argues that the highly specific controls on HCA's use of funds are similar to the controls found by the court in In re Joliet-Will County Community Action Agency, 847 F.2d 430, 432 (7th Cir.1988), to be sufficient to make the grantee a mere trustee of grant property. EDA contends that federal cases "make clear that where a grant imposes detailed controls on a grantee's use of funds, the grantee, in effect, serves as a trustee for property purchased with grant funds, even where title to the property is nominally vested in the grantee." See e.g. In re Joliet-Will County Community Action Agency, 847 F.2d at 432; Henry v. First Nat'l Bank of Clarksdale, 595 F.2d 291, 308-09 (5th Cir.1979); Palmiter v. Action, Inc., 733 F.2d 1244, 1249-50 (7th Cir.1984), cert, denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). EDA argues that the trial court made no effort to explain why the rever-sionary interest analysis set forth in these cases does not apply here. EDA additionally contends that the federal policy inherent in protecting grant funds for the purposes specified in the grant must take priority over any competing interests of a grantee's creditors. EDA argues: [T]he specific purpose of the grant money awarded to HCA was to reduce unemployment by enabling local communities "to help themselves achieve lasting improvement and enhance the domestic prosperity by the establishment of stable and diversified local economies and improved local conditions." 42 U.S.C. § 3121. That purpose is not served by allowing the value of property purchased with grant funds to fall to a judgment creditor of the grantee. Appellees argue that EDA's sovereign immunity argument is misplaced because the Supreme Court of the United States has held that garnishment actions may be brought in state court against federal agencies that may sue or be sued. FHA v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 490, 84 L.Ed. 724 (1940); Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 517, 104 S.Ct. 2549, 2552, 81 L.Ed.2d 446 (1984). Appellees note that section 701(11) of the EDA legislation empowers the Secretary of Commerce to "sue and be sued in any court of record of a State having general jurisdic-tion_" 42 U.S.C. § 3211(11). Appellees insist that "[t]he provision in the statute that no collection process may be issued against 'the Secretary or his property' does not apply where, as here, EDA has failed to show that the property belongs to it." Appellees challenge EDA's assertion that its interest is superior to that of Hydaburg Fisheries because the cold storage equipment was purchased with federal grant money. Appellees argue that under federal property management standards, personal property is classified as either "expendable" or "nonexpendable." Appellees contend that the storage equipment fits the definition of "nonexpendable personal property," namely,- "tangible personal property having a useful life of more than one year and an acquisition cost of $300 or more per unit." Appellees argue that absent a specific reservation of an interest by the government, a grant recipient takes title to nonexpendable personal property upon acquisition. Appellees rely upon the OMB Circular, which states: Exempt property. When statutory authority exists title to nonexpendable personal property acquired with project funds shall be vested in the recipient upon acquisition unless it is determined that to do so is not in the furtherance of the objectives of the Federal sponsoring agency. When title is vested in the recipient the recipient shall have no other obligation or accountability to the Federal Government for its use or disposition except as provided in 6a below. OMB Circular A-102, § 5. Paragraph 6a provides: For items of nonexpendable personal property having a unit acquisition cost of $1,000 or more, the Federal agency may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Appellees take the position that EDA failed to comply with its own regulatory requirements for reserving an interest in the cold storage equipment. Appellees rur-ther contend that EDA failed to meet its burden of proof in the superior court that it had reserved rights in the HCA cold storage equipment. Lastly, Appellees argue that the public interest would best be served by allowing them to levy on the cold storage equipment because it allows a new owner to place the plant back in service. EDA's sovereignty argument relies upon a finding that the government has a reversionary property interest, which is the precise issue now on appeal. While the regulations and the circular on which EDA relies seem vague, poorly designed to impart notice to potential creditors, and in general unbusinesslike as means by which to secure an interest in property, federal case law has not found these shortcomings to be dispositive. Although the question is extremely close, we have decided to follow the approach mapped by such cases as In re Joliet-Will County Community Action Agency, 847 F.2d 430, 432 (7th Cir.1988). Whether the government retains a rever-sionary interest in the property depends "on the terms under which the grants were made." In re Joliet-Will County Community Action Agency, 847 F.2d 430, 432 (7th Cir.1988). Federal authorities make clear that the government retains a rever-sionary interest in property purchased with grant money where "extensive and detailed regulations govern [the grantee's] expenditure of federal funds in order to ensure the use of grant funds for approved purposes . [and where the grantee was required to] undergo an annual audit to determine whether it has spent grant funds in a fashion consistent with 'applicable laws, regulations and directives.' " Henry v. First Nat'l Bank of Clarksdale, 595 F.2d 291, 308-09 (5th Cir.1979), cert, denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1981); see also Palmiter v. Action Inc., 733 F.2d 1244, 1247-50 (7th Cir.1984) (pervasive federal supervision of a grantee's expenditures of grant funds makes those funds immune from garnishment by a judgment creditor to the extent those funds are not used for authorized grant purposes). In essence, the grant recipient becomes a "trustee" of the grant property. See In re Joliet-Will County Community Action Agency, 847 F.2d at 432; Henry v. First Nat'l Bank of Clarksdale, 595 F.2d at 308-09. In the instant case HCA was subject to numerous "conditions" in its receipt of grant funds from the EDA which imposed minute controls on the use of the grant, such that the recipient had very little discretion. Specifically, the Grant Agreement required HCA to comply with state and federal law, the Public Works Act, 42 U.S.C. § 3121-3246h, and implementing regulations at 13 C.F.R. Parts 301-18. These statutes and regulations imposed detailed controls on HCA's use of grant funds to ensure that property acquired with such grants would be used for approved purposes. Such controls created a reversionary interest in the federal government in the event such conditions were not met. Thus we hold that EDA has a rever-sionary interest in the cold storage equipment at issue here. Conclusion I.The superior court erred in ruling that the City lacked standing to raise issues concerning its interests in the land, building, and fixtures. II. The superior court erred in ruling that the City lacked any equitable or legal interests in the land and building in question. III. The superior court erred in ruling that EDA did not possess a reversionary interest in the cold storage equipment purchased with Federal grant funds. IV. We affirm the superior court's determination that the refrigeration and cold storage equipment was moveable equipment not affixed to realty. The City's alleged property interest in refrigeration and seafood processing equipment turns on whether the equipment is deemed to be annexed or affixed to real property or whether it is moveable personal property. Review of the record shows that the City was permitted to participate in the hearing held on this issue. The superior court's determination is amply supported by the record and thus we affirm the superior court's determination. REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion. COMPTON, J., not participating. . HCA was chartered under the Indian Reorganization Act of 1934, as amended in 1936, to further the economic development of Indians engaged in the fishing industry in Hydaburg, Alaska. . The Hydaburg IRA Council subsequently assigned its rights under the 1983 lease and agreement with the City to HCA. . The EDA Regional Director noted that during construction of the project "HCA became aware that, because of State funding shortfalls and delays, it would be unable to purchase the necessary processing equipment to operate the facility." HCA, therefore, requested permission from EDA to lease the facility and the request was denied. EDA denied the request to lease because it would constitute a change in the project scope and would violate Federal property management standards. HCA was unable to locate other sources of funding and eventually requested that the grant be terminated and arrangements be made for all EDA grant funds to be repaid so that the facility could be leased. In addition, HCA informed EDA that "because of economic hardship in the community, it would be impossible to repay EDA in one lump sum." HCA inquired if a payment schedule could be arranged utilizing the profits from the EDA fish-processing facility. EDA advised HCA that an alternative repayment schedule was unfeasible and recommended that HCA seek other solutions such as retaining full ownership and con trol of the facility while contracting management out to a private party. . HCA subsequently filed an application for a declaratory judgment and moved to stay the enforcement of the judgment asserting that it had immunity and that section 16 of the Indian Reorganization Act protected its assets from execution. The motion was denied on April 26, 1991 and this court affirmed on appeal. Hydaburg Cooperative Ass'n, of Hydaburg v. Hydaburg Fisheries, 826 P.2d 751 (Alaska 1992). . Alaska Statute 09.35.130 reads: Third party claims. If property levied upon is claimed by a third person as the person's property by an affidavit of title to the property, or right to the possession of the property and the ground of the title or right, stating the value of the property, and delivered to the person making the levy, that person shall release the property. However, the plaintiff, on demand of the person, may give the person an undertaking executed by two sufficient sureties in a sum equal to double the value of the property levied upon. The undertaking shall be in favor of and shall indemnify the third person against loss, liability, damages, and costs, by reason of the taking or sale of the property by the person. . Appellees contend that the City's only arguments were as follows: (1)The HCA plant was part of a 20 year development plan that included projects involving the City, hence the City had some interest in the HCA plant; (2) the City administered the HCA grants and this somehow gave it an interest in the property; and (3) the City contributed $205,000 worth of office repairs and electrical work to the HCA plant. . Our decision is also supported by Pacific Metal Co. v. Northwestern Bank of Helena, 667 P.2d 958 (Mont.1983), where the court considered whether a building constructed on leased real property was "real property" or "personal property" for purposes of judgment execution. The Montana court applied the following three-prong test for determining the status of the structure: "(1) annexation to the realty, (2) an adaption to the use to which the realty is devoted and (3) intent that the object become a permanent accession to the land." Pacific Metal Co., 667 P.2d at 961 (quoting Grinde v. Tindall, 172 Mont. 199, 562 P.2d 818, 820 (1977)). The court stressed that of the three, "the intent of the parties has the most weight and is the controlling factor." Id. The court then looked to the lease agreement to determine the intent of the parties, and made its decision accordingly. Id. We agree with and adopt the Montana Supreme Court's approach. . Implicit in this holding is our rejection of appellees' contention that EDA failed to comply with its own regulations governing reservations of interests in equipment. In our view paragraph 5 of attachment N, OMB Circular A-102 is inapplicable; rather paragraph 6 ("other non-expendable property") governs. This paragraph provides that "[w]hen other non-expendable tangible property is acquired by a grantee with project funds title shall not be taken by the Federal Government but shall vest in the grantee subject to [enumerated] conditions." Paragraph 6(c)(2) requires that the grantee compensate the granting agency when the grantee no longer needs non-expendable personal property with a unit acquisition cost of $1,000 or more for the purposes specified in paragraph 6. Paragraph 6(b)(1) requires that the grantee "use the property in the project or program for which it was acquired as long as needed." These conditions demonstrate that HCA only had nominal title to the cold storage equipment.

10351309

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. ATLANTIC RICHFIELD COMPANY and Combined Subsidiaries, Appellee

State, Department of Revenue v. Atlantic Richfield Co.

1993-08-06

No. S-4820

307

315

858 P.2d 307

858

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:37:00.219536+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. ATLANTIC RICHFIELD COMPANY and Combined Subsidiaries, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. ATLANTIC RICHFIELD COMPANY and Combined Subsidiaries, Appellee. No. S-4820. Supreme Court of Alaska. Aug. 6, 1993. Rehearing Denied and Motion for Clarification Granted Oct. 29, 1993. Ellen Toll, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellant. Robert E. McManus, Peter J. Turner, ARCO Alaska, Inc., Anchorage, and William B. Rozell, Mala J. Reges, Faulkner, Banfield, Doogan & Holmes, Juneau, for appellee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

5318

32727

OPINION MATTHEWS, Justice. I. INTRODUCTION This case concerns the tax liability of Atlantic Richfield Company and Combined Subsidiaries ("ARCO") for the years 1978-81 under two sections of AS 43.21, the Alaska Oil and Gas Corporate Income Tax (repealed effective January 1, 1982). Two distinct issues are presented on appeal. The first issue, the Trans Alaska Pipeline System ("TAPS") interest issue, involves the interpretation of AS 43.21.030, since repealed, and 15 AAC 21.350(b). The second issue, the entitlements issue, concerns the interpretation of AS 43.21.020, since repealed, and 15 AAC 12.120 and the valuation of Alaska North Slope ("ANS") oil produced and refined by ARCO. After a formal hearing before the Department of Revenue ("DOR"), the hearing officer concurred in the Oil and Gas Division's interpretations of the statute and regulations, and upheld the tax assessment against ARCO on both issues. ARCO appealed to the superior court and the superi- or court reversed DOR's decision, holding that the plain meaning of the statute and regulations at issue precluded taxation of ARCO. DOR appealed. We affirm in part and reverse in part. II. DISCUSSION A. Standard of Review As the superior court acted as an intermediate court of appeal, this court owes "no deference . to the lower court's decision," but, rather, "independently scrutinize[s] directly the merits of the administrative determination." Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). In this case, the court is examining an administrative regulation and the agency's interpretation of that regulation. Such an interpretation is a question of law. Borkowski v. Snowden, 665 P.2d 22, 27 (Alaska 1983). This court has set forth two standards of review applicable to questions of law: (1) the rational basis standard under which the court defers to the agency's interpretation unless it is unreasonable; and (2) the substitution of judgment standard under which the court interprets the statute and regulation independently. Tesoro, 746 P.2d at 903. The rational basis standard is used where the questions of law involve agency expertise or where the agency's specialized knowledge and experience would be particularly probative as to the meaning of the statute. Union Oil Co. of California v. State, 804 P.2d 62, 64 (Alaska 1990). The two issues in this case center around the interpretation of a complex tax statute and regulations that implicate the special expertise of DOR. Therefore we apply the rational basis standard of review. B. TAPS Interest Issue The construction of the Trans Alaska Pipeline System was completed in 1977. ARCO Pipe Line Company ("APLC"), a subsidiary of ARCO, owned approximately 21% of TAPS during the tax years at issue. In order to finance its share of TAPS construction, APLC borrowed more than $1.8 billion dollars from third parties. On its tax returns for 1978-81 ARCO claimed interest deductions under AS 43.21.030(a) and 15 AAC 21.350(b) of approximately $538 million for pipeline construction expense. Alaska Statute 43.21.030 reads, in part: Determination of income from oil and gas pipeline transportation, (a) Except as provided in (c) of this section, taxable income attributable to the transportation of oil in a pipeline engaged in interstate commerce in Alaska shall be determined by the department and shall be the amount reported or that would be required to be reported to the Federal Energy Regulatory Commission or its successors as net operating income, less those portions of interest and general administrative expense attributable to the pipeline transportation of oil in the state, except that taxable income shall also include taxes on or measured by income. The department shall establish regulations governing the determination of interest and general administrative expense attributable to pipeline transportation of oil in the state. AS 43.21.030 (repealed eff. 1/1/82) (emphasis added). In 1978 DOR promulgated 15 AAC 12.-350(b) in accordance with the legislative directive. The regulation, as amended in 1985, read, in part: (b) In addition to the amounts included in the [Federal Energy Regulatory Commission] accounts listed in (a) of this section, the operating expenses during a year for an oil pipeline also include (1) accruals to third parties during that year, by any member of the consolidated business of which the taxpayer is a part, for uncapitalized interest on capital borrowed to acquire, construct, or enlarge the facilities of the pipeline.... 15 AAC 21.350(b)(1) (emphasis added). The Oil and Gas Division of DOR employed an apportionment formula to calculate ARCO's interest expense. The Division's formula calculated allowable interest as a portion of ARCO's total assets: ARCO's allowable = ARCO's t il x ARCO's TAPS assets interest expense interest e: ense ARCO's total assets Under this formula the Division allowed only $181 million in deductions. The disagreement between the parties centers on the interpretation of the statute and regulation. 1. DOR's use of an apportionment formula to determine allowable interest expense deductions under 15 AAC 21.350(b) is inconsistent with the language of the regulation. ARCO's basic argument is that the use of an apportionment formula is contrary to the plain language of the regulation promulgated by DOR. ARCO contends that the language of 15 AAC 21.350(b)(1) requires only that (1) the principal be borrowed from a third party, and (2) the funds be used to acquire, construct, or enlarge TAPS. Since both parties agree that ARCO met these requirements, ARCO argues that it is entitled to the full deduction. DOR does not directly address ARCO's plain language argument. Rather, DOR states that an apportionment formula is consistent with the statute and more accurately reflects the substance of ARCO's TAPS loan transactions. DOR points out that the debt incurred by APLC was not secured by the assets of APLC, but by the assets of ARCO. In substance, then, the debt incurred by APLC to construct TAPS was not fully "attributable to the pipeline transportation of oil in the state" as required by the statute, but was partially attributable to the assets of ARCO. DOR thus reasoned that since the debt of APLC was secured by the assets of ARCO as a whole, the interest paid on the debt was attributable to the assets of ARCO as a whole. Therefore an apportionment formula was appropriate. DOR is correct in suggesting that the statutory language "portions of interest . attributable to" allows the use of an apportionment method. However, in emphasizing the language of the statute, DOR does not effectively deal with the plain language of the regulation: operating expenses include "accruals . for uncapital-ized interest on capital borrowed to acquire, construct, or enlarge the facilities of the pipeline." The regulation does not indicate that interest expense deductions are limited in any way other than that the money be borrowed from a third party for the purpose of constructing TAPS. When DOR wrote the regulation, it was aware of the debt/equity structure of the pipeline subsidiaries and the financing incentives created by the consent decree. At that time DOR could have written an apportionment regulation and defended it as consistent with the statute. The regulation as written, however, cannot be reasonably read to allow the use of an apportionment formula. We conclude that the language of 15 AAC 21.350 precludes the use of an apportionment formula by DOR to calculate allowable interest expense for debt incurred to construct TAPS. C. Entitlements Issue The entitlements issue concerns the valuation and taxation of Alaska North Slope ("ANS") oil from July 1979 to April 1980 under AS 43.21.020 and 15 AAC 12.-120. During this period, a combination of federal price control programs worked to place ANS oil in a unique situation. When ANS oil was first produced in 1977, along with almost all domestic crude oils, it was subject to federal price control regulations. These regulations set maximum prices, "ceiling prices," that could be charged for the oil at the wellhead in order to keep domestic oil acquisition costs low. Foreign oil, in contrast, was not subject to price controls. Therefore refiners who had access to primarily domestic crude oil had an advantage as they paid less for their price-controlled oil. In order to address this competitive disadvantage, at the same time it enacted price controls the federal government enacted • an entitlements program. Essentially, the entitlements program re quired a refiner processing price-controlled oil to pay an entitlements penalty that was roughly equal to the price difference between price-controlled oil and foreign oil. ANS oil's unique status resulted from the fact that although it was price-controlled, it was not subject to an entitlements burden. ANS oil was exempted from an entitlements burden in order to encourage development of the North Slope and to compensate for the high transportation costs' of ANS oil to the refineries. Until mid-1979 ANS oil wellhead value remained below the ceiling price. As oil prices rose quickly in 1979 and 1980, however, the wellhead value of ANS oil as calculated by the State rose above the ceiling price. The market price of ANS oil, however, was limited to the ceiling price. At this point, ANS became unique. Although price controlled, no entitlements burden was placed on a refiner who refined ANS oil. Under the federal regulations, an integrated producer/refiner such as ARCO could refine the oil and realize the full value of the ANS oil as it did not have to pay any entitlements penalties. 1. The income ARCO realized due to the federal price control structure reflects value inherent in ANS oil. The first issue this court addresses is whether or not the entitlements benefit ARCO received from internally transferring and refining price-controlled ANS oil qualified as taxable income under AS 43.-21.020. The statute read, in part: Determination of taxable income from oil and gas production. (b) Gross income of a corporation from oil and gas production shall be the gross value at the point of production of oil or gas produced from a lease or property in the state. The department shall by regulation determine a uniform method of establishing the gross value at the point of production. In making its determination the department may use the actual prices or values received for the oil or gas, the posted prices for the oil or gas in the same field, or the prevailing prices or values of oil or gas in the same field. AS 43.21.020(b) (repealed- eff. 1/1/82) (emphasis added). ARCO contends that any income derived as a result of the entitlements program was attributable to the refining sector of the company and was taxable under AS 43.21.040 as non-pipeline income, not under AS 43.21.020 as production income. ARCO argues that since the income could not be realized until the oil was refined, and "all of the operating activity necessary to earn [the entitlements] benefits was conducted at out-of-state refineries," the income was downstream income, not production income. ARCO additionally maintains that the value realized was attributable to the federal price control programs, and was not value inherent in the oil itself. ARCO points out that were it not for the artificial price structure imposed by the federal government, the entitlements benefit would not exist. Therefore, ARCO concludes that the income was properly attributed to the refining sector, and should be taxed as earned income in the refining state rather than as production income in Alaska. While ARCO's argument has some merit, we find DOR's position more persuasive. DOR points out that the value was not earned by the refinery; the refining process merely released the value already present in the oil. Both common sense and our decision in Atlantic Richfield Co. v. State, 705 P.2d 418 (Alaska 1985) ("ARCO "), support DOR's argument. In ARCO, this court upheld the constitutionality of AS 43.21. Although that case did not directly address this issue, the general reasoning of the case supports DOR's argument. We acknowledged that oil must go through various stages (transportation, refining, marketing) before it is sold for value to consumers. Id. at 421-22. We recognized that "[o]bviously, profits do not result from crab fishing or oil production until the product is sold." Id. at 425. However the mere fact that goods must be sold "does not negate the fact that profits generated by the sale are partly attributable to the inherent value of the crab or oil at its point of production." Id. This language recognizes that oil has a value as it comes out of the ground. The fact that the oil's sale price was artificially limited by the federal government does not negate the fact that the value of the oil was higher than its ceiling price. In this case, ARCO was able to realize that value because of the structure of the federal price programs. Intuitively, it makes sense to reason that although ARCO recorded only the ceiling price on its books as the value of the oil entering the refinery, in reality the oil had a higher value as evidenced by ARCO's high level of refinery profits. That amount reflected the value of the oil as it came out of the wellhead, not value that was created by the refining process. We conclude that the income ARCO realized was due to value inherent in the oil at the point of production and was therefore taxable under AS 43.21.020. 2. DOR's interpretation of 15 AAC 12.120 to allow taxation of the entitlements benefit is consistent with the language of the regulation. ARCO contends that even if the income received from the entitlements benefit was taxable as production income under AS 43.21.020,15 AAC 12.120 precluded taxation. The regulation provided, in part: Value at the point of production, (a) The value at the point of production for oil or gas produced from a lease or property is the sales price of that oil or gas, minus the reasonable cost of transportation (if any) from the point of production for that oil or gas to the sales delivery point for that oil or gas; except that in no event may the value at the point of production for a taxpayer's oil or gas exceed the ceiling price (if any) that is applicable to that oil or gas under a mandatory price control program. (b) For purposes of this chapter, "sales price" means (1) for a taxpayer's oil and gas sold in a bona fide, arm's length sale to a third party, the cash value of the full consideration given and received for that oil and gas . (2) for a taxpayer's oil not sold in a bona fide, arm's length sale to a third party, the total acquisition cost for imported oil of similar quality delivered F.O.B. at the gate of the refinery to which the taxpayer's oil is ultimately delivered.... 15 AAC 12.120 (emphasis added). ARCO does not dispute that under subsection (b)(2) the sales price for the ANS oil internally transferred was the cost for similar foreign oil. ARCO argues, however, that the regulation did not allow taxation on the full price, but only on the amount equal to the ceiling price. ARCO points to the language of section (a) of the regulation to support its argument. This language states that the income to be taxed, the value at the point of production, is the sales price, "except that in no event may the value at the point of production for a taxpayer's oil or gas exceed the ceiling price (if any) that is applicable to that oil or gas under a mandatory price control program." ARCO rests its argument on the phrase "in no event may the value . exceed the ceiling price." As ANS oil was subject to a ceiling price during this time period, ARCO contends that DOR is precluded by the regulation from taxing any amount over the ceiling price. DOR argues that ARCO's reading of the regulation fails to take into account the language of the entire regulation. DOR relies on the language providing that value may not "exceed the ceiling price (if any) that is applicable." This language, DOR contends, reflects the policy that if federal price ceilings limit the amount of income received, the ceilings should also limit taxes. In other words, if ARCO only realized income equal to the ceiling price for its oil, then in all fairness it should be taxed on only that amount. Due to the structure of the federal price control program, however, ARCO realized income equal to the market value of the ANS oil. Since ARCO's income was not in fact limited by the ceiling price, DOR argues that ARCO's taxes should not be limited either. The dispute centers around the term "applicable." ARCO argues that since the federal price regulations set a ceiling price for ANS oil, there is an "applicable" ceiling price and the value of the oil cannot exceed that price. DOR takes a more realistic interpretation of "applicable," and looks to see if, in fact, a ceiling price applied and limited ARCO's income. DOR's reading of the regulation is consistent with the language of the regulation and supported by the policy behind the statute. Since the ceiling price did not limit ARCO's income, it seems incorrect to apply a ceiling price to limit taxes on that income. To read the regulation as ARCO does would also be inconsistent with the policy underlying the Oil and Gas Income Tax statute. As this court noted in ARCO, the "primary purpose of the Oil Tax was to rectify a perceived underestimation of oil production and pipeline transportation income." ARCO, 705 P.2d at 437. ARCO's interpretation of the regulation would result in undertaxation of income earned from oil production in this state. Therefore this court interprets 15 AAC 12.120 to allow taxation of entitlements benefits received by ARCO. III. CONCLUSION We read the plain language of 15 AAC 21.350 to preclude the use of an apportionment formula by DOR to calculate allowable interest expense under AS 43.21.030 and therefore AFFIRM the superior court on the TAPS interest issue. We interpret 15 AAC 12.120 to allow taxation of ARCO's entitlements benefits and therefore REVERSE the superior court for further action consistent with this opinion. . The regulation in its original form, 15 AAC 12.350, was amended and recodified in 1985 to its current form, 15 AAC 21.350. The amended regulation applies to the tax years in question. . The regulation in its original form, 15 AAC 12.120, was amended and recodified in 1985 to its current form, 15 AAC 21.120. The original regulation applied to the tax years in question. . ARCO also argues at length that DOR had a consistent and longstanding record of construing the regulation to allow full deduction of interest expenses claimed and that therefore DOR is obliged to continue to follow that interpretation. Even if ARCO established prior and longstanding inconsistent interpretations of the regulation by DOR, DOR correctly points out that it has the power to correct its mistakes retroactively. This court recognized in Wien Air Alaska, Inc. v. Department of Revenue, 647 P.2d 1087 (Alaska 1982), that DOR can " 'correct mistakes of law in the application of the tax laws . even where a taxpayer may have relied to his detriment....'" Id. at 1095 (quoting Dixon v. United States, 381 U.S. 68, 72-73, 85 S.Ct. 1301, 1304, 14 L.Ed.2d 223 (1965)). Thus ARCO's argument that DOR's current interpretation of the regulation is inconsistent with, and precluded by, prior interpretations fails. . DOR's argument is based on the substance of pipeline loan transactions governed by a consent decree entered into in 1941 by several large shipper-owned pipeline companies with the United States Department of Justice resolving an antitrust suit. The consent decree, among other things, limited the amount of the annual dividend a pipeline was allowed to pay its shipper-parent to 7% of the valuation of the pipeline. This limitation, however, did not vary with the amount of equity capital of the pipeline company. The decree also did not affect the ability of the pipeline companies to pass through any and all interest expense for debt incurred to finance the pipeline to their shipper-parents. In combination, these two facts encouraged parent companies to finance their pipeline subsidiaries construction with debt rather than equity. Recognizing the financial incentives the consent decree created, most parent oil companies created high debt-equity ratios for their pipeline subsidiaries. As a result of this structure, subsidiaries were unable to obtain the high levels of debt they desired at favorable interest rates without parent company guarantees of repayment. This is, in fact, how APLC, with assets of approximately $280 million, managed to borrow nearly $1.88 billion— the principal and interest payments were guaranteed by ARCO. . DOR has stated that the "intent of the regulation was to prevent collusive sham transactions, entered into for the primary purpose of tax reduction." In Re Amerada Hess Corp. & Amer-ada Hess Pipeline Corp., Rev.Dec. No. 83-31 (1983). The debt/equity structure of APLC, as noted above, was entered into in order to gain financial benefits created by the consent decree. However, this structure was in place before the statute and regulation at issue were even written. Therefore there is no allegation that ARCO created a "sham transaction" in order to reduce its taxable income in Alaska. . Refiners earned fractions of entitlements for each barrel of oil they refined, domestic or foreign. If the amount they earned did not equal the amount required for the number of price-controlled barrels they refined, the refiner was obligated to buy extra credits from refiners who had a surplus. In this way, the benefits of price-controlled oil were distributed among all refiners. . ARCO also contends, as in the TAPS interest issue, that DOR had a previous and longstanding interpretation of the regulation that precludes the present interpretation. In this situation, as in the TAPS interest issue, there is insufficient evidence supporting ARCO's contention. Furthermore, as noted above, even if a prior interpretation were proven, DOR has the right and duty to correct mistakes in application of the tax law. Wien Air Alaska, Inc. v. Department of Revenue, 647 P.2d 1087, 1095 (Alaska 1982).

6915194

GRAHAM R., Appellant, v. JANE S., Appellee

Graham R. v. Jane S.

2014-09-19

No. S-15158

688

697

334 P.3d 688

334

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

GRAHAM R., Appellant, v. JANE S., Appellee.

GRAHAM R., Appellant, v. JANE S., Appellee. No. S-15158. Supreme Court of Alaska. Sept. 19, 2014. John C. Pharr, Law Offices of John C. Pharr, P.C., Anchorage, for Appellant. Kathryn Ruff Soden, ANDVSA Legal Advocacy Project, Anchorage, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

4859

30542

OPINION MAASSEN, Justice. I. INTRODUCTION Graham R. and Jane S. have one child. A 2006 court order granted Graham sole legal and primary physical custody. In 2012 Graham traveled to California for heart surgery and took the child with him, cutting off contact with Jane and causing her to miss a number of scheduled visits. When Graham returned to Alaska Jane moved for sole legal and primary physical custody, and the superior court granted her motion after an evi-dentiary hearing. Graham appeals the superior court's order, arguing that it was barred by principles of res judicata and collateral estoppel; that the court erred in finding that his interference with Jane's visitation rights was an act of domestic violence that constituted changed circumstances; and that the court erred in admitting evidence of his criminal convictions and of the child's preferences. We affirm the superior court's order modifying custody, concluding that there was no error in its decision not to apply res judicata or collateral estoppel; that there were changed circumstances justifying a modification of custody; and that any eviden-tiary errors were harmless. II. FACTS AND PROCEEDINGS Graham and Jane were both married to others when their daughter Gabby was born in May 2008. According to Graham, Jane had agreed to carry a child to be adopted by him and his wife; according to Jane, Graham coerced her into it. In any event, Jane signed a document purporting to give Gabby to Graham and his wife a few days after the child was born. But Jane revoked that document less than a year later, and a dispute over Gabby's custody began. A. The First Custody Order Grants Graham Primary Custody. Graham and Jane reached a custody and visitation agreement that was approved by court order in March 2006. The order granted sole legal and primary physical custody of Gabby to Graham but allowed Jane visitation on alternate weekends, with additional visitation in the summer. Graham was allowed to take extended winter vacations with Gabby, so long as Jane was given make-up visits; the order also specifically authorized travel to the Philippines, where both parents have family. But travel required 30 days' advance notice to the other parent, a copy of the itinerary, contact information, and a copy of the return tickets. B. Graham Travels To California With Gabby. On March 18, 2012, Graham suffered a heart attack and was transported from Cor-dova to Anchorage for emergency treatment. Graham's wife went to Anchorage as well, taking Gabby along with her. Jane, according to the schedule, was supposed to have Gabby on the weekend; but Graham's wife called the Cordova Family Resource Center, the usual location of the parents' custody exchanges, and, as she later testified, told someone there "we can't have the exchange for [Jane's] visitation because of emergencies [that] happen{ed] in our family." Nicole Son-ger, the executive director of the Family Resource Center, testified about this message as well; she described its substance as only "that there would not be a visitation today due to . [Graham] being in Anchorage," with no information about how to call Graham back or how to get in touch with Gabby. Jane also testified that she had no contact number for Graham and did not know where Gabby had gone. On March 28, Graham left Anchorage for Los Angeles, California, accompanied by his wife and Gabby. He underwent heart surgery in Los Angeles, was discharged from the hospital in stable condition on April 10, but remained in California. Gabby continued to miss her scheduled weekend visits with Jane; according to Jane, she still did not know her daughter was in California. After a month of this, the Cor- dova Family Resource Center received a faxed letter from a California attorney representing Graham. The letter, addressed to Songer, informed her that Graham had undergone "a 12-hour heart surgery in Los Angeles," that "his doctors estimated 3 months of recovery," that Gabby "wanted to stay with [her] dad," and that Gabby therefore had been enrolled at a local elementary school "in order not to disrupt her education." The letter stated that "[wlith no complications in his recovery, [Graham's] family plans to go back. to Cordova in 3 months." The letter advised Songer to direct any inquiries "to the undersigned," Graham's attorney. It provided no contact information for Graham or Gabby. On May 24, Graham called the Cordova Family Resource Center. According to Son-ger, Graham said "that if [Jane] wanted visitation, then he would send [Gabby] back but [Jane] needed to pay for the ticket[,] and he needed to know immediately because he was going to send her the very next day." Son-ger testified that she passed this message on to Jane; when Graham called again the next day, Songer told him "that if he would send the receipt along with [Gabby], I would make sure that [Jane] got that receipt." But Graham demanded assurance that Jane would pay for the ticket, and when Songer failed to give it he hung up on her. Fearing Gabby would never return, Jane sought a protective order to end Graham's interference with her visitation rights. The court issued an ex parte 20-day protective order on May 25, granting Jane temporary custody and granting visitation rights to Graham "[olnce a week telephonically arranged and supervised by [the Cordova Family Resource Center]." But the order had no immediate effect, as neither Graham nor Gabby could be found. A few days later, Songer received another faxed letter from Graham's California attorney. The letter stated that Graham had returned to Anchorage "for his rehabilitation and visitation by his cardiologist" but that his wife and Gabby "will be back in Cordova within this week." The letter enclosed a proposed summer visitation schedule and invited Songer to email the attorney with any questions. | On June 1, Graham's wife brought Gabby to the Cordova Family Resource Center for the start of summer visitation with Jane. During a July 16 hearing, the parents stipulated to a long-term protective order that prohibited either of them from taking Gabby away from Alaska. The magistrate judge heard no evidence about Graham's interference with Jane's visitation and, with the parties' concurrence, expressly declined to make any findings of domestic violence, child support, custody, or visitation. Through her attorney, Jane noted that she would be seeking custody modification in superior court. C. The Modification Order Grants Jane Primary Custody. Jane filed a motion to modify the existing custody order in October 2012, seeking sole legal and primary physical custody. The superior court held a hearing on the motion in April 2018. The court rejected Graham's arguments that the earlier domestic violence proceeding barred Jane's modification motion under principles of res judicata or collateral estoppel, then granted sole legal and primary physical custody to Jane. Graham received alternating weekend visits as well as six consecutive weeks of summer visitation; essentially, the previous custody arrangement was reversed. The modification order was based in part on the court's finding that Graham committed the crime of custodial interference when he traveled to California with Gabby in the spring of 2012. The court found that this constituted a crime of domestic violence and therefore a change in cireumstances under AS 25.20.110(c). The court then assessed the statutory best interest factors and concluded it was in Gabby's best interests that Jane have primary physical and sole legal custody. Graham appeals the modification order, challenging (1) the superior court's refusal to apply res judicata or collateral estoppel to the domestic violence petition in order to bar Jane's later motion to modify custody, (2) the finding that modification was proper under the cireumstances, and @) two evidentiary decisions: the admission of Gabby's hearsay statements about her preferences and the admission of Graham's misdemeanor convie-tions from 1996 and 1997. III. STANDARDS OF REVIEW "A determination that a claim or issue is precluded is a question of law which we review de novo." In appeals of custody determinations and modifications, we allow broad discretion to the superior court, reversing only if the superior court's findings of fact are clearly erroneous or if it abused its discretion. "A factual finding is clearly erroneous when a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake." "An abuse of discretion exists where the superior court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others." The superior court's admission of evidence is reviewed for abuse of discretion But even if admission was erroneous, "[wle will reverse an evidentiary ruling only if [the] error prejudicially affected a party's substantial rights." IV. DISCUSSION A. The Superior Court Correctly Ruled That Jane's Motion To Modify Custody Was Not Barred By Res Judi-cata Or Collateral Estoppel. Graham contends that because Jane based her petition for a domestic violence restraining order on her allegations of custodial interference, and because the parties resolved the petition by stipulating to the entry of a long-term order, Jane should have been barred from later relying on the same allegations of custodial interference when she moved to modify custody. But the parties clearly and explicitly declined to litigate the issues of domestic violence and custody in the earlier proceeding, and neither res judicata nor collateral estoppel applies. Res judicata bars relitigation of a claim when there was "(1) a final judgment of the merits, (2) from a court of competent jurisdiction,[ ] (8) in a dispute between the same parties . about the same cause of action." But as we noted in McAlpine v. Pacarro, res judicata does not apply to custody modifications; the governing statute, AS 25.20.110, "provides an exception to the general principle that final judgments should not be disturbed-it allows parents to seek modification of child eustody based on a change of cireumstances if modification is in the best interests of the child." On modification motions, thus, relitigation of the same issues is prevented in large part by the requirement that the movant prove a "substantial change in circumstances" before being entitled to any relief; a parent who attempts to reliti- gate the same set of cireumstances will be unable to eross this threshold. We further held in McAlpine that although res judicata does not apply to modification motions, "the principle of finality does-parties should not be allowed to relitigate 'in the hope of gaining a more favorable position.'" But when a parent seeks to modify custody, both the statutory goals and the relevant considerations are much different from those in a domestic violence proceeding. We explained some of the differences in Lashbrook v. Lashbrook. The issue was whether a father's due process right to a hearing on a motion to modify custody was satisfied by the fact that he had earlier attended a hearing on a domestic violence petition, addressing some of the same factual issues. We held that the proceedings were too different. We also noted that "the ultimate focus of the custody modification statute is the best interests of the children," which requires consideration of nine statutory factors, only one of which is domestic violence. We noted that a finding of domestic violence in a modification proceeding satisfies only the movant's "threshold burden of establishing changed cireumstances"; the movant still has the burden of proving that those changed cireumstances warrant modification of the existing eustody order. "In sharp contrast," we noted, "the exclusive focus of [a domestic violence proceeding under] AS 18.66.100 is domestic violence." In the domestic violence proceeding, a finding of domestic violence may result in a temporary change of custody, but the proceeding "is designed to provide emergency relief from domestic violence on a short-term basis, presumably until more permanent relief can be sought and fashioned," for example through a motion to modify custody. In McAlpine, these fundamental differences persuaded us that a hearing on a domestic violence petition was not a good substitute for the hearing that due process requires on a motion to modify custody. The differences were made explicit in this case. At the hearing on the long-term protective order, Jane's counsel repeatedly asserted that the hearing was not about custody but only about protecting Jane's visitation rights; Graham's counsel countered that the relief Jane requested was a de facto custody modification, which would keep Gabby with Jane in Cordova. But the parties agreed on the record to the essential relief Jane was seeking: that "[nleither party shall remove the child[ ] from Alaska" during the pendency of the order. The parties also expressly agreed that this relief could be, and should be, ordered without a finding that domestic violence had occurred, and the magistrate judge therefore intentionally left blank the spaces on the form order that called for findings about past domestic violence and threats. And again with the parties' express concurrence, the magistrate judge stated repeatedly that she was "not going to address anything with child support, custody, or visitation": "I am not changing the custody order that is in effect by the superior court in this particular case. That's not what this hearing was about." In short, the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and there is no good argument that Jane, in her motion to modify custody, was attempting to relitigate issues that had already been decided. ' We acknowledged in McAlpine that collateral estoppel could apply in the custody modification context, to prevent the relitigation of domestic violence allegations that had already been "actually raised and adjudicated." Collateral estoppel bars relitigation when issues of fact or law "were actually litigated and necessarily decided in [a] prior proceeding." But as the record shows, neither domestic violence nor eustody was "actually litigated and necessarily decided" in the protective order proceeding, and collateral estoppel does not apply. B. The Trial Court Did Not Err By Granting Jane's Motion To Modify Custody. The core of Graham's argument is that the superior court should not have modified the 2006 order granting him Gabby's primary physical custody and sole legal custody. A court may modify a custody award if it determines that (1) "a change in cireum-stances requires the modification of the award" and (2) "the modification is in the best interests of the child." The superior court here found both requirements satisfied and modified Gabby's custody arrangement as requested by Jane; we see no error or abuse of discretion in its decision. 1. Graham's interference with Jane's visitation rights constituted a change in circumstances. The superior court found a change in cireumstances justifying a modification of custody because Graham committed custodial interference, a crime of domestic violence. Under AS 11.41.380(a), a person commits second degree custodial interference if, being a relative of a child under 18 years of age . and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child . from a lawful custodian with intent to hold the child . for a protracted period. [Emphasis added.] The 2006 custody order granted sole legal custody and primary physical custody to Graham. Jane was not the custodial parent (although she had visitation rights), and the "custodial interference" statute, by its terms, does not apply. However, "[wle may affirm a judgment on any grounds that the record supports, even grounds not relied on by the superior court." We have repeatedly held that "actions by a custodial parent which substantially interfere with the noncustodial parent's visitation rights are sufficient to constitute a change in cireumstances." Such interference can include "a detrimental and well-established pattern of behavior on the part of [the custodial parent] to 'erode the bonds of love and affection between the [other parent] and the children'" It can also include a custodial parent's attempt to unilaterally impose conditions on a court order, or a parent's failure to comply with an existing custody and visitation order. The custody agreement at issue in Kelly v. Joseph granted the father primary physical custody and granted the mother visitation rights. The father inhibited phone contact between the children and their mother, denied one Christmas visit, and cut short another one without good reason. We agreed that the father's breach of the visitation provisions satisfied the "changed cireumstances" requirement for modifying custody. In this case, Graham's interference with Jane's visitation rights was obvious and significant. He took Gabby from Cordova to Anchorage, then from Anchorage to California, without informing Jane beforehand. By so doing he caused Jane to miss six every-other-weekend visitations in a row. His disregard for Jane's rights was compounded by his failure for over two months to inform her they had left Cordova, where they had gone, and when they could be expected to return, and by his failure to provide any contact information so that Jane could at least communicate with Gabby during their separation. And even when Graham finally divulged the basic information-via his attorney's letter, faxed to the Cordova Family Resource Center-he still failed to provide any means of contact between Jane and her daughter. Instead he informed Jane that he bad enrolled Gabby in school in California and intended to remain there another three months. | Graham relies heavily on his critical medical condition as exeusing his failure to inform Jane of Gabby's whereabouts. But he did manage to communicate with the Cordova Family Resource Center shortly before the next scheduled visitation, albeit through his wife and cryptically. Even after his release from the hospital in early April he continued to ignore Jane's visitation rights for two more weeks, and when he did communicate with her, through his attorney, he still failed to provide any means of contact between Gabby and Jane. Another month went by before he called the Family Resource Center himself, only to demand that Jane pay Gabby's way back to Cordova if she wanted her visitation to resume. The superior court considered this evidence and found that Graham kept Gabby away from Jane with an intent to continue doing so "for a protracted period." The court's factual finding amply supports the conclusion that Graham substantially interfered with Jane's visitation rights. This was a substantial change in cirenmstances justify, ing a modification of the existing custody arrangement. 2. The superior court did not err in determining that it was in Gabby's best interests to modify the custody order. Once a court determines there has been a change in circumstances, it must assess the factors of AS 25.24.150(c) to determine whether a custody modification is in the best interests of the child. The superior court made findings on each relevant statutory factor and on balance found that they favored an award of sole legal and primary physical custody to Jane. Graham challenges this award, reasoning that he had legal custody under the prior order; that it was therefore up to him to decide whether moving to California was in Gabby's best interests; and that his stay in California was temporary, and a temporary departure from the visitation schedule cannot amount to a change in cirenmstances justifying a modification of custody. But as explained above, the superior court's modification order was clearly supported by its findings about Graham's interference with Jane's visitation rights. Having found a change in circumstances, the superior court made a number of other findings in support of its decision that modifying custody was in Gabby's best interests. It found that there was love and affection between Gabby and both parents, "so this factor does not change the balance of the other factors." It found that while the parents had been equally capable of caring for Gabby when the 2006 order was entered, Graham's serious heart issues now jeopardized his capability; this factor favored Jane. It found that Jane was better positioned to provide Gabby a stable home in Cordova given Graham's frequent travel for medical appointments. It found that Jane now had the "better ability and willingness to care for the emotional, religious and social needs of [Gabby]" given Graham's medical limitations and the "little evidence" presented by Graham that he "has any willingness or ability to meet these needs." The court also found that Jane "appears willing to facilitate [Gabby's] relationship with [Graham] to some extent but by contrast [Graham] seems less willing to facilitate [Gabby's] relationship to [Jane]." The court took into account Graham's travel to California with Gabby, which, as discussed above, amounted to substantial interference with Jane's visitation rights and was appropriately considered, even though not amounting to domestic violence. Finally, it found no relevant evidence of substance abuse in either household. The superior court's factual findings are not clearly erroneous, and we see no abuse of discretion in its weighing of the best interest factors. "We will not reweigh the evidence when the record provides clear support for the trial court's ruling." We affirm the superior court's conclusion that it was in Gabby's best interests to award sole legal and primary physical custody to Jane. C. Any Error In The Admission Of The Child's Hearsay Statements Was Harmless. Graham challenges the court's consideration of testimony given by Jane and the executive director of the Cordova Family Resource Center, relaying statements Gabby allegedly made to them about her preference to be with Jane. Graham argues that Gabby's statements are hearsay and do not fall within any exception to the hearsay rule. But we need not decide whether the evidence was properly admitted, because the superior court expressly declined to rely on it in deciding Jane's motion. At the close of the evidentiary hearing, Graham's counsel reiterated an objection to any consideration of Gabby's preference "on the basis of the child's age"; the judge responded that he had looked at relevant case law, concluded that he had "some leeway" given that Gabby was about ten years old, but that "frankly, that's certainly not going to be the factor the court's going to make a decision on." In its written findings and conclusions, the court declined to consider the evidence at all: "[Gabby] has apparently a preference for [Jane], but this court does not consider the evidence it has on [Gabby's] preferences nor her capacity to make any decision on this factor adequate to give weight to this factor." Graham contends on appeal that the superior court "had to have been influenced by the heart-warming testimony of how the child wants to live with her mommy," but we credit the superior court's express statement about its consideration of this issue. Because the child's preference was given no weight in the superior court's analysis, we need not decide whether it was error to admit the evidence. D. Any Error In The Admission of Evidence Of Graham's Old Criminal Convictions Was Harmless. Graham argues that the superior court erred by admitting evidence that he was criminally convicted in 1996 and 1997 for concealment of merchandise. Graham objected at the hearing on the basis of Alaska Evidence Rule 609(a), contending that the convictions were more than five years old and also irrelevant. The court admitted the evidence preliminarily, citing the Rule 609(b) exception which grants a judge discretion to "allow evidence of the conviction . after more than five years have elapsed if the court is satisfied that admission in evidence is necessary for a fair determination of the case." As Graham acknowledges, the superior court had already been informed of the convictions in the custody investigator's report. And the evidence was cumulative, given the evidence of similar and more recent charges that Graham does not challenge on appeal. The superior court did not mention the convictions or the more recent criminal charges in its written findings and conclusions, and there is no indication that they influenced the court's decision. With no reason to believe that Graham was unfairly prejudiced by admission of the evidence of his criminal convie-tions, we conclude that any error in its admission was harmless. v. CONCLUSION We AFFIRM the order of the superior court modifying custody. . We use pseudonyms to protect the parties' privacy. . Graham's wife testified that at every visitation time, "I callled] them [at the Family Resource Center] to notify them that we can't make it because [there was] still a problem with [Graham]." It is unclear whether the superior court accepted this testimony. In any event, Graham's wife did not testify that she ever explained where they were or provided any contact information; she testified that when she left her messages, she was never asked for a phone number. . See AS 25.24.150(c). . Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Maness v. Daily, 184 P.3d 1, 5 (Alaska 2008)); Alaska Wildlife Alliance v. State, 74 P.3d 201, 205 (Alaska 2003). . Ronny M. v. Nanette H., 303 P.3d 392, 399 (Alaska 2013) (citing Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)). . Id. (quoting Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002)) (internal quotation marks omitted). . Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)) (internal quotation marks omitted). . Samaniego v. City of Kodiak, 80 P.3d 216, 218 (Alaska 2003) (citing Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994)). . Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013). . Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 233 P.3d 597, 600 (Alaska 2010) (alteration in the original) (quoting Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997)) (internal quotation marks omitted). . 262 P.3d 622, 625 (Alaska 2011). . Id. at 626; see Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (citations omitted) (holding that a parent moving for modification of a custody order bears the burden of proving a substantial change in circumstances). . McAlpine, 262 P.3d at 626 (quoting Bunn v. House, 934 P.2d 753, 758 n. 12 (Alaska 1997)). . 957 P.2d 326 (Alaska 1998). . Id. at 327-28. . Id. at 329. . Id. at 328-29 (citing AS 25.24.150(c)). . Id. at 329. . Id. . Id. . Id. at 329-30. . McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) . Campion v. State, Dep't of Cmty. & Reg'l Affairs, Hous. Assistance Div., 876 P.2d 1096, 1098 (Alaska 1994) (alteration in the original) (quoting Americana Fabrics v. L & L Textiles, 754 F.2d 1524, 1529 (9th Cir.1985)) (internal quotation marks omitted). . See Morris v. Horn, 219 P.3d 198, 201, 203, 209-10 (Alaska 2009) (holding that a stipulated protective order does not preclude later litigation of a parent's history of domestic violence). . AS 25.20.110(a). . Under AS 25.20.110(c), "a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances...." Jaymot v. Skillings-Donat, 216 P.3d 534, 543 (Alaska 2009) (citing AS 18.66.990(3)(A); AS 11.41.320-.330). . Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 168 P.3d 489, 493 (Alaska 2007) (quoting Van Sickle v. McGraw, 134 P.3d 338, 341 r. 10 (Alaska 2006)) (internal quotation marks omitted). . Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002) (alterations omitted) (quoting Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990)) (internal quotation marks omitted); see also VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999) (concluding that a custodial parent's interference with a non-custodial parent's "visitation rights is sufficient to establish the threshold burden of changed circumstances"). . Kelly, 46 P.3d at 1017 (quoting Pinneo v. Pinneo, §35 P.2d 1233, 1238 (Alaska 1992)). . Hermosillo, 797 P.2d at 1209. In Hermosillo, the custodial parent unilaterally imposed conditions on the custody order "which substantially interfere[d] with the noncustodial parent's visita tion rights." Id. Without court approval, the custodian had required the visiting parent to provide three weeks' notice and created further logistical difficulties involving the location of exchange and the choice of visitation supervisor. Id. at 1208. We concluded that this obstruction could constitute a change in circumstances and remanded for potential modification of the visitation order. Id. at 1209. . 46 P.3d at 1016. . Id. at 1017-18. . Id. at 1018-19. . Graham appears to contend that he had a right to retain Gabby in his custody so long as he compensated Jane with more visitation days later. But Graham had no right to unilaterally adjust the provisions of the order. See Hermosillo, 797 P.2d at 1209. Any deviations from the order-whether or not they were made up for later-interfered with Jane's visitation rights and support the finding of a change in circumstances. . AS 25.20.110(g); Kelly, 46 P.3d at 1018. . Kelly, 46 P.3d at 1019. . See Alaska R. Evid. 801. . Under AS 25.24.150(c)(3), the court was required to consider "the child's preference if the child is of sufficient age and capacity to form a preference." . See Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007) ("[Elven where the trial court errs in admitting evidence, we will reverse only if that error was not harmless." (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136, 142 (Alaska 2004))).

6912908

NATIVE VILLAGE OF TUNUNAK, Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, and H.S. and K.S., Appellees

Native Village of Tununak v. State, Department of Health & Social Services

2014-09-12

No. S-14670

165

183

334 P.3d 165

334

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

NATIVE VILLAGE OF TUNUNAK, Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, and H.S. and K.S., Appellees.

NATIVE VILLAGE OF TUNUNAK, Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, and H.S. and K.S., Appellees. No. S-14670. Supreme Court of Alaska. Sept. 12, 2014. James J. Davis, Jr. and Sydney Tarzwell, Alaska Legal Services Corporation, Anchorage, for Appellant. Jacqueline G. Schafer, Assistant Attorney General, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for Appel-lee State of Alaska. Kenneth C. Kirk, Anchorage, for Appellees H.S. and K.S. Notice of nonparticipation filed by Kristen C. Stohler, Stohler Law, P.C., Palmer, on behalf of Kathleen Wilson, Anchorage, Guardian Ad Litem. Heather Kendall-Miller, Erin C. Dougherty, and Matthew N. Newman, Native American Rights Fund, Anchorage, for Amicus Cu-rige Native Village of Kotzebue. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

11890

72543

STOWERS, Justice. I. INTRODUCTION This is the second appeal in a case that began in July 2008 when the Alaska Office of Children's Services (OCS) assumed custody of four-month-old Dawn from her parents. Dawn was found to be a child in need of aid (CINA). Dawn's parents were Alaska Natives and thus the protections and requirements of the Indian Child Welfare Act (ICWA) applied to the CINA case. One of ICWA's provisions establishes preferences for foster care and adoptive placement of an Indian child with a member of the child's extended family, with other members of the child's tribe, or with other Indian families. Native Village of Tununak (the Tribe) intervened in Dawn's CINA case and submitted a list of potential placement options for Dawn, including Dawn's maternal grandmother, Elise, who lives in the village. Throughout much of the case, the parents and Tribe agreed there was good cause not to place Dawn with an ICWA preferred placement, and Dawn was eventually placed with the Smiths, non-Native foster parents who live in Anchorage. The superior court terminated Dawn's parents' parental rights at a September 2011 trial, making Dawn eligible for adoption. The Tribe asserted that, given the termination of parental rights, there was no longer good cause to deviate from ICWA's placement preferences and objected to Dawn's continued placement in Anchorage. In November the Smiths filed a petition to adopt Dawn. At no point in the case did Elise file an adoption petition in the superior court. The superior court conducted a placement hearing following the Tribe's objection to placement with the Smiths. Following testimony by a number of witnesses, including Elise, the court found that there was continued good cause to deviate from ICWA's adoptive placement preferences and again approved Dawn's placement with the Smiths. The court then granted the Smiths' adoption petition in March 2012. Dawn was almost four years old, and had lived with the Smiths for almost two and a half years. In separate appeals, the Tribe appealed both the superior court's order finding that there was good cause to deviate from ICWA's placement preferences and the adoption order. We issued an order staying the adoption appeal while we considered the adoptive placement appeal. On June 21, 2018, we issued our decision in the first appeal that examined Dawn's adoptive placement with the Smiths. We reversed the superior court's finding of good cause to deviate from ICWA's placement preferences. Though we had held in previous cases that the preponderance of the evidence standard was the correct standard of proof, we were convinced by the Tribe's argument that the preponderance standard was inconsistent with Congress's intent in enacting ICWA, and that a higher standard of proof-proof by clear and convincing evidence-was required. We overruled our prior cases and remanded the adoptive placement case to the superior court for it to take additional evidence and make its determination whether there was clear and convincing evidence of good cause to deviate from ICWA's adoptive placement preferences. We continued our stay order of the adoption appeal. Four days after we issued our opinion in the adoptive placement appeal (Tununak I), the United States Supreme Court issued its opinion in Adoptive Couple v. Baby Girl (Baby Girl). There, the Supreme Court held that ICWA "§ 1915(a)'s [placement] preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward." We asked the parties to provide supplemental briefing and oral argument on the effect of the Supreme Court's Baby Girl decision on the adoption appeal currently before us. We now hold that because the United States Supreme Court's decisions on issues of federal law bind state courts' consideration of federal law issues-including the Indian Child Welfare Act-the decision in Baby Girl applies directly to the adoptive placement case on remand and to this adoption appeal. We discern no material factual differences between the Baby Girl case and this case, so we are unable to distinguish the holding in Baby Girl Because the Supreme Court's holding in Baby Girl is clear and not qualified in any material way, and because it is undisputed that Elise did not "formally [seek] to adopt" Dawn in the superior court, we conclude that, as in Baby Girl, "there simply is no 'preference' to apply,] [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward[,]" and therefore ICWA "$ 1915(a)'s [placement] preferences are inapplicable. " We affirm the superior court's order granting the Smiths' petition to adopt Dawn and vacate our remand order in Tununak I requiring the superior court to conduct further adoptive placement proceedings. We do not otherwise disturb our decision in Tununalk I. II. FACTS AND PROCEEDINGS A. Facts Dawn F. was born in Anchorage in March 2008. When she was four months old OCS assumed emergency custody and placed her in foster care in Anchorage. The Tribe formally intervened in Dawn's CINA case in August 2008 and submitted a list of potential foster placement options under Alaska Child in Need of Aid Rule 8(c)(7) for Dawn, including placement with her maternal grandmother, Elise F., who lived in Tunu-nak. Elise discussed foster placement at meetings with OCS in July and September 2008, but OCS ruled her out as a potential placement because an adult son living with her at the time had a barrier-crime for placement purposes. OCS placed Dawn in a non-Native foster home to facilitate visitation with her mother, Jenn F., who lived in Anchorage. In November 2008 the parties stipulated that there was good cause to deviate from ICWA's placement preferences, and in March 2009 the superior court found there was good cause to continue the deviation, as Jenn was progressing with her OCS case plan and it appeared she might be reunited with Dawn. In August 2009 Elise contacted OCS to report that her son had moved out; she confirmed that she still sought foster placement. In October 2009 OCS placed Dawn with non-Native foster parents Kim and Harry Smith in Anchorage, and in December 2009 Elise visited Dawn. Following this meeting, Elise did not call, write, or communicate with Dawn. Also in December 2009 a representative from the Association of Village Council Presidents visited Elise's home in Tununak on OCS's behalf and noted potential hazards in the home that needed to be addressed before placement could occur. These included unsecured guns, cleaning supplies, medicine, and general clutter in the area that Elise planned to use as Dawn's bedroom. In February 2010 Elise assured OCS she would remedy these issues, and OCS asked Elise to arrange for a second home visit onee she made the proposed changes. In May 2010 Elise attended a visit with Jenn and Dawn and told an OCS social worker that she thought Jenn would complete substance abuse treatment; Elise did not seek foster placement at that time and had not remedied the issues in her home. OCS filed two petitions to terminate Jenn's parental rights: the first was denied in November 2010, and a second was filed in April 2011. At a status conference in February 2011 Elise was present telephonically, and she questioned the court about whether Dawn would be returned to Jenn. The court advised her in no uncertain terms that it was not safe for Dawn to return to Jenn's household given Jenn's continuing mental health issues and illegal drug use. The superior court ultimately terminated Jenn's parental rights in September 2011. Following termination the Tribe argued there was no longer good cause to deviate from ICWA's placement preferences, and a placement hearing was scheduled. The Smiths filed an adoption petition on November 8, 2011, and the petition was stayed pending the resolution of the ICWA placement hearing on November 14, 2011. B. Proceedings 1. The placement hearing and appeal The superior court noted at the outset of the placement hearing that it would not consolidate the CINA placement case with the adoption case, but cautioned the Tribe that it would not get "two bites at the apple"; in other words, "if the Tribe los[t], it [wouldJu't get to contest placement in the adoption proceeding." We explained in Tunwnak I that "[when the court declined to consolidate the two cases, it stated that the future adoption proceeding would be dependent on the placement ruling in the CINA case" and that "denying the Tribe's objections to adoptive placement [effectively] . clear[ed] the way for the Smiths to adopt Dawn." Elise testified at the hearing. She had previously been an ICWA social worker and was aware of her ICWA rights. When asked if she wanted to take care of Dawn just because the Tribe wanted her to she answered with an equivocal "[yles and no. She clarified: "[It is my right to adopt or take my granddaughter and . raise her as an Alaska Native . because she is part of my flesh and blood and so that she [can] learn her values in Native culture and traditions and where she came from." Elise also said that she had not been able to see Dawn very often due to the expense of travel; she did not call or write letters to Dawn because the child was too young to read or communicate; she knew Dawn did not know her at that point; and she understood Dawn would have to be gradually introduced to life in the village to prevent culture shock. Elise testified that she wanted Dawn to be placed with her "from the beginning" and she recognized that "if [Dawn] had moved [in] with me when [Dawn] was [a] young infant, then it could have been easier because [Dawn] would have known [her] grandmother[,]" but at this point Dawn had been "raised by [Kim and Harry Smith]." Elise also indicated at this hearing that she had filed a petition to adopt Dawn, but the record contains no evidence that such a petition was ever filed, and no party has argued to the contrary. In its decision on placement the superior court noted that Elise was 67 years old and would be 82 when Dawn turned 18. The court found Elise's testimony on the question of whether she wanted to adopt Dawn "less than convincing" and pointed out that she had maintained almost no contact with Dawn and knew nothing of Dawn's life in Anchorage. The court also found that Elise testified that she wanted to adopt Dawn because the Tribe wanted her to. The court found that the Smiths had been "exceptional foster parents" to Dawn. Ultimately, the court determined there was good cause to deviate from ICWA's placement preferences by a preponderance of the evidence in accordance with Alaska Adoption Rule 11(f). The Tribe moved to stay the Smiths' adoption proceeding pending the Tribe's appeal of the placement ruling to our court, but this motion was denied. 2. The adoption hearing and appeal On March 6, 2012, the superior court held an adoption hearing and granted the Smiths' adoption petition. At that hearing the court noted that, since the placement hearing, "[njo individual has come forward" and "Inlo names have been put forward of somebody who would be ICWA compliant under 1915(a) and the [Smiths] have been there for Dawn for . these several years and the child's almost four." The court concluded it was in Dawn's best interest to be adopted that day by the Smiths, but cautioned that "the adoption [could] be reversed . anything could happen including removal of the child" from the Smiths' care. Elise did not appear at the adoption hearing. The Tribe appealed the adoption to our court. On November 29, 2012, we issued an order sua sponte staying the adoption appeal pending our decision in the related adoption placement appeal. 3. Our decision in the placement appeal in Tununak I and the United States Supreme Court's decision in Baby Girl We issued our decision in the placement appeal on June 21, 2013. In that opinion we reversed and remanded the superior court's adoptive placement decision. We concluded that ICWA requires a heightened clear and convincing evidence standard of proof be applied to the § 1915(a) good cause determination. Because the superior court's placement decision was decided under a preponderance of the evidence standard, we remanded for the superior court to undertake a new good cause determination, consistent with a clear and convincing evidence standard, to decide whether deviation from the preferred placement preferences provided in ICWA §$ 1915(a) was appropriate. We issued an order along with our decision in Tununak I that requested the parties to brief their positions on whether our stay of Dawn's adoption appeal should continue pending the superior court's proceedings on remand following Tununak I. The United States Supreme Court issued its decision in Adoptive Couple v. Baby Girl four days later; the Court held that ICWA "§ 1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward." In Baby Girl, the child's biological father (Biological Father) and biological mother (Birth Mother) broke off their engagement after Birth Mother became pregnant but would not accommodate Biological Father's request to move up the wedding. Biological Father had no meaningful contact with Birth Mother following the couple's separation and sent her a text message indicating that he wished to relinquish his parental rights. Birth Mother decided to give the child up for adoption and selected a nonNative adoptive couple (Adoptive Couple) through a private adoption agency. Approximately four months after Baby Girl's birth, Adoptive Couple served Biological Father with notice of their pending adoption petition. Biological Father signed the paperwork, stating he was not contesting the adoption. He later testified that he assumed he was relinquishing parental rights to Birth Mother. Biological Father contacted a lawyer a day after signing the papers and subsequently requested a stay of the adoption proceedings. In those proceedings he sought custody of Baby Girl, took a paternity test, and participated in a four-day trial after which the South Carolina Family Court ultimately awarded him eusto-dy and denied Adoptive Couple's adoption petition. That decision was appealed to the South Carolina Supreme Court, and Biological Father participated in that appeal. The South Carolina Supreme Court characterized his appeal as a "legal campaign to obtain custody" and affirmed the family court order. The decision was appealed to the United States Supreme Court, and Biological Father again participated in that appeal. At no point did Biological Father file a petition to adopt Baby Girl. The United States Supreme Court ultimately reversed the South Carolina Supreme Court, holding in part that ICWA "§ 1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child." The Court reasoned: "This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward." Because the Supreme Court's interpretation of ICWA § 1915(a) in Baby Girl called into doubt the application of § 1915(a)'s placement preferences on remand in Tunu-nak I-as no one but the Smiths sought to formally adopt Dawn-we issued an order directing the parties to brief the effect of Baby Girl on the present adoption appeal and granted oral argument in the matter. III. STANDARD OF REVIEW "[The [United States] Supreme Court's decisions on issues of federal law, including issues arising under the Federal Constitution, bind the state courts' consider ation of those issues," and we review those issues de novo. Pure questions of law, including issues of statutory interpretation, invoke our "duty to 'adopt the rule of law that is most persuasive in light of precedent, reason, and policy' " using our independent judgment. IV. DISCUSSION All parties agree that we must decide the Tribe's challenge on appeal to the Smiths' adoption of Dawn in light of the Supreme Court's decision in Baby Girl The State contends that "[blecause no one other than the Smiths formally sought to adopt Dawn, her adoption should be upheld under the controlling [Baby Girl] decision." The Smiths agree. The Tribe urges us to vacate the superior court's adoption decree and remand this matter for an adoptive placement determination based on our decision in Tu-nunak I that required the superior court to find, under a clear and convincing evidence standard, whether there is good cause to deviate from ICWA § 1915(a)'s placement preferences. The Tribe takes the position that: (1) Baby Girl is factually distinguishable and inapplicable to state-driven child protection cases; (2) to the extent Baby Girl does apply, it merely requires that a specific family be formally identified as desiring placement of the Native child and Elise satisfied that requirement in this case; and (8) the requirement is satisfied in Alaska as soon as a tribe intervenes in the case and makes formal CINA Rule 8(c)(7) disclosures. Finally, the Tribe contends that, if we interpret Baby Girl to mean that ICWA's placement preferences are inapplicable until an alternative adoptive family files a competing adoption petition, this decision will have disastrous results for rural Alaska, placing the largest burden on Native families with the fewest legal and financial resources, and create a dangerous disincentive for OCS, as the agency will place Native children in the first available home, thereby neutering the protections that ICWA originally sought to provide to promote the preservation of the Indian family. The Tribe's interpretation of Baby Girl, as echoed by the dissent, strains the plain wording of a clear, unequivocal, and unqualified decision on a matter of federal law as interpreted by the United States Supreme Court. For the reasons that follow, we conclude that we are required to apply the Supreme Court's bright-line interpretation of ICWA § 1915(a)'s placement preferences to bar from consideration as an adoptive placement an individual who has taken no formal step to adopt the child. A. ICWA § 1915(a) and Baby Girl Do Not Distinguish A State-Initiated Child Custody Proceeding From A Voluntary Private Adoption. ICWA § 1915(a)s placement preferences apply to "any adoptive placement of an Indian child under State law," and ICWA defines adoptive placements broadly as "the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." The federal statute does not distinguish between state-initiated child protection cases and voluntary adoptions. The Supreme Court in Baby Girl also did not carve out such a distinction. In Baby Girl, the Supreme Court held without qualification that § 1915(a), "which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child." The Court emphasized that the "seope" of § 1915(a) has a "critical limitation," namely, that " § 1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child." The Court reiterated, "This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward." To make its rationale perfectly clear, the Court again explained that, because Adoptive Coun-ple was the only family that "sought to adopt Baby Girl," $ 1915(a)'s "rebuttable adoption preferences [did not] apply [because] no alternative party . formally sought to adopt the child." As a policy matter, the Court broadly concluded that while ICWA "was enacted to help preserve the cultural identity and heritage of Indian tribes," to require a placement preference determination for a party who did not seek to adopt "would put certain vulnerable children at a great disadvantage solely because an ancestor-even a remote one-was an Indian." The Court cautioned that such a result may cause "prospective adoptive parents [to] . pause before adopting any child who might possibly qualify as an Indian under the ICWA." The dissent characterizes these statements by the United States Supreme Court interpreting § 1915(a) as dicta addressing the South Carolina Supreme Court's suggestion that if it had terminated Biological Father's rights, § 1915(a)'s preferences would have applied. But Baby Girl explained, clarified, and decided that § 1915(a) did not apply where no alternative party sought to adopt the Indian child, as was the case of Biological Father. When discussing the distinction between a holding and dictum, the Supreme Court has directed that "[when an opinion issues for the Court, it is not only the result[,] but also those portions of the opinion necessary to that result by which we are bound." We are likewise bound by the Supreme Court's holding concerning § 1915(a); it was necessary to the Supreme Court's reversal of the judgment of the South Carolina Supreme Court and its remand of the case for further proceedings. In those further proceedings, it was clear to the South Carolina Supreme Court that § 1915(a)'s re-buttable adoption preferences did not apply to Biological Father, and the South Carolina court did not apply them. As the South Carolina Supreme Court stated on remand: The [United States] Supreme Court has articulated the federal standard, and its application to this case is clear: ICWA does not authorize [Biological] Father's retention of custody. Therefore, we reject [Biological] Father's argument that 1915(a)'s placement preferences could be an alternative basis for denying the Adoptive Couple's adoption petition. The Supreme Court majority opinion unegquiv-ocally states [ ] [that] "§ 1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.". . As the opinion suggests, at the time Adoptive Couple sought to institute adoption proceedings, they were the only party interested in adopting [Baby Girl]. Because no other party has sought adoptive placement in this action, § 1915 has mo application in concluding this matter . [ ] The Supreme Court's federal standard is now clear, and consequently § 1915(a)s preferences will not apply in this case. The dissent asserts that Baby Girl is factually distinguishable because "[rJather than a termination of parental rights through a private adoption arranged by a non-Indian parent after an Indian parent abandoned the child, this was a state-sponsored parental rights termination and a state-sponsored adoptive placement clearly subject to ICWA." The Supreme Court previously has explicitly discussed distinctions between voluntary and non-voluntary relinquishments of parental rights in the context of ICWA; it did not do so in Baby Girl. In Mississippi Band of Choctaw Indians v. Holyfield (Holy-field ), the Court noted that while the focus of Congressional testimony on ICWA was "on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves [from] the massive removal of their children" outside of this context. The Holyfield decision involved the voluntary adoption of twin babies." The Court concluded that ICWA still applied to such a situation because "[t]ribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe," and congressional intent clearly indicated that an individual Indian could not defeat ICWA's jurisdictional scheme by voluntary action. In Holyfield, the Court adopted and applied its broad-sweeping interpretation of ICWA to all types of parental rights relinquishment cases, including those arising out of a parent's voluntary action. If in Baby Girl the Court had intended to limit its holding to voluntary adoptions, it certainly could have articulated such a restriction. But no such limiting language appears in the Court's opinion in Baby Girl. Because the Court did not limit its holding in Baby Girl to voluntary adoptions, we reject the Tribe's and the dissent's attempt to factually distinguish Baby Girl from the case before us where the adoption resulted from state-initiated child protective proceedings. B. Elise Did Not Formally Seek To Adopt Dawn. We are "not bound by decisions of federal courts other than the United States Supreme Court on questions of federal law." But in cases where the Supreme Court has decided a question of federal law that is directly applicable to and binding on the case we are to decide, we "owe obedience to the decisions of the Supreme Court of the United States . and a judgment of the Supreme Court provides the rule to be followed . until the Supreme Court sees fit to reexamine it." After Dawn was placed in emergency foster care, the Tribe early on provided Elise's name to OCS as a potential placement option in its CINA Rule 8(c)(7) disclosures. Elise discussed her initial interest in being a placement with OCS, but she was ruled out at that time because an adult son living with her had a barrier-crime. Dawn was placed with non-Native foster parents in Anchorage so that she could be closer to her mother while Jenn completed treatment, and the parties stipulated that there was good cause to deviate from ICWA's placement preferences during this period while Jenn worked toward reunification with Dawn. In August 2009 Elise contacted OCS to report that her son had moved out; she confirmed that she still sought placement, but in December 2009 a representative from the Association of Village Council Presidents visited Elise's home in Tununak on OCS's behalf and noted potential hazards in the home that needed to be addressed before placement could oceur. Elise assured OCS she would remedy these issues. During this period Jenn was working toward reunification with Dawn, and Elise understandably wished to support her daughter in that endeavor. The critical piece, however, is Elise's failure to formally assert her intent to adopt Dawn as OCS moved toward terminating Jenn's parental rights. The superior court denied OCS's first petition to terminate parental rights in November 2010, and a second petition was filed in April 2011 that ultimately resulted in termination in September 2011. At a status conference in February 2011 the superior court advised Elise that placement with Jenn was not a viable option due to Jenn's continued mental health and drug issues. And when the Smiths filed a formal petition to adopt Dawn on November 8, 2011, Elise did not file a competing adoption petition or any other formal request that might serve as a proxy for such a petition. In other words, knowing that the Smiths had the only legally viable request for adoption before the court at that time, Elise did not file a competing request to be considered an adoptive parent for Dawn prior to the placement hearing. Elise did appear at the November 14, 2011 placement hearing and testified that she wanted to adopt Dawn. She also testified that she had filed a formal adoption petition herself in Bethel. From the record developed by the parties both in the superior court and in this court, there is no indication that Elise filed an adoption petition or otherwise filed any formal court document demonstrating her intent to adopt Dawn. In its briefing to us the Tribe conceded that no court petition was filed. The superior court found Elise's testimony on her desire to adopt "less than convincing," observing that Elise also said that she wanted to adopt Dawn because the Tribe wanted her to and pointing out that she had maintained almost no contact with Dawn and knew nothing of Dawn's life in Anchorage. The superior court made this credibility determination and our role as the reviewing court is not to reweigh the evidence on this point, but instead to "review a trial court's decision in light of the evidence presented to that court." In Baby Girl, Biological Father displayed a much higher level of involvement, but the Supreme Court nonetheless found his efforts insufficient. Biological Father requested a stay of the adoption proceedings after learning of Adoptive Couple's pending request and sought custody of Baby Girl. He participated in a trial in the South Carolina Family Court and was awarded custody, had that custody order affirmed by the South Carolina Supreme Court, and participated in the appeal before the United States Supreme Court. Notwithstanding this active participation by Biological Father at every level of the state and federal litigation, the Supreme Court still found that "he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place." In other words, because Biological Father did not "formally [seek] to adopt" Baby Girl, the Supreme Court held that he could not be an ICWA preferred placement-he was not an "alternative party" that triggered § 1915(a)'s adoptive preferences. Applying the Supreme Court's controlling precedent to the facts before us, it is clear that this is also a case where "there simply is no 'preference' to apply [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward" to adopt Dawn. Because the Smiths were the only family that, in the words of the Supreme Court, "formally sought to adopt" Dawn, § 1915(a)'s "rebuttable adoption preferences [do not] apply [because] no alternative party has formally sought to adopt [this] child." In short, we are bound by Baby Girl's interpretation of this subsection of ICWA, and cannot ignore the Supreme Court's clear, unqualified ruling on a matter of federal Indian law. C. Alaska CINA Rule 8(c)(7) Disclosures Are Not Analogous To Requiring An Individual To Formally Seek To Adopt A Child. We are likewise not persuaded by the Tribe's argument that Elise's contact infor mation on the Tribe's CINA Rule 8(c)(7) disclosure in the underlying CINA case amounts to a formal adoption request. Rule S(c)(7) directs that a tribe shall "without awaiting a discovery request, provide to other parties . names and contact information for extended family of the child, a list of potential placements under . § 1915, and a summary of any tribal services or tribal court actions involving the family." These initial disclosures must be made within 45 days of the order granting intervention. A tribe's production of contact information for possible placements is neither equivalent nor analogous to a formal adoption petition. Rule 8(c)(7) is a discovery procedure; it requires disclosure of potential placement options for OCS to consider. A Rule 8(c)(7) disclosure was filed by the Tribe; it does not in any way represent a clear expression by Elise (or anyone else) of a formal intent to adopt the child. An adoption petition, on the other hand, is the legally "formal" way for a person to express a readiness and willingness to adopt a child. In Baby Girl, the Supreme Court envisioned a bright-line test: in order to qualify for ICWA § 1915(a)'s adoptive placement preference, one must first "formally seek" to adopt the child by filing a petition for adoption. If Biological Father did not meet this bright-line standard, notwithstanding his significant involvement at every level of the Baby Girl case, the Tribe's tender of Elise's contact information shortly after the Tribe's intervention in this case cannot meet the standard of "formally seeking" to adopt. D. The Tribe's Policy Considerations Finally, the Tribe argues that if we interpret Baby Girl to hold that ICWA's placement preferences are inapplicable until an alternative Native adoptive family member files a competing adoption petition, this decision will place a difficult burden on Native families, which have the fewest legal and financial resources, and create a dangerous incentive for OCS to place Native children in the first available home "except in the rare case when a Native family files its own adoption petition." The dissent echoes the Tribe's concerns, noting that "at least one state practice guide" does not read Baby Girl to mean an adoption petition must be filed; rather, all the practice guide cautions is that the adoptive candidate "formally" assert his or her intent to adopt the child and take "proper steps" to convey these intentions to the court. But the dissent misses the point of the practice guide. The practice guide concludes that "[flor practitioners representing a parent of an Indian child who wants assurances that his or her child will be placed with another family or tribal member if adoption is needed, the lesson is clear: identify early on any family members, relatives, or tribal members who are willing and desirous of custody and take proper steps to formally convey their intentions to the court in this regard." As we have explained, we read Baby Girl to mean that filing a petition for adoption is "formally" asserting an intent to adopt using the "proper steps." And while we do not disregard the Tribe's policy concerns, neither may we disregard the holding of the Supreme Court on this matter of federal law. Having said this, we urge tribes and OCS to enable and assist tribal members to seek placement early in CINA and voluntary adoption cases, accompanied by a formal adoption petition onee it appears that OCS's goal for the child is adoption. The Alaska Court System, attorneys representing tribes in Alaska, the CINA bar, the probate bar, and others will work to develop appropriate adoption forms and online information and instructions to assist tribes and potential adoptive parents in navigating this requirement. We also stress that OCS remains bound to comply with § 1915(a)'s adoptive placement preferences for "(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (8) other Indian families," And our decision in Tununal I directs that "OCS must prove by clear and convine-ing evidence that there is good cause to deviate from ICWA § 1915(a)'s adoptive placement preferences." Implicit in this holding is the understanding that before the court entertains argument that there is good cause to deviate from § 1915(a)'s preferred placements, it must searchingly inquire about the existence of, and OCS's efforts to comply with achieving, suitable § 1915(a) preferred placements. Contrary to the dissent's suggestion, today's decision has no bearing on OCS's duty to comply with the express purpose of ICWA "to promote the stability and security of Indian tribes and families." We anticipate that our decisions in Tununak I and today will highlight the importance of OCS identifying early in a CINA case all potential preferred adoptive placements, and the importance of a person claiming preferred placement filing a petition for adoption, in order to effectuate Congress's intent "to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society," v. CONCLUSION Because we are bound to follow the United State Supreme Court's decision in Baby Girl, and because no one but the Smiths formally sought to adopt Dawn, we AFFIRM the superior court's grant of the adoption and VACATE Tununak I's prior order for a renewed good cause hearing in the underlying placement matter. The remainder of our opinion in Tununak I is unaffected by our decision today. WINFREE, Justice, dissenting. . We use pseudonyms to protect the privacy of the parties involved. . Native Vill. of Tununak v. State, Dep't of Health & Social Servs., Office of Children's Servs., 303 P.3d 431, 433 (Alaska 2013) (Tununak I ). . Id. . 25 U.S.C. § 1901-1963 (2012). . Tununak I, 303 P.3d at 433. . 25 U.S.C. § 1915(a). . Tununak I, 303 P.3d at 433. . Id. at 434-35. . Id. at 435. . Id. . Id. . Id. at 435-39. . Id. at 437-38. . Id. at 439-40. . Id. at 440. , Id. at 434, 440. . Id. at 440 n. 10. . Id.; see also Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012) (staying sua sponte the adoption appeal pending the resolution of the adoption placement appeal). . Tununak I, 303 P.3d at 431. . Id. at 453. . Id. at 446-49. . Id. at 453. . Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012); Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, June 21, 2013) (ordering briefing on whether the stay of the adoption appeal should continue following the court's issuance of its opinion in the adoption placement appeal). , - U.S. -, 133 S.Ct. 2552, 186 L.Ed.2d 729 (2013). . Id. at 2564. The dissent argues that this portion of the opinion was dicta. We disagree. While "statements of a legal rule set forth in a judicial opinion do not always divide neatly into 'holdings' and 'dicta,' " Parents Involved in Cnty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 831, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (Breyer, J., dissenting), in this case, the Court's Baby Girl opinion is divided into distinct sections considering three discrete subdivisions of ICWA: § 1912(f), 1912(d), and 1915(a). See Baby Girl, 133 S.Ct. at 2557. The Court's discussion of § 1915(a) is succinct and its holding unequivocal, id. at 2564-65, and we apply it to the facts of the present appeal. . Native Vill, of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Oct. 7, 2013) (ordering briefing and oral argument on the effect of Baby Girl on the adoption case). . Baby Girl, 133 S.Ct. at 2564. . Tununak I, 303 P.3d at 433. . Id. . That rule states: Except to the extent otherwise directed by order or rule, [a tribe that has intervened in the proceedings] shall, without awaiting a discovery request, provide to other parties the following information, excluding any privileged material: . . names and contact information for extended family of the child, a list of potential placements under . § 1915, and a summary of any tribal services or tribal court actions involving the family. Unless otherwise directed by the court, these disclosures shall be made within 45 days of the date of service of the petition for adjudication, or for tribes, the date of the order granting intervention. A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. . Tununak I, 303 P.3d at 433. . Id. at 433-34. . Id. at 434. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. at 434-35. . Id. at 435. . Id. . Id. . Id. . Id. . Id. at 443. . Id. . Id. at 444. . Id. at 437-38. . Id. . Id. at 438. . Id. (internal quotation marks omitted). . Id. . In its briefing to us the Tribe conceded that no court petition was filed. . Id. at 439. . Id. . Id. . Id. . Id. at 439-40. . Id. at 440. . Id. . Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, Nov. 29, 2012). . Tununak I, 303 P.3d at 431. . Id. at 453. . Id. , Id. at 452-53. . Native Vill. of Tununak v. State, OCS, et al., No. S-14670 (Alaska Supreme Court Order, June 21, 2013). . Baby Girl, 133 S.Ct. 2552, 2564 (2013). . Id. at 2558. . Id. . Id. . Id. . Id. . Id. . Id. at 2558-59. . Id. at 2559; Adoptive Couple v. Baby Girl, 398 S.C. 625, 731 S.E.2d 550, 555-56 (2012) (Adoptive Couple) (indicating that the trial took place from September 12-15, 2011, when Baby Girl was roughly two years old), reh'g denied, (Aug. 22, 2012), cert. granted, - U.S. -, 133 S.Ct. 831, 184 L.Ed.2d 646 (2013), and rev'd, - U.S. -, 133 S.Ct. 2552, 186 L.Ed.2d 729 (2013). . Adoptive Couple, 731 S.E.2d at 552. . Id. at 552, 561. . Baby Girl, 133 S.Ct. at 2556. . Id. at 2564. . Id. . Id. . Native Vill. of Tununak v. State, OCS, et al., No. $-14670 (Alaska Supreme Court Order, Oct. 7, 2013). . Doe v. State, Dep't of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004). . State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 167 P.3d 64, 68-70 (Alaska 2007) (applying de novo review to § 1983 claims as a matter of federal law). . West v. Buchanan, 981 P.2d 1065, 1066 (Alaska 1999) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Doe, 92 P.3d at 402. . 25 U.S.C. § 1915(a) (emphasis added). . 25 U.S.C. § 1903(F)(iv) (emphasis added). . Baby Girl, 133 S.Ct. 2552, 2557 (2013). . Id. at 2564. . Id. . Id. at 2565. . Id. . Id. . Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). . See Baby Girl, 133 S.Ct. at 2564-65. The dissent points out that Baby Girl did not consistently use the word "hold" in its summary of the three central holdings in the case; instead, the Court stated: [Whe hold that 25 U.S.C. § 1912(f) . does not apply when, as here, the relevant parent never had custody of the child. We further hold that § 1912(d) . is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that § 1915(a) . does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court's judgment and remand for further proceedings. Id. at 2557 (emphasis added). Contrary to the dissent's argument, we do not agree that the Court's use of the word "clarify" as opposed to "hold" when addressing § 1915(a) "leaves room for states to determine under their own adoption procedures when an eligible candidate has come forward such that the preferences should be applied." Our cases often use the word "clarify" to signal a holding. For example, in Bruce L. v. W.E., 247 P.3d 966, 976 (Alaska 2011), we stated: At first blush A.B.M. [v. M.H., 651 P.2d 1170 (Alaska 1982)] seems to mandate a reversal of the trial court's determination that Timothy is not an Indian child because the Eberts' concessions to the contrary throughout the proceedings should constitute judicial admissions. But given our subsequent case law defining the limitation of judicial admissions to purely factual matters and our discussion here regarding the nature of membership or eligibility for membership in a tribe, we clarify that the holding of A.B.M. is limited to precluding the adoptive parents from arguing a new position on appeal contrary to a position they had taken in the superior court on an issue not raised to or decided by that court. {emphasis added) (footnote omitted). See also Griswold v. City of Homer, 252 P.3d 1020, 1027 (Alaska 2011) ("We therefore clarify that where the superior court acts as an intermediate appellate court . its opinion or decision on appeal is the 'judgment' to which [the applicable appellate rule} refers." (emphasis added)); Husseini v. Husseini, 230 P.3d 682, 688 (Alaska 2010) ("We take this opportunity to elaborate on our holding in [a prior casel.... [Whe clarify that the trial court's decision to order the sale of a marital asset prior to the final property decision must be accompanied by factual findings that demon strate the exceptional circumstances justifying such a sale and that specifically articulate the grounds upon which the order for sale is based." (emphasis added)); Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1249-50 (Alaska 1995) ('[Wle clarify that the test presented in {our prior case], is still applicable . [and] 'a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury.'" (emphasis added) (citation omitted)). We conclude that the dissent's "reliance on words, phrases, and quotations" over substantive legal conclusions in this case confuses dicta from the Court's actual holding. Judith M. Stinson, Why Dicta Becomes Holding and Why It Matters, 76 Brook. L.Rev. 219, 222 (2010). The Supreme Court, as the ultimate arbiter of federal law, has counseled that "unless we wish anarchy to prevail within the . judicial system, a precedent of this Court must be followed by the lower . courts [on issues of federal law] no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). Baby Girl compels today's result. . Adoptive Couple v. Baby Girl, 404 S.C. 483, 746 S.E.2d 51, 52-53 (2013) (footnote and citation omitted) (emphasis added), petitions for reh'g denied, 404 S.C. 490, 746 S.E.2d 346 (2013), stay denied, - U.S. -, 134 S.Ct. 32, - L.Ed.2d - (2013). . 490 U.S. 30, 34, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). , Id. at 49-51, 109 S.Ct. 1597 (discussing how Congress subjects non-Indian family placements ° of young Indian children to ICWA's "jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents" (emphasis added)). . Id. at 37, 109 S.Ct. 1597. In Holyfield a petition for adoption was filed for twin babies whose parents were enrolled members of the Mississippi Band of Choctaw Indians and residents and domiciliaries of the tribal reservation in Mississippi. Id. The twins were born 200 miles from the reservation, and the parents executed consent-to-adoption forms leading to the adoption of the children by non-Indian adoptive parents. Id. at 37-38, 109 S.Ct. 1597. The tribe moved to vacate and set aside the decree of adoption. Id. at 38, 109 S.Ct. 1597. The Supreme Court held the children were "domiciled" on the reservation within the meaning of ICWA's exclusive tribal jurisdiction provision even though they were never physically present on the reservation themselves, and the trial court was without jurisdiction to enter the adoption decree even though the children were "voluntarily surrendered" for adoption. Id. at 48-51, 109 S.Ct. 1597. . Id. at 49, 109 S.Ct. 1597. . Id. at 51, 109 S.Ct. 1597. . Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995) (citing In re F.P., 843 P.2d 1214, 1215 n. 1 (Alaska 1992)). . McCaffery v. Green, 931 P.2d 407, 415 (Alaska 1997) (Rabinowitz, J., dissenting) (quoting 1B James W. Moore et ar, Moore's Practice § 0.402[1], at 1-10 (2d ed.1996)) (internal quotation marks omitted). . Tununak I, 303 P.3d 431, 433 (Alaska 2013). . Id. at 433-34. . Id. at 434. . I4. . Id. . Id. . See id. at 435. . Id. at 435, 437-38. . Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 856 (Alaska 2013). . Baby Girl, 133 S.Ct. 2552, 2558-59 (2013). . Id. at 2559. . Id. . Id. at 2564 (emphasis in original). . Id. at 2565 ("Nor do § 1915(a)'s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child."). . Id. at 2564. . Id. at 2565. . CINA Rule 8(c)(7). . Baby Girl, 133 S.Ct. at 2564. . See Curisting P. Costantakos, JuventLe Court Law & Practice § 13:12 (2013). . Id. (emphasis added). . Tununak I, 303 P.3d 431, 450 (Alaska 2013). . D.J. v. P.C., 36 P.3d 663, 677 (Alaska 2001) (internal quotation marks omitted) (citing 25 U.S.C. § 1902). . Tununak I, 303 P.3d at 441-42 (citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)). Additionally, as the dissent acknowledges, § 1915(e) requires OCS to document its "efforts to comply with the order of preference specified in [§ 1915(a)]" when such a placement is made following a properly filed petition. We expect that the superior court will carefully and actively scrutinize OCS's efforts in identifying potential adoptive placements and complying with its obligations under § 1915(a) and our case law.

6915259

Thomas E. KYTE, Appellant, v. Deidre L. STALLINGS and State of Alaska, Department of Revenue, Child Support Services Division, Appellees

Kyte v. Stallings

2014-09-19

No. S-14492

697

701

334 P.3d 697

334

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Thomas E. KYTE, Appellant, v. Deidre L. STALLINGS and State of Alaska, Department of Revenue, Child Support Services Division, Appellees.

Thomas E. KYTE, Appellant, v. Deidre L. STALLINGS and State of Alaska, Department of Revenue, Child Support Services Division, Appellees. No. S-14492. Supreme Court of Alaska. Sept. 19, 2014. Rhonda F. Butterfield, Anchorage, for Appellant. Susan L. Daniels, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska. No appearance by Appellee Deidre L. Stallings. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

1892

11442

OPINION MAASSEN, Justice. I. INTRODUCTION In this appeal, a father argues that he was entitled to a retroactive modification of his child support obligations. He contends that a request for modification he filed in 2008 with the Child Support Services Division (CSSD) was never resolved by a final, ap-pealable decision as required by Alaska Appellate Rule 602; that the request was therefore still pending in 2011 when he filed a motion for modification in superior court; and that modification to the date of his 2008 request would not be unlawfully retroactive. We conclude, however, that CSSD's decision of the father's 2008 request was an appeal-able final order satisfying Appellate Rule 602, and we therefore affirm the superior court's conclusion that the father is not entitled to a retroactive modification of child support. II. FACTS AND PROCEEDINGS Thomas Kyte and Deidre Stallings are the parents of a daughter, born in 2002. CSSD entered an administrative order in 2005 requiring Kyte to pay child support of $576 per month, based on his estimated annual income. Stallings later moved that child support be made retroactive to 2002, and Kyte moved for a prospective modification; the superior court denied both motions in a 2007 order that maintained the monthly amount set by the earlier administrative order. In January 2008 Kyte filed with CSSD a form request for review and modification of the 2007 order. A few weeks later CSSD sent Kyte and Stallings notice that the request had been filed, describing the review process and asking both parents to submit income affidavits, tax records, pay stubs, and proof of health insurance. The next document in the record is central to this appeal. It is a notice from CSSD to Kyte dated May 8, 2008, captioned in bold letters: "Notice of Denial of Modification Review." The body of the notice reads: We reviewed the request for a modification on May 8, 2008. We will not go forward with the modification for the following reason(s): (X) OTHER: Requesting party (non-custodial parent) did not provide Child Support Guidelines Affidavits, IRS returns, W-2's, pay stubs or proof of insurance. If you disagree with this decision, you must file an appeal in an Alaska court within 30 days of the date this Notice was mailed. There is no administrative appeal process for this decision. The notice is signed by a CSSD child support manager. Nothing in the record indicates a response to this notice from either party. Over three years later, in June 2011, Kyte filed a motion in superior court, seeking to modify his child support obligation because of a serious hip injury and consequent reduction in his income. He asked for modification both prospectively and retroactively to March 2008. Recognizing that retroactive child support modifications are generally not allowed, Kyte asserted in his motion that his January 2008 request for modification still remained open; he contended that CSSD's notice of denial did not constitute a valid final order under Alaska Appellate Rule 602(a)(2) CSSD intervened in the court proceeding in order to address the issue of retroactive modification; Stallings did not participate. The superior court denied Kyte's request for retroactive modification, finding that CSSD's May 2008 denial notice was a final order from which Kyte could have appealed. Kyte appeals from the superior court's order. CSSD again intervenes as an appellee; Stall-ings again does not participate. III. STANDARD OF REVIEW "We interpret Appellate Rule 602 de novo. In so doing "[wle adopt 'the rule of law most persuasive in light of precedent, reason, and policy' " IV. DISCUSSION . Alaska law prohibits retroactive modification of child support orders; the parent's obligation can be changed only prospectively. Accordingly, a court may not modify a child support order retroactively to any date before the day a motion to modify the order was filed. Kyte's appeal relies on a narrow exception to this rule derived from the language of Appellate Rule 602(a). The rule addresses the time for taking appeals; discussing appeals from the decisions of administrative agencies specifically, Rule 602(a)(2) provides in relevant part that "[the 30-day period for taking an appeal does not begin to run until the agency has issued a decision that clearly states that i#t is a final decision and that the claimant has thirty days to appeal." (Emphasis added.) In Paxton v. Gaviak, we held that once CSSD had commenced a review of the father's child support obligations, the agency's "failure to send [the father] a closure letter satisfying Appellate Rule 602 had the consequence of keeping its review file open." Because CSSD failed to close the file with a final, appealable decision denying relief, the father's child support modification request in superior court could relate back to the date of his earlier agency petition-still technically pending. Kyte argues that the same rule governs his case. He argues that CSSD never closed the file on his January 2008 modification request with a final, appealable order that satisfied Appellate Rule 602(a)(2), and that he should be permitted a modification of child support retroactive to March 2008, resulting in a significant reduction in the past-due amounts he owes under the 2007 order. We reject Kyte's argument, concluding, as the superior court did, that CSSD's notice satisfied Appellate Rule 602(a)(2). To be effective as a final order, a notice must "clearly indicate" both requirements identified in the rule: (1) that the decision is final and (2) that an appeal must be filed within 30 days. We have held that "where an administrative agency's decision is communicated in a letter that fails to do either of these things, it is an abuse of discretion not to relax Rule 602(a)(2)'s thirty-day appeal deadline." In Paxton, letters issued by the agency failed to meet either requirement. Not only did they fail to inform the father that the ageney had made its final decision or that he had 80 days to appeal, they also contained "dramatically erroneous information," including notice that he was "in substantial compliance with his child support order." We concluded that the father's confusion and his failure to timely appeal to the superior court were reasonable under the circumstances. We held that a modification of his child support obligation to the date CSSD issued its notice of petition would not be retroactive. Unlike the father in Paxton, Kyte necessarily concedes that he was notified of his 30 days to appeal, as that fact is expressly stated in the closing paragraph of CSSD's notice. He argues, however, that the letter failed to satisfy the first, more fundamental requirement of Rule 602-that it clearly convey that the agency decision is final. Kyte's main quarrel with the letter is that it does not include the word "final" or a synonym of it. But while use of the word "final" may well add clarity, we have never required the word itself, only that finality be "clearly indicate[d]." Rule 602 requires that the agency notice "clearly state[] that it is a final decision." Although form is important, whether a decision clearly is final depends more on its "substance and effect," as shown by "the operational or decretal language" it uses. There is no question here that CSSD was giving Kyte notice of its final decision. The notice is clear, written in non-technical language, and contains at least three express indications of finality. First, the notice is captioned, "Notice of Denial of Modification Review," clearly stating in bold letters that the agency has decided to deny Kyte's request. Second, the notice states, "We will not go forward with the modification," giving its reasons (here, a lack of supporting doeu-mentation). Finally, the notice concludes by informing Kyte that "(there is no administrative appeal process for this decision," and that if he disagrees with it he "must file an appeal in an Alaska court within 30 days of the date this Notice was mailed." Taken as a whole, CSSD's notice clearly conveys to a reasonable reader that the agency's involvement with Kyte's request for modification is done-final-and any further action, such as "an appeal in an Alaska court," is up to him. The cases on which Kyte relies are inappo-site. The import of the agency notice in this case was unmistakable: CSSD's denial of his request for modification was its final action, and any further review had to be pursued in court within 80 days. The superi- or court correctly ruled that Kyte was not entitled to a retroactive modification of his child support obligations based on his 2008 request. v. CONCLUSION We AFFIRM the order of the superior court. . The modification Kyte sought in his January 2008 request would have had an effective date of March 1, 2008, had it been granted. . State, Dep't of Natural Res. v. Nondalton Tribal Council, 268 P.3d 293, 299 (Alaska 2012) (citing Stone v. State, 255 P.3d 979, 982 (Alaska 2011)). . Stone, 255 P.3d at 982 (quoting Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)). . Alaska R. Civ. P. 90.3(h)(2); Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013); see also 42 U.S.C. § 666(a)(9) (2012). . Alaska R. Civ. P. 90.3(h)(2); see Swaney, 297 P.3d at 136. . 100 P.3d 7, 12 (Alaska 2004). . Id. . Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993). . Paxton, 100 P.3d at 12 (quoting id.) (internal quotation marks and alteration omitted). . Id. . Id. (internal quotation marks omitted). . Id. . Id. . The letter's last paragraph includes this line: 'If you disagree with this decision, you must file an appeal in an Alaska court within 30 days of the date this Notice was mailed." . Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993). . Alaska R.App. P. 602(a)(2). . Matanuska Maid, Inc. v. State, 620 P.2d 182, 184-85 (Alaska 1980). . Carlson v. Renkes, 113 P.3d 638, 642 (Alaska 2005) (holding 30-day appeal period had not begun to run where letter did not state that it was a final decision or advise Carlson of his right to appeal within 30 days); Skudrzyk, 856 P.2d at 463 (relaxing 30-day appeal requirement where the letter "neither indicated that [the] decision was the final order in Skudrzyk's tenure review nor advised Skudrzyk that he had thirty days to appeal"); Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1124 (Alaska 1993) (relaxing 30-day appeal requirement where it was possible Manning had never received the decision letter, and "[the letter did not indicate it was an order, or that it was a final order, or that Manning had only thirty days to appeal from it"); Owsichek v. State, Guide Licensing & Control Bd., 627 P.2d 616, 622 (Alaska 1981) (allowing delay in filing where Owsichek was not notified by the agency "that the letter was its final order and that he could appeal from it, but only if he did so within the next thirty days").

10409559

Danaan SMITH, Appellant, v. The ESTATE OF Donald Gene PETERS a/k/a James A. Ball, Appellee

Smith v. Estate of Peters

1987-09-04

No. S-1526

1172

1175

741 P.2d 1172

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Danaan SMITH, Appellant, v. The ESTATE OF Donald Gene PETERS a/k/a James A. Ball, Appellee.

Danaan SMITH, Appellant, v. The ESTATE OF Donald Gene PETERS a/k/a James A. Ball, Appellee. No. S-1526. Supreme Court of Alaska. Sept. 4, 1987. Martin Friedman, Homer, for appellant. Gregory C. Taylor, Jermain, Dunnagan & Owens, P.C., Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1621

9535

OPINION MATTHEWS, Justice. This is an appeal from the superior court's disposition of the estate of Donald Gene Peters, also known as James A. Ball. Peters died unmarried and intestate on July 18, 1984. He was survived by two heirs, a brother and a sister, who were awarded the right to inherit Peters' entire estate under Alaska's intestacy statute, AS 13.11.015(3). The appellant Danaan Smith objects to this distribution based on a letter bequeathing $10,000 to her. The issue is whether Smith's bequest was extinguished by ademption during Peters' lifetime. I. FACTS AND PROCEEDINGS In 1971, Peters made a bequest of $10,-000 to Danaan Smith, the granddaughter of a close friend. In letter form he wrote: In the event of my demise, I request that a large portion of my estate (namely $10,000) be used for the express purpose of paying Danaan Smith's educational expenses.... Assets to cover said above statement are currently held by 1st [Njational Bank of [AJnehorage & Foster & Marshall Inc. [Ajnchorage. During the years between the signing of this letter and his death, Peters made substantial changes in his financial holdings. Peters closed the Foster & Marshall account, sold the stock contained in it and loaned the proceeds to his sister. He closed the account at the First National Bank as well and transferred the funds to a different institution. At the time of his death Peters held less than $2,000 in any financial institution. The bulk of his estate was invested in personal property which was not traced to the two relevant accounts. Smith submitted the letter bequest to Peters' estate following his death. Peters' brother and sister objected to Smith's claim, arguing that Peters intended to adeem the Smith bequest when he closed the accounts at the First National and Foster & Marshall. The administratrix petitioned the court for a determination of heirship and distribution on October 9, 1985. The probate master recommended that Smith's claim be denied. The superior court accepted the master's recommendations. In this appeal Danaan Smith contends that the bequest was demonstrative rather than specific and that it could not be extinguished by ademption. We agree that the bequest was demonstrative and remand for further proceedings. II. DISCUSSION Legacies are usually classified as general, demonstrative, or specific. In re Boice's Estate, 209 Or. 521, 307 P.2d 324, 325 (1957). A demonstrative legacy is a sum of money or some other certain quantity that is to be satisfied out of a particular fund or property. It differs from a specific legacy in that it remains payable even if the designated fund fails, so long as the estate contains other property which is not specifically bequeathed or devised and which is sufficient to satisfy the gift. 6 W. Bowe and D. Parker, Page on Wills § 48.7, at 27 (rev. ed. 1962) (hereafter "Page on Wills "); T. Atkinson, Law of Wills § 132, at 734-35 (2d ed. 1953) (hereafter "Law of Wills"). A specific legacy is a gift of a particular item or a sum of money from a particular source, which can be satisfied only by delivery of the specific item. 6 Page on Wills § 48.4, at 15-16, § 48.8 at 27-28; Law of Wills § 132, at 732. If the testator disposes of the specific item or if it is destroyed during his lifetime, the legacy is completely extinguished and is said to be adeemed. Id. Whether a legacy is demonstrative or specific is a question of the testator's intent, determined by the language of the devise, the language of the will as a whole, and the circumstances existing at the time of the will's execution. In re Boice's Estate, 307 P.2d at 326, citing 57 Am. Jur. Wills § 1405, at 939. Because the testator's intent is a question of fact, the trial court's decision to label a legacy as demonstrative or specific will not be set aside unless it is clearly erroneous. Alaska R.Civ.P. 52(a). In this case we believe that the superior court's finding of a specific bequest was clearly erroneous. The evidence shows that Peters intended to bequeath a demonstrative gift to Smith, one which could be satisfied from the general assets of his estate in the event that the designated accounts were destroyed. The bequest begins by stating that "a large portion of my estate" should be used to pay Smith's college expenses. This indicates an intent to encumber Peters' entire estate with the gift. The note then provides that "[a]ssets to cover [the $10,000 bequest] are currently held by the 1st [Njational Bank of [A]nchorage & Foster & Marshall Inc. [A]nchorage." The phrase "currently held by" implies that assets to cover the bequest may be found at another location at a later date. Our decision on this matter is based in part on analogous bequests which order the estate to pay a bequest "out of" a designated source. Such bequests are commonly construed to designate a primary but not an exclusive source of payment. In other words, they are viewed merely as a direction to satisfy the bequest out of the designated source first, before other sources are tapped. Even when there is no language indicating an intent to burden the entire estate with the bequest, courts tend to imply such an intent, unless the testator provides explicit language to the contrary. In re Boice's Estate, 307 P.2d at 326. In order to prevent the unintended destruction of a gift, courts are inclined to resolve doubts in favor of the demonstrative rather than the specific bequest. 6 Page on Wills § 54.1, at 735; Law of Wills § 132, at 134-35. Here we see no explicit language indicating that the $10,000 bequest to Danaan Smith was to be satisfied only from the monies remaining in the First National Bank and Foster & Marshall accounts at the time of Peters' death. We therefore hold that the gift was not destroyed when the two accounts were closed. We will construe a bequest so as to give effect to the testamentary document that the decedent left behind if such a construction is reasonable. Wills should be construed to avoid intestacy whenever possible. Drach v. Ely, 237 Kan. 654, 703 P.2d 746, 749 (1985); New Mexico Boys Ranch, Inc. v. Hanvey, 97 N.M. 771, 643 P.2d 857, 859 (1982). Here, we find that it is reasonable and necessary to construe the letter bequest to Smith as a demonstrative bequest in order to effect the testator's intent. REVERSED and REMANDED for further proceedings consistent with this opinion. . Peters' only child, an illegitimate daughter, had been adopted in New York in 1961 by another man. The master found that the child was not entitled to inherit under the laws of New York or Alaska. . Alaska Statute 13.11.015(3) distributes the intestate's estate to the issue of his parents when he dies without surviving spouse, issue, or parent. . Compare Estate of Stalnaker, 330 Pa.Super. 399, 479 A.2d 612, 613-14 (1984), where the testator requested that $30,000 "be re-apportioned from my estate" to the legatee. The language was found to indicate an intent to hold the testator's entire estate liable for the legacy. Testator's subsequent direction to pay the sum "from insurance monies" was only "an indication of a convenient source for satisfying such legacy." Id. at 615. In light of the testator's opening language, it would not be viewed as the sole source of the legacy. . See Lavender v. Cooper, 248 Ga. 685, 285 S.E.2d 528, 529-30 (1982) (bequest of $8,000 to be paid from a jointly owned savings certificate was a demonstrative gift which could be satisfied by a different certificate of the same amount); Norton-Children's Hospitals v. First Kentucky Trust Co., 557 S.W.2d 895 (Ky.App.1977) (several large bequests to be paid out of a particular fund were found to be demonstrative rather than specific); In re Boice's Estate, 209 Or. 521, 307 P.2d 324, 326 (1957) (a bequest to pay $2,000 out of proceeds from sale of real property did not fail when proceeds proved insufficient to satisfy the full bequest). . Appellees have provided us with only one case which implied a specific bequest in the absence of explicit language. Hart v. Brown, 145 Ga. 140, 88 S.E. 670, 671-72 (1916), held that legacies of $3,000 with the bank of I.C. Plant's Son, and $2,000 in the Exchange Bank were specific gifts of these accounts, rather than gifts of the named sum of money. . Compare the following specific bequests. Williamson v. Merritt, 257 Ark. 489, 519 S.W.2d 767, 768-69 (1975) (bequest of "my savings account in First Federal Savings and Loan" was specific gift of the account); In re Estate of Brown, 145 Ind.App. 591, 252 N.E.2d 142 (1969) (legacy of "all my right, title and interest in and to the estate of' a deceased brother was a specific gift of the estate proceeds); Estate of Biss, 232 Or. 26, 374 P.2d 382 (1962) (bequest of "all monies I may have in my account at the Klamath Agency" was a specific gift of the account); Willis v. Barrow, 218 Ala. 549, 119 So. 678, 679-80 (1929) (bequest of all money on deposit in one bank, and a fraction of the money on deposit in another, was a specific gift of the bank accounts). Each case involves the explicit and unmistakeable bequest of the account itself, rather than a sum of money to be satisfied primarily out of a designated account.

10560249

Charles ETHEREDGE, on his own behalf and on the behalf of all others similarly situated, Petitioner, v. Lois BRADLEY, Clerk of the District Court for the State of Alaska, Third Judicial District, Respondent

Etheredge v. Bradley

1971-02-08

No. 1399

414

417

480 P.2d 414

480

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:43.589564+00:00

CAP

Before BONEY, C. J., and Dl'MOND, RABINOWITZ, CONNOR and ERWIN, JJ.

Charles ETHEREDGE, on his own behalf and on the behalf of all others similarly situated, Petitioner, v. Lois BRADLEY, Clerk of the District Court for the State of Alaska, Third Judicial District, Respondent.

Charles ETHEREDGE, on his own behalf and on the behalf of all others similarly situated, Petitioner, v. Lois BRADLEY, Clerk of the District Court for the State of Alaska, Third Judicial District, Respondent. No. 1399. Supreme Court of Alaska. Feb. 8, 1971. G. E. Stein, Alaska Legal Services Corp., Anchorage, for petitioner. G. Kent Edwards, Atty. Gen., Juneau, B. Richard Edwards, Asst. Atty. Gen., Anchorage, for respondent. Before BONEY, C. J., and Dl'MOND, RABINOWITZ, CONNOR and ERWIN, JJ.

1650

9747

OPINION ERWIN, Justice. This is a petition for review of an interlocutory order issued by Judge Moody on October 28, 1970. It arises out of a class action against Lois Bradley in her capacity as Clerk of the District Court, in which plaintiff alleges that Alaska Civil Rules 88 and 89, which prescribe certain procedures followed by defendant and others in prejudgment attachments and seizures of property, are unconstitutional under the rule of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In a separate action brought by one of his creditors, Etheredge's bank account, which he claims consisted entirely of monies paid to him as wages, was attached. No notice was given him of this attachment, nor was any hearing held. Etheredge therefore brought this' action to enjoin the enforcement of Rules 88 and 89, and for a declaratory judgment of their unconstitutionality, on his own behalf and on the behalf of all others similarly situated. The State of Alaska filed a motion to require Etheredge to post a cost bond as required by AS 09.50.260 in "an action against the state." The motion was granted, and Judge Moody issued the above-mentioned order, by which Etheredge was required to post a $750 bond, and further proceedings were stayed until the bond was filed. Etheredge argues that AS 09.50.260 does not apply to him in this case for two reasons: (1) § 260 applies only to actions brought under the section immediately preceding, § 250; the case at bar is not such an action. (2) § 260 applies by its terms only to "an action against the state"; this is not such an action. SHOULD REVIEW BE GRANTED The initial problem posed by this case is whether review should be granted of the interlocutory order of the trial court. An examination of this case convinces us that the problem poses an important question of law which demands an immediate answer under both Supreme Court Rules 23 and 24. The order in effect deprives a substantial portion of our society of the right to challenge unconstitutional actions of state officers ánd may terminate their legal redress for the sole reason of indigency. A delay in determining the legality of this order will serve to chill criticism of action by public officers in other cases and may perpetuate the very conduct questioned in this case, without an opportunity to obtain a determination of the constitutional question presented. Unless petitioner is afforded a remedy, the questioned conduct of wage attachment without notice or prior hearing will continue unchecked, because it is required by the Rules of Civil Procedure. THE MERITS The petitioner is correct in his belief that AS 09.50.260 does not apply to him, and both of the arguments which he advances in support of that proposition are true. With respect to the first, the present statute does not require a bond in a case to prohibit unconstitutional action by a public official or to challenge the constitutionality of a statute or rule. The original stat ute was quite broad in form. It was amended in 1965 to provide as follows: Sec. 09.50.250. Actionable claims against the state. A person or corporation having a contract, quasi-contract, or tort claim against the state may bring an action against the state in the superior court. A person who may present his claim under AS 44.77.010-44.77.060 may not bring an action under this section except as set out in AS 44.77.040(c). However, no action may be brought under this section if the claim . Section 260 requiring a bond refers to Section 250 which refers to persons having a contract, quasi-contract or tort action against the state. There is nothing said about requiring a bond by persons having actions against particular state officials because of unconstitutional actions or to test the constitutionality of a statute or rule. We find the absence of specific limitation as to these actions controlling in the present case. Additionally, the rule is well established that an action to enjoin a state officer from enforcing a statute or regulation which is alleged to be unconstitutional is not an action against the state for the purpose of sovereign immunity, nor is an officer acting unconstitutionally acting "by authority of the state." Further, it has been established that suits to enjoin the actions of state officers can be brought in the area where the act occurs rather than in the state capital under statutes requiring any suit against the state to be brought in the court of the county where each capital is located. It thus clearly appears from the allegations of the complaint and the nature of this particular action that this is not an action against the state and would not come within the purview of any statute requir-ing a bond to be filed in actions against the state. The order of the Superior Court requiring the filing of a bond is reversed and the casé is remanded to the Superior Court with instructions to dissolve the stay order and to consider the case on the merits. . It appears in this ease that the requirements of Sup.Ct.R. 24(1), (2) and (3) are all present herein. . The State of Alaska in its brief has cited two additional cases recently where the Superior Court has ordered a bond filed in actions to contest unconstitutional actions of various state officials. . Cf. Hanby v. State, Alaska, 479 P.2d 486; Levi v. Sexton, 439 P.2d 423 (Alaska 1968); State v. Hillstrand, 352 P.2d 833 (Alaska 1960); City of Fairbanks v. Schaible, 352 P.2d 129 (Alaska 1960). . AS 09.50.250-09.50.300. . Ch. 101, SLA 1962, sections 26.01 to 26.-06, which were codified as AS 09.50.260, provided as follows: Article XXVI. Tort Claims Against State Sec. 26.01. Actionable Claims against the State. Any person or corporation having a claim against the state may bring an action against the state in the superior court. However, no action may be brought under this section if the claim . . Chapter 30, SLA 1965. . The amendment to the statute was introduced by the Senate Judiciary Committee in response to questions raised by this court in Wright Truck & Tractor Service, Inc. v. State, 398 P.2d 216 (Alaska 1965) in order to specifically spell out "exactly what claims could be brought against the state under these sections [AS 09.50.250-.300]." 1965 House Journal 313. . The leading federal case on the subject appears to be Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 454, 52 L. Ed. 714, 729 (1908), in which the court stated: The answer to all this is the same as made in every case where an official claims to be acting under the authority of the state. The act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States. A 1926 annotation on the subject at 43 A.L.R. 408 cites cases from 14 jurisdictions in support of this general rule; the federal citations alone occupy approximately two full columns of print, commencing with Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). .Century Distilling Co. v. Defenbach, 61 Idaho 192, 99 P.2d 56, 59 (1940); Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 482 (1937); Wisconsin Fertilizer Ass'n v. Karns, 39 Wis.2d 95, 158 N.W.2d 294, 296-97 (1968). . In State ex rel. Robinson v. Superior Court, 82 Wash. 277, 46 P.2d 1046 (1935), it was held that a suit to enjoin the State Director of Agriculture from enforcing regulations promulgated under an unconstitutional statute was not an action against the state, and thus need not be brought in Thurston County, the seat of state government. In support of this conclusion, the court cited at page 1048 a number of sovereign immunity cases, leading off with Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714, 729 (1908). Accord, Wiegardt v. Brennan, 192 Wash. 529, 73 P.2d 1330, 1331 (1937) (statute regulating clam digging alleged unconstitutional; suit against director of fisheries). Some of the cases indicate that the dividing line is the point at which the state, if the judgment is adverse, would be substantially affected rather than the particular officer. State ex rel. Fleming v. Cohn, 12 Wash.2d 415, 121 P.2d 954, 958 (1942). See also Deaconess Hospital v. State Highway Comm'n, 66 Wash.2d 378, 403 P.2d 54 (1965) for an explanation of where the state rather than its officers and agents might be the proper party.

10401622

Joseph N. BARCOTT, Appellant, v. STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee

Barcott v. State, Department of Public Safety

1987-08-14

No. S-1692

226

230

741 P.2d 226

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Joseph N. BARCOTT, Appellant, v. STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee.

Joseph N. BARCOTT, Appellant, v. STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee. No. S-1692. Supreme Court of Alaska. Aug. 14, 1987. Rehearing Granted and Opinion Amended Sept. 11, 1987. Joseph N. Barcott, in pro. per., Anchorage, for appellant. Teresa Williams, Asst. Atty. Gen., Ronald W. Lorenson, Acting Atty. Gen., Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2082

13025

OPINION COMPTON, Justice. Barcott appeals from a Department of Public Safety ("department") decision to suspend his driver's license. The department's decision was based on an Intoxime-ter 3000 breath test administered to Bar-cott shortly after his arrest for driving while intoxicated. The test indicated a .10 alcohol level. Barcott asserts that the administrative hearing officer denied him due process of law by refusing to consider evidence of the intoximeter's margin of error. We agree. I. FACTUAL AND PROCEDURAL BACKGROUND Anchorage Police Officer Whitener stopped Barcott for speeding at 1:50 a.m., on August 1, 1985. Officer Whitener detected the odor of alcohol on Barcott's breath and administered several sobriety tests, including a preliminary alcohol breath test which produced a reading of .102% alcohol in the breath sample. Bar-cott was arrested for driving while intoxicated (DWI) and taken to the police station. At 2:23 a.m., Officer Whitener administered an Intoximeter 3000 breath test which produced a reading of .10%. Immediately before administering the test to Barcott, Whitener performed a control test on the machine by introducing an air sample known to contain .103% alcohol. This control test produced a reading of .104%, or .001% higher than the actual alcohol level present in the control sample. Whitener performed a second control test, apparently using the same .103% control sample, one minute after Barcott was tested. This second control test produced a reading of .097%. Based on the intoximeter reading of .10% from Barcott's breath sample, and pursu ant to AS 28.15.165(a), Officer Whitener gave Barcott written notice of the Department's intent to revoke his driver's license. The criminal charge against Barcott for DWI was reduced to careless driving, to which Barcott pleaded no contest. Barcott timely requested administrative review of the civil revocation action. A hearing was held before Hearing Officer Joan Glafke, who affirmed the revocation order, fully revoking Barcott's license for one month and placing limitations on the license for an additional two months. Bar-cott appealed to the superior court, which affirmed, concluding that the hearing officer's decision was supported by substantial evidence, was not arbitrary_or capricious, and was not clearly erroneous. On appeal to this court, Barcott asserts that failing to consider the intoximeter's margin of error was a denial of his constitutional right to due process of law (due process). We agree and reverse the decision below. II. DISCUSSION A. Standard of Review. We review the hearing officer's decision to revoke Barcott's license independently of the superior court, which was acting as an intermediate court of appeal. Jager v. State, 537 P.2d 1100, 1106 (Alaska 1975); State v. Marathon Oil Co., 528 P.2d 293, 298 (Alaska 1974). Since Barcott's constitutional claim presents a question of law, we are not bound by the lower court's decision. Rather, we will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). B. Due Process Requires Consideration of Margin of Error. In an opinion of this court issued after the hearing officer had ruled in this case, we held that the same procedural safeguards apply in civil driver's license revocation proceedings for driving while intoxicated as apply in criminal prosecutions for that offense. Champion v. Department of Public Safety, 721 P.2d 131, 133 (Alaska 1986). This court stated: A driver's license is an important property interest, and the driver has a constitutional right to a meaningful hearing before the state can suspend his license. As in a criminal prosecution for driving while intoxicated, the breath test is of central importance in the administrative license revocation proceeding. The ability of the defendant to evaluate these tests is critical to his ability to present his case. To deny a driver a reasonable opportunity to test the reliability and credibility of the breath test is to deny him a meaningful and fundamentally fair hearing. Id. at 133 (citations and footnote omitted). The reasoning of Champion leads inescapably to the conclusion that due process requires consideration of the margin of error inherent in the breath testing procedure used in this case. In Champion we held that a defendant has a constitutionally guaranteed right to attack the accuracy of a breath alcohol test by introducing evidence of another test producing an exculpatory result. Id. It would be anomalous to allow such a collateral attack but forbid a direct attack on the test results by pointing to inaccuracies in the pre- and post-subject control tests. In this case, the machine used to test Barcott registered .001% higher than it should have according to the department's own control sample rating. Since Barcott's test result was exactly at the .10% statutorily defined level of intoxication, AS 28.35.030(a)(2), correction of a .001% upward deviation would place Bar-cott's test result below the legal limit, and the breath test could not have served as the basis for revoking Barcott's license. See AS 28.15.165(a). The state attempts to distinguish Champion on the ground that in this case Bar-cott was given the opportunity to take an independent blood test but chose not to do so. The state apparently is arguing that Champion requires only that the state either preserve the breath sample or offer an independent blood test. This ignores the clear import of Champion that due process requires a "reasonable opportunity to test the reliability and credibility of the breath test." Champion, 721 P.2d at 133. The inherent inaccuracy of the breath test goes directly to this issue. Supporting the conclusion that a test's margin of error should be considered are several criminal cases holding that a defendant's test results on an alcohol blood level test must be above the legal limit after factoring in the test's margin for error. People v. Pritchard, 162 Cal.App.3d Supp. 13, 209 Cal.Rptr. 314, 315 (1984) (holding that machine margin of error must be applied to breath test results before determining whether alcohol level exceeds legal limit); People v. Campos, 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366, 368 (1982) (holding it was error for the trial court to instruct the jury on the statutory presumption that a person with blood alcohol test results of .10% or more was under the influence of alcohol because the margin of error on the test administered to the defendant showed that it was "as likely that the amount of alcohol in defendant's blood was below .10 percent as that it was .10% or more"); State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916, 918-19 (1980) (margin of error in blood alcohol test administered to defendant created reasonable doubt that defendant's blood alcohol content was above the level necessary to invoke the statutory presumption of intoxication); State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839, 840 (1978) ("The Legislature has selected a particular percent of alcohol to be a criminal offense if present in a person operating a motor vehicle. It is not unreasonable to require that the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process."); State v. Prestier, 7 Ohio Misc.2d 36, 455 N.E.2d 24, 27 (1982) ("Every margin of error in a chemical test utilized for the purpose of determining the alcoholic content of the defendant's blood as it addresses his guilt or lack of guilt in operating a motor vehicle while under the influence of alcohol must be strictly construed against the state and liberally construed in favor of the defendant."); State v. Keller, 36 Wash.App. 110, 672 P.2d 412, 414 (1983) (holding that the margin of error in the breathalyzer test should be considered by the trier of fact in deciding whether the evidence sustains a finding of guilt beyond a reasonable doubt); but see State v. Rucker, 297 A.2d 400, 402 (Del.Super.1972) ("The statute does not set up a presumption. It simply makes a blood alcohol concentration of 0.100%, or more, as shown by specified types of tests, an element of the offense.") The state attempts to distinguish these cases on the ground that they all involve criminal prosecutions rather than civil license revocations. In this regard, the state relies on Nugent v. Iowa Department of Transportation, 390 N.W.2d 125 (Iowa 1986), in which the court held: [Different concerns are addressed in civil administrative proceedings. Thus, the criminal cases cited by plaintiff are not controlling in this situation. Id. at 128. We also have recognized the substantive differences between the criminal DWI prosecutions and license revocation proceedings, but nonetheless determined in Champion that any differences did not warrant lower procedural safeguards in the civil revocation proceeding. Champion, 721 P.2d at 133. The state also argues that the legislature presumably was aware of the margin of error in the test but nonetheless created a presumption of intoxication based on a particular test result. There are flaws in this argument. First, the legislature did not approve the Intoximeter 3000 test, it authorized the Alaska Department of Health and Social Services "to approve satisfactory techniques, methods and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis." AS 28.35.033(d). Second, Champion mandates that the defendant in a license revocation proceeding has the constitutionally guaranteed right to challenge the accuracy of the breath test independently. We have thus concluded that due process will not allow the results of a chemical test authorized under AS 28.35.-031(a) to be conclusively presumed accurate. Our decision in Champion is controlling and mandates consideration of the inherent margin of error in any blood alcohol testing procedure which is to serve as the basis for driver's license revocation. Since both the department's own control sample test and the Intoximeter 3000's specifications showed a sufficient discrepancy to bring Barcott's test results below the legal limit, the license revocation pursuant to AS 28.-15.166(g) cannot stand. The decision of the hearing officer is REVERSED and the case is REMANDED to the department for further proceedings consistent with this opinion. . AS 28.15.165(a) provides: If a chemical test administered under AS 28.-35.031(a) to a person driving a motor vehicle for which a driver's license is required produces a result as described in AS 28.35.-030(a)(2) or if a person under arrest for driving a motor vehicle for which a driver's license is required refuses to submit to a chemical test under AS 28.35.031(a), a law enforcement officer shall read a notice [advising inter alia that the department intends to revoke the person's license unless he requests administrative review]. AS 28.35.030 is a criminal DWI statute and provides: (a) 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 (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 millilters of blood, or when there is 0.10 grams or more of alcohol per 210 liters of the person's breath; . . 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 right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed. . In addition, the Intoximeter 3000's specifications indicate an inherent margin of error of plus or minus .01% which also could reduce Barcott's .10% test result below the legal limit. . We also note that requiring the hearing officer to consider the test's margin of error places no additional investigative burden on the state. . Hrncir v. Commissioner, 370 N.W.2d 444 (Minn.App.1985), relied on by the state, is likewise distinguishable. In Hmcir, the court refused to require consideration of test margin of error because "[t]he statute refers to test results showing a blood alcohol concentration of .10 or more, not .10 plus or minus a margin of error." Id. at 445. See also Holstein v. Commissioner, 392 N.W.2d 577, 580-31 (Minn.App.1986) (following Hmcir). Minnesota has no Champion rule equivalent.

10409870

Carlos RODRIQUEZ, Appellant, v. STATE of Alaska, Appellee

Rodriquez v. State

1987-08-07

No. A-228

1200

1210

741 P.2d 1200

741

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Carlos RODRIQUEZ, Appellant, v. STATE of Alaska, Appellee.

Carlos RODRIQUEZ, Appellant, v. STATE of Alaska, Appellee. No. A-228. Court of Appeals of Alaska. Aug. 7, 1987. Sen K. Tan and Michael L. Wolverton, Asst. Public Defenders, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Ronald W. Lorenson, Acting Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

5286

32949

OPINION COATS, Judge. Carlos Rodriquez was convicted of twenty-five offenses, primarily for acts involving lewd and lascivious acts towards children, former AS 11.15.134, and contributing to the delinquency of a minor, former AS 11.40.130. Most of the counts arose from Rodriquez's either participating or attempting to participate in sexual acts with juvenile males. Twelve complainants testified at trial on a total of twenty-eight counts. Most of the complainants described a pattern in which Rodriquez would invite them to his house, offer them drugs, show them pornographic materials, and then attempt sexual acts with them. The testimony of one complainant provides a typical example. According to T.J.P., he was thirteen when he met Rodriquez. He had a troubled family background and was already using illegal drugs. When T.J.P. went to Rodriquez's house, Rodriquez gave T.J.P. drugs and told him that he was attractive. Rodriquez also offered to "fix" T.J.P. up with a woman. During one visit, T.J.P. and Rodriquez went down to Rodriquez's basement where he showed T.J.P. a pornographic film. Rodriquez asked T.J.P. if the movie had given him an erection. When T.J.P. said that it had, Rodriquez asked to see it. Rodriquez then opened T.J.P.'s pants and performed fellatio on him. Next, Rodriquez showed T.J.P. a sauna in which there were pornographic materials. Rodriquez and T.J.P. removed their clothing to take a sauna. T.J.P. initially covered himself with a towel, but Rodriquez removed it. Rodriquez then performed fellatio on T.J.P. again. After initially resisting, T.J.P. complied with Rodriquez's request that T.J.P. perform fellatio on him. Finally, against TJ.P.'s resistance, Rodriquez held TJ.P.'s arms and sodomized him. Following Rodriquez's conviction on twenty-five counts, Superior Court Judge Ralph E. Moody imposed a composite sentence of 133 years with fifty years sus pended, leaving eighty-three years to serve. Ridriquez now appeals his conviction and sentence, raising several issues. EXPERT TESTIMONY At trial, the state presented the testimony of John B. Rabun, Jr., who was offered as an expert on sexually-exploited children. At trial, Rodriquez objected to Rabun's testimony on the ground that no expert testimony was needed because the matters about which Rabun was going to testify were within the common knowledge of the jury. He also contended that the testimony was not relevant. On appeal, Rodriquez raises two objections to the admission of Rabun's testimony. First, he claims that Rabun's knowledge and methods are not generally accepted within the scientific community, and are therefore inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Second, Rodriquez contends that Rabun's testimony was improper testimony by one witness about the credibility of another witness. Admissibility of expert testimony is governed by Alaska Evidence Rule 702, which provides in pertinent part: 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. The decision of whether to allow a witness to testify as an expert is committed to the sound discretion of the trial court. Such decisions are reviewable only for an abuse of discretion. Handley v. State, 615 P.2d 627, 630 (Alaska 1980). In Handley, the supreme court found that it was an abuse of discretion to refuse to allow a psychologist to testify that in his opinion Handley had been in an alcoholic blackout and was unaware of what he was doing when he shot two people. Handley's proposed expert, Dr. John Baertschy, had considerable experience in treating cases of alcohol abuse, and had observed, first-hand, cases of intoxicated people whom he believed were suffering from alcoholic blackouts. Further, Dr. Baertschy had read professional journals relating to the phenomenon of alcoholic blackout. Id. at 629-31. In Handley, the state argued that the alcoholic blackout phenomenon was a novel theory which had not gained general acceptance among psychologists and psychiatrists. In reviewing this objection, the supreme court stated that this contention went to the weight, rather than the admissibility of the evidence. Id. at 630 n. 9. The real question in admitting expert testimony is whether that testimony will assist the jury in reaching a just verdict. Many times the jury can be aided by background information which might tend to explain certain behavior. In Handley, the court concluded that it was an abuse of discretion to refuse to allow Handley to present evidence of Dr. Baertschy's observations of people whom Dr. Baertschy believed were in an alcoholic blackout, and his testimony indicating that the facts of Handley's case were consistent with an alcoholic blackout. Id. at 631. The court seemed to be willing to allow the testimony concerning alcoholic blackouts even though the theory had not necessarily gained general acceptance among psychologists and psychiatrists. Rodriquez relies on Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923), where the court held that expert testimony is admissible only if the deductive techniques are shown to have gained general acceptance in the relevant scientific field. A classic example of an application of the Frye test is found in Pulakis v. State, 476 P.2d 474 (Alaska 1970). In Pulakis, the supreme court applied the Frye test to the admissibility of polygraph examinations. The court concluded that the accuracy of the polygraph examination had not gained general acceptance in the relevant scientific community. Id. at 478-79. In Colgan v. State, 711 P.2d 533 (Alaska App.1985), we commented on the problem presented when a witness testifies that another witness is telling the truth. In that case, a family therapist who was counseling three alleged victims of sexual abuse was allowed to testify that in her opinion, the witnesses had been sexually abused. Id. at 533-34. In Colgan, we concluded that Colgan's arguments appeared to have considerable merit and expressed serious doubts about the wisdom of admitting expert testimony of this type. However, Colgan had not objected to the admissibility of this testimony at trial, and we found that admission of this testimony did not amount to plain error. Id. at 534. It appears to us that there is a significant distinction between presenting a witness, such as a polygraph operator, to testify that a person is telling the truth, and presenting a witness who can state that the behavior of a witness falls within a common pattern. A good example of this latter kind of testimony is presented in State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983). In Middleton, the court allowed testimony concerning the usual behavior of victims of child sexual abuse. The court stated: If a complaining witness in a burglary trial, after making the initial report, denied several times before testifying at trial that the crime had happened, the jury would have good reason to doubt seriously her credibility at any time. However, in this instance we are concerned with a child who states she has been the victim of sexual abuse by a member of her family. The experts testified that in this situation the young victim often feels guilty about testifying against someone she loves and wonders if she is is doing the right thing in so testifying. It would be useful to the jury to know that not just this victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint, and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness' credibility. Id. 657 P.2d at 1219-20 (footnote omitted). This result appears to be consistent with other cases. See United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986) (testimony about child victim's credibility improper, but expert testimony about patterns in child sexual abuse victims' stories admissible); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 457-460, 681 P.2d 291, 298-301 (Cal.1984) (evidence of rape trauma syndrome is admissible to disabuse the jury of widely held misconceptions about rape and rape victims, but not admissible to prove that a rape actually occurred in an individual case); State v. Myers, 359 N.W.2d 604, 609 (Minn.1984) (not abuse of discretion to admit expert testimony concerning the traits and characteristics typically found in sexually-abused children). Testimony by an expert witness that purports to establish by scientific principles that another witness is telling the truth treads on dangerous legal ground. On the other hand, testimony by an expert witness which provides useful background information to aid the jury in evaluating the testimony of another witness is admissible. We conclude that the testimony of John Rabun was this latter type of testimony. Rabun is a social worker with a master's degree. He has worked with children who have been exploited through child pornography or prostitution and child sex rings. For three years he has managed a Kentucky-based group of law enforcement officers and social workers called the Exploited and Missing Child Task Force. Rabun has worked with street children for about ten years. His knowledge of the behavior and experiences of street children is based on an interview method. While the method itself is not new, its application to street children is. Rabun stated that the purpose of the interview process is not to treat the child or to get the child to agree with the interviewer's view of what happened, but simply to get the child's story. For the past five years, Rabun has spent fifteen to twenty hours per week interviewing street children and twelve to fifteen hours per week out in the streets. Rabun authored a chapter for a book on sexually-exploited children. Over the last five years, his group has interviewed in excess of 1,600 children. Rabun also trains law enforce ment and other groups in how to deal with problems of exploited children. Rabun testified that exploited children usually do not tell their whole story during the first interview, but progressively reveal more in each successive discussion. Rabun stated that it was particularly difficult for young males to reveal their involvement in sexual activities if the activities were of a homosexual nature. Rabun described what he had found to be common characteristics among exploited children. He said that the children usually came from single-parent families where the parent's attention was distracted by multiple demands, leaving little time for the child. The children are typically between eleven and seventeen years old. Ninety percent of the exploited children are either missing or runaways. He testified that about sixty-five percent of the girls and forty-five to fifty-five percent of the boys had suffered physical or sexual abuse, or some sort of neglect or abandonment in their own homes. Neglect and abuse in their homes cause the children to downplay the exploitation by strangers because they learn to expect this as normal adult behavior. The children work themselves into situations from which they are not emotionally or experientially equipped to escape. Rabun also testified about typical adult exploiters of children. They look to street children because street children are financially vulnerable. Often the children are drug users and the. exploiter can attract the children by offering drugs and money. The exploiter also offers the child the care and attention that the child does not receive elsewhere. Rabun was asked on direct examination whether the complainants' statements demonstrated a pattern consistent with Ra-bun's findings in his other investigations of exploited children. Rabun concluded that the complainants here were "no different" from the exploited children he had interviewed. He found that they were lonely and from unstable backgrounds lacking adult care and guidance. These children had turned to an exploiter who would care for them. He said that the lures here were common for this pattern also: love, affection, and giving the child a sense of importance. From our review of the record, we conclude that it was not an abuse of discretion to admit Rabun's testimony as background information. His testimony tended to explain the unusual behavior which was presented to the jury in this case. There can be little question that the emotional and financial pressures on runaways and street children which would cause them to repeatedly subject themselves to sexual exploitation for drugs and money are beyond the knowledge of the average juror. The fact that Rabun had frequently observed similar behavior patterns in other children in other areas of the country could be of significant use to the jury, particularly in light of Rodriquez's defense strategy which suggested that the testimony against him had been fabricated. In general, Rabun's testimony was to the effect that the testimony of the alleged victims in this case was consistent with the patterns exhibited by sexually-exploited children which he had observed. Rabun generally made it clear that he was not speaking for the truthfulness of these particular witnesses. On cross-examination, Rodriquez attempted to establish whether these vulnerable juveniles could be subject to manipulation by police officials to get them to tell a false story. Rabun indicated that these juveniles could possibly be, induced to make certain statements that were not true. However, he qualified his answer by saying that he did not believe that a male child would falsely admit to having sexual relations with an adult male. Since this testimony came in on cross-examination and defense counsel made no motion to strike the testimony, admission of this testimony is reviewable only as plain error. Alaska R. Crim. P. 47(b). In context, Rabun's testimony was only a common-sense response that a young male would probably not admit to homosexual behavior if it were untrue. We do not believe that this testimony had a significant impact on the case. Had Rabun's testimony been admitted simply to prove this last point, we would have serious concerns. However, we do not find that admitting this testimony amounted to plain error. DEFENSE WITNESSES Rodriquez next contends that the trial court erred in refusing to allow him to call as witnesses two police officers who had been in his home at different times and who would have testified that they had not seen drugs, pornography, or film-making equipment in Rodriquez's home. Judge Moody found that the evidence was not relevant, and would only serve to mislead the jury. See A.R.E. 401, 403. The trial court's findings on whether evidence is relevant or whether its prejudicial impact outweighs its probative value will only be reversed on appeal where they constitute an abuse of discretion. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). In an offer of proof, Anchorage Police Officer Donald Daniels testified that he went to Rodriquez's home on February 28, 1977, in response to a burglar alarm. The police caught a burglar outside Rodriquez's house. Officer Daniels went through the house to determine if any property had been stolen. Officer Daniels stated that he did not observe any drugs or drug paraphernalia; on the other hand he stated that he was not looking for that sort of evidence. He also stated that he did not see any filming equipment or pornography. Anchorage Police Officer Richard Coffey testified that on April 20, 1978, he went to Rodriquez's residence to serve a search warrant. The purpose of the search warrant was to recover stolen property that was taken in a larceny by two juveniles. Officer Coffey stated that he did not recall seeing any drugs when he served the search warrant. He also stated that he did not recall seeing any pornographic literature, or equipment for making movies. Neither officer indicated that he had made a thorough search of Rodriquez's residence. Both entries occurred approximately five years before trial. It does not seem particularly remarkable that neither officer saw drugs or drug paraphernalia at the time of either entry. Neither officer was looking for drugs, pornography, or film-making equipment. The fact that they did not notice any of these things on the two dates in question has little probative value to this case. We conclude that Judge Moody did not abuse his discretion in refusing to admit this testimony. DOUBLE JEOPARDY Rodriquez next argues that certain of his convictions were either for the same acts or were for acts which were part of a continuous transaction. He argues that these convictions violated his constitutional protection against double jeopardy. In Whitton v. State, 479 P.2d 302 (Alaska 1970), the court instructed trial judges on how to determine when two or more statutory violations amount to the same offense for double jeopardy purposes: The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. Id. at 312. In Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981), the court concluded that conviction for both an offense and a lesser-included offense arising from the same conduct, violated the constitutional guarantee against double jeopardy. In Tookak v. State, 648 P.2d 1018 (Alaska App.1982), we found that Tookak could not be convicted for both rape and assault with intent to commit rape. We concluded that, under the facts of that case, the assault with intent to commit rape and the complet ed rape were so connected in terms of time, place, and Tookak's intent and manner of his conduct, that only one continuous assault occurred culminating in the rape of the victim. Id. at 1023. In Oswald v. State, 715 P.2d 276 (Alaska App.1986), Oswald had been convicted of three counts of sexual assault in the first degree. The first count involved digital penetration of the victim. The second count involved Oswald engaging in an act of genital intercourse with the victim. This act occurred shortly after the genital penetration. Following this act of intercourse, Oswald left the victim and went to the store. He returned and engaged in a second act of genital intercourse which was charged as Count III. We concluded that Counts I and II merged as a single offense. Id. at 280. However, we also concluded that there was a sufficient break in time and circumstance to warrant separate convictions on Counts II and III. Id. at 281. Rodriquez's first argument concerns Counts I, V and VI, which arose from the events of one evening with a single victim, T.J.P. The facts of this incident are discussed at the beginning of this opinion. Counts I, V and VI are worded generally, and it is difficult to tell from the charging documents the specific acts to which each count refers. Count I charges Rodriquez with lewd and lascivious acts toward a child for performing fellatio on T.J.P. Count V charges Rodriquez with lewd and lascivious acts toward a child for sodomizing TJ.P. Count VI charges Rodriquez with rape for having carnal knowledge of T.J.P. Both parties to this appeal agree that Counts V and VI are for the same act, the forceful sodomy in the sauna. The state concedes that the convictions for these counts covering the same act violate Whitton, and acknowledges that Rodriquez is entitled to reversal on Count V, which is the lesser offense. The state's concession appears to be well-founded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). Rodriquez also contends that Count I should merge with Count VI. He argues that the crime of lewd and lascivious acts toward children is a lesser-included offense of rape and that the acts here were part of a single transaction. It appears to us that the fellatio performed on T.J.P. was not a necessary or inevitable predecessor to the later sodomy. Cf. Tuckfield v. State, 621 P.2d 1350, 1352-53 (Alaska 1981) (assault charge vacated where assault with intent to commit rape and rape charges arose out of single incident). Also, according to the testimony of T.J.P., the later sodomy count involved a complete change in the character of the interaction. The fellatio count involved reluctant cooperation by T.J.P. The later sodomy count involved the use of force. We believe that these two acts are sufficiently severable to allow the entry of two convictions. Rodriquez also makes the same arguments regarding Counts II and III. Count II involved an incident where Rodriquez performed fellatio on T.J.P. during group sex. Subsequently, Rodriquez left and returned with a movie camera and filmed sex acts involving two women, another man, and T.J.P. After finishing the filming, Rodriquez sodomized T.J.P. It appears that there was a sufficient break between the activity charged in Count II and the activity charged in Count III to allow the entry of separate convictions under the reasoning of Oswald. Rodriquez raises similar objections with respect to Counts IX and XI. Count IX involved Rodriquez's performing masturbation on M.L.O., and Count XI involves Rodriquez's performing fellatio on M.L.O. The state concedes that these acts were 'part of one transaction and acknowledges that Count IX should be vacated. We find the state's concession to be well-founded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). We therefore order Count IX vacated. Rodriquez asserts similar objections regarding Counts X and XII. Count X involved Rodriquez's performing masturbation and fellatio on M.L.O. Count XII charged that Rodriquez performed sodomy with and fellatio on M.L.O. Apparently these counts refer to events of the same evening because they both specify the evening as "the night M.L.O. was clothed only from the waist up," and it appears that M.L.O. only participated in sodomy with Rodriquez one time. According to M.L.O.'s testimony, Rodriquez rubbed M.L.O.'s penis through his pants and then performed fellatio on him while they were on the couch in the living room. Rodriquez and M.L.O. then went into the bedroom where Rodriquez persuaded M.L.O. to sodomize him. Although this was a continuous transaction, there was a completed sexual act in the living room followed by another separate sexual act in the bedroom. We believe that these acts are sufficiently distinct to support separate convictions. Finally, Rodriquez raises similar arguments with respect to Counts XIX and XX. Count XIX charged the rape of S.D.W. which was committed by Rodriquez's performing fellatio on S.D.W. Count XX charged attempted rape for an attempted sodomy on S.D.W. According to the testimony, S.D.W. was unwillingly handcuffed to a pole by Rodriquez. Rodriquez then pulled down S.D.W.'s pants and performed fellatio on him against his will. Then, while S.D.W. forcibly resisted, Rodriquez attempted to sodomize him. Rodriquez released S.D.W. from the pole after about an hour. Rodriquez argues that the attempted rape is a lesser-included offense of rape, and that conviction of both offenses is barred under Tuckfield. However here, unlike in Tuckfield, the attempted rape charge was not based on acts leading up to the subsequent rape charge. It was not an initial step or an inherent part of the completed rape because the attempt followed the earlier completed rape. We find that these facts justify a conclusion that Rodriquez committed two severable sexual acts and that he could be convicted for two offenses. SENTENCE Rodriquez next argues that his sentence was excessive. The state concedes that Rodriquez's sentence on Count XX was illegal. Rodriquez was convicted on that count of attempted rape under former AS 11.15.120(a)(1). Judge Moody sentenced Rodriquez to twenty years for that count. Under former AS 11.05.020, the maximum term for an attempt was one-half of the maximum sentence for the completed crime. The maximum sentence under former AS 11.15.120(a) was twenty years. Former AS 11.15.130(c). Therefore, Rodriquez could not receive more than ten years for the attempt. We therefore order that Rodriquez's sentence be reduced to a sentence not to exceed ten years on Count XX. Rodriquez received a total sentence of 133 years with fifty years suspended. Rodriquez argues that this sentence is excessive. Rodriquez points to State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Rodriquez does not argue that Judge Moody erroneously believed that he was required to impose consecutive sentences, he simply argues that his sentence is excessive under the standards set forth in Andrews. The state concedes that Rodriquez is entitled to have his sentence reconsidered under Andrews, which came out after Rodriquez was sentenced. We conclude that the state's concession that Rodriquez should be resentenced is well-founded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). We accordingly remand for resentencing. In addition to Andrews, we refer the trial court to Dymenstein v. State, 720 P.2d 42 (Alaska App.1986); Hancock v. State, 706 P.2d 1164 (Alaska App.1985); Lewis v. State, 706 P.2d 715 (Alaska App.1985); Qualle v. State, 652 P.2d 481 (Alaska App.1982). INEFFECTIVE ASSISTANCE OF COUNSEL Rodriquez contends that he received ineffective assistance of counsel. Criminal defendants have the right to effective legal counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Risher v. State, 523 P.2d 421, 425 (Alaska 1974). A defense attorney's representation is constitutionally deficient if the attorney does not "perform at least as well as a lawyer with ordinary training and skill in the criminal law and . conscientiously protect his client's interest, undeflected by conflicting considerations." Risher, 523 P.2d at 424 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974)). To prevail on a claim of ineffective assistance of counsel, a defendant must show a reasonable doubt that counsel's incompetence affected the outcome of the trial. Risher, 523 P.2d at 424-25. Rodriquez first contends that his appointed counsel had a conflict of interest under the fee arrangement which was established in this case. The state agreed to pay Rodriquez's appointed counsel $15,000. The letter summarizing the agreement also stated, "in the event that Mr. Rodriquez has funds available to compensate you additionally, you are certainly free to negotiate whatever price you can with Mr. Rodriquez." The state also agreed to pay investigative expenses up to $2,500. At the hearing on the ineffective assistance of counsel claim, defense counsel admitted that he had told Rodriquez that "a first-class job" would cost $40,000. Counsel indicated that, at that point, he thought that Rodriquez had funds available to supplement the fee. He further acknowledged asking Rodriquez to supplement the state's payments to raise his total fee to $40,000. Counsel denied threatening Rodriquez that he would suffer a long imprisonment if he did not supplement the state-paid fee. Rodriquez did pay counsel $200. Counsel acknowledged that he could have done more investigating if he had had more money to work with. Counsel asserted that Rodriquez's failure to supplement the fee did not affect his efforts on Rodriquez's behalf. Judge Moody found that Rodriquez was not credible in his assertions about counsel's demands. Additionally, Judge Moody concluded that the fee arrangement did not create a conflict of interest and that neither the arrangement nor Rodriquez's failure to add to the fee affected counsel's representation. Judge Moody's findings are supported by the record. We see the fee arrangement in this case as being similar to situations in which private counsel agrees to take a case for $40,000, but enters an appearance upon the client's payment of $15,000. Simply because the client is unable to pay the attorney's full fee does not mean that the attorney and the client have an irreconcilable conflict of interest. Attorneys frequently are required to represent clients on less than full remuneration. Although we do not approve of the fee arrangement which was made in this case, we conclude that Judge Moody did not err in finding that counsel did not have a conflict of interest which would result in ineffective assistance of counsel. Rodriquez next contends that defense counsel did not adequately prepare for the testimony of John B. Rabun, Jr., the expert in child pornography and child sexual exploitation. Rodriquez argues that his counsel was ineffective because he did not interview Rabun before trial and did not call a rebuttal expert. Rodriquez also argues that counsel did not adequately object to the admission of Rabun's testimony. Our review of the record indicates that defense counsel objected to Rabun's testimony and that he conducted adequate cross-examination. Defense counsel testified that, prior to Rabun's testimony, he read an article that Rabun had written. Further, defense counsel felt that some of Rabun's testimony would be helpful to the defense. Additionally, there is no indication that another expert could have helped Rodriquez combat this testimony. We therefore conclude that Judge Moody's findings that Rodriquez's counsel's actions did not constitute ineffective assistance of counsel are not clearly erroneous. Chilton v. State, 611 P.2d 53, 55 (Alaska 1980). Rodriquez next argues that his counsel was ineffective because he did not impeach a witness, Myron Ace, with a prior theft conviction. Judge Moody found that Ace was a minor witness and that his impeachment of Ace would have had minimal impact on the trial. This finding is not clearly erroneous. Chilton, 611 P.2d at 55. Rodriquez also contends that trial counsel erred in not obtaining a protective order to exclude the testimony of witnesses who testified to other bad acts which were not specified in the indictment. With respect to seven of the nine witnesses, this claim is raised for the first time on appeal and we decline to consider those claims. Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984). In his application for post-conviction relief, Rodriquez claimed that his counsel was ineffective for failing to object to the testimony of J.K. and P.M. Judge Moody found that counsel was not ineffective because the testimony of P.M. and J.K. was either admissible or was not significant enough to the trial to have resulted in acquittal had it been deleted. This finding is supported by the record and is not clearly erroneous. Rodriquez argues that his counsel was ineffective because he failed to request a jury instruction requiring the jury to unanimously agree on a particular incident for each count in order to convict. See Covington v. State, 711 P.2d 1183 (Alaska App.), modifying 703 P.2d 436 (Alaska App.1985). In this case, as in Cov-ington, it is clear that the jury rejected Rodriquez's testimony and accepted the testimony of the alleged victims. Under these circumstances, it is clear that if counsel had requested an instruction along the lines suggested in Covington, that instruction would not have had any impact on the case. Finally, Rodriquez argues that his counsel was ineffective because he did not object to several of the convictions on double jeopardy grounds. Since this issue is one which is capable of being raised on appeal, and was raised on appeal, it is clear that any possible ineffectiveness of counsel did not harm Rodriquez. Rodriquez's convictions on Count V and Count IX are REVERSED, all other convictions are AFFIRMED, and the case is REMANDED for resentencing in accordance with this opinion. . We note that the Covington case was decided well after Rodriquez's trial was concluded.

10433273

KODIAK OILFIELD HAULERS, INC., Appellant, v. LOCAL 879, HOTEL, MOTEL, RESTAURANT, CAMP CONSTRUCTION EMPLOYEES AND BARTENDERS UNION; and Clyde Lorenz, Appellees

Kodiak Oilfield Haulers, Inc. v. Local 879, Hotel, Motel, Restaurant, Camp Construction Employees & Bartenders Union

1982-02-26

No. 5758

11

14

641 P.2d 11

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

KODIAK OILFIELD HAULERS, INC., Appellant, v. LOCAL 879, HOTEL, MOTEL, RESTAURANT, CAMP CONSTRUCTION EMPLOYEES AND BARTENDERS UNION; and Clyde Lorenz, Appellees.

KODIAK OILFIELD HAULERS, INC., Appellant, v. LOCAL 879, HOTEL, MOTEL, RESTAURANT, CAMP CONSTRUCTION EMPLOYEES AND BARTENDERS UNION; and Clyde Lorenz, Appellees. No. 5758. Supreme Court of Alaska. Feb. 26, 1982. As Amended on Denial of Rehearing April 6, 1982. Steve C. Hillard and Mary Poteet, Graham & James, Anchorage, for appellant. William B. Schendel, Fairbanks, for ap-pellees. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

1407

8618

OPINION MATTHEWS, Justice. Clyde Lorenz was hired by Kodiak Oilfield Haulers [KOH] in April 1978 as a camp attendant. He worked as a cook on an oil rig on the North Slope until he was fired on October 7, 1978. On that day he had a dispute with his supervisor. Lorenz swore at the supervisor and threatened to "get [him] run off." The official reason for the termination was "unsatisfactory performance," but it is not disputed by the parties that the confrontation of October 7 was the real reason for Lorenz's termination. Lorenz filed a grievance, and it was stipulated by the parties that the Trans-Alaska Pipeline System agreement would apply, although it had expired 3 months previously. The matter was presented to a single arbitrator and a decision without opinion was entered on December 28, 1979. That decision found that while there was "adequate cause" for a thirty day suspension without pay, termination was excessive. Immediate reinstatement was ordered. The arbitrator's written opinion in the case was issued on January 16, 1980. In its first communication with Lorenz subsequent to the award, on February 12, 1980, KOH informed Lorenz that his employment had been terminated for dishonesty as of January 16, the date of the arbitrator's opinion. KOH relied on two of the arbitrator's findings that Lorenz had not been truthful. As part of his January 16, 1980 opinion, the arbitrator had discussed instances of Lorenz's dishonesty as they bore on his credibility. He evidently did not consider them as they bore on the merits. First, Lorenz admitted that early in his employment, he had falsely claimed to have a bad leg. Second, he admitted that, contrary to his prior claim, the charges specified on a Human Rights claim that he had filed earlier against KOH were filled in before he affixed his signature. On February 14, Lorenz asked the arbitrator to consider enforcement proceedings. The arbitrator asked KOH to explain its position, stating that KOH might "not yet have fully complied with the terms of [the] award dated December 28, 1979." KOH claimed that the arbitrator's authority had ended with the January 16 opinion. KOH also stated that Lorenz's job had been eliminated. On March 15, 1980, Lorenz filed a second grievance, expressly requesting that it not be considered unless the arbitrator could not resolve the dispute under his continuing authority. The filing may have been late under the new collective bargaining agreement. On May 20, 1980, the arbitrator entered a further supplementary order, stating that: It is thus apparent that KOH has not complied with the Arbitrator's order to reinstate Clyde Lorenz, and its alleged reinstatement was merely an attempt to justify its decision to "discharge" him effective January 16th. Obviously, therefore, the "discharge" is not proper and has no effect in this case. The arbitrator again ordered immediate reinstatement. KOH denied the validity of this order insofar as it clashed with the second discharge. Lorenz then filed a petition to confirm the arbitration award in the Superior Court for the Fourth Judicial District. Following a hearing Judge Blair issued an order and judgment enjoining KOH from failing to carry out the award. KOH has appealed. The merits of the second discharge are not under review here. Lorenz has not contested the right of an employer to discharge a dishonest employee. The arbitrator's only claim to continued authority rested on KOH's alleged failure to properly reinstate Lorenz according to the terms of the initial order. The arbitrator conceded, and Lorenz agreed, that: [I]f KOH had, in fact, complied with the December 28th Award ordering Mr. Lorenz's reinstatement, his subsequent discharge on January 16th would have been a separate issue and not within the scope of the Arbitrator's authority in this case. A careful examination of the facts before the arbitrator clearly indicates that KOH did not reinstate Clyde Lorenz as of December 28, 1979, however, and indeed, it had probably not reinstated him by January 16, 1980. The issue then is the nature of adequate reinstatement. The arbitrator claimed that it consisted of reinstating Lorenz at the job site and allowing him to work. KOH contends that simply placing Lorenz on the payroll was adequate. The arbitrator is accorded great freedom in the formulation of awards. As stated in United Steelworkers v. Enterprise Wheel And Car Corporation, when it comes to formulating remedies, . . . the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960). Courts defer to the arbitrator's expertise in shaping remedies. As the United States Supreme Court has stated: The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in her personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409, 1417 (1960). It is for the courts to determine, however, where jurisdiction lies. Id. at 582, 80 S.Ct. at 1352-53, 4 L.Ed.2d at 1417; Piggly Wiggly Operators Warehouse, Inc. v. Piggly Wiggly Operators Warehouse Independent Truck Drivers Union Local No. 1, 611 F.2d 580, 583-84 (5th Cir. 1980). There comes a point when the policy of deference to the arbitrator's flexibility in making an award runs afoul of jurisdictional questions. Such a case exists here where implementation of the arbitrator's form of reinstatement would be tantamount to deciding the merits of the second discharge. It is well established that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he-has not agreed so to submit." 363 U.S. at 582, 80 S.Ct. at 1353, 4 L.Ed.2d at 1417. If there was adequate reinstatement, the validity of the second discharge must be decided under the new collective bargaining agreement. We hold that reinstatement occurred for purposes of compliance with the initial order when KOH advised Lorenz that he was terminated for dishonesty and tendered him the back pay he was due. It would have been a meaningless charade for KOH to transport Lorenz to the North Slope, log him in as at work and then discharge him. We see no reason why this should be required. From the record it appears that all or substantially all of the back pay owed to Lorenz was paid on or about February 6, and Lorenz was advised of his discharge on February 12. At that point KOH was in compliance with the arbitrator's order. However, since a discharge cannot be made retroactive, Lorenz should be entitled to back pay until that date. The judgment of the superior court is REVERSED. . Arbitrator's Award of May 20, 1980, page 2. . See Board of Education v. Ewig, 609 P.2d 10, 12 (Alaska 1980); AS 09.43.120. . It is our view that Lorenz is entitled to any grievance proceedings that are available under the current collective bargaining agreement, regardless of the thirty day deadline for the filing of grievances. While we do not intend any comment on the merits of the second discharge, it would be unfair to allow KOH to profit from the procedural confusion generated by the second discharge.

11719997

Charles WILLIAMS, Appellant and Cross-Appellee, v. John E. ECKERT, Appellee and Cross-Appellant

Williams v. Eckert

1982-04-30

Nos. 5378, 5410

991

997

643 P.2d 991

643

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

Charles WILLIAMS, Appellant and Cross-Appellee, v. John E. ECKERT, Appellee and Cross-Appellant.

Charles WILLIAMS, Appellant and Cross-Appellee, v. John E. ECKERT, Appellee and Cross-Appellant. Nos. 5378, 5410. Supreme Court of Alaska. April 30, 1982. Richard J. Riordan, Jr., Bradbury, Bliss & Riordan, Inc., Anchorage, for appellant/ cross-appellee. Helen L. Simpson, Anchorage, for appel-lee/cross-appellant.

3985

23456

OPINION Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ. CONNOR, Justice. In this appeal Charles Williams challenges the propriety of the trial court's determination that he was liable to John Ec-kert for Eckert's loss of $16,000 net income from fishing. In response, Eckert contests a salvage award to Williams in the amount of $2,500. I. FACTS The controversy in this case centers around the actions of Eckert and his neph ew Williams after Eckert's vessel, the PEN-49, dragged anchor and ran aground in Metervik Bay in the Bristol Bay area of Alaska around May 18, 1979. Both Eckert and Williams were residents of Naknek, Alaska, and they had proceeded separately to Metervik Bay in order to fish herring. Metervik Bay is 100 miles due west of Nak-nek, between Dillingham and Togiak. The average running time from Naknek to Met-ervik Bay by boat is twelve to fifteen hours. Because Eckert was somewhat physically disabled, he took a two-man crew instead of the normal one. The crew consisted of R. A. Williams, one of Charles Williams' brothers, and J. Bettis. Sometime during the middle of May, Eckert had established a shore camp at Metervik Bay, as the boat only had berths for two persons. During the evening of May 18th, a severe storm struck the region, with winds exceeding sixty miles per hour. The storm destroyed Eckert's shore camp. He thought of taking his skiff out when the high tide came in, but he gave up on this idea because of the roughness of the water. In the morning, when the storm had abated, Eckert looked out to where his boat had been and saw that it was gone. A subsequent search revealed that the vessel was grounded on a gravel beach about one-half mile from what remained of Eckert's shore camp. A cursory examination of the vessel established that it had suffered no damage. Because it was low tide when he approached the PEN-49, Eckert was able to board the boat. He fired up the engine and noted that it was working properly. He waited for the next high tide to come in, but, unfortunately, it did not reach far enough to refloat the vessel. Eckert then radioed the BLISTER, Williams' boat, in order to get assistance before the next high tide. Carl Williams, another of Charles' brothers, received the distress call and assured Eckert that help would be forthcoming. The PEN-49 could be seen from the BLISTER, which was anchored two miles away. The help never arrived. Eckert recontacted the BLISTER, but was told that no assistance could be offered. Evidently, the BLISTER'S anchor had become snagged on another boat's lost anchor. Not until much later that afternoon, after the expected high tide had come in and damaged the hull of the PEN-49 by shifting it against the rocks, did Charles Williams go to Eckert's aid. When Charles Williams arrived, Eckert was at his shore camp. They had a short conversation, and Williams returned to his own camp, without having rendered any assistance. His brother, R. A. Williams, soon followed him, leaving Eckert with only one crew member, J. Bettis, when he began stripping the boat to prevent pilferage. Eckert and Bettis spent the better part of the next two days stripping the boat of its electronic equipment: the power keel, the power roller, the bilge pump and the depth finder. When they finished, all that remained was the engine, some fishing nets and two anchors positioned to keep the boat from moving. Eckert had originally intended to have Bettis fly back to Naknek to get assistance, tools and equipment so that they could repair the boat. Unfortunately, although airplanes were coming in quite regularly, all of the available seats were taken. Williams had an airplane at the location and Eckert asked him if he could help out. Williams refused, however, stating that the plane had only two seats and that the other seat was already taken by his brother Carl, who had to catch a flight the next day to Los Angeles. Williams was seen flying out two or three times during the period of time that Eckert was stranded. When Williams returned from Naknek after delivering his brother, he brought back some of the supplies which were later used to repair the PEN-49. Shortly after Eckert had completed taking his gear off, Williams approached the PEN^9 and began repairing its holes with scrap materials. The repair work was done by Williams, his brothers, Carl and Earl, and Dennis Herman. They spent the better part of one afternoon patching the boat, after which Williams left to get some dinner at his camp. He stopped by Eckert's camp and spoke with him. When Eckert asked him once again if he could help out by at least taking some of his equipment to Naknek, Williams agreed. Williams, however, never told Eckert that he was repairing the PEN-49. Until he brought the boat back to Naknek, he did not discuss the issue of the boat with his uncle. Later that evening, Williams returned with his crew during high tide and succeeded in pulling the beached boat off the rocks. They ultimately took the vessel back to Williams' shore camp where they effected more extensive repairs over the next three days. Eckert spent those three days in his camp trying unsuccessfully to get an airplane to fly him and his equipment out. During this time he became aware that Williams had taken possession of the boat. Eckert testified that he assumed that Williams was repairing his boat to help him out. He thought that Williams was going to surprise him by presenting him with the fixed PEN-49. On May 29, 1979, Williams ran the PEN-49 back to Naknek under its own power. Later that day Williams stopped by Ec-kert's house. He informed him that he wanted either $4,200 as salvage, or the boat. Eckert claims that he offered Williams $1,000, but Williams denies that Eckert offered anything. When Williams declined to return the boat until the salvage was paid, Eckert contacted a local magistrate, who suggested that criminal charges be filed. Eckert then filed a criminal complaint. He accompanied the state trooper who served the complaint, but Williams refused to turn over the vessel. Allegedly, Williams also refused to grant Eckert the right to board the PEN-49 in order to view the extent of damage that the boat suffered or the amount of repairs that he had effected. Ultimately, the criminal complaint was dismissed by the prosecuting authorities. On June 8, 1979, Eckert flew to Anchorage to secure counsel. He subsequently filed a claim and delivery action. A hearing was held on June 18, 1979. At that time, Eckert was required to post a $4,000 bond and the vessel was ordered released. He recovered the PEN-49 on or about June 22, 1979. Williams delivered the vessel to the cannery where Eckert worked so that it could be given permanent repairs. The repairs done by Williams had been satisfactory to get the boat to Naknek, but they were only temporary in nature. The repairs cost $700. Eckert did not get his boat back until the 30th of June. Due to the delays in the return of the PEN-49, Eckert missed the start of the salmon season and sought to recover his lost profits. The trial court determined that it was not reasonable for Williams to have believed that Eckert was abandoning the PEN-49. The court found that Eckert did not abandon the PEN-49, and that Williams did not believe that he had done so. The court found that Williáms was the salvor of the PEN-49 because the boat had been in maritime peril when he had voluntarily rendered successful assistance. Thus, the court concluded that Williams was entitled to compensation. The court found further that Williams was entitled to a salvage award in the amount of $2,500, and that Williams' out of pocket expenses for the salvage were between $80 and $120. But the court .determined that because Williams did not return the PEN-49 to Eckert within a reasonable time, he was liable for $16,000 lost net income from fishing. Finally, the court found that Eckert was entitled to attorney's fees in the amount of $2,010, and costs. On appeal Williams contends (1) that he had a lien for salvage which allowed him to retain possession of the vessel until either the lien was satisfied or a sufficient bond was posted to secure payment of the lien; (2) that the court erred in finding (a) that it was unreasonable for Williams to believe that Eckert had abandoned the vessel, (b) that Williams did not believe that the vessel was abandoned, and (c) that the vessel was not abandoned; (3) that there is no support in the record for the court's finding that Eckert lost income of $16,000 because Williams withheld possession of the vessel from Eckert; and (4) that attorney's fees are not recoverable because this is a maritime action. By cross-appeal Eckert asserts that it was error to award salvage to Williams: first, because Williams claimed the vessel as his own; second, because he unreasonably delayed in rendering assistance to the vessel; and third, because Williams detained the vessel beyond a reasonable time and in bad faith. II. THE SALVAGE LIEN The trial court held that "Williams had a duty to return the PEN-49 as quickly as possible and any unreasonable holding of her was an act of conversion." Williams cites a number of cases for the proposition that because he had a salvage lien he had the right to retain possession of the vessel until either the lien was satisfied or Eckert posted sufficient bond to allow for payment of the lien. He places principal reliance on In re The Snow Maiden, 159 F.Supp. 30 (D.Mass.1958); The Hartshorn, et al. v. 25 Cases of Silk, 11 F.Cas. 713 (S.D.N.Y.1841) (No. 6168A); The La Bruce, 14 F.Cas. 905 (Fla.Super.1837) (No. 7963); Hightower v. Stillwell, 179 Ark. 256, 15 S.W.2d 326 (1929). While each of these cases recognizes that a salvor does have a right of possession in a salvaged vessel, no case leaves this right unqualified. A salvor can retain possession of a salvaged vessel until one of three events has occurred. As the court noted in In re The Snow Maiden, 159 F.Supp. at 33, while the salvor did not have a duty to immediately surrender the salvaged property to either its owner or the court, he would only be rightfully in possession of such property "until he was tendered the fair value of his services, or security therefor, or until a reasonable time for filing a libel in rem had expired." While the first two contingencies may be satisfied by the actions of the owner of the vessel, only the salvor can file a libel in rem against the vessel. Norris, in his comprehensive treatise on the law of salvage, states essentially the same proposition. "The salvor must move with reasonable dispatch to either arrange for payment or security or to libel the property for the purpose of an eventual court sale." M. Norris, The Law of Salvage, § 151 at 249 (1958) (emphasis added). Under maritime law a salvor cannot hold possession of the saved vessel indefinitely, to the prejudice of the owner. He must take affirmative action within a reasonable time to enforce his lien. What is reasonable must, inevitably, turn on the particular circumstances of the case. There may well be cases when a relatively long period of detention is warranted before judicial enforcement of the lien is initiated. For example, such might be the case where a vessel is saved far from its home port, or where the salvor has difficulty getting in touch with the owner, or where the owner's desires concerning disposition of the vessel are vague or indefinite, or where the salvor has difficulty in securing counsel to bring an action in rem against the vessel. The circumstances in the case at bar are quite different. Williams resisted Ec-kert's right to possession of the vessel and would not let Eckert go aboard the vessel to examine the extent of the damage or repairs. Being a fisherman himself, Williams apparently knew of the imminent salmon fishing season and of Eckert's need to have the vessel for the salmon season. Yet Williams took no action to enforce his maritime lien. In these circumstances we agree with the trial judge that Williams' conduct was unreasonable, and that it caused loss to Eckert. On the other hand, we do not view Williams' misconduct to be so serious as to require total forfeiture of the award. It is apparent that the trial court considered the relevant factors in arriving at the amount of the salvage award in this case. We will not disturb that award on appeal. III. ABANDONMENT Williams asserts that the trial court's findings concerning abandonment were clearly erroneous. It will be recalled that the court found that Eckert had not abandoned the vessel, that it was unreasonable for Williams to believe that Eckert had abandoned the vessel, and that Williams did not believe that Eckert had abandoned it. The thrust of the argument seems to be that Williams, reasonably believing the vessel to be abandoned, had a possessory lien on it. As we have stated earlier in this opinion, it is apparent that Williams, as a salvor, had a maritime lien on the vessel. The question germane to this case is not the existence of the lien but whether the period of detention by Williams was reasonable. The question of abandonment is, therefore, irrelevant to the outcome of this appeal. We need not consider the point further. IV. LOST INCOME Williams next alleges that there was an inadequate factual record to support the trial court's determination that Williams' withholding of the PEN-49 caused Eckert to lose $16,000 of net fishing income. He argues that the dearth of evidence in the record relative to this point prevents such damages from being ascertained with reasonable certainty. Eckert argues that there was adequate support in the record for a finding that he suffered $16,000 damages for the loss of use of his vessel. The following evidence regarding Ec-kert's lost income was presented to the court. Eckert filed the present claim and delivery action on June 8, 1979, and pursuant to an order for release of the vessel recovered the PEN-49 on or about June 22, 1979. He had the vessel repaired at a local cannery, got it back on June 30, 1979, and began fishing July 1, 1979. He further testified that "everybody starts fishing approximately around the 15th of June," and had his boat been repaired in time, he could have gone fishing on the 15th of June. Eckert further testified that between July 1,1979 and July 19,1979 he only fished ten or eleven fishing periods because, after July 1, the canneries were glutted. He testified that during this period of salmon fishing he grossed $17,000. After his expenses and his partners' shares were deducted, his take was about $10,000. It is a well established principle of maritime law that lost fishing profits can be recovered. Jones v. Bender Welding and Machine Works, Inc., 581 F.2d 1331, 1337 (9th Cir. 1978). The U. S. Supreme Court stated in an early and frequently cited case: "That the loss of profits or of the use of a vessel pending repairs, or other detention, arising from a collision, or other maritime tort, and commonly spoken of as demur-rage, is a proper element of damage, is too well settled both in England and America to be open to question. It is equally well settled . that demurrage will only be allowed when profits have actually been, or may be reasonably supposed to have been, lost, and the amount of such profits is proved with reasonable certainty." The Conqueror, 166 U.S. 110, 125, 17 S.Ct. 510, 516, 41 L.Ed. 937, 944 (1896). Similar ly, a number of cases have applied, or by implication recognized, the rule that in a replevin action loss of profits resulting from the wrongful detention of property may be recovered where they can be estimated with a reasonable degree of accuracy. See An-not; 48 A.L.R.2d 1053 (1956); Restatement (Second) of Torts § 931 (1979). Other courts in dealing with lost fishing profits have recognized the impossibility of mathematical precision in calculating such an award. In Reefer Queen Co. v. Marine Construction and Design Company, the court acknowledged: "A measuring stick, whereby damages may be assessed within the demarcation of reasonable certainty, is sometimes difficult to find. Plaintiff must produce the best evidence available and . if it is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a . substantial recovery because the amount of the damage is incapable of exact ascertainment." 73 Wash.2d 774, 440 P.2d 448, 452-58 (1968), quoting Larsen v. Walton Plywood Co., Inc., 65 Wash.2d 1, 390 P.2d 677, 687 (1964). In Miller Industries, Inc. v. Caterpillar Tractor Co., 473 F.Supp. 1147, 1156 (S.D.Ala.1979), the court stated that although damages for lost fishing profits must be proved with reasonable certainty, this does not prevent the court from "establishing the amount and value of the catch lost by plaintiff on the basis of such evidence as might reasonably be expected to be available under the circumstances." In Stanley v. Onetta Boat Works, Inc., 303 F.Supp. 99 (D.Or.1969), the court used the plaintiff's catches during the period preceding its lost time to estimate its losses: "The plaintiff's own catch during the periods when his vessel was not incapacitated requires a finding that the value of the use of his vessel was not less than $200.00 per day. This finding is supported by the records of catches of similar fishing vessels in the area during the same period of time and by the evidence in the record on the plaintiff's own catches." (emphasis added). Id. at 106. We have previously stated that while an award of lost profits cannot stand if it is the result of mere speculation, it is not necessary to prove it with exactness, so long as actual loss of profits is shown and there is a reasonable basis upon which to compute an award. City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 222 (Alaska 1978). We hold that the testimony of Eckert relative to the subsequent fishing periods, his gross profits, his net profits, and the prevailing conditions provided sufficient competent evidence to sustain the trial court's determination of damages. While the evidence here may be sparse, and evidence as to other catches in the area during the same time might have been helpful, we cannot say that the damages here are uncertain just because they cannot be exactly calculated. Undeniably, Williams' actions caused Ec-kert to lose some money. Other courts have recognized the justness of a liberal approach to estimating loss of profits where the difficulty in proving their amount is directly caused by the defendant's wrongdoing. In Pacific Steam Whaling Co. v. Alaska Packers' Ass'n, 138 Cal. 632, 72 P. 161 (1903), the defendants had wrongfully excluded the plaintiff from fishing salmon off the coast of Alaska. The jury determined that the plaintiff had suffered $14,000 in lost fishing profits, based upon the amount of fish the defendants had taken from the area and the testimony of the plaintiff as to the amount of fish it thought it would have caught had it not been for the defendants' actions. The court in sustaining the damage award stated: "With respect to this kind of damage, of course, there cannot be the absolute certainty possible in many plainer cases; but a wrongdoer cannot entirely escape the consequences of his unlawful acts merely on account of the difficulty of proving damages. He can do so only where there is no possibility of a reasonably proximate estimation of such damages, which is not the fact in the case at bar." Id. 72 P. at 163. There is a possibility of a reasonably proximate estimation in the case before us. The evidence proffered by Ec-kert provided a reasonable basis for the trial court to compute the damages incurred as a result of Williams' wrongful detention of the PEN-49, and the award is therefore sustained. Y. ATTORNEY'S FEES Williams asserts two main reasons why the award of attorney's fees in this case was improper. First, he insists that it is the general rule that attorney's fees are not awarded to the prevailing party in admiralty. Second, he argues that because both Congress and the federal courts have vigorously pursued uniform national application of admiralty law, affirming the award would tend to disrupt that goal. However, 28 U.S.C. § 1333 (1948), the federal statute which governs admiralty jurisdiction, states: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled ." Eckert sued in state court to recover his vessel. One of the remedial adjuncts of that suit was the right to recover attorney's fees under Alaska Civil Rule 82, if he prevailed. Congress has not prohibited such an award in state actions arising out of the admiralty jurisdiction of the United States. Moreover, an award of attorney's fees in a state court does not frustrate or displace the essential features of substantive maritime law. It is merely remedial in nature. We hold that the award of attorney's fees under Alaska Civil Rule 82 was proper. AFFIRMED. . Norris, Misconduct of Salvors, 18 Brooklyn L.Rev. 247, 249 (1952), states the applicable factors: "The amount of the award in a salvage case is influenced largely by the presence or absence of good faith on the part of those who claim it. Just as the good conduct of salvors — and their skill, promptitude, courage and energy — will according to the degree in which these qualities are displayed enhance the claim to a liberal salvage award, so will serious misconduct on their part lead to an entire forfeiture, or at least a reduction, of the award. The equity rule that the party who seeks aid must come in with clean hands, has particular application in salvage actions." (footnotes omitted). . Abandonment might be important if there were a claim that the owner of the vessel had relinquished both possession and ownership and that the person taking it into possession thereby became the owner. But we do not read Williams' argument as so contending. In general, a vessel is subject to salvage when it is at risk from a maritime peril, but an owner or owner's agent can remain in possession and refuse unwelcome offers of salvage. G. Gilmore & C. Black, The Law of Admiralty, 535-36 (2d ed. 1975). In that sense a physical "abandonment" of the vessel can have legal significance, although even this rule may be subject to exception in certain instances. Id, 536 n.12. . From the enactment of the Judiciary Act of 1789 until an amendment in 1948, this saving clause read: "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Act of Sept. 24, 1789, ch. 20 § 8, 1 Stat. 76. . Similarly, while jury trials are unknown in admiralty, they are not prohibited in state court actions based upon a maritime cause. See Lavergne v. Western Company of North America, Inc., 371 So.2d 807, 810 (La.1979). See also Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963).

11714464

SEWARD MARINE SERVICES, INC., and Fireman's Fund Insurance Company, Appellants, v. Margaret A. ANDERSON and Rhonda K. Anderson, Appellees

Seward Marine Services, Inc. v. Anderson

1982-04-16

No. 5791

493

498

643 P.2d 493

643

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

SEWARD MARINE SERVICES, INC., and Fireman’s Fund Insurance Company, Appellants, v. Margaret A. ANDERSON and Rhonda K. Anderson, Appellees.

SEWARD MARINE SERVICES, INC., and Fireman’s Fund Insurance Company, Appellants, v. Margaret A. ANDERSON and Rhonda K. Anderson, Appellees. No. 5791. Supreme Court of Alaska. April 16, 1982. Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellants. Walter H. Garretson, Garretson & Aimar-as, Anchorage, for appellees. Timothy M. Stone, Anchorage, for amicus curiae Peter Kiewit. Lance C. Parrish and James A. Parrish, Parrish Law Office, Fairbanks, for amicus curiae Ivory Garrett. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

3354

21005

OPINION BURKE, Justice. The sole issue presented by this appeal is whether AS 23.30.175(a), the section of the Workers' Compensation Act governing maximum benefit rates, requires calculation of maximum rates at an increasing percentage of the state's average weekly wage for injuries or death occurring after August 31, 1977. On the strength of a footnote in Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979), the superior court held that it did. We affirm. Raymond Anderson died during the course and scope of employment on May 30, 1978. His statutory beneficiaries, a wife and one child, filed for workers' compensation benefits under the applicable sections of the Alaska Workers' Compensation Act. The parties agree that the Andersons are entitled to benefits computed on an average weekly wage of $456.00, the average in effect at the time of Raymond Anderson's death. They disagree, however, with respect to the application of AS 23.30.175(a), the provision governing maximum benefit rates. As amended in 1977, that section provides: The weekly rate of compensation for disability or death for a recipient residing in Alaska may not exceed the percentage of the Alaska weekly wage in effect on the date of injury as determined by the table contained in this subsection . On The Rate Shall Be July 1,1975 80 percent of the Alaska average weekly wage January 1,1976 100 per cent of the Alaska average weekly wage January 1,1977 133.3 per cent of the Alaska average weekly wage January 1,1979 166.6 per cent of the Alaska average weekly wage January 1,1981 200 per cent of the Alaska average weekly wage AS 23.30.175(a) (emphasis supplied, reflecting effect of 1977 amendment). As is evident from reading the provision, the phrase "in effect on the date of injury" may modify either the Alaska average weekly wage or the increasing percentage, or both. This ambiguity is at the heart of the present dispute. The Andersons contend that the 1977 amendment merely fixed the average weekly wage at the level existing at the time of death or a disability and that maximum limitations continue to increase pursuant to the table found in AS 23.30.175(a). They therefore conclude that they are presently entitled to $912.00 per week in compensation payments, that amount representing 200% of the Alaska average weekly wage in effect at the time of Raymond Anderson's death. Seward Marine Services and Fireman's Fund Insurance Company (hereinafter Seward Marine), however, contend that that ambiguous phrase modifies both the average weekly wage and the increasing percentage, thus concluding that maximum limitations remain irrevocably fixed at the level existing at the time of injury or death. If so, the Andersons are presently entitled to only 133.3 percent of the Alaska average weekly wage in effect at the time of Raymond Anderson's death, or $606.43 per week. This is not the first time that we have addressed the meaning of AS 23.30.175(a) in either its pre or post amendment form. In Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979), we held that the increasing percentages in AS 23.30.175(a), prior to amendment, apply to all claims arising after May 22, 1975. We also stated that the effect of the 1977 amendment would be to fix the weekly wage to that in effect at the date of injury while still granting recipients the benefit of the increasing percentage. Id. at 357 n.15. We noted that under § 175(a) prior to its amendment in 1977 it was unclear whether the average weekly wage in effect as of the date of injury would remain constant or would change with the annual recomputation of annual weekly wage. We stated: One position is that not only the percentage of the average weekly wage increases, but that the average weekly wage also changes, periodically until 1981, with fluctuations in the state's average weekly wage. Thus, if the state's average weekly wage for the first period of the maximum rate table was $200.00, the maximum computation allowable for that period would be 80 per cent of $200.00, or $160.00. If the state's average weekly wage in 1976 were $300.00, the maximum compensation for all claims would be the increased percentage allowed by the statute, 100 per cent of that increased average wage, or $300.00 per week, etc. A person injured after 1977 could not claim this. The 1977 amendment still gives recipients an increasing percentage, but at an increasing percentage relative to the same amount, i.e., the weekly wage in effect at the date of injury. Thus, using the same hypothetical figures, the limitation would rise according to the new increasing percentage, 100 per cent for all claims, but relative to the same average weekly wage, i.e., 100 per cent of $200.00, or $200.00 for injuries occurring during the first period of the table. Id. at 357 n.15. Seward Marine argues that the statement quoted above concerning the effect of the 1977 amendment is dictum, and as such is not controlling. However, after considering the issues presented, we conclude that the legislature intended to fix only the average weekly wage at the level existing at the time of injury, and hence affirm the lower court's opinion. I The sole issue presented by this appeal is one of statutory interpretation. We are thus faced with a question of law over which this court has always exercised independent review. Hood v. State, Workmen's Compensation Board, 574 P.2d 811, 813 (Alaska 1978); Union Oil Company of California v. Department of Revenue, 560 P.2d 21, 23 (Alaska 1977). Accordingly, we independently consider the meaning of AS 23.-30.175(a). The fundamental purpose of statutory interpretation is to ascertain and give effect to the intent of the legislature. Younger v. Superior Court, 577 P.2d 1014, 1021 (Cal. 1978); Janovich v. Herron, 91 Wash.2d 767, 592 P.2d 1096, 1098 (1979). In this case, a brief review of the genesis of AS 23.30.-175(a) and a consideration of the forces which prompted the ambiguous amendment, provide a valuable starting place in our search for legislative intent. In 1972, Congress created the National Commission on State Workmen's Compensation Laws to assess whether state compensation systems provided "an adequate, prompt, and equitable system of compensation for injury or death arising out of or in the course of employment." 29 U.S.C. § 676(a)(2) (1976). Determining that the various state compensation systems were on balance inadequate and inequitable, the Commission issued eighty-four specific recommendations for improving state systems, nineteen of which were deemed essential. One such essential recommendation included an increase in the maximum limitation on death benefits to 200% of the state's average weekly wage, accomplished through a gradual phase-in procedure. This recommendation was subsequently deemed among the most significant of the Commission's recommendations. Director, Office of Workers' Compensation Programs v. Boughman, 545 F.2d 210, 215 n.15 (D.C. Cir.1976). An examination of maximum limitations on death benefits existing in Alaska prior to the adoption of AS 23.30.175(a) gives force to the Commission's findings. Prior law purported to give claimants up to 90% of the deceased's salary, in the form of compensation payments, to the deceased's beneficiaries. But since the maximum limit on death benefits was $175.00 per week, while the average weekly wage was $248.00, most claimants instead received the maximum amount. In this fashion, arbitrarily low ceilings frustrated achievement of the statute's purpose of adequate compensation. Wien Air Alaska v. Arant, 592 P.2d 352,359 (Alaska 1979). In 1975, the Alaska Legislature alleviated this problem by adopting the recommended 200% phase-in provision. In so doing, the legislature ensured that claimants would eventually receive adequate compensation, while cushioning the impact of the provision on employers and their workers' compensation insurance carriers by increasing máxi-mums gradually. As initially enacted, AS 23.30.175(a) failed to specify whether the average weekly wage used to calculate compensation payments was that in effect at the time of injury, or that in effect at the time of payment. Reference to AS 23.30.172, however, suggested that the wage at the time of payment controlled. Establishing the so-called current benefits rule, that section provided: Benefits for temporary and permanent disability shall be calculated under this chapter according to currently existing benefit rates, regardless of the benefit rates in existence at the time of the injury, unless this calculation would cause a decrease in the actual benefits receivable. AS 23.30.172 (emphasis added). Thus, maximum limitations on death and disability payments were calculated on the basis of two escalating factors, the average weekly wage in effect at the time of payment, a figure driven upward by the forces of inflation, and the increasing percentages of AS 23.30.175(a). Operating together, these two factors led to greatly increased máximums on death and disability payments. Due to the upswing in the Alaskan economy in the 1970's, the Alaska average weekly wage increased from $248.00 in June 1975, to $414.00 in June 1977, an amplification of 67% in just two years. In conjunction with the increasing percentages of AS 23.30.175(a), the sharply increased average weekly wage figure resulted in máximums nearly three times as great as those under prior law. Apparently considering these máximums unduly high, the legislature acted in 1977 and repealed AS 23.30.172, thereby eliminating the current benefits rule, and amended AS 23.30.175(a) by adding the phrase "in effect on the date of injury." It is thus clear that the average weekly wage at the time of injury governs, but it is unclear whether employees injured between 1977 and 1981 can claim the benefit of the increasing percentages of AS 23.30.175(a). Seward Marine contends that the legislative history to S.B. 131, the bill accomplishing the changes discussed above, unequivo-cably establishes that the legislature intended to fix both the average weekly wage and the increasing percentages at the level existing at the time of injury. We disagree, finding the pertinent legislative history both meager and inconclusive. The sole document truly indicative of legislative intent is the governor's transmittal letter to S.B. 131. This letter notes that the bill would generally reduce the costs associated with workers' compensation benefits in an effort to make compensation insurance more affordable to the employers of this state. It further states that section 1 of the bill would further this goal by repealing AS 23.30.172, thereby eliminating the current benefits rule. In specific reference to AS 23.30.175(a), the letter notes that the section as amended would establish a compensation rate as of the date of injury- These comments merely establish that the legislature intended to eliminate the current benefits rule. After reviewing escalating average weekly wage statistics, the legislature doubtlessly concluded that fixing the average weekly wage at the level existing at the date of injury by repealing AS 23.30.172 would reduce benefit costs. And eliminating the current benefits rule also establishes a compensation rate on the date of injury. With the average weekly wage figure irrevocably fixed, a workers' compensation insurance carrier can determine on the date of injury its ultimate liability simply by multiplying the average weekly wage figure in effect on the date of injury by the preordained increases of AS 23.30.175(a). We would be speculating if, on the basis of these comments, we held that the legislature intended to fix both factors at the level existing at the time of injury. Absent a definitive expression of legislative intent in the legislative history, we turn to a consideration of the policies underlying the Alaska's Workers' Compensation Act generally and AS 23.30.175(a) in particular. Initially, we note that any doubt about the meaning of AS 23.30.175(a) should be resolved in the Andersons' favor. See Hood v. State, Workmen's Compensation Board, 574 P.2d 811, 813 (Alaska 1978); S.L.W. v. Alaska Workmen's Compensation Board, 490 P.2d 42, 43 (Alaska 1971). Adopting Seward Marine's construction of AS 23.30.175(a) would leave many workers inadequately compensated. As this court noted in a slightly different context in Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979). Claimants . . . would be frozen at an amount that did not achieve the purposes of the statute. Really, no workers would receive a phased-in increase; each successive group of workers would be subject to different maximum rates. [This] position makes the phase-in a device to limit the number of claimants who would have the benefit of an adequate maximum limitation. Id. at 359 (emphasis in original). We think this language perfectly apropos. Seward Marine's position is thus inconsistent with the very purpose of workers' compensation — the adequate compensation of victims of a work-related injury. Given the history of AS 23.30.175(a), and the importance of avoiding inequitably low maximum limitations, we do not think that the legislature intended to deny those employees injured between 1977 and 1981 the benefit of the increasing percentages of AS 23.30.175(a). Rather, we agree with the Andersons that the ambiguous phrase was added to that section solely to clarify that the average weekly wage at the time of injury controlled. By repealing AS 23.30.-172, the legislature removed the sole reference to which average weekly wage (time of payment or time of injury) was relevant in determining maximum compensation limitations. To ensure that the average weekly wage at the time of injury governed after 1977, the legislature appended the phrase "in effect on the date of injury" to the language "Alaska weekly wage." We therefore hold that AS 23.30.175(a) gives recipients an increasing percentage, but an increasing percentage relative to a fixed amount, i.e., the average weekly wage in effect at the time of death or disability. Accordingly, the decision of the lower court is AFFIRMED. . Computing death benefits under Alaska law involves a multi-step process. Initially, the deceased's average weekly wage at the time of death is calculated under AS 23.30.220. Then under AS 23.30.215 a widow or widower with one dependent child can claim 66'⅛% of that wage in the form of compensation payments. If, however, the figure produced by these calculations exceeds the ceilings on awards set forth in AS 23.30.175, the claimants instead receive only the maximum amount. AS 23.30.215(b); AS 23.30.175. . The Alaska Workers' Compensation Board ruled for Seward Marine in the action below. Margaret A. & Rhonda K. Anderson v. Seward Marine Services, Inc. and Fireman's Fund Ins. Co., No. 78-05-1759 (May 8, 1980). It bears noting, however, that the board subsequently reconsidered the issue and now holds the opinion that the average weekly wage in effect on the date of injury remains constant, but that maximum limitations continue to increase pursuant to the table in AS 23.30.175(a). Barker v. Earthmovers of Fairbanks and Alaska Pacific Assurance Co., No. 78-08-0015 (February 19, 1981). . The recommendation was phrased as follows: We recommend that as of July 1, 1977, the maximum weekly benefit for temporary total disability be at least 133'/3 percent of the State's average weekly wage; as of July 1, 1979, the maximum should be at least 1662/:i percent of the State's average weekly wage, and on and after July 1, 1981, the maximum should be at least 200 percent of the State's average weekly wage. The Report of the National Commission on State Workmen's Compensation Laws 62 (July 1972). . Indeed, the Council of State Governments noted that "limited benefits payable in the case of death under state workmen's compensation laws were an important consideration in causing the National Commission to find that generally workmen's compensation laws provided inadequate benefits." Advisory Committee on Workmen's Compensation Laws, Council of State Governments, Workmen's Compensation: A Challenge to the States 13 (February 1973). .Numerous states now base a maximum limitation on death benefits on a percentage of the state's average weekly wage. See Analysis of Workmen's Compensation Laws, Chamber of Commerce of the United States, Chart VII (1981). The majority of these states place the ceiling on death benefits at 100% of the state's average weekly wage. In four jurisdictions, however, the ceiling is placed at more than 100% of the state's average weekly wage. Under the Longshoremen's And Harbor Workers' Compensation Act, 33 U.S.C. § 901-950 (1976) and the law of the District of Columbia, 36 D.C.Code § 501 et seq. (1973), maximum limitations on disability benefits are set at 200% of the national weekly wage. The federal act, however, neglects to set a maximum limitation on death benefits. In Director, Office of Workers' Comp. Programs v. Rasmussen, 440 U.S. 29, 99 S.Ct. 903, 59 L.Ed.2d 122 (1979) the United States Supreme Court held that this omission was not inadvertent and concluded that death benefits payable under the act are not subject to maximum limitations. . Statistics from the Workers' Compensation Division of the Department of Labor, State of Alaska. By way of comparison, the national average weekly wage increased from $159.19 in 1975 to $183.61 in 1977, an increase of only 15%. See Director, Office of Workers' Comp. Programs v. Rasmussen, 440 U.S. 29, 34 n.5, 99 S.Ct. 903, 907 n.5, 59 L.Ed.2d 122, 128 n.5 (1979). . In 1977, when AS 23.30.172 was repealed, the maximum benefit level had risen to $551.86 per week (state average weekly wage of $414.00 times 133%). . Seward Marine presents several additional documents that they believe bear on the legisla ture's intent in amending AS 23.30.175(a). These documents include transcripts of testimony prepared for presentation to the Senate Labor and Management Committee, a memorandum from the Office of Legislative Affairs addressed to the Honorable Frank Ferguson, a memorandum from the Director of the Division of Insurance to the Honorable Joseph Hayes, and a memorandum from the Director of the Workers' Compensation Division, dated July 31, 1977, to the Commissioner of Labor. We initially note that this court has stated that testimony before a committee is of little value in ascertaining legislative intent, at least where the committee fails to prepare and distribute a report incorporating the substance of the testimony. Alaska Pub. Employees Ass'n v. State, 525 P.2d 12, 17-18 (Alaska 1974) (citing 2A Sutherland, Statutory Construction § 48.10 (4th ed. Sands 1973)). Here, Seward Marine has made no showing that the proffered testimony was endorsed by the committee or relied on in any way. We would therefore be engaging in pure speculation were we to impute the beliefs of the speakers to the legislature as a whole. We do, however, note that the proffered testimony does not unequivocally establish that S.B. 131 was designed, among other things, to fix the percentage in AS 23.30.175(a) at the level existing at the time of injury. As with the governor's transmittal letter, the comments are equally susceptible of speaking only to fixing the average weekly wage. The two documents which do support Seward Marine's position are the memorandum from the Legislative Affairs Agency, and the memorandum from the Director of the Workers' Compensation Division. However, Seward Marine made no showing that these memoran-da were ever read by the legislators or submitted in any form to the legislature as a body. Accordingly, we do not regard these memoran-da as determinative on the question of legislative intent. Alaska Pub. Employees Ass'n v. State, 525 P.2d 12, 17-18 (Alaska 1974). . We recognize that eliminating the current benefits rule only reduced costs in regard to those claimants injured in 1977, for the average weekly wage decreased in 1979 after peaking in 1978 at $456.00 per week. However, it should be remembered that the legislature was acting in an inflationary era when it amended AS 23.30.175(a). We therefore have difficulty accepting Seward Marine's argument that that body acted in 1977 with the knowledge that the state's average weekly wage would decrease in 1979. . Wien Air Alaska v. Arant, 592 P.2d 352, 357 (Alaska 1979).

10438523

Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee

Juneby v. State

1982-03-11

No. 5606

823

847

641 P.2d 823

641

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee.

Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee. No. 5606. Court of Appeals of Alaska. March 11, 1982. Jane F. Kauvar, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., SINGLETON, J., and MOORE, Superior Court Judge. MOORE, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16, of the Constitution of Alaska.

12839

81589

OPINION BRYNER, Chief Judge. In this sentence appeal, we must consider the presumptive sentencing provisions of the Alaska Revised Criminal Code. Specifically, we are called upon to interpret and apply AS 12.55.155, which permits presumptive sentences fixed by AS 12.55.125 to be increased by the sentencing court upon a showing of aggravating factors and decreased upon a showing of mitigating factors. On April 30, 1980, Ivan Juneby knocked on the door of a Fairbanks residence. The door was opened by a young woman, V.W., the only person in the house. V.W. allowed Juneby to enter in order to use the telephone. Once inside, however, Juneby attacked V.W. After beating and choking V.W. into submission, Juneby proceeded to rape her. When an acquaintance of V.W. knocked on her door, Juneby abruptly terminated his assault and fled. He was arrested a short time later. Juneby subsequently entered pleas of nolo contendere to charges of burglary in the first degree, a class B felony, and sexual assault in the first degree, a class A felony. The maximum term provided for the burglary was ten years; for the sexual assault, the maximum was twenty years. See AS 12.55.125(d) and (c), respectively. Sentencing was held in Fairbanks on September 23, 1980, before Superior Court Judge Gerald J. Van Hoomissen. Juneby received a sentence of eight years' imprisonment for the burglary and twenty years' imprisonment for the sexual assault; the two sentences were imposed concurrently. He now appeals only the twenty-year sentence for sexual assault, claiming that the court gave undue weight to aggravating circumstances and that his sentence is excessive. I. THE PRESUMPTIVE SENTENCING PROVISIONS OP THE ALASKA REVISED CRIMINAL CODE At his sentencing, it was undisputed that Juneby had previously been convicted of grand larceny, a felony. Accordingly, upon his conviction of burglary and sexual assault, Juneby became subject to presumptive sentencing as a second felony offender under the provisions of the Alaska Revised Criminal Code. The presumptive sentencing provisions specifically applicable to Juneby are contained in AS 12.55.125(c)(2) and (d)(1); these provisions state, in pertinent part: (c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms . (2) if the offense is a second felony conviction, 10 years; (d) A defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years, and shall be sentenced to the following presumptive terms . (1) if the offense is a second felony conviction, four years . Accordingly, Juneby was subject to presumptive terms of ten years for his sexual assault and four years for his burglary. In the absence of extraordinary circumstances, these presumptive sentences were mandatory, and the sentencing court was bound to impose them, subject only to adjustment for aggravating or mitigating factors in accordance with AS 12.55.155. In this appeal, Juneby challenges the sentencing court's interpretation and application of the provisions of AS 12.55.155 permitting adjustment of presumptive sentences upon proof of aggravating or mitigating factors. He further contends that Judge Van Hoomissen incorrectly concluded that the aggravating factors established in his case justified increasing his sentence for first degree sexual assault from the ten-year presumptive sentence prescribed under AS 12.55.125(c)(2) to the maximum twenty-year term for the offense. Before we attempt to consider the merits of Juneby's claims, we must address two threshold matters. First, we believe that discussion of the basic structure and purposes of Alaska's presumptive sentencing scheme, with specific reference to the legislature's commentary on the code's sentencing provisions, will be helpful in providing a background for review of the senténcing court's decision. Second, we must consider the manner in which the revised code's presumptive sentencing provisions alter the previously existing scope of review in sentence appeals. A. Structure and Purposes of the Presumptive Sentencing Statutes In 1977, when the Alaska Legislature began its consideration of a comprehensive revision of the former criminal code, there was a strong perception that the sentencing structure of Alaska's criminal statutes lacked coherence. See B. Stern, The Proposed Alaska Revised Criminal Code, 7 UCLA-Alaska L.Rev. 1, 10-11 (1977). Furthermore, based on the results of sentencing studies in Alaska, the legislature was concerned with eliminating disparity in the sentencing of similarly situated offenders and making criminal sentencing a predictable, internally consistent process. See Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement No. 47 at 148, 1978 Senate Journal 1399. Decisions of the Alaska Supreme Court in sentence appeals had given little significance to uniformity as a goal of sentencing or of appellate review of sentences. The markedly different approach to sentencing taken by the Alaska Legislature in enacting the Alaska Revised Criminal Code is made explicit in the first section of the new code's chapter dealing with sentencing. AS 12.-55.005 provides, in relevant part: Declaration Of Purpose. The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. [Emphasis added.] The presumptive sentencing provisions of the Revised Criminal Code, contained in AS 12.55.125 and 12.55.155, thus reflect the legislature's intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses. Under the provisions of AS 12.55.125, courts sentencing individuals convicted of their first felony offense are not expressly limited in the sentence that can be imposed; thus, much of the traditionally broad discretion to decide what kind of a sentence to impose in each case is retained. For second and subsequent felony offenders, however, the legislature has evidenced a strong resolution to restrict judicial discretion and to assure that, as a general rule, statutorily mandated sentences would be imposed. AS 12.55.-125(c)(2), (c)(3), (d)(1), (d)(2), (e)(1), and (e)(2), establish presumptive sentences to be imposed upon persons convicted of class A, B, and C felonies when their convictions are for second or subsequent felonies. Under the provisions of AS 12.55.125(g), these presumptive terms may not be suspended or reduced, nor is an offender who is subject to presumptive sentencing eligible to receive a suspended imposition of sentence. Only two methods are provided for a sentencing judge to deviate from a presumptive sentence established under AS 12.55.125. One occurs when the judge concludes that extraordinary circumstances exist, so that manifest injustice would result if normal presumptive sentencing procedures, as set forth in AS 12.55.125 and 12.55.155, were followed. Upon reaching such a conclusion, the judge must refer the case for sentencing to a specially constituted three-judge panel, which is empowered to impose a sentence without regard to the presumptive terms provided for under AS 12.55.125. See AS 12.55.165 and 12.55.175. The second alternative, provided for in AS 12.55.155, allows a sentencing judge to adjust a presumptive term upward or downward based on a finding of aggravating or mitigating factors. Under AS 12.55.155(c), eighteen aggravating factors are enumerated; thirteen mitigating factors are listed under AS 12.55.155(d). Only the factors specifically stated may be considered by the court in' determining whether a presumptive sentence should be adjusted. It is manifest that the legislature did not intend aggravating and mitigating circumstances to be lightly found. This is reflected in AS 12.55.155(f), which states, in pertinent part: "Factors in aggravation and factors in mitigation must be established by clear and convincing evidence . . . . " The requirement of proof by clear and convincing evidence is a strong indication of the legislature's intent to prohibit frequent and substantial departure by sentencing judges from the presumptive sentences that it statutorily prescribed. The legislature emphasized this intent in commenting upon the clear and convincing evidence requirement of AS 12.55.155(f): Factors in aggravation or mitigation must be proven by 'clear and convincing' evidence so that deviation from the pre sumptive sentence does not occur routinely- Commentary on the Alaska Revised Criminal Code, supra at 161. The presumptive terms set out in AS 12.55.125 were thus intended as appropriate for imposition in most cases, without significant upward or downward adjustment. The commentary to AS 12.55.125 lends further support to this conclusion: A presumptive sentence is a legislative determination of the term of imprisonment the average defendant convicted of an offense should be sentenced to, absent the presence of legislatively prescribed factors in aggravation or mitigation or extraordinary circumstances. Commentary on the Alaska Revised Criminal Code, supra at 153 (emphasis added). Under the view espoused by the legislature, a presumptive term represents the appropriate sentence for cases that fall within the middle-ground between the opposing extremes of the most and least serious conduct for a given crime. It is to be expected, then, that sentences equalling or varying only slightly from the presumptive terms will generally be suitable when presumptive sentencing applies. Minor adjustments for aggravating or mitigating circumstances might be appropriate in a significant number of cases; only in unusual cases, however, can it be anticipated that substantial deviation from the presumptive term will be called for. When viewed in the light of the fundamental goals of the new sentencing statutes, the rationale for this relatively inflexible sentencing framework is readily understood. If sentencing courts were permitted, under the presumptive sentencing scheme, to deviate routinely and substantially from the presumptive terms prescribed by law, the fundamental purposes of eliminating disparity and establishing reasonable uniformity in sentencing would be completely undermined. Unless the provisions of AS 12.55.155 are adhered to strictly, and unless a measured and restrained approach is taken in the adjustment of presumptive sentences for both aggravating and mitigating factors, then the prospect of attaining the statutory goal of uniform treatment for similarly situated offenders would quickly be eroded, the potential for irrational disparity in sentencing would threaten to become reality, and the revised code's carefully fashioned system of escalating penalties for repeat offenders would be rendered utterly ineffective. B. Standard of Review for Appeals from Presumptive Sentences We next address the question of the appropriate scope of appellate review in sentence appeals evolving from cases in which presumptive sentences are imposed. The state has argued that, in deciding Juneby's sentence appeal, this court "is limited to an inquiry of whether the sentence imposed by the trial judge was clearly mistaken." We disagree. The "clearly mistaken" standard was established for resolution of sentence appeals in McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974), well before the presumptive sentencing provisions of the Alaska Revised Criminal Code were adopted. Application of the "clearly mistaken" standard was appropriate under our former sentencing provisions in order to determine whether the sentencing court properly exercised its discretion in light of the broad sentencing goals enumerated in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). However, when the presumptive sentencing provisions of AS 12.55.125 and 12.55.155 apply, neither the Chaney criteria nor the "clearly mistaken" standard of appellate review will suffice to assure accurate resolution of sentence appeals. As the commentary to the sentencing provisions of the revised code ex pressly indicates, when the presumptive sentencing statutes apply, the Chaney criteria are no longer of primary importance in determining the sentence. By the same token, in a sentence appeal involving the presumptive sentencing provisions of AS 12.55.125 and 12.55.155, the scope of our review will necessarily entail more than the simple application of the "clearly mistaken" standard and the Chaney criteria. This is because the procedures established by the presumptive sentencing statutes will normally require us to consider issues other than the ultimate question of whether the sentence imposed was excessive or too lenient. On the one hand, we will often be asked to consider whether the presumptive sentencing statutes were properly interpreted or whether the procedures they establish were correctly followed. Matters such as these involve questions of law, as to which we are entitled to make an independent evaluation, substituting our judgment for that of the superior court. See, e.g., Troyer v. State, 614 P.2d 313, 318 (Alaska 1980); Johnson v. State, 631 P.2d 508, 512 (Alaska App.1981). On the other hand, we will also frequently be called upon to decide whether predominately factual determinations of a sentencing court — such as a judge's findings as to the existence of aggravating or mitigating factors — were correctly made and are supported by evidence in the record. Issues of this type will be subject to the more circumscribed "clearly erroneous" standard of appellate review. Under this standard, the sentencing court's factual findings are entitled to deference, and the court's decision must be upheld unless we are "left with the definite and firm conviction on the entire record that a mistake has been made." Troyer v. State, 614 P.2d at 318 n.ll. See also Johnson v. State, 631 P.2d at 512; Alaska R.Civ.P. 52(a). Thus, because of the structured and comprehensive approach toward sentencing adopted by the Revised Criminal Code, when dealing with presumptively imposed sentences, we will often be required to use not only the "clearly mistaken" standard adopted in McClain v. State, but also the well established standards that normally apply to appellate review of a trial court's factual determinations and legal conclusions. This is not to say that the Chaney criteria and the "clearly mistaken" standard of review on appeal will be wholly irrelevant in sentence appeals involving presumptive sentences. Once a sentencing court has correctly interpreted and applied the presumptive sentencing provisions of the code and has properly determined the existence of aggravating or mitigating factors, then it will have the discretion to adjust the presumptive sentence for the particular offense, within the limits prescribed by AS 12.55.155(a)(1) and (2). In such instances the Chaney criteria, as stated in AS 12.55.005(2)-(6), will be relevant to the sentencing court's determination of the amount by which the presumptive term should be adjusted. Thus, in sentence appeals involving presumptive sentences, it is only when we are called upon to decide if the sentencing court properly exercised its discretion to adjust a presumptive term for aggravating or mitigating factors that the "clearly mistaken" standard of review will continue to govern. II. EVALUATION OF THE SENTENCING PROCEEDINGS IN THIS CASE IN LIGHT OF THE REQUIREMENTS OF ALASKA'S PRESUMPTIVE SENTENCING STATUTES We now proceed to consider the manner in which Juneby's sentencing was conducted below, in light of the presumptive sentencing provisions of AS 12.55.125 and 12.55.155. We conclude that Juneby's sentence was not imposed in accordance with the requirements of these sections; our decision is compelled by a number of significant problems involved in the imposition of Juneby's sentence. After entering pleas of nolo contendere, but prior to the time set for sentencing, Juneby gave timely notice that he would present evidence of two mitigating factors at sentencing. The mitigating factors specified were, first, that his prior felony, grand larceny, "was of a less serious class of offense than the present offense," AS 12.55.-155(d)(8), and, second, 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). The prosecution gave timely notice that it would rely on three factors in aggravation at sentencing. These factors were, first, that Juneby's victim "sustained physical injury as a direct result of the defendant's conduct," AS 12.55.155(c)(1), second, that Juneby's "conduct during the commission of the offense manifested deliberate cruelty" toward his victim, AS 12.55.155(c)(2), and, third, that Juneby's "conduct constituting the offense was among the most serious conduct included in the definition of the offense," AS 12.55.155(c)(10). At Juneby's sentencing, Judge Van Hoomissen, after reviewing the presentence report, considering the evidence, and hearing argument, concluded that the three alleged aggravating factors had been established. He found that V.W. had sustained physical injury, that Juneby had acted with deliberate cruelty, and that his conduct was among the most serious conduct within the definition of first degree sexual assault. The judge also found the existence of a mitigating factor: Juneby's prior conviction was for a less serious offense. In accordance with AS 12.55.155(f), the judge expressly indicated that his findings were based on clear and convincing evidence. Judge Van Hoomissen then engaged in an extensive consideration of the sentencing criteria established by State v. Chaney, 477 P.2d at 444. He took Juneby's background into account, giving particular emphasis to Juneby's apparent problems with alcoholism. The judge concluded by indicating that he would follow the recommendation of the presentence report, which suggested an eight-year term for the burglary and a maximum, twenty-year term for the sexual assault. At no point did the judge make reference to the ten-year presumptive sentence prescribed by AS 12.55.-125(c)(2) for Juneby's first degree sexual assault; nor did the judge make any attempt to explain in specific terms why he believed that the three aggravating factors that he had found, coupled with the one mitigating factor, justified departing from the ten-year presumptive term by imposition of the maximum sentence of twenty years for the sexual assault. We will separately discuss the sentencing judge's findings with respect to each of the three aggravating factors. A. Physical Injuries as an Aggravating Factor Judge Van Hoomissen specifically determined that Juneby's victim, V.W., sustained physical injuries as a result of the offense; the judge thus concluded that the state had established the aggravating factor set forth in AS 12.55.155(c)(1). In order to establish the aggravating factor of physical injury, the state presented a tape recorded interview of V.W.; its admissibility was stipulated to by Juneby. The state also introduced photographs taken shortly after the assault, which showed V.W.'s face. V.W.'s statements indicated that Juneby had knocked at her door and asked about a former girlfriend of his who had lived next door. When V.W. told him that she had seen a moving van there recently, Juneby asked to use V.W.'s phone; V.W. allowed him to enter. After an unsuccessful attempt to call a moving company, Juneby abruptly attacked V.W. He beat her repeatedly about the face and ribs with his fists, and then he twisted her arm and dragged her down a corridor into a bathroom. There, Juneby forced V.W. into submission by choking her. He forcibly pressed her throat against the edge of a clothes dryer, causing V.W. to lose her breath for a short time. At this point, V.W. did not know why Juneby was attacking her and thought that he was trying to kill her. Suddenly, Juneby ceased choking his victim; he commanded her to undress and then proceeded to rape her. The photographs of V.W. show that her face was bruised and swollen following this incident. In addition, V.W. stated that her ribs were badly bruised. These injuries were treated by a physician after the incident, but V.W. was not hospitalized. Although V.W. experienced considerable pain and discomfort for several weeks, she suffered no permanent disfigurement or physical impairment. Juneby does not contest the fact that V.W. sustained physical injury within the definition of AS 12.55.155(c)(1); he does, however, question the amount of weight that should properly be assigned to this aggravating factor in adjusting the presumptive term of ten years called for by AS 12.55.125(c)(2). The mere proof of an aggravating or mitigating factor cannot be deemed sufficient, in and of itself, to justify an increase or decrease of a presumptive term. Increases or decreases of presumptive terms should not be the automatic consequence when aggravating or mitigating factors are proved. This is apparent from the language contained at the beginning of subsections (c) and (d) of AS 12.55.155. Subsections (c) and (d) provide, in pertinent part, that aggravating and mitigating factors "shall be considered by the sentencing court and may aggravate [or mitigate] the presumptive terms" established by law. (Emphasis added.) In order to determine the realistic impact that proof of an aggravating or mitigating circumstance should have on adjustment of a presumptive sentence in any given case, we believe it essential to consider not only the specific conduct constituting the aggravating or mitigating factor, but also the nature of the crime charged. With specific reference to the aggravating factor of injury to others, where the crime charged is one that does not ordinarily involve the use of force or violence in its perpetration, the fact that a person sustains injury — even if the injury is relatively slight — assumes considerable importance as an aggravating factor. This is so because cases falling within the middle-range of seriousness for such offenses would involve no violence or injury. Hence, any actual injury would constitute a significant deviation from the norm for the offense; cases involving actual injury would fall significantly nearer to that end of the spectrum that includes the most aggravated conduct for the offense. By contrast, where the existence of injury is a common element of the crime charged, or where the crime is one typically committed by violent means, the same analysis requires far less weight to be given to relatively minor injuries. It would be appropriate to place significant weight on the aggravating factor of physical injury in such cases only when the injury is so severe that it can realistically be said to deviate significantly from the types of injury characteristic of the offense. In Juneby's case, the crime charged was sexual assault in the first degree, as defined in AS 11.41.410(a)(1), which states: (a) A person commits the crime of sexual assault in the first degree if, (1) being any age, he engages in sexual penetration with another person without consent of that person . This particular offense is essentially the equivalent of the crime of rape under prior law. We would be blinding ourselves to reality if we did not recognize that, in most cases involving rape, or sexual assault in the first degree under AS 11.41.410(a)(1), actual or threatened violence will be involved, and the victim will suffer at least some level of physical injury or discomfort. The use of force and the infliction of at least some physical injury to the victim are, realistically, characteristic of the crime of rape. Indeed, it is the prevailing view that rape is primarily a crime of violence, as distinguished from a sexual offense. See, e.g., C. Silberman, Criminal Violence, Criminal Justice 3-20 (1978). As with all other presumptive sentences, the ten-year presumptive term for first degree sexual assault was meant by the legislature to be appropriate in the majority of cases — those cases involving conduct that is characteristic of the offense of rape and that falls into the middle-ground between the most serious and least serious extremes for the offense. It must therefore be recognized that this presumptive term takes into account the high potential for the use of violence and the likelihood of some physical injury in first degree sexual assaults falling within the definition of AS 11.41.410(a)(1). Where, as here, violence and injury are characteristic of an offense defined by statute, the mere fact of some physical injury to the victim as a result of the defendant's conduct, though technically an aggravating factor under AS 12.55.-155(c)(1), will not justify a significant increase in the presumptive term. Thus, when a charge of sexual assault in the first degree is based on a theory of rape under subsection (a)(1) of AS 11.41.410, in order to justify a substantial increase in the presumptive term the prosecution must bear the burden of making a clear and convincing showing that the injuries were unusual in nature or uncharacteristically severe. Progressively greater increases in the presumptive term will be justified as the injuries inflicted increase in severity; more substantial increases should be reserved for the most severe category of injuries: those included within the definition of "serious physical injury" under the provisions of. AS 11.81.900. In the present case, the evidence presented to the sentencing court established that, in beating his victim, Juneby inflicted visible and painful injuries. The injuries did not, however, require extensive treatment, they apparently resulted in no permanent physical impairment, they were not life-threatening, and they created no lasting disfigurement. We do not by any means minimize the extent of the suffering inflicted upon Juneby's victim. However, we believe that the physical injuries inflicted by Juneby cannot be deemed to approach the definition of "serious physical injury" contained in AS 11.81.900(b)(49). Nor do we think that these injuries — though perhaps more severe than those in many cases — are' highly uncharacteristic of injuries all too frequently suffered by rape victims. Accordingly, we do not believe that these injuries, standing alone, would justify a substantial increase in Juneby's presumptive term. On the other hand, the evidence before Judge Van Hoomissen also showed that Juneby choked his victim, both with his hands and by pressing her throat against the edge of a clothes dryer. Although V.W. ultimately sustained no permanent injury, we believe that both the extent of force and the method used by Juneby to choke V.W. might be found to approach the statutory definition of serious physical injury. This question, however, is one of fact, to be determined by the sentencing court in the first instance. At the original sentencing proceeding, the sentencing judge apparently did not specifically consider the statutory definition of serious physical injury. Moreover, it is not clear that the judge correctly determined the extent to which V.W.'s injuries should affect the presumptive term. There is no indication in the record that the judge considered the seriousness of the injuries suffered by V.W. in relation to injuries typically inflicted on rape victims. In fact, the judge failed to make any findings with respect to this aggravating factor, other than the general finding that it had been established by clear and convincing evidence. Because Judge Van Hoomissen was faced in this case with the task of imposing a presumptive sentence when the Alaska Revised Criminal Code was still relatively new, his failure to specify the precise standards that he used in determining the extent to which Juneby's sentence should be increased as a result of this aggravating factor is not surprising. Certainly, it would be incorrect to hold that Judge Van Hoom-issen abused his discretion by failing to adhere to standards that had not yet been established when he imposed the sentence. Nevertheless, we believe that in the absence of an affirmative indication in the record that the sentencing court correctly evaluated the evidence presented concerning the aggravating factor of physical injury to Juneby's victim, this issue must be remanded for redetermination consistent with the analysis we have set forth herein. B. Deliberate Cruelty as an Aggravating Factor Judge Van Hoomissen additionally concluded that Juneby's conduct toward V.W. manifested deliberate cruelty. AS 12.55.155(c)(2). The sole basis relied upon by the judge in finding deliberate cruelty was the force used by Juneby to overpower V.W. at the outset of his assault. In order to decide whether the sentencing court's ruling was correct, we must determine the meaning of "deliberate cruelty" as the term is used in AS 12.55.155(c)(2). Webster's Dictionary defines the word cruelty to mean: "(1) the quality or condition of being cruel . " The word cruel is, in turn, defined as follows: (1) deliberately seeking to inflict pain and suffering; enjoying other's suffering; without mercy or pity . The word cruelty thus denotes the infliction of pain or suffering for its own sake, or for the gratification derived therefrom. We think that, in accordance with this common definition, the term "deliberate cruelty," as used in AS 12.55.155(c)(2) must be restricted to instances in which pain — whether physical, psychological, or emotional — is inflicted gratuitously or as an end in itself. Conversely, when the infliction of pain or injury is merely a direct means to accomplish the crime charged, the test for establishing the aggravating factor of deliberate cruelty will not be met. When this definition is applied to the present case, we believe that it is questionable whether the evidence considered by the sentencing judge would properly lead to the conclusion that the injuries suffered by V.W. resulted from deliberate cruelty on Juneby's part. At Juneby's sentencing, neither the prosecution nor the defense presented the court with any argument concerning the appropriate definition of deliberate cruelty; Judge Van Hoomis-sen, in finding that the aggravating factor of deliberate cruelty had been established, gave no explanation of the standard that he applied to reach his conclusion. The definition of deliberate cruelty that we have adopted has been announced for the first time in this opinion; it is apparent that Judge Van Hoomissen did not rely on a similar definition in concluding that this aggravating factor had been established. The question of whether the aggravating factor of deliberate cruelty has been established by clear and convincing evidence is essentially a factual one. Despite our reservations about the sufficiency of the evidence to meet the "clear and convincing" test, we believe that this question is sufficiently close to require that it be addressed initially upon remand by the sentencing judge; his determination as to whether deliberate cruelty has been shown should be based on the definition of the term that we have adopted. C. Most Serious Conduct as an Aggravating Factor Judge Van Hoomissen found as a third aggravating factor, under AS 12.55.- 155(c)(10), that Juneby's sexual assault of V.W. "was among the most serious conduct included in the definition of the offense . . . " We believe that the evidence in the record falls short of supporting the sentencing court's conclusion. We begin by noting that Judge Van Hoomissen proceeded on the assumption that the reference in AS 12.55.-155(c)(10) to "the most serious conduct included in the definition of the offense" simply meant that, among the four alternative types of conduct included within the definition of sexual assault in the first degree under AS 11.41.410(a), the type with which Juneby was charged — sexual penetration without consent, under subpara-graph (1) of AS 11.41.410(a) — was by definition the most serious type of first degree sexual assault. Under this theory, Judge Van Hoomissen apparently viewed all sexual assaults falling within the definition of AS 11.41.410(a)(1) as involving conduct intrinsically more serious than the conduct defined as first degree sexual assault under the three other subparagraphs of AS 11.41.-410(a). Following this reasoning, the judge concluded that the aggravating factor of "most serious conduct" under AS 12.55.-155(c)(10) had been established based solely upon the fact that Juneby was charged and convicted under subparagraph (1) of AS 11.41.410(a). We find Judge Van Hoo'missen's interpretation of the aggravating factor defined in AS 12.55.155(c)(10) to be mistaken. All of the categories contained within the definition of sexual assault in the first degree under AS 11.41.410(a)(l)-(4) constitute the same offense for legal purposes. All four subparagraphs are treated as comprising the same offense; all are categorized as class.A felonies. Nothing contained in the statutory language of AS 11.41.410 or the legislative history of that provision suggests that the type of conduct listed in any one of the statute's four subparagraphs was meant to be inherently more serious than any of the others. To the contrary, the grouping of these four separate sets of conduct together under the same criminal heading, with identical classifications as class A felonies, is a forceful indication of the legislature's conclusion that all four subpara-graphs were meant to be viewed as involving equally serious conduct. Moreover, the legislative history of AS 12.55.155(e)(10) makes it clear that the drafters of this provision intended that the determination of whether an offender's conduct "was among the most serious conduct included in the definition of that offense" was to be based on an assessment of the specific facts of each case, viewed in relation to the most serious potential conduct constituting the offense charged. Judge Van Hoomissen did, alternatively, indicate that he would find Juneby's crime to fall within the category of the most serious conduct even if his interpretation of AS 12.55.155(c)(10) was incorrect. As a basis for this conclusion, the judge articulated several grounds. He emphasized that Juneby had no prior contact with his victim; he gave great weight to the fact that Juneby's rape was committed in V.W.'s own home; he emphasized the injuries suffered by V.W., as well as the violent acts on Juneby's part, which he had found to constitute deliberate cruelty; finally, he pointed out that Juneby did not terminate his rape of V.W. voluntarily, but that he had fled when another person knocked at V.W.'s door. We believe that the various factors articulated by Judge Van Hoomissen are not sufficient to support a finding, by clear and convincing evidence, that Juneby's conduct was among the most serious included in the definition of the offense with which he was charged. Because Judge Van Hoomissen had separately determined that Juneby's violent conduct and the resulting injuries sustained by V.W. fell within the definition of deliberate cruelty, when the judge relied on Juneby's violent acts to conclude that his conduct was among the most serious for the offense, he was plainly taking into account facts that had already been given weight as a separate aggravating factor. The problem created by such a determination is self-evident. By basing his finding of the aggravating factor of "most serious conduct" pursuant to AS 12.55.155(c)(10) on circumstances that had already independently been relied on to establish another aggravating factor, the sentencing judge was, in effect, justifying an additional increase in Juneby's sentence for conduct that had already been used as a basis to increase the sentence once before. In this manner, Juneby's offense could be doubly aggravated, and his sentence could be twice increased, for precisely the same acts. A closely related problem with respect to the determination that Juneby's conduct was among the most serious included in the definition of the offense stems from the emphasis placed by Judge Van Hoomissen on the fact that Juneby's rape was committed in V.W.'s home. The judge placed considerable weight on the fact that Juneby had invaded the sanctity of his victim's home to commit his crime. Had Juneby been charged only with the crime of sexual assault in the first degree, his decision to commit the sexual assault within the privacy of his victim's home might properly be considered a significant factor bearing on the seriousness of the conduct included in the sexual assault. However, in this case, it is essential to recognize that Juneby was separately charged with and convicted of burglary in the first degree for unlawfully remaining in V.W.'s home with the intent to commit the sexual assault; the court imposed a separate sentence for the burglary. Juneby had thus been separately punished for his act of violating V.W.'s privacy by entering her home. The judge's finding that Juneby's sexual assault was the most serious within the definition of the offense, because it was based in significant part on consideration of conduct for which Juneby had been separately convicted and sentenced, amounted to punishing Juneby twice for the same conduct: first, by imposing the sentence for burglary; second, by aggravating his presumptive term for sexual assault. The language of AS 12.55.155(e) is highly relevant to this aspect of the sentencing judge's decision. This section provides, in part: If a factor in aggravation is a necessary element of the present offense, that factor may not be used to aggravate the presumptive term . Juneby's unlawful occupation of V.W.'s home with intent to commit rape was not a necessary element of the crime of sexual assault; it was, however, a necessary element of the burglary, a crime of which he was simultaneously convicted. The policy underlying AS 12.55.155(e) — that is, to avoid double punishment for the same conduct — clearly applies here. Because of the separate burglary conviction and sentence, we conclude that Juneby's unlawful entry of V.W.'s house should not properly have been relied upon by the court in finding that Juneby's sexual assault was among the most serious within the definition of the offense. The conclusion that Juneby's conduct amounted to the most serious conduct included in the definition of the offense poses one additional problem of significant proportions. At the time of sentencing, the prosecution presented the sentencing court with virtually no evidence to support its claim that Juneby's conduct could be considered to fall within this aggravating factor. Viewing the totality of the circumstances, we do not think that Juneby's offense, though perhaps to some extent aggravated, was so egregious as to fall within the category of the most serious conceivable conduct for the offense. It is undeniable that Juneby committed a highly serious offense, one in which his victim was subjected to pain, humiliation, and both physical and psychological trauma. Yet the seriousness of a first degree sexual assault such as Juneby's is to a great extent already recognized by the classification of the offense as a class A felony, the most serious category of classified offenses created by the legislature in the Alaska Revised Criminal Code. Additional recognition of the seriousness of the offense and of the fact that it is regarded as intolerable under prevailing societal norms is found in the legislatively mandated presumptive term of ten years' imprisonment. As abhorrent as crimes such as Juneby's may be to all civilized persons, we cannot ignore the fact that the Alaska Legislature, through adoption of the presumptive sentencing statutes of the revised code, has clearly indicated that in cases such as this, sentences deviating from the presumptive and approaching the maximum for the offense will be appropriate only in those rare instances where the conduct of the offender is so highly aggravated that it qualifies as being among the most extreme and egregious of sexual assaults. Evaluating this case realistically, we note that Juneby did not carry or pretend to carry any weapon; he did not threaten his victim with deadly force; though V.W. fled when Juneby's attempts at rape were interrupted by a knock at the door, Juneby apparently made no attempt to stop her. Juneby's sexual assault appears to have been committed on impulse and not to have been planned. Despite the substantial and inexcusable violence used by Juneby to subdue his victim, once V.W. was forced into submission, Juneby's conduct toward her was not inordinately violent. Although, in the course of his assault, Juneby requested his victim to perform fellatio upon him, when she refused to do so he was passive and did not insist that she carry through with the act. Finally, the total length of Juneby's assault was relatively brief. In enumerating these factors, we do not suggest that we consider them as mitigating the seriousness of Juneby's crime. To the contrary, we believe Juneby's own assertion that his crime was among the least serious within the definition of the offense to be frivolous. The point that we make is that, while this crime may not accurately be described as a mitigated incident of rape, or sexual assault in the first degree, neither does it fall at the other end of the spectrum. On balance, consideration of the totality of the circumstances of this offense leaves us with the firm impression that, but for the injuries inflicted upon Juneby's victim, this crime may reasonably be considered to fall far closer to the middle-ground, or norm, of conduct for the offense charged than to either the most serious or least serious extreme. It is precisely for this type of case, one that is fairly characteristic in its class and neither mitigated nor aggravated, that our legislature has mandated a specific presumptive term. D. Reasonableness of Juneby's Sentence in Light of Prior Alaska Sentence Appeals In seeking to support the total sentence imposed in this case as reasonable, the state has argued strenuously that a number of sentence appeals from convictions of rape have upheld sentences in the range of fifteen years or greater. Arguing to the contrary, Juneby maintains that the cases relied upon by the state are factually distinct from his own case; he goes on to cite a number of other sentence appeals in which high sentences for rape have been disapproved, or in which lower sentences have been approved. The cases relied upon by both parties were decided before enactment of the Alaska Revised Criminal Code and its presumptive sentencing provisions. Consequently, reliance by the parties on these cases is, in our view, misplaced. We do not believe that a sentence imposed before enactment of the revised code can be accurately compared with or equated to a sentence presumptively imposed. Of special significance in this regard is the fact that, with adoption of the revised code, legislation permitting the early release of prisoners on parole was repealed in all cases involving presumptive sentencing. The realistic impact of this change must be recognized. Before enactment of the Alaska Revised Criminal Code, in the absence of a specific order to the contrary, sentenced prisoners were eligible for early release on parole, even on second or subsequent felony convictions. By contrast, an individual sentenced under Alaska's presumptive sentencing statutes now cannot be paroled. At most, prisoners presumptively sentenced are entitled to an allowance for "good time," totall-ing one day of credit for three days served. Thus, a person sentenced under the presumptive sentencing statutes will be required to serve at least seventy-five per cent of the term imposed, even if he is a model prisoner. If the person fails to abide by institutional regulations, he can expect to serve his full term. Viewed realistically, then, a prison sentence imposed prior to enactment of the Alaska Revised Criminal Code is by no means equivalent to a sentence presumptively imposed; a presumptive term of ten years must be regarded as significantly more severe than a ten-year sentence imposed under prior law, when early parole in cases involving lengthy sentences was the order of the day. Even if the presumptive sentencing statutes had not drastically altered the practical significance of a set term of incarceration by eliminating eligibility for parole, the reliance placed by the parties on sentence appeals decided under prior law would still be unwarranted. It may, indeed, be true that before adoption of the presumptive sentencing statutes sentences of fifteen or twenty years for crimes such as Juneby's were often approved on appeal. The state's assertion of this argument, however, entirely overlooks the substantial changes enacted by the legislature in the presumptive sentencing provisions. These changes were intended to be mandatory, and we are bound to abide by them, as are our sentencing courts. As to many offenses, the changes contained in the presumptive sentencing statutes will result in the imposition of uniformly higher sentences for second and subsequent felony offenders. As to some offenses, however, the opposite will inevitably be the result, and offenders will be presumptively sentenced to terms uniformly lower than sentences commonly imposed before enactment of the revised code. If first degree sexual assaults fall into this latter category, as it appears they might, it should be clear that change must be sought through amendment by the legislature, and not by straining the interpretation and application of the current presumptive sentencing statutes in order to maintain consistency with past sentencing practices. In short, we find little practical utility in attempting to gauge the appropriateness of a presumptive sentence imposed under the revised code by comparison with the results of sentence appeals decided under prior law. We decline the request of both the state and the appellant to assess the reasonableness of the sentence imposed in this case by recourse to comparison with prior decisions. E. Additional Issues Our conclusions thus far do not entirely resolve the issues presented. At his sentencing, Juneby asserted, and the state conceded, that one mitigating factor existed. Pursuant to AS 12.55.155(d)(8), June-by's offense was mitigated by the fact that his prior felony conviction was for an offense of a less serious class than his present offense. Although Judge Van Hoomissen expressly acknowledged the existence of this mitigating factor, he proceeded to impose a maximum sentence for Juneby's conviction of sexual assault, offering no explanation of his reasons for apparently disregarding this mitigating factor. Indeed, Judge Van Hoomissen, although making minimal findings as to the existence of aggravating and mitigating circumstances, failed to explain the importance, or lack of importance, of any factor in terms of its impact on his ten-year increase of the presumptive term provided for by law. AS 12.55.155(f) expressly addresses the need for factual findings with respect to aggravating and mitigating factors, stating, in pertinent part: "All findings [relating to factors in aggravation and factors in mitigation] must be set out with specificity." The rationale for the requirement of specific findings by the sentencing court is explained in the commentary to subsection (f): To preserve the rights of both parties on appeal, the subsection requires that the judge specifically set forth decisions with respect to aggravating or mitigating factors on the record. We believe that the provisions of subsection (f) must be read to require more than a pro forma, conclusory statement that an aggravating or mitigating factor has or has not been shown by clear and convincing evidence. Such a finding is of little utility in preserving the rights of the parties in a sentence appeal. We conclude that subsection (f)'s requirement that findings "be set out with specificity" calls for sentencing judges to include, in their remarks on the record, the following specific information: (1) the specific factors in aggravation and in mitigation found to have been established by clear and convincing evidence; (2) the evidence upon which the court has relied in finding the existence of aggravating or mitigating factors; (3) an explanation of the weight given by the court to each aggravating or mitigating factor, and the relative importance of each factor in comparison with other aggravating or mitigating factors established; and (4) an evaluation of the totality of the aggravating and mitigating factors in light of the Chaney criteria, as expressed in AS 12.55.005, in order to determine the amount by which the presumptive sentence for the particular offense should be adjusted. Accordingly, upon remand, the sentencing court shall make specific findings, in conformity with these requirements, concerning all alleged aggravating and mitigating factors, including the mitigating factor that Juneby's prior conviction was of a less serious class of felony than his present offense, pursuant to AS 12.55.155(d)(8). III. CONCLUSION. We hold that Juneby's sentence must be vacated and that this case must be remanded for resentencing. Although we have found that Judge Van Hoomissen properly determined that an aggravating factor was established by proof of injuries sustained by Juneby's victim, it will be necessary for the court to reevaluate the extent of these injuries in light of the standards we have set forth herein and to determine what significance, if any, the injuries should have on adjustment of the ten-year presumptive term prescribed for Juneby's offense. We further decide that Judge Van Hoomissen must redetermine the question of whether Juneby's offense was aggravated by the factor of deliberate cruelty; in reevaluating this issue, the definition of deliberate cruelty adopted in this opinion should be applied by the sentencing judge to the facts of the present case. We also hold that the finding that Juneby's conduct was among the most serious included within the definition of the offense with which he was charged is unsupported by the record; upon remand, the sentencing judge shall not consider this factor in determining the extent to which Juneby's presumptive term should be adjusted. In resentencing Juneby, the court should make appropriate findings concerning all alleged aggravating and mitigating factors, as provided for herein. In conclusion, we think it worthwhile to reiterate our belief that the legislature's paramount goals of eliminating disparity and achieving reasonable uniformity in sentencing can best be attained by adopting a measured and restrained approach toward adjustment of presumptive sentences for both aggravating and mitigating factors. The sentence imposed by the superior court is VACATED and this case is REMANDED for resentencing. COATS, J., not participating. . AS 11.46.300. . AS 11.41.410. .The burglary and sexual assault committed by Juneby arose "out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective ." AS 12.55.145(a)(3). Accordingly, both crimes constitute a single conviction for the purpose of applying presumptive sentencing; thus, Juneby's conviction for the burglary, although it technically occurred first, could not be considered a second felony subjecting him to presumptive sentencing as a third felony offender for sexual assault. Id. Under the provisions of AS 12.55.025(e), however, the sentencing judge was authorized to impose sentences for Juneby's convictions of burglary and sexual assault either consecutively or concurrently. . See AS 12.55.165 and 12.55.175. . AS 12.55.155 is set out in full at note 13, infra. . See generally Alaska Felony Sentencing Patterns: A Multivariate Statistical Analysis (1974-76), Alaska Judicial Council (April 1977); Cutler, Sentencing in Alaska: A Description of the Process and Summary of Statistical Data for 1973, Alaska Judicial Council (March 1975). . The Commentary to the Alaska Revised Criminal Code, published as Senate Journal Supplement No. 47 in 1978, was also adopted by the Alaska House of Representatives as its letter of intent for the code. See 1978 House Journal 1716. . For example, the Alaska Supreme Court has said: [W]e have stated that it is not the purpose of appellate review to enforce uniformity in sentencing. Sentencing is an individualized process, and all persons committing the same crime should not necessarily receive like sentences. Yet, theoretically, if two persons of identical background commit the same offense, they should receive like punishment. Sentencing, however, is not an exact science, and disparities will occur. Padie v. State, 594 P.2d 50, 61 (Alaska 1979) (footnotes omitted), quoting, Burleson v. State, 543 P.2d 1195, 1202 (Alaska 1975). . Exceptions are carved out for a number of the most serious offenses, as to which the statute requires a mandatory sentence, even for a first offense. See AS 12.55.125(a) (20-year minimum for first degree murder); AS 12.55.-125(b) (five-year minimum for second degree murder or kidnapping); and AS 12.55.125(c)(1) (six-year presumptive sentence for all first offense class A felonies except manslaughter where the defendant possessed or used a firearm or caused serious physical injury). . Even as to first offense felonies for which no presumptive or minimum term is established, however, the revised code's provisions are restrictive of judicial sentencing discretion to a certain degree. See, e.g., AS 12.55.015(b) (establishing circumstances under which incarceration is required for a first offender); Austin v. State, 627 P.2d 657 (Alaska App.1981) (holding that first offenders should normally receive more favorable sentences than the presumptive term for second offenders). . It is manifest that the legislature's focus on eliminating disparity and achieving uniformity in sentences was calculated to significantly restrict the trial court's traditionally broad sentencing discretion. This is expressly recognized in the language of AS 12.55.005, which stresses that the goals of eliminating disparity and achieving uniformity in sentencing "can best be achieved through a sentencing framework fixed by statute . . . . " (Emphasis added.) . Determination of whether a person is a second, third, or subsequent felony offender for purposes of applying the presumptive sentencing provisions of AS 12.55.125 is governed by the provisions of AS 12.55.145 and 12.55.-185(6), (7), and (8). . Because its provisions are crucial to the disposition of this case, the text of AS 12.55.155 will be set out in full: Factors in aggravation and mitigation, (a) If a defendant is convicted of an offense and is subject to sentencing under AS 12.55.-125(c)(1), (c)(2), (c)(3), (d)(1), (d)(2), (e)(1), or (e)(2) of this chapter and (1) the presumptive term is four years or less, the court may decrease the presumptive term by an amount as great as the presumptive term for factors in mitigation or may increase the presumptive term up to the maximum term of imprisonment for factors in aggravation; (2) the presumptive term of imprisonment is more than four years the court may decrease the presumptive term by an amount as great as 50 per cent of the presumptive term for factors in mitigation or may increase the presumptive term up to the maximum term of imprisonment for factors in aggravation. (b) Sentence increments and decrements under this section shall be based on the totality of the aggravating and mitigating factors set out in (c) and (d) of this section. (c) The following factors shall be considered by the sentencing court and may aggravate the presumptive terms set out in AS 12.55.125: (1) a person, other than an accomplice, sustained physical injury as a direct result of the defendant's conduct; (2) the defendant's conduct during the commission of the offense manifested deliberate cruelty to another person; (3) the defendant was the leader of a group of three or more persons who participated in the offense; (4) the defendant employed a dangerous instrument in furtherance of the offense; (5) the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance; (6) the defendant's conduct created a risk of imminent physical injury to three or more persons, other than accomplices; (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; (8) the defendant has a criminal history consisting of prior convictions for offenses, including misdemeanors, that involved aggravated or repeated instances of assaultive behavior; (9) the defendant knew that the offense involved more than one victim; (10) the conduct constituting the offense was among the most serious conduct included in the definition of the offense; (11) the defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense, and the pecuniary incentive was beyond that inherent in the offense itself; (12) the defendant was on release under AS 12.30.020 or 12.30.040 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element; (13) the defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an active or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, or fireman during or because of the exercise of his official duties; (14) the defendant was a member of an organized group of five or more persons, and the offense was committed to further the criminal objectives of the group; (15) the defendant has three or more prior felony convictions; (16) the defendant's criminal conduct was designed to obtain substantial pecuniary gain and the risk of prosecution and punishment for the conduct is slight; (17) the offense was one of a continuing series of criminal offenses committed in furtherance of illegal business activities from which the defendant derives a major portion of his income; (18) the offense was a crime specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit comprised of those living together in the same dwelling as the defendant. (d)The following factors shall be considered by the sentencing court and may mitigate the presumptive terms set out in AS 12.55.125: (1) the offense was principally accomplished by another person, and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim; (2) the defendant, although an accomplice, played only a minor role in the commission of the offense; (3) the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected his conduct; (4) the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant; (5) the conduct of an aged defendant was substantially a product of physical or mental infirmities resulting from his age; (6) in a conviction for assault under AS 11.41.200 — 11.41.230, the defendant acted with serious provocation from the victim; (7) except in the case of a crime defined by AS 11.41.410 — 11.41.470, the victim provoked the crime to a significant degree; (8) a prior felony conviction considered for the purpose of invoking the presumptive terms of this chapter was of a less serious class of offense than the present offense; (9) the conduct constituting the offense was among the least serious conduct included in the definition of the offense; (10) before the defendant knew that his criminal conduct had been discovered, he fully compensated or made a good faith effort to fully compensate the victim of his criminal conduct for any damage or injury sustained; (11) the defendant was motivated to commit the offense solely by an overwhelming compulsion to provide for emergency necessities for his immediate family; (12) the defendant assisted authorities to detect or apprehend other persons who committed the offense with him; (13) the facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is "consistently minor and inconsistent with the imposition of a substantial period of imprisonment. (e) If a factor in aggravation is a necessary element of the present offense, that factor may not be used to aggravate the presumptive term. If a factor in mitigation is raised at trial as a defense reducing the offense charged to a lesser included offense, that factor may not be used to mitigate the presumptive term. (f) If the state seeks to establish a factor in aggravation at sentencing or if the defendant seeks to establish a factor in mitigation at sentencing, written notice must be served on the opposing party and filed with the court not later than 10 days before the date set for imposition of sentence. Factors in aggravation and factors in mitigation must be established by clear and convincing evidence before the court sitting without a jury. All findings must be set out with specificity. (g) Voluntary alcohol or other drug intoxication or chronic alcoholism or other drug addiction may not be considered an aggravating or mitigating factor. (h) As used in this section, "serious provocation" has the meaning ascribed to it in AS 11.41.115(f). . Commentary on the Alaska Revised Criminal Code, supra at 160. . The legislature has specifically enumerated the sentencing goals established in State v. Chaney as primary considerations for courts in imposing non-presumptive sentences. See AS 12.55.005(2)-(6). See also Commentary on the Alaska Revised Criminal Code, supra at 148-49. Thus, in misdemeanors and first felony offenses that are not subject to presumptive sentencing, the "clearly mistaken" standard will remain appropriate. . The commentary to AS 12.55.005 provides: Factors to be considered by a court in imposing sentence are set out in paragraphs (l)-(6). (1) requires the court to consider the seriousness of the offense as compared with other offenses; this consideration reflects the 'just deserts' theory of punishment, which holds that justice requires that a sentence imposed on a defendant should be based on the crime he committed rather than on speculation as to his future behavior. The considerations in paragraphs (2)-(6) are largely a restatement of the Alaska Supreme Court's interpretation of the mandate of Article 1, section 12 of the Alaska Constitution which provides that 'Penal administration shall be based on the principle of reformation and upon the need for protecting the public.' State v. Chaney, 447 P.2d 441 (Alaska 1970). Each of the considerations set out in paragraphs (l)-(6) is to be considered by the court before imposing sentence. The factors are not listed in order of importance. In sentencing repeat felons, however, paragraph (1) will be of primary importance, because the presumptive sentencing provisions in § 12.55.125-12.55.175 provide that the presumptive sentence for repeat felons is some term of imprisonment absent a finding by the court that factors in mitigation or extraordinary circumstances exist. Commentary on the Alaska Revised Criminal Code, supra at 148-49 (emphasis added). . Under the "clearly erroneous" standard of appellate review, the amount of deference that we must give to factual determinations of the sentencing court will vary, depending upon the extent to which the sentencing court relied upon testimony in which the demeanor and credibility of witnesses played an important role: A trial court's findings of fact are entitled to great deference; on appeal to a higher court they 'shall not be set aside unless clearly erroneous.' Alaska R.Civ.P. 52(a) (emphasis added). See Troyer v. State, 614 P.2d 313, 318-19 (Alaska 1980) (clearly erroneous test applies in criminal cases). Where, however, the court intends only to review a decision of a subordinate court, on the record of the proceedings below, its decision is entitled to less deference. On appeal to the next level of courts, its decision can be independently reviewed. Halligan v. State, 624 P.2d 281, 283 (Alaska 1981). See also Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 845-48 (Alaska 1971). . We note that sentence appeals are currently defined to include only cases in which it is asserted that the sentence imposed was either excessive or too lenient. See Alaska R.App.P. 215(a)(1) and 202(c). Under a restrictive interpretation of the rules it could be argued that only the narrow question of whether a presumptive sentence, as adjusted, is excessive or too lenient can be raised as a sentence appeal. We think, however, that such an interpretation would be unduly restrictive. Under the highly structured sentencing procedures established in AS 12.55.125 and 12.55.155, sentences presumptively imposed will, more often than not, raise issues of statutory interpretation, challenges to the sufficiency of the evidence under the "clear and convincing" standard, and questions of whether procedures established by the presumptive sentencing statutes were correctly followed. Issues such as these are tied sufficiently closely to the ultimate question of ex-cessiveness or leniency to be included within the scope of sentence appeals. Conversely, appeals raising legal issues broader than those described above — for example, challenges to the validity of a provision of the presumptive sentencing statutes or to the validity of the presumptive sentencing scheme itself — should be regarded as merit appeals. . AS 12.55.155(b) addresses the sentencing court's discretion to adjust a presumptive sentence upward or downward in light of aggravating and mitigating factors, providing, in pertinent part: (b) Sentence increments and decrements under this section shall be based on the totality of the aggravating and mitigating factors . Under AS 12.55.155(a)(1), where the presumptive term is four years or less, the sentencing court, upon a finding of mitigating factors, may decrease the presumptive sentence by any amount; upon a finding of aggravating factors, the court may increase the sentence by any amount up to the maximum term. Under AS 12.55.155(a)(2), if the presumptive term is more than four years, the sentencing court, upon a finding of mitigating factors, may decrease the presumptive term by as much as 50 per cent; for aggravating factors, the sentence may be increased up to the maximum term. . We think it is important to avoid a mechanistic approach toward determining the amount by which a presumptive sentence should be adjusted in light of aggravating or mitigating factors; application of the Chaney criteria, as stated in AS 12.55.005(2)-(6), will assure appropriate consideration of individual fact situations on a case-by-case basis. When applied to the adjustment of a presumptive sentence, however, the Chaney analysis should not be broadened into a consideration of all the circumstances of the offense, as if the sentence were being imposed anew, without regard for the presumptive term. Instead, consideration of the Chaney criteria should focus specifically on the aggravating or mitigating conduct in the particular case. The presumptive term should remain as the starting point of the analysis, and the Chaney criteria should be employed for the limited purpose of determining the extent to which the totality, of the aggravating and mitigating factors will justify deviation from the presumptive term. . The specific comments of Judge Van Hoom-issen on this point indicate the possibility of some confusion on his part. He stated, "I am prepared to find that there are some mitigating circumstances and the only one being that I can see is that — the fact that the prior offenses were lesser offenses." (Emphasis added.) This reference to "prior offenses" is difficult to understand, since the only relevant prior offense for the purpose of determining whether a mitigating factor existed in this case under AS 12.55.155(d)(8) was Juneby's prior felony conviction for grand larceny. . The relevant portion of AS 12.55.155(f) states: Factors in aggravation and factors in mitigation must be established by clear and convincing evidence before the court sitting without the jury. All findings must be set out with specificity. . Juneby's background may be summarized briefly. Juneby was born in Fairbanks and was 27 years old when he committed this offense. He was a high school graduate, but had no specialized occupational training or experience. His history of employment as a laborer was sporadic, and he was unemployed at the time of the offense. According to Juneby's own statements, he began drinking heavily at age 18. Between 1972 and 1979, Juneby was convicted of six misdemeanors, none for crimes of violence. In April, 1979, Juneby was convicted of grand larceny, a felony; he received a sentence of three years' imprisonment, with all but two months suspended. While on probation, Juneby's performance was poor in both vocational training and alcohol rehabilitation programs. Juneby was still on probation when he committed this assault. .The judge's remarks included an extensive commentary on Juneby's history of alcoholism and the fact that the present offenses were committed while Juneby was intoxicated. At no point in the course of his discussion of Juneby's alcoholism and its effect on the sentence imposed did Judge Van Hoomissen indicate an awareness of AS 12.55.155(g), which provides: Voluntary alcohol or other drug intoxication or chronic alcoholism or other drug addiction may not be considered an aggravating or mitigating factor. We have recently held that the provisions of AS 12.55.155(g) do not prohibit a sentencing judge from considering a defendant's history of alcohol or drug abuse for the limited purpose of "determining the extent to which rehabilitation will realistically be accomplished by the sentence which [the court] intends to impose." State v. Ahwinona, 635 P.2d 488, 491 n.3 (Alaska App.1981). It is not clear from Judge Van Hoomissen's sentencing remarks that his con sideration of Juneby's history of alcoholism was properly restricted and that it did not infringe upon the prohibitions of AS 12.55.155(g). In light of the language of AS 12.55.155(g) limiting the extent to which alcoholism or alcohol abuse can be considered in imposing sentence, we believe that in any case where a sentencing court does consider alcohol abuse by the offender, an express statement should be made, indicating that the purposes for which the defendant's alcoholism was considered were properly confined to those described in Ahwinona and that the court's actions are not in derogation of AS 12.55.155(g). . Nor did the presentence report upon which Judge Van Hoomissen relied recognize the presumptive ten-year term prescribed by AS 12.-55.125(c)(2). The presentence report was also silent, in making its recommendation to the court, as to the reasons why the recommended departure from the presumptive term would be justified. It appears that, in making his recom-' mendations to the court, the probation officer who prepared the presentence report may simply have been unaware that the presumptive sentencing statutes applied to this case. . AS 12.55.155(c)(1) provides that an aggravating factor may be found when "a person, other than an accomplice, sustained physical injury as a direct result of the defendant's conduct . . " . The burden imposed upon the parties to establish aggravating and mitigating circumstances may be likened to the procedural requirements governing probation revocation hearings. Revocation hearings involve two distinct phases: the first is to establish existence of a violation; the second is to determine if the violation actually warrants revocation of probation. Holton v. State, 602 P.2d 1228, 1238 (Alaska 1979); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973). In probation revocation proceedings, the state, since it is the moving party, bears the burden of proof and of persuasion as to both phases of the proceeding. Hol-ton v. State, 602 P.2d at 1238. Similarly, in sentencing proceedings involving allegations of aggravating and mitigating circumstances, we believe that the provisions of AS 12.55.155(f) require the party seeking to establish a factor to bear a dual burden. First, the party must prove to the court by clear and convincing evidence the existence of the alleged factor, and, second, the party must provide the court with sufficient reasons to justify a conclusion, by clear and convincing evidence, that the factor warrants deviation from the statutorily prescribed presumptive sentence. . AS 12.55.185(9) adopts for use in the sentencing provisions of the Alaska Revised Criminal Code the definition of "serious physical injury" set out in AS 11.81.900(b)(49). Under AS 11.81.900(b)(49), 'serious physical injury' means physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a bodily organ, or physical injury which unlawfully terminates a pregnancy . We do not imply that the nature and extent of the injuries or the manner in which they were inflicted should not be considered as circumstantial evidence of the defendant's motivation. Clearly, the sentencing judge is entitled to consider such circumstances in determining whether the defendant acted with deliberate cruelty or, on the other hand, solely to accomplish his criminal objective. . Included in the definition of sexual assault in the first degree under AS 11.41.410(a)(l)-(4) are four separate means by which the crime can be committed. Under subparagraph (1), the provision with which Juneby was charged, a person commits sexual assault in the first degree if he engages in sexual penetration with another person without that person's consent. This provision is akin to the common law definition of rape. Under subparagraph (2), attempted rape resulting in serious physical injury to another person is included. Subpara-graph (3) defines the sexual penetration of a person under 13 years of age by a person 16 years of age or older as constituting sexual assault in the first degree. Finally, under sub-paragraph (4), sexual penetration by a person 18 years of age or older with a minor who is his son or daughter or who is entrusted by law to his care is also brought within the definition of first degree sexual assault. . As stated in the commentary to AS 12.55.-155(c)(10) and (d)(9): Under subsections (c)(10) and (d)(9) a presumptive term may be aggravated or mitigated if the conduct constituting the offense was among the most or least serious conduct included within the definition of the offense. For example, if the defendant was convicted of a felony two years earlier, and is now being sentenced for the theft of $24,999, theft in the second degree, a class C felony, the fact that the conduct constituting the offense was among the most serious conduct included in theft in the second degree may aggravate the presumptive term. Commentary on the Alaska Revised Criminal Code, supra at 161. . We recognize that the same circumstances may often form the basis for two or more aggravating or mitigating factors. In such cases, sentencing courts should make specific findings as to all aggravating or mitigating factors established by the evidence. However, when several aggravating or mitigating factors are based on precisely the same conduct and intent, they should be treated by the court as merging, and the least significant factors should be deemed included in the most significant. The presumptive sentence can then be adjusted based upon consideration of the most significant factor. The record in such cases should affirmatively reflect that multiple factors based on the same conduct and intent were not given separate and independent weight in adjusting the presumptive term. .A number of rape cases considered on appeal by the Alaska Supreme Court have involved factual situations substantially more aggravated on the whole than the circumstances involved in Juneby's case, thus forcefully illustrating the inappropriateness of categorizing Juneby's conduct as being among the most serious conduct within the definition of the offense for which he was convicted. See, e.g., Tuckfield v. State, 621 P.2d 1350 (Alaska 1981) (rape committed in a secluded staircase of a public building; the defendant battered his victim's head repeatedly into a concrete floor until she was unconscious, inflicting lasting injuries; after the defendant completed his rape, he left his victim on the staircase, with the knowledge that her chances of being found and receiving medical attention were remote); Helmer v. State, 616 P.2d 884 (Alaska 1980) (a forcible rape of a 14-year old committed "in a most brutal manner," after which the defendant repeatedly struck his victim about the head with an iron poker in a calculated attempt to kill her, ultimately inflicting injuries which caused the victim to lose an eye); Lacy v. State, 608 P.2d 19 (Alaska 1980) (defendant raped one woman and attempted to rape another woman, while kidnapping both); Mallott v. State, 608 P.2d 737 (Alaska 1980) (forcible rape of three-year-old girl); Tate v. State, 606 P.2d 1 (Alaska 1980) (rape by an offender on bail with a lengthy prior record); Wikstrom v. State, 603 P.2d 908 (Alaska 1979) (defendant forced his victim to commit vaginal, anal, and oral intercourse, in addition to which he choked her gratuitiously and inserted a metal object in her vagina, inflicting injuries); Torres v. State, 521 P.2d 386 (Alaska 1974) (defendant raped a 14-year-old girl, having previously been convicted for lewd and lacivious acts upon an eight-year-old and while on appeal bond from a ten-year sentence). . See AS 33.15.180(a) and (c). The provisions of this section have been implemented by the Alaska Board of Parole. Thus, Parole Board Regulation § .025 provides, in relevant part: (e) A prisoner convicted and sentenced in accordance with AS 12.55.125(c)(1), (c)(2), (c)(3), (d)(1), (d)(2), (e)(1), (e)(2), [presumptive sentencing provisions] is not eligible to be considered for discretionary parole by the Board. . See AS 33.20.010. . Data compiled in Alaska for the years 1970-1979 establish that approximately two-thirds of all prisoners sentenced for felony offenses (with the exception of prisoners sentenced to life terms) were actually released on parole before completing their full terms. The impact of parole on prisoners sentenced to long terms of incarceration was particularly great. More than 80 per cent of prisoners sentenced to serve terms in excess of three years were paroled prior to expiration of their terms. The average prisoner released on parole served slightly more than one-third of the original term imposed. These statistics are based upon a report entitled Parole Guidelines for Alaska, Supplemental Report Time Served Component, published by the Alaska Board of Parole in September 1980. Data in the report were gathered by Bay Area Research Design Associates under contract with the Alaska Board of Parole. See particularly Id. at 7, Table R9, and 10, Table R12. . Commentary on the Alaska Revised Criminal Code, supra at 161. . We believe that these requirements are necessary to fulfill the legislature's goal of assuring the parties of a record that is sufficient to preserve their right to an appeal. Moreover, because any adjustment of a presumptive sentence in light of aggravating or mitigating factors will call for an application of the Chaney criteria and will ultimately be subject to review under the familiar "clearly mistaken" standard, the findings that we have required are fully in keeping with the traditional requirement that sentencing decisions be carefully formulated and thoroughly explained.

10409734

Charles LONE WOLF, Appellant, v. Carol LONE WOLF, Appellee

Lone Wolf v. Lone Wolf

1987-09-04

No. S-1707

1187

1193

741 P.2d 1187

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Charles LONE WOLF, Appellant, v. Carol LONE WOLF, Appellee.

Charles LONE WOLF, Appellant, v. Carol LONE WOLF, Appellee. No. S-1707. Supreme Court of Alaska. Sept. 4, 1987. Barbara L. Malchick, Asst. Public Advocate, Brant McGee, Public Advocate, Office of Public Advocacy, Anchorage, for appellant. Dale O. Curda, Angstman Law Office, Inc., Bethel, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3001

18342

OPINION BURKE Justice. This appeal arises from the custody and support provisions of a divorce decree. Appellant, Charles Lone Wolf, contends that the trial court abused its discretion by (1) awarding sole custody of the parties' two children to Appellee, Carol Lone Wolf; (2) granting him only weekend visitation rights; (3) ordering him to pay $400 per month in child support; and (4) awarding Carol reasonable attorney's fees. Charles also contends that the trial court erred by refusing to change the last name of one of the children. We affirm the trial court's custody, child support and name change determinations. We reverse its visitation determination and attorney's fees award. I The Lone Wolfs were married on April 4, 1981, in Bethel, Alaska. The marriage produced two children, Tsatoke, born October 3, 1981, and Dalarie Marie Peters, bom September 9, 1982. The Lone Wolfs' marriage had problems from the beginning. The couple separated shortly after Tsatoke's birth and Dalarie was bora during a period of separation. Carol had physical custody of the children during this time. In early 1983, the couple reunited in Fairbanks. In May of that year, the entire family left Alaska, traveled to Ohio and eventually settled in Pennsylvania, where Charles attended school. The couple, however, could not reconcile their differences and, in November, 1983, separated permanently when Carol moved with the children back to Bethel. Before parting, the Lone Wolfs' entered into a custody agreement which provides for shared custody, no child support and requires Dalarie's last name to be changed to Lone Wolf. At trial, Carol testified that she signed the agreement under duress in order to be allowed to keep her son. Since returning to Alaska, Carol has been the sole caretaker and support for the two children, maintaining a home with them and other members of her extended family. Charles, meanwhile, had no significant contact with the children between November, 1983 and May, 1985. He did not visit, correspond or contact them telephoni-cally during this period and provided no support. This complete lack of contact continued until Charles returned to Bethel in May, 1985. Since returning, Charles has visited the children and given them gifts, but he still provides no support. At the time of trial, Charles lived in Bethel with two children from a former marriage and his girlfriend. Carol, age 29, is employed as a correctional officer at the Yukon Kuskokwim Correctional Facility in Bethel and grosses $3,425 per month. She works a seven-day-on, seven-day-off work schedule. During her work week she does not see the children very much. Her mother babysits for the children while she works. Charles, age 33, holds a bachelor of science degree in natural resources management, a masters degree in education and is currently working on his doctoral dissertation. At the time of trial, Charles was unemployed and receiving $740 per month in welfare payments. He expects to receive unemployment benefits shortly. In the six months preceeding trial, Charles had worked at various jobs earning at least $10,000. Moreover, the Guardian Ad Litem (GAL) testified that Charles "ha[d] a fair amount of resources" with which he chose to do things other than provide support. Carol filed for divorce on March 21,1985. After a one-day trial, superior court judge Christopher R. Cooke (1) awarded Carol sole legal and physical custody of the two children; (2) granted Charles weekend visitation; (3) ordered Charles to pay $400 per month in child support; (4) denied Dalarie's name change; and (5) awarded Carol reasonable costs and attorney's fees. This appeal followed. II A. Child Custody Charles' first assertion of error is that the trial court abused its discretion by not ordering joint custody. We disagree. A court may award shared custody to both parents if it determines it would be in the best interests of the child. AS 25.-20.060(c). However, cooperation between parents is essential if joint custody is to be in the child's best interest. Julsen v. Julsen, 741 P.2d 642, 648, (Alaska 1987); McClain v. McClain, 716 P.2d 381, 386 (Alaska 1986); Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983). Here, there is ample evidence in the record to support the trial court's finding that the parties could not cooperate to the extent necessary to make a joint custody arrangement work. The Lone Wolfs' marriage was strained from the outset; Charles himself described the marriage as "a constant and continuing argument." Moreover, the GAL recommended that Carol be awarded sole custody due to the couple's inability to work as a team given their differing child rearing philosophies and disparate households. Charles' argument, that both his and Carol's joint concern for their son's developmental problems, the pretrial custody arrangement and the 1983 custody agreement evinces their ability to cooperate for the benefit of the children, is unpersuasive. First, the fact that both he and Carol met with experts to discuss their son's problems and needs, and agreed to follow their recommendations, does indicate some abili ty to cooperate. However, "it is not our job to reweigh the evidence. We merely determine whether the trial court's finding is supported by the record." Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987). In this case we find that it is. Second, Charles' reference to the parties' "ability to arrive at a beneficial pretrial custody arrangement" is misleading. This arrangement was court ordered following Charles' refusal to return the children to Carol after babysitting for them. Finally, Charles' reliance on the custody agreement is misplaced. He appears to argue that under our decision in McClain v. McClain, 716 P.2d 381 (Alaska 1986), the mere existence of the custody agreement is sufficient evidence of the couple's ability to cooperate to warrant joint custody. We disagree. McClain indicates that a trial court may properly consider a custody agreement stipulating to joint custody as a pertinent factor in ascertaining whether the parents have the ability to cooperate to the extent necessary to make such custody operate in the best interests of the child. Id. at 385-86. The McClain court emphasized, however, that such agreements have "no binding force on the court" and that it must "independently determine what custody arrangement will best serve the child's interests." Id. at 385. In the case at bar, the trial court independently determined that joint custody was not in the best interests of the children. This determination is not clearly erroneous. As to the rest of Charles' arguments, our review of the record indicates no clearly erroneous factual determinations or abuse of discretion in the trial court's determination. In short, the trial court gave careful scrutiny to this issue and made a sound decision. Consequently, the custody award is affirmed. B. Visitation In its Memorandum Opinion, the trial court held that Charles "should be granted reasonable rights of visitation." In its conclusions of law, the trial court set Charles' visitation rights as 10 a.m. Saturday to 6 p.m. Sunday. Charles argues that this limited visitation schedule is arbitrary and unreasonable and therefore an abuse of discretion. He contends that more frequent visitation with him and his family is in the children's best interests. Carol merely asserts that, given the animosity apparent in this case, the visitation schedule is appropriate and not unreasonable. Our review of visitation privileges is based upon the same standard applied in other custody matters, that is, "we need only determine whether the trial court abused its discretion in fashioning suitable visitation rights." Faro v. Faro, 579 P.2d 1377,1379 (Alaska 1978). See also Curgus v. Curgus, 514 P.2d 647, 649 (Alaska 1973). Here, we are of the opinion that the trial court abused its discretion in limiting Charles' visitation rights to 32 hours per weekend without setting forth any findings or reasons why his visitation privileges should be so circumscribed. Charles is currently unemployed and thus at home virtually full time. Carol, on the other hand, is working a seven-day work schedule during which time she rarely sees the children. Given this unique factual situation, we perceive no reason why Charles should not be allowed some visitation during Carol's work week. There is no indication in the record that Charles is an unfit parent and, in fact, the trial court found that Charles loved the children and desired to meet their needs. Moreover, the cooperation necessary to allow more liberal visitation is far less than that needed for joint custody. In short, there are inadequate findings in the record to justify limiting Charles' visitation to weekends and thus the trial court's visitation determination must be reversed. On remand, the trial court is instructed to make specific findings to support its visitation award. C. Child Support The trial court ordered Charles to pay $400 per month in child support (i.e. $200 per child/per month). Charles contends that this order is unreasonable and therefore an abuse of discretion because he does not have the financial ability to make such payments. The trial court has wide discretion in ordering child support and such determinations will be reversed only where there has been an abuse of discretion. See, e.g., Hunt v. Hunt, 698 P.2d 1168,1172 (Alaska 1985). We will not find an abuse of discretion unless we have a definite and firm conviction based on the record as a whole that a mistake has been made. Id. See also, Faro, 579 P.2d at 1380; Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977). In Hunt, we held that in making child support awards the trial court must consider the relative financial situations of the parties and the total cost of supporting the children. 698 P.2d at 1172. In that case, Wife had no income with expenses of $3,197 for herself and two children. Id. Husband, meanwhile, made $6,225 per month with expenses of $4,072 for himself and one child. Id. The trial court effectively awarded Wife $600 per month in child support. Id. at 1173. We found the award to be inadequate, instructing the trial court that on remand it was to "identify the reasonable needs of the . children, considering the station in life to which they are accustomed and the ability of the parents to meet those needs." Id. In the instant case, the only evidence presented on the cost of supporting the children was Carol's testimony that she spends approximately $300 per month to feed them, and that daycare (which both parents and the GAL believed necessary) would cost at least $500 per month. The trial court appears to have taken the total ($800) and split it down the middle (i.e. allocating $400 per month to Charles). We perceive nothing wrong with this determination. The record indicates that at the time of trial, Carol made $3,425 a month while Charles was receiving only $740 per month in welfare benefits. Charles also has two other children to support. On the other hand, the GAL testified that Charles "has a fair amount of resources" with which he may provide support. Moreover, the record shows that Charles earned around $10,000 in the 6 months before trial and expected to receive unemployment compensation for an unspecified amount in the near future. The trial court considered the evidence outlined above and determined that Charles could afford $400 per month in child support payments. On balance, viewing the record as a whole, we cannot say that such a determination is clearly erroneous. The trial court's child support award is, therefore, affirmed. D. Name Change At trial Charles requested that Dalarie's last name be changed from Peters to Lone Wolf. The trial court denied this request based on Carol's objections and its determination that it lacked jurisdiction to grant such relief in a divorce proceeding. Charles argues that the trial court erred because it had the power to order the name change under two separate theories: (1) through specific performance of the custody agreement; and/or (2) because Daiarie is a party to the divorce action within the meaning of AS 25.24.160(5). Neither argument is persuasive. First, McClain makes it clear that custody agreements have "no binding force on the court." 716 P.2d at 385. Consequently, there was no error in the trial court's refusal to change Dalarie's name under this theory. Second, a child is not a party to a divorce action within the meaning of AS 25.24.-160(5). It is clear from the context of that statute that it was meant to encompass only the parents/spouses and not the children. Charles' reliance on Veazey v. Veazey, 560 P.2d 382 (Alaska 1977) is inapposite. In Veazey the court was discussing the duties and proper role of a child's GAL when it noted that a "child is the person most interested in litigation over his custody, even though his name is not on the caption of the pleadings_" Id. at 386. This statement of the obvious provides no support for Charles' position. Even assuming, arguendo, that a child could be considered a party to a divorce action within the meaning of AS 25.-24.160(a)(5), it does not necessarily follow that the trial court must change the child's name. AS 25.24.160(a)(5) states that the court may change the name of a party, it does not require the change to be made. Given this permissive language, whether or not to grant a name change rests within the discretion of the trial court subject to review under an abuse of discretion standard. Based on Carol's objection to the name change, there was no abuse of discretion in the trial court's ruling. E. Attorney's Fees The trial court awarded Carol "reasonable attorney's fees" which the record indicates amounted to $2,510. Charles contends that this determination constitutes an abuse of discretion because it is contrary to established Alaska law. I The award of attorney's fees in a ¡ divorce action rests within the broad discretion of the trial court, Rostel v. Rostel, 622 , P.2d 429, 432 (Alaska 1981), and will not be , disturbed on appeal unless it is "arbitrary, I capricious, manifestly unreasonable, or stems from an improper motive." Brooks, \ 733 P.2d at 1058 (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). j We have repeatedly held that cost and fee awards in a divorce are not to be based i on the prevailing party concept, but primar-j ily on the relative economic situations and ! earning powers of the parties. Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982); Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981); Johnson v. Johnson, 564 P.2d 71, 76-77 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); Burrell v. Burrell, 537 P.2d 1, 6-7 (Alaska 1975). In divorce actions, the purpose of awarding attorney's fees is to assure that both spouses have the proper means to litigate the divorce action on a \ fairly equal plane. Olsztyn v. Olsztyn, 20 Ariz.App. 545, 514 P.2d 498, 502 (1973); In re Crabdree's Marriage, 523 P.2d 471, 472 (Colo.App.1974). In Siggelkow, we reversed an award of attorney's fees to the wife where she earned $32,600 per year and the husband only $13,000. 643 P.2d at 989. Likewise in Cooke, an award of attorney's fees to the wife was reversed primarily because she was much better off economically than her former husband and no other factors justified taxing the husband with her litigation expenses. 625 P.2d at 293. In the case at bar, Carol had adequate funds to secure competent representation. The record also shows that Carol is much better off economically than is Charles, and there appear to be no other factors which justify taxing Charles with Carol's litigation expenses. Accordingly, we find that it was an abuse of discretion for the trial court to award Carol attorney's fees. The award therefore, is reversed and remanded with instructions that Carol bear her own costs and attorney's fees. Ill For the reasons discussed above, the trial court's custody, child support and the name change determinations are affirmed; the trial court's visitation and attorney's fees determinations are reversed and remanded for further proceedings consistent with this opinion. AFFIRMED in part; REVERSED in part; and REMANDED. . The record indicates that Charles spent money improving his house and lot and purchasing a trailer and a personal computer. . Trial courts are vested with broad discretion in determining where custody should be placed. McDanold v. McDanold, 718 P.2d 467, 468 (Alaska 1986). See also Craig v. McBride, 639 P.2d 303, 304 (Alaska 1982); Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977). Accordingly, we have repeatedly stated that we will reverse a trial court's resolution of a custody issue only if we are convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous. E.g. McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986). An abuse of discretion may be found where the trial court considered improper factors, failed to consider statutorily-mandated factors, or improperly weighed certain factors in making its determination. Id. . In this regard we note that the assertions in the record as to Charles' bootlegging charges have not been considered in our resolution of this issue. These facts were not before the trial court at the time it rendered its decision and, therefore, cannot properly be considered by us for the first time on appeal. Nothing prevents the trial court, however, from assessing these new developments in its redetermination of Charles' visitation privileges. . Because Dalarie was born while the Lone Wolfs were separated, Carol gave Dalarie her maiden name. . AS 25.24.160(a)(5) provides in part: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (5) for the change of name .of either of the parties.

10401648

STATE of Alaska, Appellant, v. NORTHWESTERN CONSTRUCTION, INC., Appellee

State v. Northwestern Construction, Inc.

1987-08-07

No. S-1141

235

241

741 P.2d 235

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

STATE of Alaska, Appellant, v. NORTHWESTERN CONSTRUCTION, INC., Appellee.

STATE of Alaska, Appellant, v. NORTHWESTERN CONSTRUCTION, INC., Appellee. No. S-1141. Supreme Court of Alaska. Aug. 7, 1987. Donald W. McClintock, III, Baily & Mason, Anchorage, for appellant. R. Everett Harris, Jensen, Harris & Roth, Anchorage, for appellee.

3548

21958

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. COMPTON, Justice. This case arises out of a construction project at Anchorage International Airport which allegedly involved substantially more and different work by the contractor, Northwestern Construction, Inc. (Northwestern), than had been indicated by the State of Alaska's (state) plans and specifications upon which Northwestern had based its bid. The trial court awarded Northwestern $1,101,423.00 plus prejudgment interest as an equitable adjustment of the contract price required by the extra work it performed. The state has appealed. The state does not here contest liability. It challenges only the method by which the damage award was calculated and the inclusion of certain elements of profit and home office overhead in that calculation. With one exception, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The project at issue involved construction of the new north-south runway at the Anchorage International Airport. It required clearing, excavation, and embankment for a 10,500 foot long north-south runway, parallel taxiway, cross-taxiways and access roads. A substantial portion of the project involved the "unclassified excavation" of the runway-taxiway core areas (those areas under the future pavement) and placement (embankment) of the material in the adjacent future lease area. Northwestern submitted the lowest bid, amounting to $22,-639,744.00. To build the project as designed, the earth materials to be used had to be com-pactible to 95%, but Northwestern discovered that vast amounts of earth materials on the site were too wet to compact as planned. Consequently, Northwestern's work was disrupted, changed and increased. The trial court placed at least partial blame on the state for the problem, finding that the state's soil testing procedures "were contrary to the requirements of § 330.3(f) of the Contract, inaccurate, and hence compounded delays and excessive costs..." Northwestern submitted to the state a claim for several adjustments in the contract price to which it asserted it was entitled because of the extra work it had performed. One of the adjustments it sought was for unclassified excavation in the amount of $1,026,128.00. Northwestern's claim was analyzed and prepared primarily by Bruce Campbell (Campbell), whose expert testimony at trial was heavily relied upon by the trial court. The administrative contracting officer, Ramon Shumway (Shumway), denied the claim. Northwestern then filed its complaint for damages in superior court. The trial court, sitting without a jury, awarded $950,695.00 on Northwestern's unclassified excavation claim. The state appeals from this award claiming that: 1) the trial court improperly relied on rental rates published in the Rental Rate Blue Book for Construction Equipment (Blue Book) to determine increased equipment costs resulting from the extra work; 2) the trial court erred in not reducing the award based on Blue Book rates by 50% for overtime equipment hours; 3) Northwestern received a double recovery when the trial court awarded 15% of Northwestern's total increased cost for profit in addition to equipment costs at Blue Book rates, which already include some element of profit; 4) the trial court improperly awarded 10% of Northwestern's increased costs for overhead without proof that Northwestern's overhead actually increased; and 5) the trial court erred in accepting Northwestern's tabulation of equipment hours. II. DISCUSSION The trial court correctly held that Northwestern need only prove its damages to a "reasonable certainty." Native Alaskan Reclamation & Pest Control v. United Bank Alaska, 685 P.2d 1211, 1223 (Alaska 1984), quoting Restatement (Second) of Contracts § 352, at 144 (1981). We have held as a general rule that a plaintiff in a contract action need not prove damages with mathematical precision. Id. at 1222-23, quoting Restatement (Second) of Contracts § 352, comment a (1981). Thus, we assess the state's objections in light of these standards. A. USE OF "BLUE BOOK" EQUIPMENT RENTAL RATES The state first asserts that the trial court improperly adopted a damage calculation based on published Blue Book rental rates for estimating equipment costs without first requiring Northwestern to show that its actual equipment costs were unavailable. This claim is without merit. The contract between the state and Northwestern provided that increased equipment costs for extra work would be compensated as follows: [T]he Contractor may receive the rental rates not to exceed those specified in the current edition of the "Rental Rate Blue Book for Construction Equipment, published by Equipment Guidebook Company," for the actual time that such equipment is in operation on the work. Thus, the parties contemplated use of Blue Book rates as an appropriate measure for equitable adjustment of equipment costs. There is also substantial evidence in the record here that Blue Book rates are commonly relied on in the construction industry in Alaska. Campbell, Northwestern's expert, had been Alaska's Commissioner of Highways from 1971 to 1975. Campbell testified that he used Blue Book rates both as a contractor and as Commissioner of Highways "in determining equitable contract adjustments." Shumway testified that in his position as deputy commissioner and contracting officer for the state, he frequently negotiated contract change-orders, supplemental agreements and claims for above-bid compensation. He testified that in these negotiations he and his staff "used almost entirely the Blue Book" in establishing contractors' equipment rates and that the Blue Book was the standard rate book used by the State of Alaska. On appeal, this court will intervene only when convinced that the trial court's findings of fact are clearly erroneous. Alaska R.Civ.P. 52(a); Alaska Far East Corp. v. Newby, 630 P.2d 533 (Alaska 1981); Saxton v. Splettstoezer, 557 P.2d 1126, 1127 (Alaska 1977). In other words, we must be left with "a definite and firm conviction . that a mistake has been made." Native Alaskan Reclamation, 685 P.2d at 1217, quoting Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978). Given the contract clause approving use of Blue Book rates and Campbell's and Shumway's testimony that they used the Blue Book to negotiate claims on behalf of the state itself, we cannot say that the trial court's adoption of a damage calculation based on Blue Book rates was clearly erroneous. B. OVERTIME EQUIPMENT HOURS The state claims that the trial court incorrectly applied Blue Book rates to overtime equipment hours (i.e., more than eight hours per day) because it failed to reduce the rates by 50%. It claims that language both in paragraph 90-05(d) of the contract and in the introduction to the Blue Book require such a reduction. In response, Northwestern argues that the state has waived any such claim because it was not raised at trial or in its points on appeal. Northwestern points out that the state has not cited to any part of the record when this claim was raised, as required by Appellate Rule 212(c)(8), nor has it specified the issue in its points on appeal, as required by Appellate Rule 210(e). Lastly, Northwestern argues that the claim is without merit. The state's response is to reiterate its claim and provide record citations which allegedly show that the 50% reduction issue was raised at trial, or if not, that the trial court's failure to apply the 50% reduction constitutes plain error. The record discloses that at no time did the state raise the 50% reduction issue at trial. On the contrary, the state's consistent position was that Northwestern was entitled only to actual costs, unless it could prove that data concerning actual costs was unavailable. In that event resort to the Blue Book might be permissible, but since there was evidence that Northwest ern could provide data concerning actual costs, Blue Book figures should be rejected and the actual cost estimates of the state's expert, Robert Phelps, should be adopted. As a general rule, this court will not consider an issue raised for the first time on appeal. Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 351 (Alaska 1982); Saxton v. Splettstoezer, 557 P.2d at 1127. However, if the issue is 1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings, Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985), or constitutes "plain error," Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981), it may nonetheless be considered. The state seeks refuge under either theory. The state fails to satisfy any prong of the Zeman test. Regarding "new or controverted facts," the state simply states that this prong is satisfied because "the contract terms are a matter of record." While this is unquestionably correct, the state neglects to mention the factual determinations inherent in attempting to identify which pieces of equipment were used on which days, for how many hours, over a two-year period on the unclassified excavation portion of the project. The raw data for this determination may be contained in the six foot thick computer printout admitted at trial, but the state does not so assert and it is not possible for us to determine. As noted by Northwestern, its expert and the state's expert agreed on almost none of the data obtained from the same job records. We cannot presume they could agree with the underlying facts regarding this issue, either. Even if the raw data is available in the printout, it is by no means clear how a 50% reduction is to operate on specific facts. The work for which Northwestern recovered in this lawsuit is only a portion of the total work it completed on the project. A review of Northwestern's equipment usage records reveals instances in which a piece of equipment was used for more than eight hours in a day, but less than eight hours each on work for which Northwestern recovered in this lawsuit and work that was not here at issue. There is no evidence regarding how the 50% reduction provisions apply to this or similar situations. The contract and the Blue Book do not offer any guidance. The intention of the parties and industry practice, if either there be, are not of record. Facts must be developed to resolve these questions. The second and third prongs of the Ze-man test are not met either. The state's 50% reduction argument cannot be said to be "closely related" to its trial argument. As above stated, the state's position was that the Blue Book should not be used at all, not that it was being used incorrectly. The state did not say, "Don't use the Blue Book at all, but if you must, a 50% reduction in rates for overtime equipment hours will be required." Since no pleading even alludes to the existence of a 50% reduction factor applicable to this dispute, it cannot be said that the issue "could have, been gleaned from the pleadings." Under the "plain error" doctrine, an issue not raised at trial may nonetheless be considered by this court if it appears that an obvious mistake has been made which creates a high likelihood that injustice has resulted. Miller v. Sears, 636 P.2d at 1189. First, it is not at all obvious that a mistake has been made. There is no evidence that any state representative used a 50% reduction factor in computing damages in this case, either in projecting the state's possible exposure if found liable or in attempting to impeach Campbell's conclusions. We cannot presume that this omission was inadvertent. This, coupled with the state's failure ever to mention the 50% reduction issue before the trial court, does not lead to the necessary conclusion that an "obvious" mistake has been made. The dissent's position that plain error occurred is unpersuasive; the trial court simply applied the Blue Book formula in precisely the same manner as both parties to the dispute had done. Moreover, the state has failed to offer any anticipated evidence of the "injustice" that has allegedly occurred. Otherwise stated, for its own reasons the state has not computed the difference between the cost of overtime equipment hours as determined by Campbell and as would be shown by using its method. In the absence of any clue of what material change would result in this component of the damage award, we should not and will not presume a high likelihood that injustice has resulted. See Reese v. Geiermann, 574 P.2d 445, 446 (Alaska 1978). C. PROFIT The state asserts that the award of 15% profit in addition to Blue Book rates resulted in a double recovery. The trial court's implicit finding that no double recovery occurred cannot be overturned unless clearly erroneous. Native Alaskan Reclamation, 685 P.2d at 1215. Supporting the trial court's decision is the fact that when the state's expert prepared his rebuttal analysis using Blue Book rates, he added 15% for profit in three separate calculations. Likewise, the state adopted a Blue Book plus profit approach when it approved two other portions of Northwestern's claim that were admitted before trial. Based on this evidence, we find that the trial court's decision to award 15% profit in addition to Blue Book rates was not clearly erroneous. D. OVERHEAD The state asserts that the trial court erred in awarding Northwestern 10% of increased cost for overhead without requiring proof of delay or actual increase in overhead cost. This contention is without merit. Campbell testified that an award of 10% overhead was customary in the industry. This testimony was unrefuted. Moreover, in analyzing Northwestern's claims, the state's own personnel used the same overhead percentages as Campbell. This percentage of increased costs approach is commonly used to determine overhead damages when the owner's breach results in the contractor having to do extra work. Since it is normal accounting practice to charge indirect costs at a percentage rate of direct costs reflecting the contractor's experience over a period of time, it would normally be expected that any direct costs in an equitable adjustment would bear their standard amount of overhead. This practice has been applied whether the direct costs have increased or decreased — a proportional amount of overhead will be included in the equitable adjustment_ Thus, it is quite normal to find decisions of appeals boards and courts applying standard overhead rates in the equitable adjustment area. R. Nash, Government Contract Changes 362 (1975) (emphasis in original). Since mere delay does not necessarily increase direct costs, the state's reliance on authorities establishing standards of proof for recovering overhead in a strictly delay situation is misplaced. Where, as here, increases in direct costs are established, a percentage thereof offers a reasonable method of calculating overhead. See, e.g., Bennett v. United States, 178 Ct.Cl. 61, 371 F.2d 859, 863-64 (1967); Elias v. Wright, 276 F. 908, 910 (2d Cir.1921); A.T. Klemens & Sons v. Reber Plumbing & Heating Co., 139 Mont. 115, 360 P.2d 1005, 1011 (1961). E. TABULATION OF EQUIPMENT HOURS The state claims that the damage calculation adopted by the trial court includes an inaccurate tabulation of certain equipment hours. In his calculation of actual support equipment costs resulting from the extra work, Campbell lists 777 hours of # 16 grader time and no time for the less expensive # 14 grader that was used in Northwestern's bid calculation. The actual equipment hour summaries show substantial hours logged for both # 16 and # 14 graders under the relevant cost codes. Thus, the figures used by Campbell to calculate actual grader costs are clearly in error. We reverse the trial court on this issue and remand the case for recalculation of Campbell's damage formula using the correct grader hour allocation. III. CONCLUSION The record amply supports the trial court's decision to use Blue Book rates in calculating Northwestern's damages. Likewise, the award of 15% profit and 10% overhead was not clearly erroneous. The issue of reducing Blue Book rates for overtime hours is not properly before this court. However, there is no basis in the record for the grader hours used in the damage calculation adopted by the trial court. The case must be remanded for a recalculation of damages based on actual grader hours logged. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. MATTHEWS, J., joined by RABINOWITZ, C.J., dissenting. . Section 90-05(d) of the Contract provides in part: These rates shall apply for equipment used during the Contractor's regular single shift of eight (8) hours per day. Where the equipment is used more than 8 hours per day either on extra work or on the Contractor's normal work, 50% of the basic rate for each additional hour worked over and above the 8 hours shall apply. . Introduction to the Blue Book provides in part: Overtime may be charged in one of two ways, depending upon the agreement: 2. At 50% of the base rate for each additional 8 hour shift period: Two shifts — 1½ times the base rate. Three shifts — 2 times the base rate. Fractions of a shift adjusted proportionally. . Points on Appeal 22, 23 and 28, cited by the state, are as follows: 22. The trial court erred in awarding unclassified excavation claim damages utilizing Blue Book rental rates for equipment costs. 23. The trial court erred in ruling that the use of Blue Book rental rates was reasonable in computing equipment costs. 28. The court erred in not holding the plaintiff to their burden of proof of showing that their own internal book costs were inadequate so as to justify reliance upon Blue Book costs. .Pretrial Memorandum of Defendant, State of Alaska (Northwestern's actual costs are less than Blue Book rates, Northwestern at fault, 50% reduction not mentioned); Defendant's Supplementary Memorandum on Certainty of Damages (Northwestern's actual costs are all it is entitled to recover, 50% reduction not mentioned); Defendant State of Alaska's Post Trial Brief (Northwestern entitled to actual costs, resort to Blue Book rates should not be allowed, Phelps' figures are the most reasonable, 50% reduction not mentioned); Defendant's Proposed Findings of Fact and Conclusions of Law (Northwestern entitled to actual costs, figures were available to it and thus rental rates (Blue Book) not allowable, Phelps' figures should be adopted, 50% reduction not mentioned); Defendant's Rebuttal Brief (Blue Book inapposite as Northwestern could generate actual costs, Blue Book only applicable for force account work, Phelps' figures closer to actual cost and should be used, 50% reduction not mentioned). . The state did offer supplemental findings and a supplemental conclusion on damages, denominated Alternative Finding of Fact No. 246(a) and Alternative Conclusion of Law No. 61(a). These pleadings offered a different computation of damages, melding actual costs from some exhibits and Campbell's figures where actual costs were not available, applying Phelps' corrected Blue Book rates to the latter. These Blue Book rates are not altered by any reduction factor, nor is one mentioned. . We note that nowhere has the state requested the relief implicitly advocated by the dissent that the case be remanded for recalculation of damages based on the 50% reduction. . In Reese we found no plain error in the trial court's reliance on an appraisal of certain real property despite appellant's claim that the appraiser had improperly assumed that any sale of the property would have been on an installment rather than cash basis. We held: "The report does not specify whether the estimate of value assumed a cash or installment sale, and no evidence was presented at trial that there would be any difference in value under the two assumptions for the type of real estate involved." 574 P.2d at 446.

10409303

Peter J. MURRAY and Virginia M. Murray, Appellants, v. Everett FEIGHT and Martha Feight, Appellees

Murray v. Feight

1987-08-14

No. S-1378

1148

1161

741 P.2d 1148

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Peter J. MURRAY and Virginia M. Murray, Appellants, v. Everett FEIGHT and Martha Feight, Appellees.

Peter J. MURRAY and Virginia M. Murray, Appellants, v. Everett FEIGHT and Martha Feight, Appellees. No. S-1378. Supreme Court of Alaska. Aug. 14, 1987. Warren C. Christianson, Sitka, Drew Peterson, Anchorage, Cathy Vertrees-Canor-ro, Canorro & Vertrees-Canorro, Seattle, Wash., for appellants. Richard H. Friedman, Sitka, for appel-lees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

6473

39346

OPINION COMPTON, Justice. This appeal is from a $1,296,000 verdict entered against Peter and Virginia Murray after a jury trial. It involves a dispute between sublessors (the Murrays) and sub-lessees (the Feights). The Murrays challenge the superior court's granting of partial summary judgment to the Feights precluding relitigation of an issue resolved in a previous lawsuit between the Murrays and a third party. The Murrays did not appear at the trial below. They nonetheless raise several instances of procedural error and challenge the verdict as unsupported by the evidence. As modified, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 1979 Everett and Martha Feight entered an agreement with Peter and Virginia Murray to buy a television, stereo and record business in Sitka. The $52,000 agreed-upon purchase price included inventory, store fixtures and rights to television and stereo franchises. The Feights also subleased the store premises from the Mur-rays, and continued to operate the business under the name "Murray TV and Sound." In the spring of 1982, the Feights decided to sell the store and move to Wyoming. As of June 1982, the Feights had approximately six months of store payments remaining. Although the store lease was to expire before the six months, the Feights had the option to renew it. Everett Feight testified that he told Peter Murray that the Feights were trying to sell the store and wanted to renew the lease. Murray responded that this would not be a problem. In early June, 1982 Martha Feight and the Feight's 18-month old daughter, Nicole, left for Wyoming. Everett planned to stay in Sitka until the store was sold. If they were unable to sell the store, and were forced to liquidate their inventory, Everett estimated they would have been about $5,000 in debt. Later that day Everett learned that his daughter had died. He gave his lawyer a power of attorney and the key to the store and left to join his wife. At this time, the Feights owed the Murrays between $2,500 and $3,000 in back rent. Two days after Nicole's death, the Feights' attorney, Richard Friedman, was at the store when he was summoned to the door by Peter Murray and the Murrays' attorney, Ed Stahla. Murray pushed by Friedman to gain entry and informed him that they were taking possession of the store and changing the locks. No prior notice had been given of the Murrays' intent to repossess, as required by the lease. A woman who was then employed by Ed Stahla testified that she had informed Stah-la the day before the repossession of Nicole's death. At the store, Stahla and Murray were told that Nicole had died while flying south, and that this was the reason Everett Feight had left. Murray nonetheless proceeded to take possession of the store and all its contents, including such property as the Feights' personal records, tax returns and photographs, none of which were returned. Two days after the repossession, a lawsuit was filed by Borg-Wamer Acceptance Corporation (BW) against "Murray TV & Sound, Inc." and Everett and Martha Feight. BW claimed the Feights owed it $20,642.81 and that this amount was secured by the store inventory. The Feights did not contest the debt. They were willing to turn back the property to BW but were prevented from doing so because the Murrays had possession. Eventually, the Feights were dismissed from the BW suit and, by stipulation, the Murrays were added as defendants. The Murrays asserted a common law landlord lien on the store inventory for back rent. The main issue in the BW action, therefore, became the validity and priority of the respective parties' liens. A discovery dispute arose when Peter Murray, on advice of counsel, refused to answer deposition questions about whether the re-entry was accomplished with the Feights' consent. Murray asserted that the issue of consent was irrelevant. The court disagreed, ordered Murray to answer and gave the parties opportunity to supplement their briefing regarding BW's pending summary judgment motion which urged that the Murrays' lien was invalid and that BW's lien had priority in any event. BW's motion for summary judgment was granted. The court found that BW had a valid lien secured by properly recorded financing statements. The court then found that the Murrays did not have a valid common law landlord lien. The court found that the re-entry was intended to distrain and terminate the lease and that AS 09.45.-690, as interpreted by this court, provided the only legal means to terminate a landlord-tenant relationship, absent a specific lease provision. Since the Murrays had neither complied with the statute nor with the 30-day notice provision of the lease, the court concluded they had no valid lien. The Murrays' motion to reconsider was denied, and judgment for BW was entered December 16,1983. The Murrays appealed this judgment, but the appeal was subsequently dismissed by stipulation of the parties. Before the Murrays dismissed their appeal in BW, the Feights filed the instant action, claiming breach of contract, conversion and intentional infliction of emotional distress. In their answer, the Murrays claimed as an affirmative defense that the Feights' attorney had consented to the reentry. The Feights then moved for partial summary judgment, urging that the Murrays should be collaterally estopped from relit-igating issues resolved against them in the BW action. Specifically, they urged that the following findings made by the court in BW be held to bind the Murrays in this case: 5. That the sublease itself contained specific provisions for termination and reentry for failure to comply with the sublease terms. 6. That the provisions for termination and re-entry did not include a provision entitling termination by distraining tenants' property. 7. That on June 9, 1982 the Murrays sought to terminate the landlord and tenant agreement by forcibly entering the leased premises. 8. That the entry on June 9, 1982 was in violation of the sublease agreement and that termination was attempted without complying with either the terms of the sublease or AS 09.45.690. The trial court granted the Feights' motion. After this ruling, the Murrays' attorneys, Christianson & Stahla, received permission from the court to withdraw as attorneys of record. From that point on, the Murrays essentially ignored the case. They failed to appear for their depositions. Peter Murray hung up on the trial court's clerk who was attempting to arrange a telephonic pre-trial status conference, and neither the Murrays nor anyone representing them appeared at the trial. The Feights proceeded to present their case to a six-person jury which returned a verdict for the Feights as follows: $15,000 for breach of contract; $50,000 for other financial losses resulting from breach of the lease; $31,000 for property taken from the store; $150,000 each to Everett and Martha Feight for mental and emotional distress resulting from interference with chattels; $200,000 each to Everett and Martha Feight for mental or emotional injury "as a result of the Murrays' action"; $250,000 each against Peter and Virginia Murray for punitive damages. The court also awarded prejudgment interest of $292,530 and attorney's fees of $158,853 for a total judgment of $1,747,383. The Murrays failed to file any post-trial motions attacking the judgment. Eventually the Murrays retained counsel to handle their appeal, which was timely filed. On appeal, they claim that the trial court erred in granting the Feights' motion for partial summary judgment based on collateral estoppel. They also assert that the following errors occurred at trial: 1) the court failed to dismiss a juror whose father owned the premises which the Mur-rays sublet to the Feights; 2) the court admitted prejudicial evidence of no probative value; 3) there was not substantial evidence to support the jury's award of punitive damages; 4) the jury's answers to Interrogatories 1 through 12 were not supported by a preponderance of the evidence; and 5) the court erred in allowing Richard Friedman to continue to represent the Feights once it appeared that he was a material witness. II. DISCUSSION A. COLLATERAL ESTOPPEL. The Murrays contend that the trial court should not have applied the doctrine of collateral estoppel, barring them from relit-igating issues resolved in the BW action. The following circumstances must exist before a court can properly apply the doctrine: 1. The plea of collateral estoppel must be asserted against a party or one in privity with a party to the first action; 2. The issue to be precluded from re-litigation by operation of the doctrine must be identical to that decided in the first action; 3. The issue in the first action must have been resolved by a final judgment on the merits. See Pennington v. Snow, 471 P.2d 370, 377 (Alaska 1970), citing Bernhard, v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 894-95 (1942). In Pennington, we abandoned the additional common law mutuality requirement that collateral estoppel could be used only by one who was a party to the first action. 471 P.2d at 377. Instead we determined to allow use of non-mutual collateral estoppel so long as there were no unusual or exceptional factors in the pri- or adjudication which would warrant the application of the mutuality requirement. If the particular circumstances of the prior adjudication would make it unfair to allow a person who was not a party to the first judgment to invoke res judicata or collateral estoppel, then the requirement of mutuality must still be applied. Id. On appeal, the Murrays do not contest that the three above-listed prerequisites to application of collateral estoppel are present in this case. Instead, they raise several arguments which can be generally characterized as going to the question whether it is fair to allow the Feights, who were not parties in BW, to use rulings from that case against the Murrays here. The Murrays argue that they did not receive a full and fair hearing on the issue of consent in the BW action, that the Feights should have brought their present claim in BW, that it was not foreseeable that the Feights would bring the instant action, that giving collateral estoppel effect to the BW judgment is unfair because the standard of proof on the consent issue is different here than it was in BW, and that the dollar amount at stake in BW was significantly less than that involved here such that it is unfair to bind them to the prior adjudication. We find none of these arguments persuasive. 1. Full and Fair Opportunity to Litigate The Consent Issue in Borg-Wamer. The Murrays contend that although the BW action lasted one and a half years and produced an extensive record, the issue of consent in fact received little attention. The rule is that to be given collateral estop-pel effect, an issue must have been actually and fully litigated in the first action. This rule, however, does not refer to the quality or quantity of argument or evidence addressed to an issue. It requires only two things: first, that the issue has been effectively raised in the prior action, either in the pleadings or through development of the evidence argued at trial or on motion; and second, that the losing party has had "a fair opportunity procedurally, substantively, and evidentially" to contest the issue. Overseas Motors, Inc. v. Import Motors Ltd., Inc., 375 F.Supp. 499, 516 (E.D.Mich. 1974) (footnotes omitted), affd, 519 F.2d 119 (6th Cir.1975) (appellate court did not reach collateral estoppel issue because evidence excluded by lower court on collateral estoppel ground would not have altered the result), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304 (1975). The issue of consent was plainly raised from the first day of the BW action. A hearing was held that day at which the Feights' attorney claimed the Murrays were trespassing and the Murrays' attorney responded that the Feights had consented to the re-entry. Moreover, the superior court ruled that the issue of consent was relevant to the validity of the Murrays' claimed lien. In opposing BW's motion to compel, the Murrays themselves acknowledged that consent might operate to cure any defect in the manner in which the repossession was effected. On appeal, the Murrays do not argue that they were in any way prevented from presenting evidence on the consent issue. In fact, in their motion for reconsideration of the grant of summary judgment in BW, they introduced deposition testimony of Peter Murray about the repossession. The BW court found that this testimony, which can best be characterized as evasive and ambiguous, did not create an issue of fact and denied the motion for reconsideration. The consent issue was, therefore, "actually adjudicated," and may properly support a claim of collateral estoppel. Palfy v. First Bank of Valdez, 471 P.2d 379, 384 (Alaska 1970). In the context of giving collateral estop-pel effect to a default judgment, one court reasoned, "The law cannot force a party to make the best case possible or even any case at all, it only permits him to do so, prompted by his own self-interest." Overseas Motors, Inc., 375 F.Supp. at 516 n. 49. The Murrays received a full and fair hearing on the issue of consent in BW. 2. The Feights' Claim Need Not Have Been Brought in the BW Action. The Murrays argue that the Feights could have brought their claims in the BW action so that it is unfair to allow them to assert collateral estoppel here. The Mur-rays rely on Restatement (Second) of Judgments, § 29(3) (1983) and particularly comment e to that section, which states: A person in such a position that he might ordinarily have been expected to join as a plaintiff in the first action, but who did not do so, may be refused the benefits of "offensive" issue preclusion where the circumstances suggest that he wished to avail himself of the benefits of a favorable outcome without incurring the risk of an unfavorable one. Such a refusal may be appropriate where the person could reasonably have been expected to intervene in the prior action, and ordinarily is appropriate where he withdrew from an action to which he had been a party. The circumstances of this case, however, are not ordinary. As the lower court found, the Feights' tort and contract claims were "entirely foreign to the nature of the original case," i.e., priority of the respective liens. Moreover, the Feights' baby daughter had just died. It is completely understandable that the Feights chose not to begin major litigation at that time. There is simply no evidence that they were lying in wait, hoping to exploit a favorable judgment with no risk of being bound by an unfavorable one. The fact that they originally were parties does not in this case require the conclusion that application of collateral estoppel was inappropriate. 3. Foreseeability of the Feights' Action. Whether the party against whom preclusion is asserted could have foreseen the second action is a factor courts should consider in deciding whether to give collateral estoppel effect to a prior adjudication. Restatement (Second) of Judgments' § 28(5)(b) (1981). The Feights' action was clearly foreseeable in that the Murrays voluntarily dismissed their appeal in the BW action some six months after the Feights filed their lawsuit. They cannot, therefore, claim that the filing of the Feights' action was unforeseeable. Moreover, the Murrays themselves had raised the issue of consent as an answer and affirmative defense in the Feight action before their attorney executed the stipulation requesting dismissal of their appeal in BW. The Murrays' claim that the issue of consent in the context of the Feights' lawsuit was unforeseeable is wholly without merit. 4. Differing Standards of Proof. The Murrays assert that collateral estoppel is inappropriate because they had a heavier burden of proof in BW than they do in this case. They are correct in asserting that one factor courts can consider in determining the fairness of issue preclusion is whether the party to be precluded has a better chance of prevailing in the subsequent action because he bears a lesser burden of proof than in the first action. Restatement (Second) of Judgments § 28(4) (1981). It is also true that in BW the Murrays had the burden of proving the validity of their landlord lien as an affirmative defense. Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294 (Alaska 1976), declined to follow on other grounds by East River S.S. Corp. v. Transamerica Delaval, Inc., — U.S. —, 106 S.Ct. 2295, 90 L.Ed.2d 865, 876 (1986). In this case, the Feights claim that the re-entry was forcible. The Murrays assert that the reentry was with consent. Although they also designate consent as an affirmative defense, this does not change the fact that the assertion of consent "raises no new matter but simply denies the existence of one of the elements in plaintiff's case." Id. at 295. As such, consent is an issue regarding which the Feights have the ultimate burden of proof. Id. Nonetheless, the burden the Murrays failed to meet in the BW action was not their ultimate burden of proof. Rather, the issue of consent was resolved on a motion for summary judgment. All inferences of fact were to be drawn in the Murrays' favor as the non-moving party. Alaska Rent-A-Car v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974); Alaska R.Civ.P. 56(c). All the Murrays had to do to defeat BW's motion was "to set forth specific facts showing that [they] could produce evidence reasonably tending to dispute or contradict the movant's evidence and thus demonstrate that a material issue of fact exist[ed]." State, Dept. of Highways v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978). The Murrays were not required to establish that they would ultimately have prevailed at trial. Alaska Rent-A-Car, Inc., 526 P.2d at 1139; Gablick v. Wolfe, 469 P.2d 391, 395 (Alaska 1970). Thus if anything, the Murrays' burden in BW was less than the burden they face here. The Murrays apparently claim that the issue of consent was not raised in such a way that they had an opportunity to respond. This argument is patently absurd. Admittedly, the key evidence on lack of consent — Richard Friedman's affidavit describing the re-entry — was filed several months after BW had filed its reply brief in support of its summary judgment motion. But the Friedman affidavit was filed almost a month before the court ruled on the motion. The Murrays do not contend that they were in any way prevented from filing a responding affidavit, which presumably could have been executed by either Ed Stahla or Peter Murray since both were present at the re-entry. The Murrays do not claim, nor is it plausible that they could claim, that the trial court would have prohibited them from filing such an affidavit after it had allowed BW to file the Friedman affidavit. In their motion for reconsideration in BW, the Murrays apparently asserted that portions of Peter Murray's deposition contradicted Friedman's affidavit, creating a disputed issue of material fact sufficient to defeat summary judgment. Mr. Murray's deposition testimony can best be characterized as evasive and says in essence that Murray told Friedman he was changing the locks and the rest could be settled in court and that Friedman did not actively prevent them from changing the locks. The trial court correctly found that this ambiguous testimony did not raise a genuine issue of material fact. The Murrays had a more than adequate opportunity to present evidence to meet their comparatively light burden of establishing a question of fact in BW Their burden here, if anything, is heavier. Thus, the differing burdens of proof factor weighs in favor of, not against application of collateral estoppel. 5. Relatively Small Dollar Amount at Stake in BW Another factor courts will consider in determining the appropriateness of preclusion is whether the dollar amount at stake in the first action was so small that the party to be precluded may not have had incentive to litigate the issue in the prior action fully and it would be unfair to bind the party to that adjudication in a case in which a substantially greater dollar amount is involved. Restatement (Second) of Judgments § 28(5)(c) (1981). We found this factor to be of particular importance in Pennington v. Snow, 471 P.2d 370, 378 (Alaska 1970). This is indeed the Murrays' strongest argument; the BW action involved only $3,000, while the verdict here was approximately $1.3 million. The difference in relative dollar amounts at stake is substantial. On the other hand, the justification underlying this consideration is that the party to be precluded may not have had incentive to litigate the issue to the fullest in the prior action. Id. at 378. There is every indication that the Murrays went all out in their battle against BW. The only thing the Murrays assert they would have done differently if more were at stake would have been to pursue the appeal. But at the time they dismissed their appeal the Feight action had been filed and the Murrays themselves had already raised the consent issue. This would seem more than adequate incentive to pursue the appeal. Each of these factors thus weighs in favor of preclusion in this case and we affirm the grant of partial summary judgment. B. TRIAL ISSUES. 1. Standard of Review. The trial court found that the Mur-rays received repeated notice of the trial date, based on calls made by the court clerk and statements of process servers. The Murrays do not contest that they received notice. Nonetheless, neither they nor a representative appeared at trial. Since they obviously raised no objections at trial, any errors the Murrays now claim will be reviewed only if they constitute plain error. Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981); City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977). "Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted." Miller, 636 P.2d at 1189; see also Earned v. Dura Corporation, 665 P.2d 5, 7 (Alaska 1983). The Murrays apparently concede that plain error is the appropriate standard of review. 2. Failure to Dismiss Juror Joanna Baughn. The Murrays claim that the trial court committed plain error when it failed to dismiss Joanna Baughn from the jury because her father, Stumpy Baughn, owned the building in which the store the Murrays sublet to the Feights was located. In our view, Stumpy Baughn's financial interest in the outcome of this action is not "obvious," contrary to the Murrays' position. The dispute here was between the Feights and the Murrays on the sublease. Whether the Feights paid their rent to the Murrays presumably has no impact on the Murrays' obligation to pay rent to Stumpy Baughn. Moreover, Ms. Baughn stated on voir dire that she had heard nothing about the case from her father. Contrary to the Murrays' assertion, this is hardly the kind of exposure to such incriminating or highly inflammatory material that requires automatic disqualification of a potential juror. Cf Chase v. State, 678 P.2d 1347, 1352 (Alaska App.1984) (addressing the effect of pretrial publicity on juror panel in a sexual assault case). The court's failure to dismiss juror Baughn was not plain error. 3. Admission of Allegedly Prejudicial Evidence. a. Evidence that Virginia Murray was in Sitka the day before the trial. The Murrays claim that testimony of an Alaska Airline's employee indicating that Virginia Murray was on a flight which stopped over in Sitka the day before the trial should not have been admitted. They claim this evidence was irrelevant and was presented solely for the purpose of inflaming the jury. While the evidence was not relevant to any issue before the jury, we find that Jury Instruction No. 2 cured any plain error. The jury was instructed as follows: As you can see, the defendants in this case, Peter and Virginia Murray, are not present here today. The fact that they are not here does not mean that they have admitted any element of the plaintiffs' case, whether related to liability or damages. You must critically view the evidence and the instructions I give you before making any factual findings. You may not draw any factual or legal conclusions from the Murrays' absence. On the other hand, you should be aware that the Murrays have been repeatedly advised of the trial date and, in fact, Peter Murray has been ordered by me to attend. They are entitled to no special consideration from you as a result of their refusal to attend. b. Photographs of the Parties' Respective Residences. The Murrays claim photographs of their house and the Feights' Wyoming mobile home were highly prejudicial, irrelevant and should not have been admitted. The Feights' response is persuasive: One factor the jury was required to consider in awarding punitive damages was the wealth of the Murrays. E.g., Clary Ins. Agcy. v. Doyle, 620 P.2d 194, 205 (Alaska 1980). The Murrays' failure to respond to court-ordered discovery relating to wealth substantially hampered the Feights' ability to introduce evidence as to this factor. The photograph of the Murrays' home was relevant to the issue of wealth, as was the fact that Mrs. Murray had recently traveled to Juneau from Seattle first class. Moreover, the Murrays' absence from trial made it impossible for the Feights to elicit trial testimony from the Murrays concerning their wealth. As to the Feights' trailer, this evidence is relevant to the Feights' claim that they have been in difficult financial circumstances since the re-entry of their store. It was not plain error for the court to admit this evidence. c. Evidence of Nicole's Death. There was evidence that the Mur-rays' attorney, Ed Stahla, was aware of Nicole's death before the repossession of the store. A woman employed by Stahla at the time testified that she had informed him of Nicole's death the day before the re-entry. Also, the two policemen who were present at the lockout testified that the subject of Nicole's death came up as the reason for Everett Feight's absence. This evidence is sufficient to support a finding that Peter Murray knew of the Feights' tragedy but proceeded nonetheless to repossess the store. Such evidence was crucial to the Feights' claim of intentional infliction of emotional distress and for punitive damages. It was not plain error to admit this testimony. 4. Punitive Damages. The Murrays challenge the award of punitive damages on several grounds. First, they claim the award cannot stand because the jury did not expressly find that the Murrays acted maliciously. But the jury was instructed, in accordance with Alaska Pattern Civil Jury Instruction 20.20, that they could award punitive damages "only if you decide it is more likely than not that.... [t]he Murrays' actions were the result of maliciousness or hostile feelings toward the Feights, or were undertaken with reckless indifference to the interests, rights, or safety of others." (Emphasis supplied). Thus, implicit in the jury's award of punitive damages is its finding that the Murrays acted maliciously or recklessly. The Murrays' first point is thus without merit. Cf Alaska Bussell Elec. v. Vem Hickel Const., 688 P.2d 576, 581 (Alaska 1984) ("[I]t is not error [for the court] to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions."). Second, the Murrays claim that it was plain error for the court to instruct the jury on punitive damages at all. This argument is likewise without merit. We have expressly approved punitive damage awards in wrongful repossession cases. Alaska Statebank v. Fairco, 674 P.2d 288, 296 (Alaska 1983). There was evidence in the record from which the jury could conclude that the Murrays took advantage of Everett Feight's absence, which Peter Murray knew was due to Nicole Feight's death, to re-enter the store with no prior notice and distrain the Feights' property. Such a finding would indicate at the very least that Peter Murray acted in reckless disregard to the Feights' rights and would support the punitive damages award. Id. It was not plain error for the court to instruct the jury on punitive damages. Third, the Murrays claim that evidence of Nicole's death and its effect on the Feights was improperly admitted. As discussed above, that the repossession was done with knowledge of Nicole's recent death was crucial to the Feights' emotional distress and punitive damages claims. Testimony regarding the effect of Nicole's death on her parents was also necessary in order to separate what distress was caused by the death and to what extent the repossession added to that distress. It was not plain error to admit this evidence. The Murrays make an additional argument that is difficult to discern. In disputing the award of punitive damages against Virginia Murray, they claim the court erred in giving "Instruction No. 26 when there was no finding that an agency, joint venture[,] partnership . existed between" the Murrays. But Instruction No. 26 is taken from the pattern instruction to be given when the jury must decide whether a non-acting partner should be held responsible for the acting partner's conduct. See Alaska Pattern Civil Jury Instruction No. 23.08. The jury was instructed as follows: Much of the testimony in this case has related to the actions of Peter Murray. If you find that these actions demonstrate that Mr. Murray should be liable for the intentional infliction of emotional distress, Virginia Murray may also be liable on this claim. Virginia Murray is liable if four things are true. You must decide whether they all are more likely than not true. The four are as follows: 1. Virginia and Peter Murray agreed to work together in a business in which each would share profits and losses, and, 2. Virginia and Peter Murray each contributed property, money, knowledge, skills, services, or something else that would help the business, and, 3. Virginia and Peter Murray each had the right to some voice in the direction and control of the business activities, whether or not they exercised this right, and, 4. The actions which demonstrate that Mr. Murray should be liable for intentional infliction of emotional distress were either agreed to by Virginia Murray, or were done during the ordinary course of the business in which they were working together. If you decide that all four of these things are more likely than not true, then the law holds Virginia Murray responsible for the actions of Peter Murray. If you decide otherwise, Virginia Murray is not legally responsible for the actions of Peter Murray. In deciding these issues, you should be aware that in the pleadings in this case, Virginia Murray has admitted to being a party to the lease agreement, to changing the locks on the store, and to taking certain personal property located within the store. The jury expressly found Virginia Murray to be jointly responsible for the acts of her husband and thus found each of the above-listed four factors more likely than not to exist. While the evidence of Virginia's conduct would not alone support an award of punitive damages against her, the law will in certain circumstances hold a party vicariously liable for punitive damages based on the act of another. Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 949 & n. 4 (Alaska 1986). In Alaskan Village we adopted the rule that an employer is liable for punitive damages if the actions of the employee subject the employer to liability for compensatory damages and the employee acted maliciously or recklessly. Id. All evidence suggests, and the jury expressly so found, that Peter was acting for Virginia as well as for himself in dealing with the Feights. Virginia's vicarious liability for compensatory damages is therefore clear. Miller v. Sears, 636 P.2d 1183, 1191 (Alaska 1981) (wife held vicariously liable for actions of husband in negotiating the sale of the couple's house). The jury implicitly found Peter's conduct to warrant punitive damages. Under the reasoning of Alaskan Village, which the Murrays do not challenge, the jury could properly find Virginia also liable for punitive damages, and did so. We refuse to disturb this award. 5.Support for Jury's Interrogatory Responses. The Murrays assert that the jury's interrogatory responses were not supported by the evidence. Most of these arguments are meritless. Counsel for the Feights conceded at oral argument, however, that the $50,000 figure the jury awarded for financial losses other than income from the store included the $31,000 it awarded for property the Murrays took from the store. To avoid a double recovery, therefore, the total verdict must be reduced by $31,000. Although not addressed by the parties we observe another instance of double recovery which plainly appears on the special verdict form. Under the heading "Interference with Chattels," the following interrogatories and answers appear: 5. If you find that mental and emotional distress was the direct and natural result of the Murrays' interference with this property, what amount of money would fairly compensate Everett Feight for this injury? $150,000 6. If you find that mental and emotional distress was the direct and natural result of the Murrays' interference with this property, what amount of money would fairly compensate Martha Feight for this injury? $150,000 Under the heading "Intentional Infliction of Emotional Distress," the following interrogatories and answers appear: 9. If you find it more likely than not that Everett Feight suffered mental or emotional injury or distress as a result of the Murrays'actions, what amount of money would fairly compensate him for this injury? $200,000 10. If you find it more likely than not that Martha Feight suffered mental or emotional injury or distress as a result of the Murrays' actions, what amount of money would fairly compensate her for this injury? $200,000 (Emphasis added). Nowhere is the phrase "as a result of the Murrays' actions" in interrogatories 9 and 10 limited so as to exclude interference with chattels for which damages were awarded in response to interrogatories 5 and 6. Neither interrogatories 9 and 10 nor any jury instruction that was given indicate that if the jury were to award a separate amount of damages for emotional distress resulting from interference with chattels, it had to exclude that amount from any award of damages for emotional distress generally. Indeed, the jurors were instructed that they "may consider all of the surrounding circumstances" in evaluating whether the Murrays were liable for intentional infliction of emotional distress. It thus appears that the emotional distress awards amount to a double recovery. The general award for emotional distress, totalling $400,000, will stand but the award for emotional distress resulting from interference with chattels, totalling $300,000, must be overturned as subsumed in the $400,000 general award. 6. No Error Resulted from Richard Friedman's Continued Representation of the Feights. The Murrays contend that the Feights' attorney, Richard Friedman, should have refused to represent the Feights in this action since he was an eye witness to the store repossession. Alaska Code of Professional Responsibility Disciplinary Rule 5-101(B) requires an attorney to refuse employment "in contemplated or pending litigation if he knows or it is obvious that he . ought to be called as a witness." The Murrays lost the consent issue in the BW action before this suit was filed. It was then highly probable that the Murrays would be collaterally estopped from relitigating the issue in this case and Friedman's testimony would not be necessary. It was therefore not obvious that Friedman ought to be called as a witness. We find no reversible error on this point. 7. The Damages Awarded Were Not Excessive. Since the Murrays did not raise the issue of excessive damages in a motion for remittitur or new trial, we may refuse to review the issue or we may, in our discretion, review the award to ascertain whether it is so excessive "as to amount to a miscarriage of justice." Heacock v. Town, 419 P.2d 622, 624 (Alaska 1966). The evidence before the jury, which as discussed above, was properly admitted, supports a conclusion that the Murrays took advantage of the Feights' absence, knowing that the absence was due to their daughter's death, to forcibly repossess the store premises and its contents, obviously jeopardizing the Feights' attempts to sell the store, of which the Murrays also were aware, and causing the Feights severe financial hardship, which was clearly foreseeable. Given such a view of the case, we do not believe the amount awarded is so excessive as to constitute a miscarriage of justice. III. CONCLUSION The trial court correctly precluded the Murrays from relitigating the question whether the re-entry of the Feights' store was with consent. We find plain error on only two elements of the award, requiring a reduction of the judgment by $331,000 to avoid a double recovery. The remainder of the verdict is adequately supported by evidence that was properly presented to the jury and is affirmed. AFFIRMED in part and REMANDED in part for modification consistent with this opinion. . This ruling was made in the context of a discovery dispute over whether Peter Murray should be required to answer deposition questions concerning whether the re-entry was made with consent and thus the court was applying the generous relevance standard applicable to the discovery stage. Alaska R.Civ.P. 26(b)(1); Doe v. Superior Court, 721 P.2d 617, 620-21 (Alaska 1986). The ruling nonetheless put the Murrays on notice that the court considered consent to be relevant to the question whether their lien was valid. . Along with their reply brief, the Murrays filed additional evidence that they did not introduce in BW in support of their argument that they should be allowed another opportunity to litigate. They offer no explanation as to why this evidence was not there introduced. It does not affect the conclusion that they had a full opportunity to litigate. . It is clear that collateral estoppel effect may properly be given to a summary judgment; full trial on the merits is not required. Stevenson v. Sears Roebuck & Co., 713 F.2d 705, 712 (Fed.Cir.1983). . The Murrays in fact filed a cross motion for summary judgment but this should not have effected the court's approach to determining whether to grant BW's motion. . This is the amount the Feights owed in back rent at the time and is the maximum the Mur-rays could claim on their common law landlord lien for back rent. . Obviously, the award might well have been substantially lower had the Murrays chosen to appear and present their side of the story.

10401634

Thomas BUSBY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Municipality of Anchorage Police Department, and Officer Mary Lou Foster, jointly and severally, Appellees

Busby v. Municipality of Anchorage

1987-08-21

No. S-1580

230

235

741 P.2d 230

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Thomas BUSBY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Municipality of Anchorage Police Department, and Officer Mary Lou Foster, jointly and severally, Appellees.

Thomas BUSBY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Municipality of Anchorage Police Department, and Officer Mary Lou Foster, jointly and severally, Appellees. No. S-1580. Supreme Court of Alaska. Aug. 21, 1987. Michael W. Flanigan, William Soule, Clark, Walther & Flanigan, Anchorage, for appellant. James M. Bendell, James M. Bendell & Associates, Anchorage, for appellees. Before RABINOWITZ, C.J., BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2282

14084

OPINION BURKE, Justice. This is an appeal from a summary judgment in favor of the Municipality of Anchorage (Municipality) in which we are asked to determine whether AS 47.37.170 imposes upon a municipality an actionable duty to take persons incapacitated by alcohol in a public place into protective custody. We determine that it does and thus reverse the judgment of the trial court and remand for further proceedings. I On May 1, 1980, Thomas Busby was walking about two feet into the traffic lane on East Fifth Avenue in Anchorage. Officer Foster was on patrol and spotted Busby, stopped him, moved him off to the side of the road, talked with him and determined that Busby was intoxicated. Officer Foster then ran a warrant check on Busby but did not place him into protective custody. Apparently finding no outstanding warrants, Officer Foster then reentered her vehicle and proceeded on her way. Shortly after Officer Foster left, Busby was struck by a car and suffered injuries as a result. In his suit against the Municipality, Busby alleged that the Municipality was negligent and/or reckless in failing to take him into protective custody and that the Municipality's omission was the direct and proximate cause of his injuries. After hearing was held on Busby's and the Municipality's cross-motions for summary judgment, the trial court determined that the Municipality owed Busby no affirmative duty to take him into protective custody and that, therefore, the Municipality could not have been negligent in failing to do so. Accordingly, the trial court granted summary judgment in favor of the Municipality. This appeal followed. II In the recent case of City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985), we unequivocally reaffirmed our rejection of the so-called "public duty doctrine" as an unnecessary and unjustified expansion of the state's statutorily limited immunity. Id. at 1311-12; see also Adams v. State, 555 P.2d 235, 241-43 (Alaska 1976). In place of that doctrine, we indicated that the liability of a municipality for the negligent acts and omissions of its representatives will be governed by traditional tort principles. As we stated in McLean: In practice, the public duty doctrine is an injunction against imposing liability on a government without first deciding what the government's duty is. While the public duty doctrine does protect the state from becoming the insurer of all private activity and from undue interference with its ability to govern, we believe that these concerns are better addressed by the tort concept of duty, which limits the class of people which may seek to hold the state responsible for negligent action, and by AS 09.50.250. 702 P.2d at 1313 (citation and footnote omitted). Thus, our determination here must be made with recourse to the principles embodied by the tort concept of duty. As we have noted, " '[d]uty' is not sacrosanct in itself but [is] only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Id. (quoting W. Prosser, Handbook of the Law of Torts § 53, at 325 (4th ed. 1971)). Thus stated, the process of finding that a defendant owes a duty to a plaintiff is one which involves a fine balancing of conflicting policies; it is in essence an attempt to determine whether it would be fair and equitable to require an individual to act, or to refrain from acting, in a specified manner so as to avoid undue risk of harm to third persons. See generally W. Keeton, D. Dobbs, R. Keeton, and G. Owen, The Law of Torts § 53, at 356-58 (5th ed. 1984) (hereinafter Prosser). Recognizing the difficulty of this task, we have delineated a number of factors which should be considered to provide greater predictability in the decision-making process. These factors include the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the policy of preventing future harm; the extent of the burden to the defendant and consequences to the community in imposing a duty to exercise care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved. McLean, 702 P.2d at 1314 (quoting D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981)). These independent considerations, however, may sometimes be superseded by the legislature. For example, where the legislature has considered and resolved conflicting policies by clearly enunciating a duty in a statute, the relevant statute should be considered and, in a proper case, adopted as the appropriate standard of care. See Metcalf v. Wilbur, Inc., 645 P.2d 163, 167-68 (Alaska 1982); Bachner v. Rich, 554 P.2d 430, 440-42 (Alaska 1976); Breitkreutz v. Baker, 514 P.2d 17, 20-21 (Alaska 1973); Ferrell v. Baxter, 484 P.2d 250, 263-65 (Alaska 1971); see generally Prosser, supra p. 6, § 36, at 220-29; Restatement (Second) of Torts § 285 (1965) (hereinafter Restatement). A statute enunciates the appropriate duty when it is found that (1) the plaintiff is within the class protected by the statute, (2) the harm/injury which occurred was of the type which the statute was intended to protect against, (3) the statute prescribes specific conduct rather than merely a general or abstract duty of care, (4) the defendant was a party charged with observing the statute, (5) the defendant can be fairly charged with being aware of the applicability of the statute, and (6) the statute is not so outdated or arbitrary as to make inequitable the statute's adoption as the standard of care. E.g., State Mechanical v. Liquid Air, 665 P.2d 15, 18-19 (Alaska 1983); Grothe v. Olafson, 659 P.2d 602, 607 (Alaska 1983); see also Restatement § 286. Busby argues that AS 47.37.-170(b) articulates the appropriate duty in this case. We agree. As the statute explicitly states, and as the trial court itself noted, AS 47.37.170(b) is intended to benefit and protect the health and well being of persons who are incapacitated by alcohol and imposes a mandatory duty upon law enforcement personnel to place such persons into protective custody. Cf Peter v. State, 531 P.2d 1263, 1268 (Alaska 1975) (quoting House Concurrent Resolution No. 36 (1969) on treatment of problem drinkers and alcoholics); AS 47.37.010. In addition, accepting as true Busby's assertions that he was a person incapacitated by alcohol in a public place, he was clearly a member of the protected class and his accident was of the type against which the statute was designed to protect. Finally, it cannot be doubted that the statute prescribes specific conduct rather than merely states some general or abstract duty of care; Officer Foster was within that class of persons charged with observing the statute; as a municipal police officer, she can fairly be charged with awareness that the statute applied; and the statute can hardly be considered so outdated or arbitrary as to make inequitable its application as the appropriate standard of care. The Municipality cites a number of cases which, it argues, mandate a different conclusion. Only two, however, require discussion. In Stout v. City of Porterville, 148 Cal.App.3d 937, 196 Cal.Rptr. 301 (1983), a California court refused to find that California Penal Code § 647(ff) set out an appropriate legislative standard of care in circumstances similar to those at issue here. Id. 196 Cal.Rptr. at 306-08. The statute in Stout, however, provided that an intoxicated person could only be taken to a voluntarily maintained public treatment facility. Id. The California court was therefore concerned that imposing a mandatory duty would cause counties participating in the voluntary treatment program to withdraw their support and thus cause the treatment program to collapse. Id. We have no similar concern in the present action. In addition, Penal Code § 647, unlike AS 47.37.170(b), was not intended to minimize the dangers faced by the inebriate, but simply to end the "revolving door" policy of jail and street, street and jail. Id. We thus decline to adopt Stout 's analysis. Marshall v. Ellison, 132 Ill.App.3d 732, 87 Ill.Dec. 704, 477 N.E.2d 830 (1985), also involves an analogous factual situation and statute. Nevertheless, this case is also unpersuasive for at least two reasons. First, the court in Marshall apparently refused to find that the relevant statute imposed upon the state any mandatory duty on the basis of the state's sovereign immunity. Id. at 835. Relying upon Rodriguez v. City of Cape Coral, 451 So.2d 513 (Fla.App.1984), affirmed, 468 So.2d 963 (Fla.1985), the Marshall court stated: Like the Florida statute [in Rodriguez'], section 15(b) requires an officer to exercise his professional judgment in determining whether an individual appears to be incapacitated. We do not believe the public interest would be served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess a policeman's decision. 87 Ill.Dec. at 709, 477 N.E.2d at 835. Second, we find the Marshall court's statutory analysis questionable. Despite the unambiguous mandatory language in the Illinois statute and without citation to legislative history or any other authority, the court simply concluded that the legislature did not intend to create a cause of action under the statute for failure to take a person into protective custody. Id. Whatever the merits of the Marshall court's conclusion with respect to interpretation of the Illinois statute, we decline to apply its reasoning here. We conclude then that AS 47.37.170(b) articulates an appropriate standard of care and thus hold that the Municipality has an affirmative duty to take persons incapacitated by alcohol in a public place into protective custody and transport them to an appropriate treatment facility. Ill Busby's cross-motion and appeal seeking summary judgment in his favor are without merit. For the reasons discussed above, we REVERSE the judgment of the trial court and REMAND for further proceedings consistent with this opinion. . Because it does not appear that Officer Foster has been sued in her individual capacity but only as a municipal police officer, the discussion which follows applies equally to all named appellees. . AS 47.37.170 provides in part: (b) A person who appears to be incapacitated by alcohol in a public place shall be taken into protective custody by a peace officer or a member of the emergency service patrol and immediately brought to an approved public treatment facility, an approved private treatment facility, or another appropriate health facility or service for emergency medical treatment. If no treatment facility or emergency medical service is available, a person who appears to be incapacitated by alcohol in a public place shall be taken to a state or municipal detention facility in the area, if that appears necessary for the protection of the person's health or safety. (e) A person who is not admitted to an approved public treatment facility, is not re ferred to another health facility, and has no funds, may be taken to the person's home, if any. If the person has no home, the approved public treatment facility shall assist the person in obtaining shelter. (g) Peace officers or members of the emergency service patrol who comply with this section are acting in the course of their official duty and are not criminally or civilly liable for it. (j) For purposes of (b) of this section, "incapacitated by alcohol" means a person who, as the result of consumption of alcohol, is rendered unconscious or has judgment or physical mobility so impaired that the person cannot readily recognize or escape conditions of apparent or imminent danger to personal health or safety. The definition in AS 47.37.-270(8) applies to other portions of this chapter. . Because this appeal comes to us on summary judgment, our obligation is to draw all inferences of fact in favor of appellant Busby and against appellee Municipality. See, e.g., Alaska Rent-a-Car v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974). .Section 286 of the Restatement (Second) of Torts (1965) provides: The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. . See supra note 2. . AS 47.37.010 provides: It is the policy of the state that alcoholics and intoxicated persons should not be criminally prosecuted for their consumption of alcoholic beverages and that they should be afforded a continuum of treatment so they may lead normal lives as productive members of society- . See supra note 3. . See AS 47.37.170(b), (c), supra note 2. . See Ill.Ann.Stat. ch. 111½, ¶6315(b) (Smith-Hurd Supp.1986). . Our decision today is expressly limited to a discussion of duty. Because the trial court's judgment was based solely upon this issue, we need not, and do not, consider any question regarding alleged breach and express no opinion as to the factual merits of Busby's claim. Similarly, we express no opinion regarding any claims of municipal immuhity under AS 09.65.-070.

10440444

John L. McCLAIN, Appellant, v. STATE of Alaska, Appellee

McClain v. State

1982-03-18

No. 5740

1265

1266

641 P.2d 1265

641

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

John L. McCLAIN, Appellant, v. STATE of Alaska, Appellee.

John L. McCLAIN, Appellant, v. STATE of Alaska, Appellee. No. 5740. Court of Appeals of Alaska. March 18, 1982. Deborah Paquette, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Peter A. Michalski, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

745

4454

OPINION COATS, Judge. John McClain has appealed to this court from a conviction for driving with a suspended license in violation of AS 28.15.-291(a). McClain entered a nolo contendere plea to the charge, preserving his right to appeal under Cooksey v. State, 524 P.2d 1251 (Alaska 1974) and Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978). On January 9,1980, McClain was charged with driving while his license was suspended. McClain's license was suspended by the Department of Motor Vehicles due to accumulation of points under the state's point system for traffic violations, AS 28.15.221 —.261. The parties stipulated that McClain received notice of his license suspension on November 13, 1979. The notice informed McClain of his right to a hearing if he wished to contest the suspension. The notice also informed him that suspension was to begin on December 4, 1979, and continue for a period of three months. McClain contends on appeal that his license was not validly suspended because he did not receive notice from the Department of Motor Vehicles pursuant to AS 28.15.231(a) after he had accumulated against his driving record more than 50% of the points required to suspend his license. That statute reads in pertinent part: Assessment of points, driver improvement interview, (a) Notice of each assessment of points may be given, but notice shall be given when the point accumulation reaches 50 per cent of the number at which suspension, revocation or denial is required under § 221(b) of this chapter... . The parties stipulated that no "midpoint" notice was sent to McClain. McClain argues that the statute requires midpoint notice to be given and that without the midpoint notice, the suspension of his driver's license was invalid. McClain contends he was, therefore, improperly convicted for driving while his license was suspended. We hold that failure of the Department of Motor Vehicles to send a midpoint notice pursuant to AS 28.15.231(a) cannot be raised as a defense in a prosecution for driving with a suspended license under AS 28.15.291(a). We specifically do not decide whether failure of the Department of Motor Vehicles to comply with AS 28.15.231(a) would prevent suspension of a driver's license, if this failure were raised in an administrative hearing to decide whether to suspend a driver's license. Aside from the fact that this court lacks jurisdiction to decide the matter, we believe the decision is best left in the first instance to the administrative agency. See Municipality of Anchorage v. Brown, 626 P.2d 116 (Alaska App.1981). McClain cites Jacob v. Curry, 42 Ohio St.2d 145, 326 N.E.2d 672 (1975), and Haas v. Curry, 42 Ohio Misc. 1, 325 N.E.2d 566 (1974), for the proposition that the state must prove that a midpoint notice was given before a license can be suspended. Ohio has a statutory point system very similar to the Alaska system. The Ohio court in those cases did rule that proof that a midpoint warning had been sent out was a prerequisite to a license revocation. However, we note that the Ohio cases arose in the context of a court hearing where the sole issue was whether a driver's license should be suspended. The issue was not raised in a situation similar to the ease at bar, where the license had been suspended and the defendant was defending a charge of driving with a suspended license on the ground that his license had not been validly suspended. We believe that it is better policy to require a person who has not received a midpoint notice to raise this defense in an administrative hearing to contest whether his license should be suspended. He may appeal from any adverse ruling of the administrative agency. Assuming that it is a valid objection to the suspension of a driver's license that no midpoint notice was received, we see no reason to encourage a person to bypass the administrative hearing, have his license suspended, and then drive with the knowledge that if he is apprehended he can raise in the criminal proceeding the failure of the state to provide a midpoint notice. The judgment is AFFIRMED.

10438426

Vera M. GRIMES, Appellant and Cross-Appellee, v. Sharon K. HASLETT, Appellee and Cross-Appellant

Grimes v. Haslett

1982-03-12

Nos. 5295, 5296

813

823

641 P.2d 813

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

Vera M. GRIMES, Appellant and Cross-Appellee, v. Sharon K. HASLETT, Appellee and Cross-Appellant.

Vera M. GRIMES, Appellant and Cross-Appellee, v. Sharon K. HASLETT, Appellee and Cross-Appellant. Nos. 5295, 5296. Supreme Court of Alaska. March 12, 1982. Roger E. Henderson, Houston, Henderson & Peterson, Anchorage, for appellant and cross-appellee. Russellyn S. Carruth, Burr, Pease & Kurtz, Inc., Anchorage, for appellee and cross-appellant.

5079

30978

OPINION Before RABINOWITZ,. C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ. COMPTON, Justice. In the fall of 1976, Vera Grimes was involved in three separate car accidents. A year later, she filed suit against the various drivers and an insurer, seeking compensation for injuries allegedly suffered as a result of the accidents. This appeal arises from the trial of Grimes' claims against one of those drivers, Sharon Haslett. The car that Haslett was driving had struck the rear of Grimes' car in Anchorage on October 9, 1976. Grimes claimed that Haslett was negligent, but the jury returned a general verdict in favor of Haslett. On appeal, Grimes asserts that the superior court erred concerning a peremptory challenge of an alternate juror, a jury instruction on damages for lost earning capacity, and the denial of her motions for directed verdict, for judgment notwithstanding the verdict and for a new trial. Haslett has cross-appealed, contending that the superior court erred in denying her motion for a directed verdict, in excluding evidence that Grimes failed to comply with a discovery request, and in admitting the evidence that Grimes failed to disclose during discovery. I. Peremptory Challenge of Alternate Juror The first question before us is whether the trial court erred in refusing to allow Grimes' peremptory challenge of an alternate juror. After twelve regular jury members had been selected, the court proceeded to allow selection of one alternate juror, as authorized by Alaska Rule of Civil Procedure 47(b). The first person called for examination voir dire was peremptorily challenged by Haslett and dismissed by the court. The next prospective juror was questioned by both sides and found acceptable as an alternate by Haslett. Immediately thereafter, the following exchange took place between the trial judge and Grimes' counsel: COURT: I don't think there's any more challenges left, except for cause.. . . There's only one challenge per side allowed. You did not exercise one when challenge was allowed, so as far as I'm concerned, the challenges have been exhausted. [GRIMES'] COUNSEL: Well, Your Hon- or, I thought I had three challenges. COURT: Three challenges to the alternate? COUNSEL: Oh, no, not— COURT: Oh, no. Let's see. COUNSEL: Right. COURT: The challenges as to the jury have been used up. COUNSEL: Right. COURT: So we're down to the alternate. COUNSEL: Right. COURT: And there are no more challenges. COUNSEL: Very fine, Your Honor. COURT: If there are challenges for cause, I'll hear them now. COUNSEL: I have no challenge for cause. The jury was then sworn. The superior court thus stated that Grimes had exhausted the one peremptory challenge allowed her under Civil Rule 47(b). Grimes asserts that this constituted a ruling erroneously denying her a peremptory challenge against the alternate. Grimes is partly correct — she did have one peremptory challenge remaining. The issue, however, is whether she attempted to exercise this right in a timely fashion. Peremptory challenges that are not exercised timely are considered waived: "The general rule today, as at common law, is that a juror must be peremptorily challenged, if at all, before he is sworn; otherwise a waiver results." 47 Am.Jur.2d Jury § 256, at 834 (1969); King v. State, 125 Fla. 316, 169 So. 747, 748 (1936); Lengyel v. Brandmiller, 139 Ohio St. 478, 40 N.E.2d 909, 911 (1942). Cf. Irwin v. Radio Corp. of America, 430 P.2d 159, 161 (Alaska 1967) (right to challenge sufficiency of jury panel waived when no objection made until after jury selected and sworn). At the time the alternate juror was examined, the superior court was not prompted to issue a ruling on whether Grimes had a peremptory challenge remaining. Grimes' counsel did not indicate a desire to challenge either the alternate juror or any "ruling" by the superior court. The words, "I object," are not a magical requirement, but "ordinarily a litigant must alert the trial court to the error and set forth the grounds of his objection so that the court can nullify the error by appropriate action . " R. Traynor, The Riddle of Harmless Error 77-78 (1970). Counsel for Grimes did not do so. Instead, he accepted the superior court's belief that Grimes had exhausted her peremptory challenges. It was not until the next day, after the jury had been sworn, that Grimes' counsel attempted to make a peremptory challenge to the alternate juror. The absence of a regular juror had created a vacancy and the superior court replaced the missing juror with the alternate. Grimes' counsel tried then to exercise a peremptory challenge, stating that he had not intended to fully accept the alternate juror the day before. This challenge was untimely and it was therefore properly denied by the court. II. Instruction On Lost Earning Capacity We next consider whether the superior court properly instructed the jury how to award damages for lost earning capacity. The court's instruction was as follows: If under the court's instructions you find that the plaintiff, Vera M. Grimes, is entitled to a verdict, in arriving at the amount of the award, you shall determine each of the items of claimed detriment which I am about to mention, provided that you find it to have been suffered by her, and as a legal result of defendant's negligence. (3) Such sum as will compensate her reasonably for lost earning capacity which she has suffered and will suffer by reason of inability to work, if any, and legally resulting from the defendant's negligence. In determining this amount, you should consider evidence of plaintiff's earning capacity, her earnings, how she ordinarily occupied herself, and find what she was reasonably probable to have earned in the time lost if she had not been injured. A person's ability to work may have a monetary value even though she is not employed by another. The law does not require exact proof of the number of days or hours lost or which will be lost from work, but it does require proof that such loss has occurred or is likely to occur with reasonable probability. You are the sole judge of what amount of damages would compensate for such loss. The law does require, however, that the jury shall exercise its authority with calm and reasonable judgment and that the damages shall be just and reasonable in the light of the evidence. In determining this amount, you should consider evidence of plaintiff's earning capacity, her earnings, how she ordinarily occupied herself, her age, her physical condition, and find the reasonable value to compensate plaintiff for any impairment of her future earning capacity. Grimes bases her claim of error upon the part of the instruction reading, "The law does not require exact proof of the number of days or hours lost or which will be lost from work, but it does require proof that such loss has occurred or is likely to occur with reasonable probability." Grimes asserts that this instruction required the jury to find actual loss of earnings in order to make an award, contrary to the established law of Alaska. We have defined the impairment of earning capacity as the permanent diminution of the ability to earn money. City of Fairbanks v. Nesbett, 432 P.2d 607, 617 (Alaska 1967). Consequently, an award of "lost earnings" does not satisfy an injured party's entitlement to compensation for lost earning capacity. Morrison v. State, 516 P.2d 402, 404 (Alaska 1973). An erroneous statement of law in a jury instruction will not constitute reversible error unless it prejudiced one of the parties. City of Nome v. Ailak, 570 P.2d 162, 172 (Alaska 1977). Viewed in its context, it is clear that the challenged instruction in this case while perhaps somewhat confusing is not seriously defective. It could not have misled the jury into requiring proof of lost earnings. First, the challenged instruction is subsumed within § (3) of the damages instruction, which refers specifically to compensation for lost earning capacity, not lost earnings. Second, the instruction did not require the jury to find that Grimes had suffered an actual loss of earnings. Instead, it required the jury to find with reasonable certainty that Grimes would suffer a loss in earning capacity as a result of the accident. The fact that lost earnings need not be proven in order to recover for impaired earning capacity does not obviate the need to prove actual impairment of earning capacity. Nesbett, 432 P.2d at 617. See generally W. Prosser, Law of Torts § 30, at 143-44 (4th ed. 1971). Thus, the instruction was not reversible error. III. Denial of Motions for Directed Verdict, Judgment N.O.V. and New Trial The final issue on appeal is whether the superior court erred in denying Grimes' motions for directed verdict, for judgment notwithstanding the verdict and for a new trial. Following the presentation of evidence, Grimes moved for a directed verdict on the issue of liability. The superior court denied this motion. After the jury rendered its verdict in favor of Haslett, Grimes made a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was also denied. Grimes contends that these rulings were erroneous and call for a new trial. In refusing to direct a verdict on liability the superior court necessarily allowed both the issues of negligence and causation, the two major elements of tort liability, to reach the jury. The jury rendered a general verdict in favor of Haslett without reaching specific conclusions as to whether Has-lett was negligent or whether she caused Grimes' injury. Thus, the jury's general verdict comprehends two issues — negligence and causation. In the context of a general verdict comprising more than one issue the erroneous refusal to direct a verdict as to one issue constitutes grounds for a new trial unless the nonmoving party would prevail, as a matter of law, upon the other issue. "Where several issues of fact are tried and any one of them is erroneously submitted to the jury and a general verdict is returned for plaintiff, defendant is entitled to have the verdict set aside and to have a new trial, unless it conclusively appears as a matter of law that plaintiff was entitled to the verdict upon other grounds." [Citation omitted.] The reason for requiring the new trial is the impossibility of knowing whether the general verdict was based upon a properly submitted issue or an improperly submitted issue. Schroht v. Voll, 245 Minn. 114, 71 N.W.2d 843, 846 (Minn.1955). Accord, Miracle Boot Puller Co. v. Plastray Corp., 84 Mich.App. 118, 269 N.W.2d 496, 498 (Mich.App.1978); Duncan v. Germaine, 330 So.2d 479, 481 (Fla.App.1976). Under this test, if it was error to submit either the negligence or causation questions to the jury, then a new trial is required unless Haslett was entitled to a verdict as a matter of law on the other question. Thus, we first inquire whether the superior court erred in not directing a verdict that Haslett was negligent or that she caused Grimes' injuries. A directed verdict or judgment notwithstanding the verdict is justified only if "the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable men could not differ in their judgment." City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978), quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 723 (Alaska 1975); Snipes v. March, 378 P.2d 827, 828 (Alaska 1963). Our review of the denial of motions for directed verdict or judgment notwithstanding the verdict is narrow; we shall not "weigh conflicting evidence or judge of the credibility of witnesses." City of Whittier, 577 P.2d at 220, quoting Holiday Inns, 520 P.2d at 92. We recognize that a driver who strikes a car from the rear is not per se negligent. When "there is no reason to anticipate the conduct of the preceding driver, the driver who follows may not be responsible for the collision." Hahn v. Russ, 611 P.2d 66, 67 (Alaska 1980) (citing Rhoades v. DeRosier, 14 Wash.App. 946, 546 P.2d 930, 933 (1976)). However, we have held that "[o]ne should expect sudden stops in heavy traffic, especially when it has recently been stop-and-go" and that to rear-end a car under these circumstances constitutes negligence as a matter of law. Hahn, 611 P.2d at 68. Grimes' stop in this case should also have been anticipated. Grimes had to stop for a car which was turning into a McDonald's "restaurant", on the other side of the intersection. Left turns onto business premises are a fairly routine traffic event. Grimes testified that the car ahead sig-nalled before it turned, and that she had time to come to a complete stop. Haslett, for no apparent reason, could not stop in time. Haslett admitted that she was probably following too close and that she felt that this caused the accident. Moreover, Haslett offered no proof that the accident was the fault of an unexpected occurrence. Thus, we cannot avoid the conclusion that a directed verdict should have been granted in Grimes' favor on the question of negligence. Because the superior court erred in not directing a verdict that Haslett was negligent, a new trial is required unless Haslett can show, as a matter of law, that "there is no reasonable connection between the [automobile accident] and the damage which the plaintiff has suffered." See generally W. Prosser, Law of Torts, § 41, at 236 & 242 (4th ed. 1971). Our review of the record discloses that, when the evidence is reviewed in the light most favorable to Haslett, reasonable persons could easily differ as to whether the October 9 collision caused the full extent of Grimes' incapacity, but no reasonable juror could have concluded other than that Grimes suffered at least some damages. Grimes' car was completely stopped when it was struck by Haslett's car travelling at ten to fifteen miles per hour. Such a collision does not occur without some discomfort resulting to the occupants of the car that is struck. Moreover, Dr. Dittrich opined that Grimes suffered a temporary muscle strain as a result of the first accident. Haslett did not refute this testimony. Clearly, Grimes was entitled to a directed verdict on liability and an award for these damages. Thus, we remand this case for a new trial on the issue of damages. IV. Cross-Appeal Our decision that Grimes should have been granted a directed verdict on liability settles the question of whether Haslett was entitled to a directed verdict on liability. The other cross-appeal issues remain. First, Haslett contends that the superior court erred in barring evidence that Grimes failed to comply with a discovery request for medical records. In particular, Grimes failed to produce the records of two examinations she underwent with Dr. Serrato, some time after the accident. Haslett argues that the court should have instructed the jury to infer that the requested evidence was unfavorable to Grimes' case. Haslett had made a general request for copies of "all medical records pertaining to the plaintiff made since the first accident . . . " Allegedly, Haslett also asked Grimes to provide written medical releases for all records that Grimes was having trouble obtaining herself. Grimes maintains that she neither possesses Dr. Serrato's records of her visits, nor knows whether such records were even made. Grimes asserts that she did not consider Dr. Serrato to be a relevant or material witness because his examinations had been brief and perfunctory. She testified that his examinations lasted only several minutes. However, the examinations apparently lasted long enough for the doctor to recommend a course of treatment. The superior court rejected Haslett's proposed jury instruction because the very brief duration of Dr. Serrato's examination of Grimes made it unlikely that he "could be the source of anything of interest in this case." For the same reason the court also doubted that a record of the examination had ever been prepared. In view of the remote likelihood of the medical record's existence and materiality the superior court believed it would be inappropriate to instruct the jury as Haslett requested. Failure to call a witness or produce evidence does not automatically warrant an adverse inference. Before the inference can be applied the potential witness must be available, must appear to have special information that is relevant to the case and not merely cumulative, and the witness must be one that would ordinarily be expected to favor the party against whom the inference is directed. C. McCormick, Law of Evidence § 272, at 656-57 (2d ed. 1972). Possible conjecture or ambiguity is one factor counseling against use of the adverse inference. Id. at 657. In Cherry-Burrell Co. v. Thatcher, 107 F.2d 65, 69 (9th Cir. 1939), the court held that an accident victim's failure to call as witness a doctor that had treated him only once did not justify an adverse inference. The court stated that "quite possibly" the doctor could have added nothing to the testimony of other doctors. Id. In this case the superior court relied upon a similar consideration when it stated that the failure to provide Dr. Serrato's records did not deprive Haslett of anything "of substance". The evidence indicated that the medical records, if any, would have constituted cumulative evidence at best. The superior court had to balance a very speculative harm to Haslett's case against a serious impeachment of Grimes' credibility. We find no abuse of discretion in its refusal to instruct the jury as requested. Second, Haslett contends that the superi- or court should have precluded Grimes' expert witness, Dr. Snead, from testifying because Grimes failed to supplement her responses to interrogatories concerning Dr. Snead's testimony. During discovery Haslett submitted interrogatories asking Grimes to state, among other things, the opinions of her expert witnesses and the grounds of their opinions. As to Dr. Snead, Haslett agreed to accept his March 1978 deposition in lieu of response to the interrogatory, provided that his expected testimony had not changed. Civil Rule 26(e)(1)(B) imposes a duty to supplement one's response to an interrogatory concerning the subject matter of an expert witness' testimony. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2049, at 322-23 (1970). Grimes was under a continuing duty to inform Haslett of any change in Dr. Snead's opinion or the basis of that opinion. We first inquire whether Grimes in fact breached her duty to supplement discovery responses. When he was deposed in March 1978 Dr. Snead stated that Grimes suffered from "a fairly classical" mechanical compression of the S-l nerve root, probably caused by scar tissue or a ruptured disk stemming from the auto accident. He stated that he had discussed with Grimes the possibility of an epidural nerve block, a treatment involving the injection of a long-acting anesthetic into the spine's epidural cavity but that he had not recommended it because the benefits were too "unpredictable." At trial, Haslett learned that Dr. Snead had examined Grimes on three occasions since his deposition and that his diagnosis and recommended treatment differed in several respects from what he had stated in his deposition previously. Dr. Snead now believed that the compression existed at the L-5 nerve root rather than the S-l, though he would not rule out the possibility that the S-l nerve root could also be damaged. Moreover, he now recommended the epidur al block treatment and for the first time he described Grimes' condition as "osteoarthritis," rather than scarring. Nevertheless, Dr. Snead insisted that his opinion of Grimes' injury had not changed; that "scarring" and "osteoarthritis" were related terms describing "the same pathology in the same area." He did not change his view that the car accident was the original cause of Grimes' condition. It appears that Dr. Snead did not change his overall diagnosis that Grimes suffered from a mechanical compression of the spine, and that the compression caused nerve root damage. On the other hand, we cannot dismiss the variations in Dr. Snead's testimony between the time of his deposition and the trial as insignificant. Haslett had prepared to refute Dr. Snead's original opinion that surgical scar tissue had caused Grimes' incapacity. The revelation at trial of a new diagnosis — osteoarthritis—surprised Has-lett. Moreover, in light of testimony that rear-end collisions usually affect the upper spine, Dr. Snead's opinion as to the exact location of the injury, whether at S-l or L-5, had added significance. Grimes failed to inform Haslett of these changes in Dr. Snead's expected testimony. At the very least, Dr. Snead's changed recommendation in favor of the epidural block treatment, which relates directly to ascertaining Grimes' chances of recovery, should have been communicated to Haslett. Thus, we hold that Grimes breached her duty to supplement discovery. The civil rules do not explicitly authorize sanctions for breach of the duty to supplement responses to interrogatories. The Advisory Committee's Note to Rule 26(e), Fed.R.Civ.P. states that "[t]he duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate." 48 F.R.D. 487, at 508. Although there is some "theoretical difficulty in divining the source of the power to impose these sanctions," the trial court has inherent power to exercise this authority. Wright & Miller, supra § 2050, at 325; Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980); Halverson v. Campbell Soup Co., 374 F.2d 810, 812 (7th Cir. 1967). The trial court has broad discretion in imposing sanctions respecting Rule 26(e), as it does under Rule 37, and its decision in these matters will only be overturned upon an abuse of discretion. Campbell Industries, 619 F.2d at 27; Halverson, 374 F.2d at 812; Wright & Miller, supra, § 2050, n.5, at 326. Cf., Drickerson v. Drickerson, 604 P.2d 1082, 1087 (Alaska 1979) (trial court's decision whether to impose sanctions pursuant to Civil Rule 37 subject to abuse of discretion review.) Because Dr. Snead was Grimes' only expert witness the superior court believed that preclusion of his testimony would be too harsh a sanction for Grimes' failure to observe Rule 26(e). The superior court decided that a more appropriate remedy was to allow Haslett additional time in order to conduct a medical examination of Grimes and develop rebutting testimony. Haslett later introduced expert testimony rebutting Dr. Snead's diagnosis of nerve root compression in either the S-l or the L-5 area. We are convinced that the sanction chosen by the superior court struck a reasonable balance between the interest in compelling observance of the rules of discovery and in avoiding undue prejudice to either party. The court's refusal to preclude Dr. Snead's testimony was not an abuse of discretion. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. . Civil Rule 47(b) states: The court may direct that one or two jurors in addition to the regular panel be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the principal jurors. An alternate juror who does not replace a principal juror shall be discharged after the jury retires to consider its verdict. If one or two alternate jurors are called, each party is entitled to one peremptory challenge in addition to those otherwise allowed by paragraph (d) of this rule. The additional peremptory challenge may be used only against an alternate juror, and the other peremptory challenges allowed by paragraph (d) of this rule shall not be used against the alternates. . The superior court denied the challenge on two grounds. First, it reasoned that Grimes had waived her peremptory challenge to the second alternate juror by not challenging the first alternate interviewed. We do not understand how the superior court arrived at such a convoluted construction of Civil Rule 47. Civil Rule 47(d) provides in part that a "party who waives peremptory challenge as to the jurors in the box does not thereby lose the challenge but may exercise it as to new jurors who may be called." However, as a second basis for its ruling, the superior court adopted Haslett's argument that the peremptory challenge was untimely. We agree. . The right of an injured homemaker to recover for impaired earning capacity regardless of whether she was employed before the injury exemplifies the distinction between an award for lost earnings and an award for lost earning capacity. Morrison v. State, 516 P.2d 402, 405 (Alaska 1973). . Because a new trial is required for the reasons expressed in part III of this opinion, we recommend that the trial court use at the new trial an instruction patterned on the form instruction concerning future earning capacity prepared by this court's standing committee on civil jury instructions which is now circulating standard instructions in Draft Form. The Committee's instruction reads: 20.04. Future Earning Capacity. The (First, second, etc.) item of claimed loss is the reduction in the ability of the plaintiff to earn money in the future. You may award the plaintiff a fair amount for any reduction in (his) future ability to earn money that (he) is reasonably certain to experience. [In fixing this amount you must determine the difference between the plaintiff's ability to earn money before the (accident) [for (his) life expectancy as it then existed] and (his) ability to earn after the accident [with (his) current life expectancy.] To do this you may consider the plaintiff's health, physical and mental abilities, (his) work habits and occupation before the accident and the nature, and the extent of (his) injuries and how long and to what extent (his) injuries will affect (his) earning ability in the future.] [In deciding the plaintiff's future earning ability both before and after the accident you may consider the wages he earned before and after the accident and any reasonably certain increases in those wages due to promotions or automatic step increases. You should not consider any likely pay increases due to increases in the cost of living, and you should not make any deduction for any likely income taxes applicable to these earnings.] . Haslett presented substantial medical testimony supporting her contention that Grimes' lower back injury was not the result of their collision. Dr. Dittrich, who was Grimes' treating physician, testified that he found no physical or structural injury following the October 9 accident and that he found no basis for attributing Grimes' physical problems to that accident. Dr. Dittrich concluded that this accident had produced only a muscle strain. He indicated that rear-end collisions usually cause injury to the neck and upper spine, not the lower back. Another physician, Dr. Jones, stated that Grimes' three automobile accidents in 1976 may have exacerbated a preexisting condition, but he diagnosed her symptoms as a recurrence of back problems she had experienced prior to the accidents. Dr. Lyon, a third physician, testified that he treated Grimes in 1973 and at that time she had presented a history of lower back pain over the previous four years. He stated that Grimes' condition was compatible with degenerative disk disease, which usually progresses with time. In addition to corroborative medical testimony, Haslett presented other evidence that the rear-end collision had not caused Grimes' disability. For example, there was testimony that Haslett was driving slowly and that the collision produced only minor damage to the cars. Also, after the accident Grimes waited nearly five weeks before going to see a doctor. Furthermore, Grimes' claim of being almost totally disabled by the October 9 accident was called into question by evidence that she was driving a car on November 26, 1976, the occasion of her second accident, and that she was married on December 23, 1976, immediately after being involved in a third car accident. . Thus, we do not have to rule on the propriety of the superior court's denial of Grimes' motion for a new trial. . Rule 26(e), Alaska R.Civ.P. is adopted from the identical federal provision, Rule 26(e), Fed. R.Civ.P., and provides in part: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to . (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony. . Wright and Miller explain the difficulty: Rule 37, the general rule on sanctions, has no application. Failure to supplement a response — or making an incorrect response in the first instance — is not one of the kinds of flagrant misconduct listed in Rule 37(d) for which the sanctions of that § are available. The sanctions of Rule 37(b) may be imposed only for violation of a court order under Rule 35 or Rule 37(a) requiring a party to provide or permit discovery. In the situation presently being considered there will have been no opportunity for such an order. Thus suppose an interrogatory asking a party to name all persons with knowledge of discoverable facts. Rule 26(e)(1)(A) creates a continuing duty to supplement the response to such an interrogatory. But the party may ignore this duty and call at the trial a witness who has not been named. An order at that point to file a supplemental response would serve no useful purpose. The question is what sanction to impose for the party's failure to perform his duty at an earlier time. Rule 37 is silent on this point. 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2050, at 325 (1970).

10433249

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. Virgina SPEARS, Jan T. Dickey, Dwayne Reed Dickey, a/k/a D. Reed Dickey, Jane Doe I, and John Doe I, Appellees and Cross-Appellants

Dillingham Commercial Co. v. Spears

1982-02-19

Nos. 5273, 5301

1

11

641 P.2d 1

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. Virgina SPEARS, Jan T. Dickey, Dwayne Reed Dickey, a/k/a D. Reed Dickey, Jane Doe I, and John Doe I, Appellees and Cross-Appellants.

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. Virgina SPEARS, Jan T. Dickey, Dwayne Reed Dickey, a/k/a D. Reed Dickey, Jane Doe I, and John Doe I, Appellees and Cross-Appellants. Nos. 5273, 5301. Supreme Court of Alaska. Feb. 19, 1982. John B. Patterson and John R. Strachan, Anchorage, for appellant and cross-appellee. Henry J. Camarot, Camarot, Sandberg, & Hunter, Anchorage, for appellees and cross-appellants. Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

6880

41351

OPINION RABINOWITZ, Chief Justice. This appeal arises from a summary judgment entered by the superior court in favor of Dillingham Commercial Company. The summary judgment decreed specific performance of a purchase option given to Dillingham in a lease between Dillingham and Virginia Spears. In addition, the superior court ordered that Dillingham pay Spears $20,016.50 in interest on the purchase price, and $6,000 for fire insurance premiums (including interest) paid by Spears. The court awarded Dillingham attorney's fees of $6,710 and costs in the amount of $1,737.52 as prevailing party on the main issues. All of the above aspects of the superior court's decision are challenged on appeal and cross-appeal. Spears argues that summary judgment should not have been granted in Dillingham's favor but in her favor. In the alternative, she argues that the case was inappropriate for summary disposition and should have gone to trial. Dillingham asserts that it should not have to pay interest on the option purchase price, and should not be required to reimburse Spears for fire insurance premiums. Finally, Dillingham maintains that the award of attorney's fees by the superior court was so inadequate that it constituted an abuse of discretion. On January 15, 1967, an earnest money agreement was entered into by Virginia Spears and Dillingham's predecessor in interest. The agreement provided for the sale of Spears' general store business, a ten-year lease on the property, and an option to purchase the property during the term of the lease. On March 1, 1967, a lease was entered into between Spears and Dillingham's predecessor in accordance with the terms of the earnest money agreement, for a term of ten years. The rent on the property was set at $600 per month, to be paid on the first day of each month. In addition, the lease provided that "[t]he Tenant shall also pay any and all taxes and assessments whether city, borough, state or federal on the premises during the term of this lease." The lease contained an option to purchase granted to the lessee for the term of the lease as long as the lease was not in default. As a condition to exercise of the option the tenant was required to pay Spears $20,000. The total purchase price of the property was set at $79,800. If the tenant wished to exercise its option, it was required to inform Spears one month in advance by mailed notice. Dillingham was assigned the lease by its prime incorporator only months after the prime incorporator took possession under the lease in March 1967. The assignment was approved by Spears. As of March 1976, Dillingham had been in possession of the premises for nine years. On March 22, 1976, Dillingham notified Spears of its intention to exercise its option to purchase the leased property, and offered to pay the $20,000 required by the lease on May 1, 1976. This offer came in the midst of a disagreement between Spears and Dill-ingham concerning the latter's failure to keep up with the taxes on the property, and other defaults under the lease. Since the details of this disagreement comprise the factual background of the lawsuit, its history will be recounted at some length. The dispute dated back some months to October 23, 1975, when Spears first wrote to Dillingham complaining that taxes were due on the property to the City of Dilling-ham (City) for the years of 1968 to 1974. Sometime between June 1974 and October 1975, Spears had received a copy of a June 30, 1974 letter from the City Manager of the City of Dillingham stating that personal property taxes, penalty, and interest from the years 1967 to 1974 were due in the amount of $7,174.86, and that real property taxes, penalty, and interest for the same years were due in the amount of $9,064.75. In her October 23, 1975 letter to Dilling-ham, Spears threatened foreclosure on the lease unless Dillingham made arrangements to pay the taxes within ten days. On November 3, 1975, Dillingham paid the City $16,239.61 for taxes, penalty and interest. On November 14, 1975, the City acknowledged the payment, but notified Dillingham that it still owed the City $1,161.86 in interest on the overdue real property taxes, $50 in foreclosure costs, and $2,780.07 in personal property taxes and interest. The City told Dillingham that it must make the payments of $1,161.86 and $50 or else the City would proceed with foreclosure. In addition, the City notified Dillingham that real property taxes for 1975 were also delinquent, although it made no request for payment. Spears received a copy of the City's November 14 letter to Dillingham acknowledging partial payment of the taxes, and did nothing further until March 9, 1976, when Spears wrote Dillingham concerning the following claimed defaults under the lease: (1) Dillingham owed property taxes to the City, (2) Dillingham had not provided insurance on the property and had not furnished a certificate of insurance to Mrs. Spears, (3) rent payments were not being made in a timely fashion. Once again, Spears gave Dillingham ten days to cure all breaches, after which Spears said she would foreclose upon the lease. Within two weeks of receiving this letter, on March 22, 1976, Dillingham wrote to Spears stating for the first time its intention to exercise the purchase option, and offered to make the $20,000 downpayment as required by the lease on May 1, 1976. On April 8, Spears wrote Dillingham that it could not exercise the option "unless and until" all defaults were cured. Dillingham replied on April 22 that unless Spears moved forward under the option agreement within "a reasonable period of time," it would go to court to compel specific performance of the agreement. On May 12, 1976, the City notified Dill-ingham that, unless the delinquent real property taxes for 1975 were paid by May 25a1976, the City would commence foreclosure proceedings. The amount due was $3,210.95. On June 18, 1976, Spears wrote Dillingham purporting to terminate the lease for Dillingham's failure to pay real estate taxes, and "specifically terminating that provision regarding an option to purchase." Attached to the letter was a "NOTICE OF TERMINATION OF LEASE ON DEFAULT," which also cited nonpayment of real property taxes as the reason for termination. On June 22, Spears paid the City $4,391.32 for 1974 and 1975 real property taxes. On July 16, 1976, Dillingham paid $2,738.31 in real property taxes for 1976 and $4,467.17, clearing the personal property tax liability through 1976. On July 20, Dilling-ham wrote to Spears and tendered payment of the $4,391.32 paid by Spears to the City plus interest. Spears refused on the ground that she considered the lease terminated, and stated that Dillingham would be permitted to remain on the premises for $1,200 per month, on a month-to-month basis. On August 12,1976, Dillingham again tendered $4,413.27 to Spears to reimburse her for her tax payments to the City, and tendered two $600 checks for rent for July and August. In addition, Dillingham again notified Spears of its intent to exercise the purchase option of the lease and tendered immediate payment of the $20,000 sum as required by the lease. Spears did not alter her position that the lease had been terminated, and that Dillingham had no rights under the option provision. Dillingham then instituted action in superior court for specific performance of the option. In this appeal, Spears contends that the superior court's grant of summary judgment in favor of Dillingham was erroneous on the following grounds: (1) Dillingham's purported exercise of the purchase option was ineffective because Spears had terminated the lease prior to Dillingham's ¾-tempted exercise of the option, and (2) Dill-ingham's attempted exercise was not effective because Dillingham had defaulted under the lease, and the lease provided that the option could not be exercised if the lease was in default, or if the tenant had failed to abide by its terms up to the time of exercise. In the alternative, Spears contends that the terms of the option contract were in doubt and therefore a trial should have been held to determine whether there was an enforceable option agreement. DILLINGHAM'S RIGHT TO EXERCISE ITS PURCHASE OPTION ON AUGUST 17, 1976. Spears makes the initial argument that Dillingham's rights under the option provision were extinguished as a result of the termination notice she gave to it on June 18, 1976. Spears' position is that if there was no longer a lease, the purchase option contained therein was extinguished. Thus, the point of contention is whether there was a valid termination by Spears of the lease. Spears contends that, under the terms of the lease, the landlord has the right to terminate the lease by providing written notice to the tenant. Two paragraphs are cited as sources of this purported authority. Paragraph 18 of the lease provides: [The] Landlord shall, in the event of default, have all the remedies provided by Alaska Statute and by common law including the right of distraint. Paragraph 16 provides: At the termination of this lease by lapse of time or otherwise, Tenant shall yield immediate possession to Landlord, and if he fails to do so shall pay to Landlord as liquidated damages for each day of the whole time that such possession is withheld a sum equal to one-fifteenth of the monthly rent provided for herein. The provisions contained in this paragraph shall not be construed as a waiver by Landlord of any right of re-entry and neither the receipt of the sum aforesaid nor any act of apparent affirmance of the tenancy shall operate as a waiver of Landlord's rights hereunder, including Landlord's privilege to terminate this lease. If for any reason such holding over is construed as a tenancy, the same shall be of the Month-to-Month variety. With regard to Paragraph 18, the "remedy" provided by Alaska Statute, AS 09.45.690, and common law, Klinger v. Peterson, 486 P.2d 373, 378 (Alaska 1971), is that of judicial foreclosure. In Klinger, we held that, "[i]n Alaska, absent a special agreement of the parties, a leasehold interest in land can be terminated prematurely only by judicial decree in a statutory action." 486 P.2d at 378. Paragraph 18 cannot by itself provide the landlord with the right to terminate by notice. We must look to Paragraph 16 to determine whether it supplies the "special agreement" contemplated by Klinger. We think it is apparent that no special agreement regarding termination by notice is provided for in Paragraph 16. Spears emphasizes the language "the termination of this lease by lapse of time or otherwise " and "landlord's privilege to terminate this lease." She claims that these references establish the right to terminate by notice. The word "otherwise" in the first sentence of Paragraph 16 is most plausibly read as referring to a judicial decree of termination. The second sentence of Paragraph 16, which speaks of "landlord's privilege to ter-mínate this lease," when read in full, is not a grant of rights to the landlord, but simply provides that certain of the landlord's existing rights should not be considered waived. The superior court concluded that "it is . an undisputed fact that the lease does not contain any express provisions which permit it to be terminated on account of a breach, whether material or otherwise, of any of its covenants or conditions." We hold that the superior court correctly determined this question in ruling that Spears had not validly terminated the lease prior to Dillingham's attempt to exercise its rights under the purchase option agreement. Spears makes the additional argument that, even if the June 18, 1976, notice of termination sent to Dillingham was ineffective, Dillingham's breaches or defaults under the lease nullified its right to purchase under the option. The major default alleged is Dillingham's failure to pay property taxes. Other alleged defaults were that Dillingham (1) had failed to pay the rents on time and was in default as to two monthly payments at the time the superior court entered summary judgment in favor of Dillingham, (2) had subleased or allowed the use of the property without the written consent of the landlord, and (3) had failed to provide the insurance or insurance policies to the landlord as required. FAILURE TO PAY TAXES Paragraph 2 of the lease provides that "[t]he Tenant shall also pay any and all taxes and assessments whether city, borough, state or federal, on the premises during the term of this lease." There is no question that at the time Dillingham first notified Spears that it intended to exercise its purchase option, on March 22, 1976, it was delinquent in its tax payments. On August 12, 1976, when Dillingham made its second statement of intent to exercise the option, and tendered the $20,000 down payment, all of the tax payments had been made to the City, although Spears herself had made one payment of $4,319.32. At the same time that Dillingham tendered the downpayment, it also tendered $4,413.27 to Spears to reimburse her for her expenditures. The superior court's resolution of the tax-default issue was based upon perceived equitable considerations. The superior court applied equitable principles against forfeitures, and found that Dillingham's defaults were not serious enough to warrant loss of rights under the purchase option: First of all, with regard to late payment of taxes, the fact of the matter is that the taxes were paid, and they were substantial amounts, they were large amounts of money. The fact also remains that the Plaintiff had paid a large sum of money in lease payments prior to that time, in fact the lease was nearing the end of its term. Under those circumstances, I believe it would be highly inequitable for this Court to declare a forfeiture of the purchase option and preclude the Plaintiff from proceeding with the purchase of the property on the agreed terms. In the case at bar, we think it was entirely appropriate for the superior court to have weighed the equities in determining whether Dillingham's rights under the purchase option provisions of the lease should have been forfeited. The appropriateness of the superior court's approach is confirmed by our opinion in Hendrickson v. Freericks, 620 P.2d 205, 212 (Alaska 1980). There the lessor sought to terminate the lessee's interests in a lease for an alleged breach by the latter of the lease provisions relating to assignments. We stated: Hendrickson contends that having established a material breach on the part of the lessees, he should now be permitted to terminate the lease. Although forfeitures for breach of assignment have been approved if authorized by the language in the lease, 'forfeitures are not favored and never enforced in equity unless the right thereto is so clear as to permit no denial.' Shoemaker v. Shaug, 5 Wash.App. 700, 490 P.2d 439, 441 (1971), quoting John R. Hansen, Inc. v. Pacific International Corp., 76 Wash.2d 220, 228, 455 P.2d 946, 951 (1969). Equity's goal is to do substantial justice to both parties, and where no injustice would be visited upon the injured party, equity will award him compensation rather than decree a forfeiture against the offending party. Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 575 P.2d 869, 876 (1978). In determining whether forfeiture is required, the trial court is vested with broad discretion. The court must weigh the equities and 'fashion a decree to meet the requirements of the situation and to conserve the equities of the parties.' Id., 575 P.2d at 876 (citation omitted). The factor which has often been of greatest importance to the court in determining whether a forfeiture should be ordered is the financial loss suffered by the parties. See State ex rel. Foley v. Superior Court, 57 Wash.2d 571, 358 P.2d 550, 552 (1961). Where severe financial loss would be incurred by the lessee, the courts have been less likely to order forfeiture of the lease. Shoemaker v. Shaug, 490 P.2d at 441 (1971). Additionally, this court's decisions in the area of installment contracts for the sale of land are relevant. In Curry v. Tucker, 616 P.2d 8, 13 (Alaska 1980), we upheld the trial court's forfeiture of vendee's right under an installment land contract, although that we did so under "extreme circumstances." The issue thus becomes whether the trial court's application of the extreme remedy of forfeiture was justified. It is well settled in this jurisdiction that equity abhors a forfeiture and that when the principles of equity and justice so require, a court may, in its sound discretion, refuse to enforce a forfeiture provision in a land sale contract. Moran v. Holman, 501 P.2d 769, 771 (Alaska 1972); McCormick v. Grove, 495 P.2d 1268, 1269 (Alaska 1972); Jameson v. Wurtz, 396 P.2d 68, 74 (Alaska 1964). The trial court's decision in such circumstances will not be set aside unless it is against the clear weight of the evidence. Moran v. Holman, 501 P.2d at 771; Jameson v. Wurtz, 396 P.2d at 74. In the instant case, we cannot conclude that the superior court's refusal to forfeit Dillingham's right under the purchase option agreement is against the clear weight of the evidence. Dillingham's late payment of taxes did not warrant forfeiture of its purchase option rights under the lease. LATE RENT PAYMENTS The superior court found that "practically every, if not every rent payment, was made late." There were two reasons, according to the court, why this history did not warrant a "forfeiture" of the tenant's rights under the purchase option. First, Spears accepted every late payment without objection, and did not object until the time that Dillingham sought to exercise the purchase option. The superior court considered Spears' long acquiescence as a waiver of her right to claim default for late rent payments. Second, the trial court interpreted Alaska precedent as disfavoring forfeiture of rights in purchase options. In regard to the first rationale employed by the superior court, the lease contained a "non-waiver" clause, which provided that: No waiver by Landlord of any default shall operate as a waiver of any other default or of a like default on a future occasion. Only waivers in writing executed by Landlord shall be effective. No delay or omission on the part of Landlord in exercising any of its rights shall operate as a waiver of such right or any other right. Literally applied, this "non-waiver" clause would permit the landlord to accept late payment and still assert default of the lease unless she waived such default in writing. However, "such a nonwaiver clause will not, in all circumstances, foreclose the lessor from waiving a forfeiture based on past breaches." Summa Corporation v. Richardson, 93 Nev. 228, 564 P.2d 181, 185 (1977). See also Gonsalves v. Gilbert, 44 Haw. 543, 356 P.2d 379, 384 (1960). After years of accepting late rental payments she cannot claim that the default attending such late payment excuses her from performing un der the purchase option. Thus, we hold that the superior court was correct in concluding that Spears' long acquiescence constituted a waiver of her right to claim a default for Dillingham's late payments of rent. Furthermore, the equitable principles previously discussed support the superior court's determination that forfeiture of Dillingham's right under the purchase option was not warranted. In the case at bar, the extreme remedy of forfeiture is an inappropriate form of relief for the mere late payment of rent, particularly where Spears failed to object to Dillingham's slowness over the course of nine years. INCOMPLETE CONTRACT Spears argues that, even if summary judgment in her favor is not warranted, the case should have gone to trial on the issue whether there was an enforceable contract of sale. Paragraph 19(C) of the lease provided that the tenant and landlord would "enter into a deed of trust transaction with related documents including a deed of trust note, for the sale of the premises" on or about March 1, 1967, and these would be placed in escrow with the National Bank of Alaska. These documents were never prepared or placed in escrow. Spears asserts that it "can . be reasonably assumed" that there was no meeting of the minds between the parties concerning the terms of the sale. In fashioning its decree of specific performance, the superior court set the terms for monthly payments and interest rate under the purchase option in accordance with those provided in the original earnest money agreement which preceded the signing of the lease. The superior court stated that Spears had introduced "[n]o contrary evidence whatsoever . . that the earnest money provisions, to the extent that they do not conflict with those provisions set forth in the lease, are to be regarded as part and parcel of the parties' total agreement." The superior court therefore found that "it is undisputed from the evidentiary standpoint that the earnest money agreement is to be read into the lease option." We find no error in these rulings. We now turn to Dillingham's appeal. Dillingham argues two points. First, it asserts that the superior court abused its discretion in awarding inadequate attorney's fees. Second, it contends that it should not have to pay interest on the option purchase price. ATTORNEY'S FEES Dillingham argues that the trial court's award of attorney's fees in the amount of $6,710 was manifestly unreasonable. The superior court apparently arrived at this amount by applying the fee schedule of Civil Rule 82(a) for cases disposed without trial as though Dillingham had prevailed recovering a money judgment of $79,800. ($79,800 was the purchase price of the property under the option provision of the lease.) Dillingham argues that $79,800 was an incorrect amount with which to calculate the Rule 82 award, because "everyone knows" the property was worth much more. The 1978 tax assessment placed the value of the property at $262,900. Qur review of the case has persuaded us that although the superior court erred in its resort to the schedule of attorney's fees provided for in Civil Rule 82(a)(1) its award was not a clear abuse of the discretion vested in trial courts in such matters. Since we are of the view that the $6,710 attorney's fees was reasonable, no purpose would be served by a remand for reconsideration of attorney's fees under the appropriate decision of Civil Rule 82. A proper result will not be disturbed on appeal regardless of the reasoning employed below. Davis v. Hallett, 587 P.2d 1170, 1171 (Alaska 1978). INTEREST• The superior court entered judgment for specific performance in favor of Dilling-ham, and additionally ruled that Dillingham must pay Spears $20,016.50 in interest on the full purchase price of $79,800, dating from August 21, 1976. Dillingham argues that this portion of the superior court's decree was clearly erroneous, because it tendered performance under the option on August 12, 1976. According to Dillingham, Spears' refusal of its tender prevented the accrual of interest. In the alternative, Dill-ingham argues that it has made 43 payments of $600 into a trust fund as ordered by Superior Court Judge Occhipinti, and that these payments should be included in the calculation to determine the interest due. Both Dillingham and Spears agree upon the general rule which applies to this facet of the case: The general rule is that from the time when a contract of sale of land should be performed the land is in equity the property of the vendee held by the vendor in trust for him, and the purchase price is the property of the vendor held in trust for him by the vendee, and that upon specific performance the vendor is liable to account for the rents and profits and the vendee for the interest on the purchase price. Russell v. Western Nebraska Rest Home, Inc., 180 Neb. 728, 144 N.W.2d 728, 733 (1966). When performance under the contract is delayed due to acts of the vendor, the purchaser is entitled to the rents and profits from the time when possession should have been delivered, and the vendor is entitled to a credit for interest on the unpaid purchase money. The rationale behind the rule is that, since this court is attempting to enforce the contract as written, it will attempt to place the parties in the position they would have been in had the contract been performed in a timely manner. Eliason v. Watts, 615 P.2d 427, 430 (Utah 1980); Ellis v. Mihelis, 60 Cal.2d 206, 32 Cal.Rptr. 415, 423, 384 P.2d 7, 15 (1963); Re v. Wells Fargo Bank, 269 Cal.App.2d 783, 75 Cal.Rptr. 367, 371 (1969); Smith v. Owens, 397 P.2d 673, 679-80 (Okl.1963); Annot., 7 A.L.R.2d 1204, 1222 (1949). The guiding principle with respect to the calculation of the damages incident to the decree of specific performance, as we have seen, is to relate the performance back to the date set in the contract. Timely performance of the contract would result in the purchaser receiving the rents and profits of the land but being denied the use of the purchase money, and a purchaser who seeks to recover rents and profits must permit an offset for his use of the purchase funds during the period that performance was delayed. Ellis v. Mihelis, 32 Cal.Rptr. at 423, 384 P.2d at 15. In this ease, Dillingham was never out of possession of the property, so it has effectively enjoyed the "rents and profits" it would be entitled to receive under the Lockhart rule. Where the vendee has retained possession, courts have held that the vendor is entitled to interest on the unpaid purchase money, even if the delay in performance of the contract is attributable to the vendor. Dillingham does not argue that the Lock-hart rule is inapposite to the present case, but contends that the rule should not be "blindly applied" irrespective of the vendor's fault in wrongfully refusing Dilling-ham's repeated tender. In Lockhart the vendors "wrongfully took possession of the leased premises . . [and had] wrongfully retained possession ever since." 379 P.2d at 624. Even so, they were entitled to interest on the purchase price so long as the purchasers pressed their claim for the rental value of the property during the time they were deprived of possession. Here, Dill-ingham was not forced to leave the property and Spears' actions do not justify loss of her rights to interest on the purchase price. AFFIRMED. . Paragraph 14 of the lease provided that the tenant would obtain worker's compensation and liability insurance, and would furnish the landlord with the insurance certificates. . The trial court found that it was an undisputed fact that during the term of the lease almost every monthly rent payment had been made late. .This included the 1975 real property taxes, penalty, and interest. The May 12, 1976, notice did not include personal property taxes and interest payments on the 1974 taxes still owed to the City as of November 14, 1975. . As was mentioned at the outset, Dillingham in its appeal argues that it should not have been required to pay interest on the purchase price from the time of its August 12, 1976, tender of the downpayment under the lease. Dillingham also argues that the superior court's award of attorney's fees was manifestly unreasonable. . AS 09.45.690 provides: Failure to pay rent. Unless otherwise provided in the lease, a landlord has a right to re-enter leased premises when a tenant fails to pay rent, and may bring action to recover the possession of the premises and the action is equivalent to a demand of the rent. If, at any time before judgment, the lessee or his successor in interest pays the amount of rent in arrears with interest and costs of the ac tion and performs the other covenants or agreements, he is entitled to continue in possession unless otherwise provided in the lease. On its terms, the statute deals only with a situation where the lessee has failed to pay rent. Klinger v. Peterson, 486 P.2d 373, 378 (Alaska 1971), takes the view that a proper statutory action must be brought by the landlord to terminate a tenant's leasehold interest in land. Although the lessee in this case is accused of breaches and defaults in addition to the failure to pay rent, it is clear that Spears did not institute statutory action addressed to those additional transgressions. . Under this theory the lessee's rights under the purchase option expired even if the lease was otherwise still in effect. It is a different argument than used in Klinger, where the only way to terminate the tenant's purchase-option rights was through the termination of the lease as a whole. In Klinger, there were no conditions attached to the tenant's ability to exercise the purchase option in the terms of the lease. The lease in the instant case has an express provision that the option may be exercised only if the lease is not in default. Paragraphs 18 and 19 have to do with default and with the effect of default on the tenant's ability to exercise the purchase option. Paragraph 18 provides in part: 18. DEFAULT. Any of the following shall constitute a default hereunder by Tenant: A. Failure to perform the covenant contained herein for the payment of rent. B. Failure to perform or fulfill any other covenant or condition contained herein. Failure to perform a convenant or fulfill a condition contained herein shall constitute a default regardless whether other consequences of such failure are provided for herein, as in the case where an assignment without consent is void. Landlord shall, in the event of default, have all the remedies provided by Alaska Statute and by common law including the right of distraint. Paragraph 19 of the lease provides in part: 19. OPTION TO PURCHASE. The Landlord hereby grants unto the Tenant the right, option, and privilege to purchase the leased premises during the term of this lease for the following amounts and the following conditions: A. That this lease is not in default. The exercise of the option to purchase is conditional on the lease herein not having been terminated and on condition that the Tenant has observed and complied with the covenants, terms and conditions devolving upon the Tenant, up to the time of the exercise of option and the payment of such purchase price thereof, in the manner herein provided. .There is a distinction between the rights implicated here. The purchaser under an installment land contract is treated as the equitable owner and the vendor as holding the bare legal title merely as security for the purchase price. Ward v. Union Bond & Trust Co., 243 F.2d 476, 478 n.3 (9th Cir. 1957). See also Jenkins v. Wise, 58 Haw. 592, 574 P.2d 1337 (1978). In contrast, an optionee under a purchase option holds only a contractual right to the land. County of San Diego v. Miller, 13 Cal.3d 684, 119 Cal.Rptr. 491, 493, 532 P.2d 139, 141 (1975). In our view, the contrasting nature of the interests created under land sales contracts and option to purchase agreements should not result, in the context of this case, in differing treatment by the trial court in its application of equitable principles. . The trial judge said that, "I think because of the hardships a forfeiture would impose here, because of the strong policy in this ' state against allowing a forfeiture, that I really don't have my discretion under the precedents to do anything but relieve the Plaintiff of that — to relieve him of the forfeiture for late payment of rent, which for so long was not objected to." . Spears argues that this clause preserved her right to object to Dillingham's late payments, even though she had failed to object throughout her years of dealing with Dillingham under the lease. See Stephens v. State, 501 P.2d 759, 762 (Alaska 1972). . The court in Summa Corporation v. Richardson, 93 Nev. 228, 564 P.2d 181, 185 (1977), refused to enforce a non-waiver clause, where the lessor's acquiescence "lulled [lessee] into inaction". The pertinent facts of Summa are close to those in the instant case: Here, respondents recognized the validity of the lease, accepted rents with no expression of intent to stand on any legal rights they may have had because of Summa's prior breaches, made no demand on Summa to remedy them, and otherwise lulled Summa into inaction. Only after Summa's exercise of the option did respondents seize upon the breaches as a means to establish Summa's forfeiture of the privilege to exercise. Under such circumstances, respondents, by their conduct, waived any right to assert forfeiture for Summa's infractions of the lease prior to exercising the options. . Spears also argues that "at least two or three" of the monthly payments were never made at all. The superior court found that it was an undisputed fact that all but perhaps two months' rent had been paid. Viewing the facts most favorably to Spears, we must assume that two months' rent had gone unpaid. The superior court ruled that, even if Dilling-ham was in arrears to that extent, it was not a sufficiently substantial default to warrant loss of rights under the option agreement: I simply believe that in the context of the large amounts of money which were paid out by the Plaintiff under this lease and under— and with respect to the taxes, that the nonpayment of two months' rent, which went unobjected for so long, is simply not sufficient justification to impose the forfeiture which the Defendants seek to impose. We sustain the superior court's substantiality ruling. Under the principles discussed regarding Dillingham's nonpayment of taxes and late payment of rent, we conclude that the superior court correctly ruled that Dillingham's failure to pay the two month's rent did not justify forfeiture of Dillingham's rights under the option agreement. Vozar v. Francis, 579 P.2d 1056, 1058 (Alaska 1978). .As indicated earlier, Spears also claims that Dillingham lost its rights under the lease because of its defaults in subleasing the premises without Spears' consent and in failing to provide insurance as required by the lease. Neither of these alleged defaults, raised by Spears at trial, is discussed in the argument section of her brief. Rather, she makes only general references that "the tenant failed to comply with several of the covenants, terms and conditions [of the lease]." She does not respond to the superior court's reasoning in disposing of the sublease and insurance claims. In this context, we hold that, since these points are not briefed, Spears has waived them. Wren v. State, 577 P.2d 235 (Alaska 1978); Wetzier v. Wetzler, 570 P.2d 741 (Alaska 1977). We further note that the superior court disposed of both issues together. First, it found that both grounds had been abandoned by Spears during a previous summary judgment argument. Second, the superior court did not consider the breaches serious enough to justify forfeiture. Third, the court concluded that both breaches could be cured through the payment of money to Spears, and that this remedy was preferable to forfeiture. . Spears cites Jackson v. White, 556 P.2d 530, 532 (Alaska 1976), for the proposition that, "when the existence of a contract and the terms thereof are in issue, and the evidence is conflicting, it is for the trier of fact to determine whether the contract did in fact exist, and if so, the terms thereof." The quotation above cited actually begins: "Where the existence of an oral contract and the terms thereof are the points in issue ." In short, Jackson is not supportive of Spears' claim that the lawsuit should have gone to trial. In the present case, there is no question about the existence of a contract between the parties or about the terms of the contract. There is no issue of fact still to be resolved in connection with the agreement. . Although Dillingham, in its opening brief, argued that the superior court was "clearly erroneous" in requiring it to reimburse Spears for $6,000 she had paid in fire insurance premiums Dillingham has abandoned that position in its reply brief and at oral argument. Dilling-ham no longer advances an argument with respect to the fire insurance premiums, and instead requests that an "adjustment be made in the area of interest it must pay as balances due on the purchase price." . Civil Rule 82(a)(1) and (2) read as follows: (a) Allowance to Prevailing Party as Costs. (1) Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as party of the costs of the action allowed by law: ATTORNEY'S FEES IN AVERAGE CASES Contested Without Trial Non-Contested First $2,000 25% 20% 15% Next $3,000 20% 15% 12.5% Next $5,000 15% 12.5% 10% Over $10,000 10% 7.5% 5% Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. (2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. .Resort to the schedule of attorney's fees set forth in Civil Rule 82(a)(1) was inappropriate since Dillingham did not receive a money judgment. . As we stated in Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970), unless the superior court's award of attorney's fees is manifestly unreasonable, there is no abuse of discretion. . TriState Mall Assoc. v. A.A.R. Realty Corp., 298 A.2d 368, 371 (Del.Ch.1972). See also the cases cited in Annot., 7 A.L.R.2d 1204, 1222 (1949) ("The question whether a mere tender of the purchase money by the purchaser, the vendor being in default, will relieve the purchaser from liability to credit the vendor with interest, must be answered in the negative except in unusual situations.") This court has endorsed the above rule in Lewis v. Lockhart, 379 P.2d 618, 624 (Alaska 1963). .Kubnick v. Bohne, 56 Wis.2d 527, 202 N.W.2d 400 (1972); Lund v. Larsen, 222 Minn. 438, 24 N.W.2d 827 (1946); Volk v. Atlantic Acceptance & Realty Co., 142 N.J. Eq. 67, 59 A.2d 387 (1948); Asbury v. Cochran, 243 Ala. 281, 9 So.2d 887 (1942). The theory behind this rule is that "neither party should enjoy the possession and use of the subject-matter of the contract and also the purchase money." An-not., 75 A.L.R. 316, 317 (1931). See also An-not., 25 A.L.R.2d 951 (1952). See Amoss v. Bennion, 23 Utah 2d 40, 456 P.2d 172, 174 (1969) (purchaser must pay interest on purchase price from date of tender where he has enjoyed possession of the property). . Eliason v. Watts, 615 P.2d 427 (Utah 1980), is helpful precedent in considering Dillingham's claim that Spears should not receive interest on the purchase price because her refusal to perform was wrongful. In the present case, defendant's refusal to convey the property was found to be "wrongful in that it was in contravention of the contract but it was not willful or malicious so as to entitle plaintiffs to punitive damages." The usual rule of credit for purchase money interest against rental value should therefore be followed in adjusting the equities between the parties based upon their position had there been a timely conveyance. Id. at 431. Under the Eliason standard, Spears' failure to accept Dillingham's tenders of performance would have had to have been "willful or malicious" in order to forfeit her equitable claim to interest or the purchase price. Kreider v. Brubaker, 371 Pa. 279, 89 A.2d 502, 504 (1952), held that a vendee in possession might escape liability for interest on unpaid purchase money if "the vendor is guilty of willful delay or gross laches in carrying out the agreement and the purchase money is appropriated and lies unproductive to vendee." . Dillingham further argues that it should receive credit for the monthly payments of $600 it has been making into a trust fund for 43 months pursuant to court order. Essentially, Dillingham's argument is that it should not be required to pay interest on money it did not have in its possession. From the record we have, it is unclear whether the monthly payments were intended to be installments on the purchase price. There is no question that the payments were not the equivalent of full performance under the option agreement, which required, at least, a down-payment of $20,000 for Dillingham to exercise its option. The most plausible explanation is that the purpose of these payments was to require Dillingham to continue making rental payments under the term of the original lease so long as it remained in possession, pending the outcome of the litigation. Thus, the accumulated $25,800 does not represent a frozen tender of purchase money, and would provide no deduction against the interest amount due Spears.

11710312

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

Bowlin v. State

1982-04-08

No. 5545

1

5

643 P.2d 1

643

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

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

Michael R. BOWLIN, Appellant, v. STATE of Alaska, Appellee. No. 5545. Court of Appeals of Alaska. April 8, 1982. Daniel T. Saluri, Fairbanks, for appellant. James P. Doogan, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., SINGLETON, J., and CUTLER, District Court Judge. Cutler, District Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

2374

14828

OPINION BRYNER, Chief Judge. Michael Bowlin appeals from sentences imposed following his conviction on pleas to three counts of assault with a dangerous weapon and one count of committing lewd and lascivious acts toward a child. Former AS 11.15.220 and 11.15.134. Bowlin received a sentence of five years with two and one-half years suspended on each of two counts of assaulting his wife with a loaded gun, a sentence of five years for a count charging repeated assaults against his young stepson, and a sentence of ten years for committing lewd and lascivious acts toward his minor stepdaughter. The sentences run consecutively, making an aggregate sentence of twenty-five years with five suspended. Bowlin has raised only one point that is necessary to discuss in detail. Prior to the sentencing, the superior court received a letter from Melissa Verginia, legal advocate at the Women in Crisis Center in Fairbanks. Ms. Verginia had had extensive contact with Bowlin's wife and stepchildren. The letter detailed a sordid history of extensive physical and sexual abuse against the family members and gave Ms. Verginia's impressions of the Bowlin family, emphasizing the traumatic effect of Bowlin's abuse on his wife and her children. Ms. Verginia recommended that a harsh sentence be imposed. The letter was mailed directly to Judge Hodges, the sentencing judge, and was ultimately placed in the court file. Neither the defense counsel nor the prosecutor was aware of the letter until after the sentencing; Bowlin's lawyer discovered it while preparing this appeal. Bowlin now contends that he was denied due process because he was not shown the letter before his sentencing. He asserts that this "forceful letter . . . may certainly have influenced the Court in the imposition of sentence," noting that the judge did not, on the record, exclude the possibility that he had considered and been influenced by the letter. We agree with Bowlin that a letter received by the court concerning sentencing of a particular defendant should be disclosed to both parties before sentencing. Unless entirely disregarded by the court, such a letter becomes, in effect, a part of the presentence report, even if it was unsolicited. Criminal Rule 32(c)(2) requires disclosure of the presentence report to the attorneys for the state and defendant in all cases. Past cases discuss at length how the sentencing judge may consider and rely upon background information about the defendant, including his involvement in other criminal activity of which he has not been convicted, providing the defendant is offered the opportunity to rebut or to explain the allegations. See Hunter v. State, 590 P.2d 888, 901- 02 (Alaska 1979); Nukapigak v. State, 562 P.2d 697, 701-02 (Alaska 1977), aff'd on rehearing, 576 P.2d 982 (Alaska 1978); Hixon v. State, 508 P.2d 526, 527 n.1 (Alaska 1973). The principle behind such cases extends to unsolicited letters received by the court. The requirement that the defendant be apprised of information presented to the court for use in sentencing so that he may effectively counter it cannot logically be limited to the formally prepared presentence report. See generally United States v. Woody, 567 F.2d 1353, 1361 (5th Cir. 1978), cert. denied, 436 U.S. 908, 98 S.Ct. 2241, 56 L.Ed.2d 406 (1978) (defendant has a constitutional right to know and to test the accuracy of statements on which the sentencing judge relies); United States v. Huff, 512 F.2d 66, 71 (5th Cir. 1975) (sentence vacated because judge relied on information furnished by the prosecution when defendant was given no opportunity to rebut prejudicial material). Accordingly, we hold that judges must make available to counsel for the state and the defendant any unsolicited letters received concerning sentencing of a particular defendant. Judges may, of course, disclaim reliance on particular letters. See, e.g., Thurlkill v. State, 551 P.2d 541, 543-45 (Alaska 1976). Conversely, judges may inform the parties that, in the absence of a valid objection, such letters will be considered at sentencing. In either event, the sentencing record must affirmatively reflect whether unsolicited letters received by the court have been considered at sentencing. The state maintains that any error in failing to make Bowlin aware of Ms. Vergi-nia's letter before sentencing does not warrant a reversal of his sentence. It is argued that all of the facts brought out in the letter could be gleaned from other sources in the record properly before the court. Because Bowlin did not contest the facts contained in these other sources, the state maintains that Ms. Verginia's letter, even if considered by the sentencing judge, could not be deemed to have prejudiced Bowlin in any way. We are unable to agree with the state's position. For the most part, the factual statements about Bowlin's case contained in Ms. Vergi-nia's letter may independently be found, either directly or by inference, in the pre-sentence and psychiatric reports that were properly considered at sentencing. However, the same cannot be said of the opinions that Ms. Verginia expressed. In expressing her views to Judge Hodges, it is significant that Ms. Verginia represented herself to be an individual who had substantial experience dealing with the type of situation involved in this case; she further claimed to have grown intimately acquainted with Mrs. Bowlin and her two children over a substantial period of time prior to sentencing. For these reasons, her views might have been perceived as being particularly worthy of attention. Unlike the writers of the psychiatric and presen-tence reports before the court, Ms. Verginia openly and exclusively advocated the interests of Mrs. Bowlin and her children. The strong personal views expressed in the challenged letter are not duplicated by other portions of the record, and they constituted a direct, unequivocal and potentially effective effort to persuade the court that a particularly harsh sentence would be justified for Bowlin. We cannot consider these statements as merely cumulative. Nor do we think, under the circumstances, that Bowlin's failure to contest the facts contained in the record properly before the court can properly justify depriving him of the right to challenge the accuracy of the assertions contained in Ms. Verginia's letter. There is another, more compelling reason why the trial judge's failure to disclose the challenged letter to the parties cannot be deemed harmless. For the sentencing judge to have considered a letter such as Ms. Verginia's without first disclosing it to the parties would have amounted to an improper and prohibited ex parte contact. The Alaska Code of Judicial Conduct, Canon 3A(4), provides in this regard: A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. Nothing in the broad language of this prohibition exempts ex parte communications relating to the sentencing of particular individuals; indeed, it is clear that ex parte communications relating to a defendant's sentence cannot be condoned. See Sonnier v. State, 483 P.2d 1003,1005 (Alaska 1971). It is not clear from the record to what extent, if any, Judge Hodges relied on the challenged letter, and in fact it cannot be said with certainty that the judge even read it. This does not, however, obviate the need for resentencing. We believe that Canon 3A(4) of the Alaska Code of Judicial Conduct is directed as much at the appearance of judicial impropriety as it is at actual impropriety. In the area of criminal sentencing, the need to avoid any appearance of impropriety is particularly great. Thus, in Thurlkill v. State, 551 P.2d at 543-44, the Alaska Supreme Court quoted with approval the following comment, written by Justice Erwin: While it can be argued that a trial judge is able by virtue of legal training and experience to ignore irrelevant data in passing sentence, this does not dispose of a basic rationale underlying sentence appeals — rehabilitation of the offender by affording him an opportunity to assert grievances regarding his sentence. The judge may in fact be able to disregard unverified derogatory information, but it is doubtful whether a lay defendant will attribute such impartiality to him. Thus, the defendant may often believe his sentence is based in part upon incorrect allegations. His consequent reaction to the system which permits this may well hinder or destroy any rehabilitative effect of the sentence. In the present case, the sentencing judge's failure to disclose to the parties the letter written by Ms. Verginia, which was specifically addressed to him and was included in the court's file, creates a strong appearance that Bowlin's sentence might have been affected by prohibited ex parte consideration of this undisclosed correspondence. In the absence of any affirmative statement in the record to assure that the sentencing court actually disregarded the letter in imposing Bowlin's sentence, we believe it necessary to remand for resen-tencing, so that any appearance of impropriety can be dispelled. Since Bowlin's case will have to be remanded for resentencing, we need not consider the other major arguments that he has raised. We deem it appropriate, though, to comment on two narrow issues. The state has conceded that Judge Hodges, apparently by oversight, improperly failed to include any recommendation that Bowlin receive psychiatric care during his term of imprisonment. See, e.g., Bryant v. State, 623 P.2d 310, 312 n.2 (Alaska 1981); Nielsen v. State, 623 P.2d 304, 310 (Alaska 1981); Notaro v. State, 608 P.2d 769, 770 & n.3 (Alaska 1980). If, upon resentencing, Judge Hodges imposes a term of incarceration, an appropriate recommendation for psychiatric treatment should be included in the judgment. We note, additionally, that Bowlin was sentenced to serve consecutive terms of imprisonment exceeding the maximum possible sentence that he could have received for any single count. Under these circumstances, the sentencing judge was obligated to make a specific finding that confinement for the combined period was necessary to protect the public. Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977). No such finding was made below. Accordingly, we will require that, upon remand, an appropriate finding be made on the record by the sentencing judge in the event similar consecutive terms are imposed. The sentences are VACATED, and this case is REMANDED for resentencing. COATS, J., not participating. . The report must also be made available to the defendant personally, unless the court enters on the record reasons for finding that such disclosure would prove detrimental to the safety of the public or to the rehabilitation of the defendant. Alaska R.Crim.P. 32(c)(2). . The state relies upon decisions holding that unverified information may properly be considered at sentencing unless the information is actually contested by the defendant. See, e.g., Cochran v. State, 586 P.2d 175 (Alaska 1978); Nukapigak v. State, 576 P.2d 982 (Alaska 1978). . Although most of the facts contained in the letter could be found elsewhere in the record, this is not true of all of the relevant facts; the challenged letter did add some significant details. It described one assault against Mrs. Bowlin more graphically than did the presen-tence report, indicating that Mrs. Bowlin spent part of one night hiding under a bed and that she had suffered numerous little puncture wounds from being jabbed by her husband with a razor-tipped arrow. Also new was the description of an alleged threat by Bowlin that he would hire somebody to kill his wife if she went to the police. Specific descriptions in the letter about the children's behavior toward Ms. Verginia are also not duplicated elsewhere in the record. . In reaching this conclusion, we recognize that the decision whether to present evidence contesting facts contained in a sentencing record will often be based not only on the nature of the facts themselves, but also on the manner in which they are presented, the emphasis that they are given, and the persuasive force that they are perceived to have. From Bowlin's failure to contest the facts contained in the psychiatric and presentence reports, we do not believe it fair to infer that he would not have attempted to discredit the strong, unequivocal and extremely damaging opinions contained in Ms. Verginia's letter. . In Sonnier, a judge, after imposing a relatively lenient sentence, was contacted by a relative of the defendant's victim who persuaded the judge that a more severe sentence was needed. Within several hours of the initial sentencing, the judge reconvened court and imposed a new sentence that substantially increased the sentence originally imposed. Although the court in Sonnier reversed on double jeopardy grounds, it expressly condemned the ex parte contact with respect to the new sentence. Relying on former Canon 17 of the Canons of Judicial Ethics, which was similar to Canon 3 A(4), the court characterized the ex parte contact as plainly improper. See also Thurlkill v. State, 551 P.2d at 543-45; Speidel v. State, 460 P.2d 77, 83-84 (Alaska 1969). . See also Canon 2B, which states that a judge should not "convey or permit others to convey the impression that they are in a special position to influence him." . Erwin, Five Years of Sentence Review in Alaska, 5 UCLA-Alaska L.Rev. 1, 16 (1975) (footnotes omitted). . Bowlin has additionally argued that the sentencing judge paid insufficient attention to rehabilitation, that the judge erred in not reducing his sentence because of cooperation with law enforcement officials, and that the court erred in terming him the worst offender on the lewd and lascivious acts charge. We express no opinion as to these arguments.

11720059

S. O., Natural Mother, Appellant, v. W. S. and P. S., Adoptive Parents, Appellees. In the Matter of the ADOPTION OF J. D. S., a Minor

S. O. v. W. S.

1982-04-30

No. 5856

997

1007

643 P.2d 997

643

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

S. O., Natural Mother, Appellant, v. W. S. and P. S., Adoptive Parents, Appellees. In the Matter of the ADOPTION OF J. D. S., a Minor.

S. O., Natural Mother, Appellant, v. W. S. and P. S., Adoptive Parents, Appellees. In the Matter of the ADOPTION OF J. D. S., a Minor. No. 5856. Supreme Court of Alaska. April 30, 1982. Kneeland Taylor, Anchorage, for appellant. Max F. Gruenberg, Anchorage, for appel-lees. John Reese, Virginia Bonnie Lembo, Law Offices of John Reese and Wilson A. Rice, P.C., Anchorage, as Guardian Ad Litem, for J. D. S.

6012

35654

OPINION Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ. MATTHEWS, Justice. About five months prior to her son's birth, S.O. resolved that she would give her child up for adoption. Expecting to be hired for a job on the North Slope, S.O. felt that she would be unable to give the child the love and attention it would need. She also thought it important for a child to grow up in a two parent home, which she could not provide as she did not intend to continue her relationship with the child's natural father. S.O. initially investigated the possibility of an agency adoption and contacted the Department of Health and Social Services and Catholic Social Services. When she asked for information about prospective adoptive parents both agencies told her that the agency makes the placement decision and therefore could not give her the type of information that she sought. The agencies suggested that she consider a private placement if she wanted to influence the selection of the adoptive parents. Sometime in May 1980, the natural father's mother and stepfather learned of S.O.'s pregnancy and her intention to have the unborn child adopted. They also learned that she had contacted an attorney to whom she had given a questionnaire for prospective parents to answer, but had as yet received no response. They told S.O. that some friends of theirs, W.S. and P.S., wanted to adopt a child so S.O. gave them a copy of the questionnaire to give to W.S. and P.S. to fill out. In accord with S.O.'s request, the couple's name was not disclosed to her. On the following day the completed questionnaire was returned to S.O. and, upon reviewing the responses given by W.S. and P.S., she decided that they would be suitable adoptive parents. At the suggestion of the natural father's mother and stepfather, S.O. contacted attorney Wayne Ross, who, S.O. was informed, had had experience with adoption matters. Mr. Ross was to represent S.O. in the adoption, but his fee was to be paid by the adoptive parents, W.S. and P.S. W.S. and P.S. retained as their attorney Frederick Pettyjohn, who suggested that the required agency home study be conducted by the Department of Health and Social Services. However, aware that W.S. and P.S. had once unsuccessfully tried to adopt a child through Catholic Social Services, Mr. Ross insisted that that agency do the home study. Mr. Pettyjohn assented, and so Catholic Social Services did the study and approved W.S. and P.S. as adoptive parents. A copy of the study was sent to Mr. Ross accompanied by a letter from the agency stating that the contents of the report were not to be divulged to his client. Nonetheless, Mr. Ross phoned S.O. and told her that the agency had given its approval and read her various portions of the report praising W.S. and P.S. as prospective parents. However, he omitted all references to the couple's past effort to adopt a child and to an earlier drinking problem of P.S., the adoptive mother. On the evening of July 22, 1980, S.O. gave birth to J.D.S. The following morning, while still at the hospital, S.O. signed a document entitled "Relinquishment of Parental Rights" in the presence of Mr. Ross, a notary and several others. The document purported to terminate the parent-child relationship between S.O. and her child and grant custody of the boy to Mr. Ross with authorization to take all steps necessary for the child's adoption. On that same day, Mr. Ross signed a document entitled "Release and Consent," which was also notarized and purported to relinquish any claim Mr. Ross had to the child and to give his consent to the child's adoption by W.S. and P.S. Shortly after S.O. left the hospital, Mr. Pettyjohn picked up J.D.S. and delivered him to the adoptive parents, with whom he has lived ever since. On August 7, 1980, W.S. and P.S. filed a petition for adoption in the superior court. By letter dated August 12, 1980, Master Andrew Brown informed Mr. Pettyjohn that he would not schedule a hearing on the petition as the relinquishment signed by S.O. was not executed before an agency or court as required by AS 20.15.180(b)(1). Mr. Pettyjohn contacted Mr. Ross and informed him of the problem at which point Mr. Ross' office contacted S.O. and asked her to come in and arrange to sign another relinquishment before a judge. It appears that about a week after giving birth to J.D.S., S.O. had attended a Christian fellowship at which she was "saved." She decided to attend Bible College and thus abandoned her plans to take a job on the North Slope. She also began to have misgivings about her decision to give up her child but believed that the adoption had gone through. When she learned that it had not, she decided that she wanted J.D.S. returned to her. On August 29, 1980, S.O., represented by different counsel, filed in superior court a withdrawal of consent pursuant to AS 20.-15.070(b). On September 5, she filed a motion for the return of her child. On September 19, Superior Court Judge Ripley signed a pretrial order setting a hearing for October 6, 1980, and appointing a guardian ad litem to represent J.D.S. It was at about this time that S.O., through discovery, first learned that the adoptive mother had once had a drinking problem. The hearing was held before Master Marjorie Bell and, being heard on a time-available basis, lasted nearly two months. Pursuant to an agreement between the parties, J.D.S. remained in the custody of the adoptive parents, but S.O. was allowed visitation. After considering the written final arguments, including one submitted by the guardian ad litem in favor of the adoption, Master Bell issued a report recommending that the petition for adoption be granted. Pursuant to S.O.'s motion for rejection of the Master's report, a hearing was held before Judge Ripley on February 13, 1981. On February 16 he ordered that the Master's findings be adopted, that a decree of adoption enter, and that S.O. be allowed continued reasonable visitation with J.D.S. pending the outcome of a timely appeal. The superior court awarded W.S. and P.S. $8,000 in attorney's fees and assessed S.O. costs amounting to $922.10. On appeal, S.O. asserts that the lower court erred in finding that she validly consented to the adoption of her son by W.S. and P.S. She also claims that it was error to refuse to let her withdraw her consent to the adoption. Finally, she claims that the award of costs and attorney's fees is not authorized by Civil Rule 82 and violates her due process and equal protection rights under the Alaska and United States Constitutions. I AS 20.15.040(a)(1) requires a natural mother's written consent to her minor child's adoption before a petition to adopt may be granted. AS 20.15.060 specifies how such consent is to be executed. (a) The required consent to adoption shall be executed at any time after the birth of the child in the presence of the court or in the presence of a person authorized to take acknowledgements. (b) A consent which does not name or otherwise identify the adopting parent is valid if the consent is executed in the presence of the court or a person authorized to take acknowledgements and contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent. The document signed by S.O. shortly after her son's birth satisfies the requirements of subsection (a). It does not, however, name or otherwise identify W.S. and P.S. as the adoptive parents nor contain a statement that S.O. waived such disclo sure. The Master nonetheless found that S.O. effectively consented to her son's adoption. Our task is to determine whether the failure to comply strictly with AS 20.-15.060(b) vitiates S.O.'s otherwise valid consent. We hold that it does not. The record shows that S.O. did not want to know the identity of the adoptive parents. In addition, the Master found, and this finding is not disputed, that S.O. signed the document in question with W.S. and P.S. in mind and that she would have signed it had it contained a statement waiving disclosure of their identity. Under these circumstances we decline to hold that the technical failure to comply with AS 20.15.060(b) nullifies S.O.'s otherwise valid consent. When, as here, it is clear that the statutory purpose has been fulfilled, substantial compliance with the requirements governing consent to adoption is sufficient. See Hall v. Hayes, 441 S.W.2d 275, 277 (Tex.Civ.App.1969); Cohen v. Janic, 57 Ill. App.2d 309, 207 N.E.2d 89, 91 (1965). See also Application of Hendrickson, 159 Mont. 217, 496 P.2d 1115, 1118 (1972). S.O. also maintains that her consent to the adoption is invalid because it was induced by misrepresentations and omissions of critical information. She argues that the answer given by P.S. and W.S. to the first question of the questionnaire she prepared was incomplete and deceptive. She also claims that Mr. Ross deceived her when, in reading to her portions of the Catholic Social Services study, he failed to mention that P.S. once had a drinking problem and that the adoptive parents had been unsuccessful in their earlier attempt to adopt a child through that agency. The first question that appears on S.O.'s questionnaire asks: Do you consume alcoholic beverages? How often and how much? The response given by W.S. and P.S. states: My husband and I generallt [sic] enjoy a drink at the end of the work day, prior to the dinner hour. Other social functions which include alcoholic beverages are restricted almost exclusively to informal gatherings in our home or the home of friends. Rarely do we patronize bars, cocktail lounges and the like. S.O. contends that this answer is untrue since P.S. admitted in her deposition to drinking two drinks a day during the week and sometimes more on weekends and social occasions. She also claims that the answer is misleading in that it does not disclose that P.S. had had a drinking problem in the past. The Master found that S.O. "wanted to know whether petitioners were alcohol abusers. She got the answer they were not, but were social users, and the evidence elicited during the hearing substantiated this." The Master therefore concluded that S.O. was not misled by the adoptive parents' response. We agree. The answer to S.O.'s question states that the adoptive parents generally have a drink before dinner on weeknights. There was testimony that on some evenings no alcoholic beverages were consumed. There was also testimony that P.S. often drank only part of her drinks so that her actual intake was frequently less than two drinks. According to her testimony, S.O. asked about alcohol consumption because her father had been an alcoholic when she was a child. The evidence elicited at the hearing indicates that the adoptive mother does not currently abuse alcohol and that her previous drinking problem ceased over four years ago. In light of this evidence, we see no merit in S.O.'s contention that the Master's finding of general accuracy is clearly erroneous. See Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979). Nor are we persuaded that the adoptive parents misled S.O. by not disclosing P.S.'s past drinking problem in answering S.O.'s question. The question is phrased in the present tense. We do not think it misleading in responding to an inquiry regarding present alcohol consumption to omit reference to a problem with alcohol that ceased to exist four years earlier. Finally, with respect to the alleged concealment of material facts by S.O.'s attorney, Mr. Ross, we note that the Master made no specific finding on this issue. However, given the Master's recommendation that the petition for adoption be granted, it is apparent that she felt that Mr. Ross' omissions were not sufficiently material to justify setting aside S.O.'s consent. We agree with S.O. that the fact that he was her attorney is not decisive; a consent to adoption procured by fraud is void, and the relationship of the party perpetrating the fraud to the natural parent is irrelevant. 2 Am.Jur.2d, Adoption, § 44 (1962). We conclude, however, that the Master's implicit finding that S.O. was not materially misled by Mr. Ross is not clearly erroneous. Mr. Ross testified that S.O. did not inform him of her feelings about alcohol use. He also testified that he had never seen the questionnaire prepared by S.O. At no time did S.O. contradict this testimony and she does not dispute its truth on appeal. Under these circumstances, Mr. Ross had no reason to believe that his client would withhold her consent had she known of the past drinking problem. The Catholic Social Services report found that P.S.'s drinking had ceased to be a problem four years earlier and that W.S. and P.S. would be suitable adoptive parents. In reading to S.O. portions of the report which the agency had requested be kept confidential, Mr. Ross testified that his main concern was that S.O. know that the adoptive parents could provide a good home for her child. That Mr. Ross insisted the home study be done by the agency which he knew had put the adoptive parents' earlier application to adopt on hold indicates that he had no inappropriate loyalty to them. The agency believed that P.S.'s problem was no longer of consequence and this, according to Mr. Ross, convinced him that the matter was not important. Acceptance of this view of the facts was not clearly erroneous. II S.O. also argues that even if she did consent to her son's adoption, it was error not to permit her to withdraw that consent. AS 20.15.070(b) provides: A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days, by delivering written notice to the person obtaining the consent, or after the 10-day period, if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the person to be adopted and the court orders the withdrawal. Since S.O. did not give notice within the 10-day period, the Master had to determine whether withdrawal was in the best interest of J.D.S. The Master concluded that it was not and thus disallowed withdrawal. S.O. claims that the Master applied an incorrect legal standard in deciding whether to permit withdrawal of her consent under AS 20.15.070(b). She argues that in determining the best interest of the child, a preference in favor of natural parents must be given based on the natural parents' inherent right to the custody of their children. Such a preference, she asserts, is mandated by our decisions in Rita T. v. State, 623 P.2d 344 (Alaska 1981) and Turner v. Pannick, 540 P.2d 1051 (Alaska 1975). In Rita T., a natural mother's parental rights had been terminated pursuant to AS 47.10.080(c)(3) upon a determination that her daughter was a child in need of aid. After undergoing a fourteen-month rehabilitation program, the natural mother applied for a hearing to review the order terminating her parental rights. We reversed the superior court's denial of a hearing and held that as long as a child remains the ward of the court, under AS 47.10.080(f) his or her natural parents are entitled to a review of the order terminating their parental rights upon a showing of good cause for the hearing. Good cause could be established if the parents showed that it would be in the best interests of the child to resume living with them because they have sufficiently rehabilitated themselves so that they can provide proper guidance and care for the child. 623 P.2d at 347. In Turner v. Pannick, a natural mother filed a petition for a writ of habeas corpus to regain custody of her child whom she had given to her sister to care for while she was away. Because the trial court had applied a "best interests" of the child test, we reversed the denial of the mother's petition, holding that in a custody dispute between a parent and a non-parent, [u]nless the superior court determines that a parent is unfit, has abandoned the child, or that the welfare of the child requires that a non-parent receive custody, the parent must receive custody. 540 P.2d at 1055. S.O. argues that a rule consistent with these cases should be applied in determining whether withdrawal of a natural parent's consent to adoption is in the child's best interest. Such a rule, she claims, would require that withdrawal be permitted upon a showing that the natural parent can provide a warm and loving home with an adequate economic and social environment; possible superiority of the adoptive parents would be irrelevant. Had the Master applied this standard, S.O. maintains that the Master would also have found that withdrawal of her consent would have been in the best interest of J.D.S. The only case which we have found that addresses the precise question before us in a similar statutory setting is Adoption of Jennie L., 111 Cal.App.3d 422, 168 Cal.Rptr. 695 (1980). In that case the natural mother filed a petition to withdraw her consent to her daughter's adoption. The relevant statute provided in part: If the court finds that withdrawal of the consent to adoption is reasonable in view of all the circumstances, and that withdrawal of the consent will be for the best interests of the child, the court shall approve the withdrawal of the consent.... Cal.Civ.Code § 226a (West 1954). The trial court granted the mother's petition, relying on a statute which prohibited awarding custody to a non-parent absent a finding that an award of custody to the natural parent would be detrimental to the child (see Cal. Civ.Code § 4600(c) (West 1954)); a requirement analogous to that mandated by our decision in Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975). On appeal, the trial judge's decision was reversed. The court distinguished between a proceeding to withdraw a consent to adoption and one to determine custody, noting that the latter involves the involuntary separation of a parent from his or her child. Adoption of Jennie L., 168 Cal.Rptr. at 699. On the other hand, where a parent has signed a consent to the adoption of a child by others, the parent may not withdraw such consent unless the court finds that withdrawal is reasonable and in the best interest of the child.... Thus, by consenting to the adoption of a child by others, the consenting parent gives up the parental preference otherwise applicable.... Id. We hold that when a natural parent consents to his or her child's adoption and later seeks to withdraw such consent, no parental preference is to be applied in determining what is in the child's best interest. Since the legislature has enacted statutes prescribing how adoptions shall be accomplished, this court has no power to change in any particular the law as expressed in those statutes.... The role of this court is limited to construing the adoption statutes and attempting to ascertain the meaning of the legislature as expressed therein. Strobel v. Garrison, 255 Or. 16, 464 P.2d 688, 689-90 (1970), quoted with approval in B. J. B. A. v. M. J. B., 620 P.2d 652, 655 (Alaska 1980). The legislative intent expressed in our withdrawal of consent statute is clear. AS 20.15.070(b) already provides natural parents an absolute right of withdrawal within ten days of giving consent to an adoption. After that period has elapsed, however, the statute ceases to accord natural parents a right superior to that of the adoptive parents and instead mandates that withdrawal be permitted only if such is in the best interest of the person to be adopted. Moreover, withdrawal of a consent to adoption differs from situations such as when the state seeks to terminate the parent-child relationship or when a non-parent seeks custody of a child. In those situations, the appropriate inquiry is directed at the natural parent's fitness to parent, since the result may be an involuntary deprivation of "the fundamental natural right of parents to nurture and direct the destiny of their children." Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975) (Dimond, J., concurring). In contrast, a natural parent attempting to withdraw a consent to adoption has already given up that right by voluntarily consenting to the adoption in the first instance, and thus "gives up the parental preference otherwise applicable. ." Adoption of Jennie L., 111 Cal. App.3d 422, 168 Cal.Rptr. 695, 699 (1980). Finally, we are not persuaded by S.O.'s assertion that our holding will reduce the best interest standard to a mere comparison of the economic and social benefits which a natural parent and the adoptive parents can provide. The "best interests" test is much more than a mere comparison of the social status and economic means of the competing sets of parents, . . . Rather, the best interests standard involves a careful weighing of the myriad factors, such as the character and maturity of the parents, their commitment to the care of the child, the child's present bonds of affection, the family setting and stability, and so forth, which together form the foundation for a stable and happy home for the child. In re Anderson, 99 Idaho 805, 589 P.2d 957, 974 (1979) (Bakes, J., dissenting); see also Note, In The Child's Best Interests: Rights of the Natural Parents in Child Placement Proceedings, 51 N.Y.U.L.Rev. 446, 469-70 (1976). We agree with this statement and note also that our role on appeal with respect to this issue is quite limited. Where the trial judge has guided his decision by reference to the best interest of the child and fully considered all of the evidence before him, there is very little room for the exercise of appellate discretion. In re Adoption of Cox, 327 So.2d 776, 778 (Fla.1976). Here, our review of the record satisfies us that the Master reached her decision by reference to J.D.S.'s best interests after fully considering the evidence before her. Accordingly, we find no error in refusing to permit S.O. to withdraw her consent. III S.O.'s final contention is that the lower court erred in awarding the adoptive parents $8,000 in attorney's fees. She maintains that such an award in a case of this nature is not authorized under Civil Rule 82. Because of our disposition of this issue, we need not consider S.O.'s further contention that the award of attorney's fees violates her rights to due process and equal protection under the Alaska and United States Constitutions. In Adoption of V. M. C., 528 P.2d 788 (Alaska 1974), we discussed the propriety of awarding attorney's fees under Rule 82 in a contested adoption proceeding. That case involved an attempt by paternal grandparents to adopt a child whose father opposed the adoption. The grandparents claimed that the father had abandoned the child and therefore that his consent to the adoption was not required. The lower court found that the father had not abandoned the child and we affirmed. We also upheld the award of costs and attorney's fees to the father, rejecting the grandparents' broad contention that costs and attorney's fees should not be awarded in adoption eases as a matter of judicial policy. Instead, we held that under the circumstances such an award was within the broad discretion of the trial court and that the grandparents had failed to show that the exercise of that discretion had been manifestly unreasonable. Id. at 795-96. In so concluding, we noted the absence of "any sufficiently demonstrable interest or justification" to warrant a departure from the usual procedure under Rule 82. Id. at 796. We believe that this ease, however, is one in which the "equities of the situation," Cooper v. Carlson, 511 P.2d 1305, 1311 (Alaska 1973) make an award of substantial attorney's fees manifestly unreasonable. It is one, to use the language of Cooper, "involving substantial litigable questions in which to require the losing party to pay a sizeable attorney's fee would obviously be unwarranted." Id. at 1311 n.12. In Crisp v. Kenai Peninsula School District, 587 P.2d 1168 (Alaska 1978), we reversed an award of attorney's fees assessed against a public school teacher whose dismissal from employment was upheld in superior court. Subsequent decisions have made clear that our decision in that case was premised on the importance of the right being asserted; namely, continued employment. Sjong v. State, Dept. of Revenue, 622 P.2d 967, 978-79 (Alaska 1981); Rouse v. Anchorage School District, 613 P.2d 263, 267 (Alaska 1980). We believe that S.O.'s interest in obtaining the return of her child is one equally as deserving of protection from the burden of an award of attorney's fees as that protected in Crisp. Accordingly, we REVERSE that portion of the lower court's order awarding the adoptive parents costs and attorney's fees. In all other respects, the superior court's order is AFFIRMED. BURKE, C. J., not participating. . See AS 20.15.100(d). . AS 20.15.180(b) provides in relevant part: All rights of a parent with reference to a child . . may be relinquished and the relationship of parent and child terminated by a writing, signed by the parent . (1) in the presence of a representative of an agency taking custody of the child . or in the presence and with the approval of a court.. . . . AS 20.15.070(b) provides: A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days, by delivering written notice to the person obtaining the consent, or after the 10-day period, if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the person to be adopted and the court orders the withdrawal. . This is regrettable. We urge the trial courts to give priority to contested adoption proceedings, since the child will inevitably form emotional ties to its adoptive parents pending litigation which may make interference with the status quo both more damaging and more difficult than it otherwise would be. .Under certain circumstances a natural mother's consent is not required. See AS 20.15.050. However, none of these circumstances are alleged to be present here. AS 20.15.040(a)(2) requires a father's consent to the adoption of a minor if the father was married to the mother at the time of conception or thereafter, the minor is his child by adoption, or the father has otherwise legitimated the child. On October 7, 1980 the father of J.D.S. legitimated the child and consented to his adoption by W.S. and P.S. in conformance with AS 20.15.060. . S.O. argues that the document she signed was not intended to be a consent to adoption because it is entitled "Relinquishment of Parental Rights." As noted above, however, the document authorizes Mr. Ross to take all steps necessary toward the adoption of the child and states that S.O. waived her right to withhold her consent to the adoption. From these statements, as well as the circumstances leading up to the execution of the document, we think it abundantly clear that S.O. did in fact intend to consent to her son's adoption. That the document purports to be a relinquishment is not controlling. See In re Roger's Adoption, 47 Wash.2d 207, 286 P.2d 1028, 1030 (1955) (holding a relinquishment of parental rights sufficient to constitute a written consent to adoption under a consent statute). . We recognize that there is authority for strictly construing consent provisions in adoption statutes in favor of the rights of natural parents. See 2 Am.Jur.2d, Adoption, § 7 (1962). We believe, however, that since the paramount purpose of the adoption laws is "to make provision for the welfare of children," Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175, 180 (1957), the better rule is to construe adoption statutes in a manner that will promote this purpose. See In re Barnett's Adoption, 54 Cal.2d 370, 6 Cal.Rptr. 562, 565-566, 354 P.2d 18, 22 23 (1960) (rejecting the rule of strict construction in favor of natural parents). We think that the welfare of children will be better promoted by not permitting mere technical defects in consents to adoption to serve as a basis for disrupting familial ties and relationships that have developed in reliance on the validity of such consents. . S.O. also contends that the adoptive parents' answer to the ninth question on the questionnaire, relating to the adoptive parents' income, was intentionally misleading. According to his testimony, W.S. answered the question by listing what he called "spendable income," which he arrived at by subtracting his income tax liability from gross income. While this figure does not take into account deductions for business expenses, we agree with the Master's conclusion that "[t]he question asked was what his income was and it does not appear reasonable that from the general question asked he should have been required to go into what was used from his actual income as business expense . . . " We therefore confine ourselves to whether the adoptive parents' answer to S.O.'s first question was misleading. . S.O. repeatedly asserts that W.S. and P.S. were rejected by Catholic Social Services as adoptive parents. What actually occurred is that when they filed their application to adopt with that agency in June 1978, the social worker assigned to the case insisted that P.S. attend Alcoholics Anonymous meetings and abstain from alcohol completely or they would not be considered by the agency. P.S. felt that this was unreasonable because she disagreed with the philosophy of A.A. and thought that she could still drink socially. This resulted in the adoptive parents' application being placed on "hold" in October 1979. The social worker later assigned to their case when Mr. Ross requested the home study concluded that the agency's earlier stance may have been unnecessarily rigid. . S.O. asserts that there can be no doubt that she would never have consented to her child's adoption by W.S. and P.S. had she known of P.S.'s alcohol history. We can only speculate as to whether this is so. That she sought to withdraw her consent does not by itself lend support to her assertion since she was not aware of the adoptive mother's past alcohol use until after she had filed her withdrawal of consent. Moreover, we are hesitant to accept this assertion as self-evident in light of certain of her own testimony. When questioned about the effect her past history of drug use and drug sales might have on her plan to obtain a license to operate a child day care center, the following exchange took place: Q. Is it your plan to tell the state and the municipality your entire history? Be completely candid with them? A. If they ask. Q. How will they know to ask if you don't say something? A. If I don't say anything and the fact that I've been off of drugs and alcohol for the past year and a half to 2 years, I don't see it really has much bearing anyway. Q. So the answer is no if they don't ask. A. I — I don't think I will volunteer the information, no. . Both the court-ordered report by the Department of Health and Social Services and the court-ordered psychologist's report found S.O. presently capable of parenting a child. . None of the cases cited by S.O. in support of giving a parental preference involve a statutory framework similar to Alaska's. In re Anderson, 99 Idaho 805, 589 P.2d 957 (1979) and Small v. Andrews, 20 Or.App. 6, 530 P.2d 540 (1975) were decided in the absence of a specific statute governing withdrawal of consent and both applied the jurisdiction's judicially created rule that absent grounds for estoppel a consent may be withdrawn at any time prior to the entry of an adoption decree. In re Anonymous, 41 A.D.2d 961, 344 N.Y.S.2d 426 (Sup.Ct.App. Div.), aff'd mem., 33 N.Y.2d 541, 347 N.Y.S.2d 437, 301 N.E.2d 424 (1973) was similarly decided in the absence of a statute in point and has since been legislatively overruled. See N.Y. Domestic Relations Law § 115-b, subd. 2(d)(v) (McKinney 1977). . S.O. claims that the Master erred by considering possible "separation trauma" which J.D.S. might experience should he be returned to her and that this alone is sufficient grounds for reversal. In her report, the Master found that [although the natural mother has been given certain visitation rights, it would appear quite probable that the minor would suffer trauma if removed from the petitioner's [sic] home. According to S.O., this finding was prompted by the guardian ad litem's discussion of "separation trauma" in his report, which he defined as "a scientifically proven reaction of young children to separation from their parent figures." S.O. argues that for the Master to have considered this phenomenon was error because it is based solely on the guardian ad litem's report and because it gives weight to the time during which J.D.S. has been in the adoptive parents' custody while this matter was pending. With respect to S.O.'s first contention, we note first that there was testimony that J.D.S. was developing psychological attachments to the adoptive parents. Thus, the Master's reference to "trauma" which the child might experience by being returned to S.O. finds support in the record independent of the guardian ad li-tem's report. Moreover, even if there had been no such testimony, we find no error in the Master's consideration of the guardian ad li-tem's discussion of "separation trauma." In Veazey v. Veazey, 560 P.2d 382, 387 (Alaska 1977), we noted that it is the guardian ad li-tem's responsibility to "exercise his best professional judgment on what disposition would further the best interests of the child, his client, and at the hearing vigorously advocate that position before the court." In discussing how this responsibility should be carried out, we quoted with approval a procedural guide for guardians ad litem developed by the bench and bar of another jurisdiction wherein it is stated: In arriving at his determination, the G.A.L. should utilize all the resources provided by the Court, but he should also avail himself of personal and separate resources. His final recommendation should be based on his own observations combined with the input afforded him from other sources. Id. at 387 n.7. Here, the guardian ad litem merely resorted to independent research in discharging what he perceived to be his duty to his client and reported the results of that research to the Master. Finally, we note that S.O.'s own attorney submitted an affidavit to the superior court reporting the results of his research regarding "separation trauma," and thus S.O. was able to respond to the guardian ad litem's discussion of it. As regards S.O.'s second contention, the alleged error in giving weight to an attachment that may have resulted from the adoptive parents' custody of the child during the hearing, we also perceive no error. The determination under AS 20.15.070(b) is to be made with reference to the best interest of the person being adopted. Present circumstances are certainly relevant in making that determination. B. J. B. A. v. M. J. B., 620 P.2d 652, 656 n.6 (Alaska 1980).

11716372

William SHILTS, Appellant, v. Robert Gould YOUNG, Appellee

Shilts v. Young

1981-11-13

No. 5517

686

690

643 P.2d 686

643

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

William SHILTS, Appellant, v. Robert Gould YOUNG, Appellee.

William SHILTS, Appellant, v. Robert Gould YOUNG, Appellee. No. 5517. Supreme Court of Alaska. Nov. 13, 1981. As Amended April 29, 1982. As Amended on Denial of Rehearing April 29, 1982. Daniel K. Spradlin, Rourke & Woodruff, Santa Ana, Cal., and Susan A. Vaillaneourt, Anchorage, for appellant. Donna C. Willard, Richmond, Willoughby & Willard, Anchorage, and Edward G. King, Ziegler, Cloudy, King, Smith & Brown, Ketchikan, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

2096

12057

OPINION CONNOR, Justice. This case is on appeal for the second time. The case was commenced by Robert Young as plaintiff in an action to quiet title to all of U.S. Survey No. 691 on Prince of Wales Island, consisting of about 80 acres. The named defendants were the Alaska Industrial Company, the State of Alaska, 14 individual persons and their heirs, as well as all unknown persons claiming any right, title or interest in the property. As to a number of defendants, service was made by publication. Default was entered as to all of the defendants except the State of Alaska, which agreed to be bound by the court's decision, and William Shilts, who filed an answer. Shilts filed an answer denying generally the allegations of the complaint, and he counterclaimed and cross-claimed as to six blocks of U.S. Survey No. 691, amounting to about six acres. After a trial, the superior court held that Young had established adverse possession to all of U.S. Survey No. 691. On appeal we held in Shilts v. Young, 567 P.2d 769 (Alaska 1977), that Young had failed to establish adverse possession of the six blocks claimed by Shilts, and that Shilts derived his title under a deed containing a description which was uncertain, but which was made certain by reference to extrinsic evidence. Therefore, we reversed and remanded for entry of judgment in favor of Shilts as to the six blocks claimed by him. The dispositive language of our mandate, dated August 1, 1977, stated: "The decree of the Superior Court, entered on May 28,1976, is reversed and the case is remanded to the Superior Court for entry of a judgment in favor of Mr. Shilts as to the six blocks conveyed to his predecessor in title." On July 5, 1978, the superior court entered an order which stated that Shilts was the owner of the six blocks, which were described by metes and bounds. The order said nothing about Young and made no award of property to him. On August 4, 1980, at the urging of Young's counsel, the superior court entered an amended decree, made effective nunc pro tunc to July 5, 1978. The amended decree stated that title to all of U.S. Survey No. 691, except the six blocks which had been awarded to Shilts, was quieted in Young and that Young was the sole owner of the property. From this amended decree Shilts now appeals. The issues presented for review all concern one ultimate question: in light of our opinion in Shilts v. Young, supra, and the proceedings in the superior court, was it error for the superior court to award title to the balance of U.S. Survey No. 691 to Young? Shilts asserts (1) that the amended decree does not conform to our decision in Shilts v. Young, supra; (2) that the amended decree is not supported by the evidence adduced at trial; and (3) that the superior court was without "jurisdiction" to render the amended decree. In response, appellee asserts that (1) Shilts has no "standing" to appear in this court; (2) that the compulsory counterclaim provisions of Alaska Civil Rule 13(a) control; and (3) that our mandate was adhered to by the superior court. Our mandate stated that the decree of the superior court was reversed and remanded. Shilts argues that "reversed" means that the judgment is annulled or vacated. He is correct. Normally the effect of a reversal is that the judgment is vacated and the case is put in the same posture in which it was before the judgment was entered. Markel v. Transamerica Title Insurance Co., 103 Ariz. 353, 442 P.2d 97, 106 (1968); Forgeron, Inc. v. Hansen, 169 Cal.App.2d 832, 338 P.2d 10 (1959); O'Brien v. Great Northern Railroad Co., 148 Mont. 429, 421 P.2d 710, 716 (1966). Our mandate directed only that an award be made to Shilts. However, the reversal of the decree meant that the superior court's award to Young of all of U.S. Survey No. 691 was vacated. Additionally, our previous opinion makes it clear that Young failed in his proof of adverse possession. Therefore, after our mandate issued there was no basis upon which the superior court could have made an award to Young on a claim of adverse possession. A reading of our previous opinion also makes it plain that Young did not establish title by deed to any portion of U.S. Survey No. 691. After our remand, no new evidence was submitted. It follows that there was no evidentiary basis upon which, after remand, the superior court could have entered judgment in favor of Young. If this case is viewed solely from the standpoint of our earlier opinion and mandate, it appears that the superior court erred in entering the amended decree. We must now examine the other arguments presented by Young in support of affirmance of the amended decree. Young argues that the only matter tried below was title to the six blocks claimed by Shilts. In support of this argument he cites certain remarks made by Shilts' counsel before the superior court. As Shilts points out in the instant appeal, those remarks have been taken out of context. In fact Shilts, in his answer to the complaint, denied Young's claim totally, and then by counterclaim asserted ownership of the six blocks as to which he ultimately prevailed. Moreover, in the first appeal of this case Shilts contested the adequacy of Young's proof of adverse possession and drew no distinction as to particular portions of U.S. Survey No. 691. Young next argues that the defaults against the other defendants established his claim of adverse possession against them, that Shilts' claim was only to the six blocks, that Shilts prevailed as to the property claimed by him, and that Shilts has no standing to contest the validity of Young's claim to the balance of U.S. Survey No. 691. Young's argument is unpersuasive for two reasons. First, even though some defendants are in default and are precluded from defending the action, this does not automatically vest title in Young. Kuhn v. Chesapeake & Ohio Railway Co., 118 F.2d 400, 404-05 (4th Cir. 1941). Second, although Shilts' claim was only to six blocks of U.S. Survey No. 691, Young's complaint did not distinguish between the various blocks of U.S. Survey No. 691 or the claims of the various defendants, and Shilts denied generally the allegations of Young's complaint as to the latter's adverse possession of U.S. Survey No. 691 in its entirety. Ordinarily a denial of a material allegation of a plaintiff's complaint is sufficient to raise an issue. See Hendershott v. Shippman, 37 Cal.2d 190, 231 P.2d 481, 483 (1951). Thus, Shilts' general denial of Young's claim enabled Shilts to contest the validity of Young's title, not only as to the six blocks claimed by Shilts, but also as to the balance of U.S. Survey No. 691. See Martin v. Hall, 219 Cal. 334, 26 P.2d 288, 289 (1933). This he successfully did. The normal rule is that a defendant in a quiet title action may always resist a decree against himself by showing simply that the plaintiff is without title. Pacific States Savings & Loan Co. v. Warden, 18 Cal.2d 757, 117 P.2d 877, 879 (1941). Once the plaintiff's claim of title is put in issue by the defendant, the plaintiff can succeed only on the strength of his own title, and not on the weakness of that of his adversary. Ripinsky v. Hinchman, 181 F. 786, 793; (9th Cir. 1910), modified, 186 F. 151; (9th Cir. 1911); Pincock v. Pocatello Gold & Copper Min., 100 Idaho 325, 597 P.2d 211, 217 (1979); Freytag v. Vitas, 213 Or. 462, 326 P.2d 110 (1958). While it may not be necessary for a plaintiff to have a perfect title, to make out a prima facie case he must at least prove that he has a substantial interest in the property and that his title is better than that of the defendants. Rohner v. Neville, 230 Or. 31, 365 P.2d 614, 618 (1961), reh. denied, 230 Or. 31, 368 P.2d 391 (1962). In the ease at bar it is apparent that Young did not demonstrate a substantial interest in the property, and his claim, accordingly, must fail. It was error for the superior court to enter the amended decree awarding Young the balance of the property- The parties have argued at length about whether Shilts should have set forth a counterclaim as to the balance of U.S. Survey No. 691 in order to defeat Young's claim thereto, and whether such a counterclaim would have been compulsory or permissive. In view of our disposition of this case on other grounds, we need not reach these rather abstract questions. Similarly, we need not reach the question raised by Shilts of whether the superior court lacked "jurisdiction" under Alaska Civil Rules 59 and 60 to enter the amended decree. The amended decree entered August 4, 1980, is reversed, and this case is remanded with directions to dismiss Young's complaint, with prejudice. REVERSED and REMANDED. . See also Hampton v. Superior Court, 38 Cal.2d 652, 242 P.2d 1, 3 (1952); Central Mont. Stockyards v. Fraser, 133 Mont. 168, 320 P.2d 981, 991 (1957); Phebus v. Dunford, 114 Utah 292, 198 P.2d 973, 974 (1948). . In attempting to bolster his argument to the contrary and with regard to the balance of U.S. Survey No. 691, Young cites the dissenting opinion of Justice Brice in Cavender v. Phillips, 41 N.M. 235, 67 P.2d 250, 256 (1937), as authority for the proposition that a plaintiff in an action commenced to quiet title need not prove title which is good against the world, and that plaintiff need only show title superior to that of the defendants. This rule of law is inapplicable to the case at bar. Apposite is another portion of Justice Brice's Cavender dissent which states: "If [plaintiff] has no title then he cannot recover, though the defendant may have no title." Id. 67 P.2d at 255-56. . The normal rule is that when a defense asserted by an answering defendant is not personal to himself, but is common to all defendants, and when it questions the merits of the plaintiffs entire cause of action, the defense inures to the benefit of the defaulting defendants. Frow v. DeLaVega, 82 U.S. (15 Wall.) 552, 554, 21 L.Ed. 60, 64 (1872); Alls v. 7-Eleven Food Stores, Inc., 366 So.2d 484, 485-86 (Fla.App.1979); Tate v. Goode, 135 Ga. 738, 70 S.E. 571, 572 (1911). The single case cited by Young as authority for the contrary position, City of Albuquerque v. Huddleston, 55 N.M. 240, 230 P.2d 972 (1951), involved a city's attempt to foreclose on a number of paving liens. Some of the named defendants pleaded the statute of limitations; others defaulted. In a subsequent action the Supreme Court of New Mexico held that the successful plea of the appearing defendants did not inure to the benefit of the defaulting defendants. Id., 230 P.2d at 974. City of Albuquerque is distinguishable from the case at bar in that the complaint filed by the city in the initial action set forth in separate paragraphs allegations of delinquency as to each individual lot and its owner so that, as noted by the court, the "suit was for all intents and purposes a separate action against each delinquent lot and its owner." Id. Also, while a plea of the statute of limitations is a personal defense, see City of Albuquerque, 230 P.2d at 974, a general denial of plaintiffs alleged title is not. . If Young amends his complaint to seek title to Blocks 7 and 8, or a portion thereof, of the "Hubbell Survey," and can adduce new evidence as to the location and extent of Blocks 7 and 8, we see no impediment to the superior court holding a supplemental hearing. If the court is satisfied as to the extent and location of Blocks 7 and 8,- and as to the extent of Young's interest therein, it could make an award to Young of Blocks 7 and 8, or any portion thereof.

10386889

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

Harrison v. State

1989-12-29

No. A-2867

681

683

784 P.2d 681

784

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:32.162151+00:00

CAP

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

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

David HARRISON, Appellant, v. STATE of Alaska, Appellee. No. A-2867. Court of Appeals of Alaska. Dec. 29, 1989. David Harrison, Appellant pro se, and Chickaloon, Marcus B. Paine, Asst. Public Defender, Palmer, and John Salemi, Public Defender, Anchorage, for appellant. Eugene B. Cyrus, Asst. Dist. Atty., Steven H. Morrissett, Dist. Atty., Palmer, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1069

6633

OPINION SINGLETON, Judge. David Harrison pled no contest to a charge of reckless driving in violation of AS 28.35.040. Reckless driving is a misdemeanor punishable by a fine of up to $1,000 and imprisonment for up to one year. AS 28.35.040(b). He reserved his right to appeal the district court's denial of his motion to dismiss the charge. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We affirm. On January 22, 1988, Alaska State Trooper Richard Terry observed Harrison speeding and otherwise driving in a reckless manner on the Glenn Highway near Sutton, Alaska. Trooper Terry activated his red lights and siren. Harrison continued driving and entered a residential area. Harrison stopped and exited his vehicle. Trooper Terry waited for an additional officer then approached Harrison. Harrison was subsequently charged with reckless driving. Harrison moved to dismiss the charges on the ground that the Alaska state courts did not have jurisdiction over any criminal prosecution of him. He argued that as an Athabascan Indian and resident of the native village of Chickaloon, he was subject only to the jurisdiction of the Chickaloon Village Traditional Court. District Court Judge Peter Ashman denied the motion to dismiss. The court also denied Harrison's motion for reconsideration of this decision. Harrison argues on appeal, as he did below, that as an Athabascan native who is a member of Chickaloon Village he is exempt from the jurisdiction of the courts of the State of Alaska. Immunity for Alaska Natives and other native Americans who are members of tribes involves a complex area of the law, presenting many difficult and unsettled questions. See Native Village of Stevens v. A.M.P., 757 P.2d 32 (Alaska 1988). Harrison's argument is difficult to follow. He seems to be arguing that because he is an Indian and a member of a tribe as those terms are used in federal Indian law, he cannot be prosecuted for a crime under state law no matter where it occurs. But this is plainly wrong. Harrison may be arguing that his offense took place in "Indian country", as that phrase is defined in federal law, and is therefore only prosecutable in an Indian court. Cf. Petition of McCord, 151 F.Supp. 132 (D.Alaska 1957) (recognizing this defense) with United States v. Booth, 161 F.Supp. 269 (D.Alaska 1958) (rejecting it). While Harrison seems to assume that the entire State of Alaska is "Indian country," he does not specifically argue that he committed this offense in "Indian country." It is not necessary for us to determine whether Harrison's offense took place in "Indian country" or not because Congress has expressly made Alaska's state criminal law applicable in "Indian country," if it exists in Alaska, and gives Alaska's courts jurisdiction over offenses committed by Indians. See People of South Naknek v. Bristol Bay Borough, 466 F.Supp. 870, 877 (D.Alaska 1979) (noting that Congress reacted to McCord by expressly granting Alaska jurisdiction over offenses committed in Indian country). This particular case therefore presents an issue which has been explicitly settled by the Congress and the Supreme Court of the United States. The United States Supreme Court recently ruled that "state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987). In Public Law 280 § 2(a), codified at 18 U.S.C. § 1162(a) (1988), Congress expressly granted the courts of six states, including Alaska, criminal jurisdiction over specified areas of "Indian country." The statute provides in part: Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory: State or Territory of Indian country affected Alaska.All Indian country within the State, except that on Annette Islands, the Metlakatla Indian community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended. 18 U.S.C. § 1162(a) (1988). A law that is criminal in nature is fully applicable to Native Americans under 18 U.S.C. § 1162(a). Cabazon Band of Indians, 480 U.S. at 208, 107 S.Ct. at 1088. Reckless driving is punishable by up to one year of imprisonment and clearly qualifies as a crime. See State v. Browder, 486 P.2d 925, 937 (Alaska 1971); Baker v. City of Fairbanks, 471 P.2d 386, 401-402 (Alaska 1970). It is clear, therefore, that Indian tribal courts do not have exclusive jurisdiction over criminal offenses committed by Alaska Natives in Alaska even if those offenses occur in "Indian country." The district court did not err in refusing to dismiss this case for lack of jurisdiction. The conviction is AFFIRMED. . 18 U.S.C. § 1151 (1988) defines "Indian country" as including: (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent; and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. . Harrison may be arguing that tribal courts have concurrent jurisdiction with state courts. He seems to note that his case went to judgment in tribal court before it was resolved in state court. The issue of concurrent jurisdiction is not briefed, however, and we therefore decline to consider it.

10437366

Bobby DOISHER, Appellant, v. STATE of Alaska, Appellee

Doisher v. State

1981-07-09

No. 4369

242

262

632 P.2d 242

632

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

Before COATS and SINGLETON, JJ., and HANSON, Superior Court Judge.

Bobby DOISHER, Appellant, v. STATE of Alaska, Appellee.

Bobby DOISHER, Appellant, v. STATE of Alaska, Appellee. No. 4369. Court of Appeals of Alaska. July 9, 1981. Walter L. Carpeneti, Juneau, and Bobby Doisher, pro se, for appellant. David Mannheimer, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before COATS and SINGLETON, JJ., and HANSON, Superior Court Judge.

10611

63122

OPINION COATS, Judge. On May 17,1977, the body of Anita Frances (Sherry) Stewart was found on an isolated country road about fifty miles from Anchorage. She had been shot several times by a .45 caliber weapon. State troopers found a shoe print beside the body and took a plaster cast impression. . Several months later, Bobby Doisher was charged with the murder of Sherry Stewart. The case against Doisher will be set forth in more detail as the issues are developed in this opinion. The basic prosecution theory at Doisher's trial can be summarized as the following: Sherry Stewart was a cocaine dealer. She bought cocaine in large quantities and resold it in smaller quantities at a large profit. Stewart's cocaine supplier quit doing business and she needed a replacement. Doisher, according to the prosecution, offered to obtain a supply of cocaine for her. On May 17, 1977, Sherry Stewart, with several thousand dollars in her possession which she was doing to use to purchase cocaine, met Doisher. According to the prosecution, Doisher shot Sherry Stewart for the money. Doisher was convicted of felony murder (robbery) in violation of former AS 11.15.-010. He was sentenced to serve a term of forty-five years. Doisher appeals to this court raising numerous points. THE SEARCH WARRANT Doisher filed a pretrial motion asking the trial court to suppress evidence which the troopers seized from his residence pursuant to a search warrant. The troopers found shoes at Doisher's residence which a state expert witness, John Sauve, testified were probably the same shoes which made the print found beside Sherry Stewart's body. Doisher contends that the evidence before the magistrate was not sufficient to establish probable cause because the hearsay testimony of a police informant, Thomas Mooney, was not sufficiently corroborated. In addition, he claims this court should notice as plain error alleged misstatements which the trooper made at the hearing to obtain the search warrant. Doisher argues that the warrant was obtained because of these misstatements and should therefore be invalidated. A. PROBABLE CAUSE TO OBTAIN THE SEARCH WARRANT The sole testimony before the magistrate who issued the warrant was the testimony of trooper Charles Miller. Trooper Miller testified as to his knowledge of the investigation of the murder of Sherry Stewart. However, the major portion of Trooper Miller's testimony concerned information which was given to him by Tom Mooney. Mooney, after he had been arrested for operating a motor vehicle under the influence of alcohol, told the troopers what he knew about Bobby Doisher. At the time of his arrest the troopers also found a trace of cocaine on a spoon in Mooney's possession. Doisher argues that Mooney was motivated to provide information against Doisher in the hope that the troopers would give Mooney favorable consideration on the criminal charges he was facing. He argues that Mooney is therefore a traditional police informant whose testimony must be corroborated under the United States Supreme Court's decision of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). When Doisher brought his motion to suppress in the trial court, the trial court found that Mooney was adequately corroborated. We agree. We need not reach the issue of whether Mooney should be regarded as a police informant since, even if he was, he was adequately corroborated. According to Trooper Miller's testimony at the hearing to obtain the search warrant, Thomas Mooney told the troopers why he suspected Bobby Doisher of murdering Sherry Stewart. The following state ments summarize Trooper Miller's testimony about Mooney's statements concerning Doisher. Mooney told Miller he was in a position to know about Doisher and Stewart since he knew both of them, and lived in the same apartment building as Doisher. Mooney indicated Sherry Stewart was a cocaine dealer who was trying to buy a large amount of cocaine. Mooney was present when Doisher told Sherry Stewart he could possibly arrange a large sale of cocaine. On May 14, 1977, Doisher told Mooney the cocaine for Stewart would be available on May 17, 1977, which was the day Sherry Stewart was shot. Also on May 14, Mooney talked to Doisher about how easy it would be to rob Stewart and take her money. Mooney indicated that shortly after Sherry Stewart's death, Doisher paid off a loan on an automobile and purchased a pick-up truck, along with other large purchases. Mooney told Miller that before Sherry Stewart's death Bobby Doisher did not have much money. He stated that both he and Doisher were unemployed and made trips to the union hall together. Mooney said he saw Doisher's .45 caliber pistol and ammunition. He stated that the only shoes that he had ever seen Doisher wear were earth shoes and tennis shoes. Trooper Miller also testified before the magistrate concerning the results of his own investigation, and his knowledge of the murder of Sherry Stewart. Trooper Miller found from records that Doisher had made a $2,000 down payment on a pick-up truck, and that he had paid $500 on a car loan shortly after Stewart's murder. Miller stated that the records showed both payments were made in cash. He testified that Sherry Stewart had been shot with a .45 caliber weapon, and that the plaster east and photos of the print the police found next to Sherry Stewart's body indicated that the print had been made by a shoe similar to an earth shoe. We hold that the magistrate was correct in finding probable cause to search upon these facts. The first requirement of Agui-la r is that the informant must demonstrate a reliable basis for his testimony. The informant must not be merely reporting street rumors or other unreliable information. In this case Mooney claimed firsthand knowledge of all the facts before the magistrate. He therefore clearly meets the first test of Aguilar. The second requirement of Aguilar is that the magistrate must be given some basis to conclude that the informant is himself reliable. This is usually done by a police officer indicating that the informant has been reliable in the past. However, an informant's statements may be verified by independent corroboration of the incriminating facts. Davis v. State, 499 P.2d 1025, 1029 (Alaska 1972), rev'd on other grounds, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); See also Schmid v. State, 615 P.2d 565, 574-77 (Alaska 1980). Here the police corroborated the fact that Doisher made large cash purchases shortly after Sherry Stewart was killed. Mooney's statement that Doisher owned a .45 caliber automatic was corroborated by information known to the police that Stewart had been killed with a .45 caliber weapon. Mooney's statement about Doisher's shoes also was consistent with what the police knew about the murder. We find the testimony of Tom Mooney adequately corroborated under Aguilar. B. ALLEGED MISSTATEMENTS OF FACTS Doisher argues that the search warrant was invalid because it was based upon misstatements of facts to the magistrate. He argues that the magistrate was not informed that Mooney was the person who brought up the subject that Sherry Stewart could be easily robbed. Doisher also argues that the magistrate was never informed that Mooney originally told the police that Doisher owned a .38 caliber automatic, not a .45 caliber automatic. Doisher points out that the record suggests that Mooney became convinced Doisher owned a .45 caliber automatic only after the police had incorrectly told Mooney there was no such weapon as a .38 caliber automatic. These contentions were never raised in the trial court. Doisher therefore asks us to notice these contentions as plain error. An appellant who raises plain error "must shoulder the heavy burden of demonstrating the alleged misconduct raises a substantial and important question." Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 1973). The appellant must also show the error was "obviously prejudicial." Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968). The Alaska Supreme Court has ruled courts must examine misstatements of fact which are used to obtain a warrant. The court in Davenport v. State, 510 P.2d 78, 82 (Alaska 1973), said: We believe that since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, we believe that challenges to the search warrant and affidavit may be properly entertained during the suppression hearing. However, in order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. In the case before us, it does not appear that the district judge was influenced by the misstatements in the affidavit to issue a search warrant which he would otherwise have denied. We hold that the failure to present the fact that Mooney was the person who originally told Doisher Sherry Stewart could be easily robbed was not material. At the hearing on the application for the search warrant, Trooper Miller merely indicated the conversation took place between Mooney and Doisher. Whether Mooney first brought up the subject or whether Doisher did so is not information which would materially influence the magistrate. The important point is that Mooney and Doisher had this conversation shortly before Sherry Stewart was murdered. We now deal with Doisher⅛ argument that Trooper Miller misled the magistrate because he did not tell the magistrate that Mooney originally identified Doisher's pistol as a .38 automatic. The record reflects, however, that the police and Mooney both confirmed that the weapon was a .45 caliber automatic. On September 6, 1977, before the search warrant application was made, Mooney, accompanied by an undercover trooper, Charles Hagans, tried to borrow the .45 from Doisher. Doisher, according to the trooper and Mooney, looked shocked when Mooney asked to borrow the .45 caliber weapon. Doisher stated that he had sold the .45 caliber automatic. Therefore, based upon the record, it appears that Mooney and the troopers confirmed, before the search warrant hearing, that the weapon he described was indeed a .45 caliber automatic. There is certainly no showing of an intentionally falsified statement. Trooper Miller simply did not give the magistrate the complete history of how Mooney became convinced that the weapon Doisher owned was a .45 caliber automatic. To the extent this can be characterized as a misstatement to the magistrate we hold it was not material. It most certainly does not rise to the level of plain error. GRAND JURY Before trial, Doisher moved to dismiss the indictment against him. The trial court ruled that Doisher had been properly indicted. We agree with the trial court's decision. We will discuss Doisher's allegations one at a time. Doisher first argues that the state should have presented testimony of William Rezac, a person who knew Sherry Stewart and saw her early on the morning of her death. The trial court ruled on this point as follows: Rezac claims to have seen the [victim] at 8:00 in the morning on the day of her death. The victim was later known to have entered her safety deposit box at 11:30 later that morning. This court fails to see the relevancy of the [victim] being seen alive at 8:00 in the morning by Mr. Rezac and wholly fails to see the exculpatory nature of this evidence. We agree with the trial court's analysis. The Supreme Court of Alaska in Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979), interpreted Alaska R.Crim.P. 6{q) as requiring prosecutors to tell the grand jury about evidence which the prosecutor knows will tend to negate guilt. However, the court explained: [T]he prosecutor's obligation to present exculpatory evidence to the grand jury does not turn the prosecutor into a defense attorney; the prosecutor does not have to develop evidence for the defendant and present every lead possibly favorable to the defendant. Frink, 597 P.2d at 166. Rezac's testimony clearly was not material enough to require the prosecution to present it to the grand jury under the test set forth in Frink. Doisher also argues that the absence of his fingerprints on Sherry Stewart's purse should have been brought to the attention of the grand jury. Stewart's bloodstained purse was found away from the scene of the murder, and was probably carried from the scene by the murderer. However, the purse did not have anyone's fingerprints on it, even though it was handled extensively by the people who found the purse. This merely indicates the purse was a poor surface for fingerprints. Failure to introduce evidence of the lack of fingerprints on the purse does not rise to the test set forth in Frink, that of suppressing evidence which would tend to negate guilt. Doisher contends that the prosecution withheld evidence that Doisher owed money to a prosecution witness. Timothy Nix, and that Nix was in custody for a criminal charge at the time he testified. Doisher claims these factors should have been told to the grand jury because they were important to determine Nix's credibility. Doisher also contends that the grand jury attempted to elicit this information from Nix but was prevented from doing do by the prosecution. The Alaska Supreme Court has ruled that not all evidence reflecting on credibility need be introduced in a grand jury proceeding. Preston v. State, 615 P.2d 594, 601-03 (Alaska 1980). We find the evidence that Nix owed the defendant money and that he was being held under state charges was not exculpatory information within the meaning of Frink. Nix testified that Doisher told him he owned a .45 automatic and threw it in a river because there was "too much heat." This same testimony concerning Doisher's owning a .45 automatic and getting rid of it because there was "too much heat" was also elicited from another witness, Allen Perry. Tom Mooney also testified that Doisher owned a .45 and told him he had gotten rid of it. Charles Hagans, an undercover trooper, testified he was present when Do-isher talked to Mooney about the .45 caliber automatic. Of course, each of these witnesses, like most other witnesses, could be questioned for bias on various grounds. However, in the context of this case, we do not find the prosecution had a duty to point out that Nix was in state custody and that Doisher owed him money. We now deal with Doisher's argument that the prosecutor kept the grand jury from exploring Nix's credibility. The trial court reviewed the record, and concluded that the action of the prosecutor in cutting off grand jury questioning was motivated by a desire to prevent inadmissible hearsay from being introduced in the grand jury proceeding. We have reviewed the record and agree with the trial court's conclusions. Doisher also argues that the prosecutor omitted several statements wherein Doisher denied committing the murder. He argues his denials should have been read to the grand jury. However, one of Doisher's statements that he denied committing the crime was presented to the grand jury. Any additional denials would have been cumulative, and may have prejudiced Do-isher, because of requests for counsel in those statements. We find Doisher suffered no prejudice from the failure of the prosecution to introduce the additional statements. Doisher argues that the plaster cast of the footprint found next to Sherry Stewart's body should have been presented to the grand jury. He argues that the cast was in such bad condition that introduction of the cast would have undermined the testimony of state's witnesses who testified to the similarity between one of the shoes found at Doisher's residence and the cast. There is no merit to this contention. The witnesses testified to the deteriorated condition of the cast, and the difficulty of making comparisons with the cast. The grand jury did not ask to see the cast. We find no error. Doisher argues that the prosecutor disallowed a question to a police officer from a grand jury member as to whether there were other suspects in the case. The prosecutor rephrased the question, asking the officer if at the present time he was conducting an ongoing investigation on any other possible suspect. The officer answered "No" to that question. Doisher has not suggested to us how he was prejudiced by this sequence, or how exculpatory evidence would have been introduced by the officer answering the grand juror's question instead of that posed by the prosecutor. We find no error. Doisher also argues that the prosecutor made a misleading statement to the grand jury which should have led the trial court to dismiss the indictment. Doisher points out that the prosecutor mistakenly said that Doisher admitted being with Sherry Stewart on Tuesday, May 17, 1977, the day of the murder. The testimony of Tom Mooney was that Doisher had told him the cocaine deal was going to happen on Tuesday, May 17. Mooney's testimony was as follows: Q: So you expect[ed] a cocaine deal to go down on Tuesday? A: Yes, I did. Q: And who indicated to you that that's when it was going to happen? A: Bobby [Doisher], Q: Was it your understanding that he was supposed to see Sherry on Tuesday to take care of the cocaine deal? A: Yes, it was. The prosecutor's statement in summation was a passing reference to this testimony. The prosecutor said, "Doisher indicates to Tom Mooney that he saw Sherry on Tuesday." The prosecutor's statement would have accurately stated this evidence if he had said, "Doisher indicated to Tom Mooney he was going to see Sherry on Tuesday." However, in the context of the evidence and argument, we do not find this misstatement to be of a sufficient magnitude to require dismissal of the indictment. The prosecutor's statements were not evidence. The grand jury heard Mooney's testimony and could evaluate it. The impact of the prosecutor's statement was minor. Doisher also complains that the prosecutor misled the grand jury by implying that Doisher's name was found on sev eral papers in Sherry Stewart's apartment. The name "Bob" and Doisher's phone number were found on a single sheet of paper. This "implication" came from a question which had been asked of Doisher by a police officer when Doisher was interviewed by the police. The officer's question and Do-isher's answers were read to the grand jury. The question from the police officer was: "We found your name and your number in several of some papers that Sherry had, okay?" We fail to see how this question from a police officer could be material in this case. The grand jury had been accurately told that the paper found in Sherry's apartment had the name "Bob" and Doisher's phone number on it. We fail to see how the grand jury could be misled, or that the question of the officer in his interview of Doisher could have prejudicial impact. Doisher raises a similar complaint about another "implication" made by the police officer in the same interview. The police officer asked the following questions of Doisher: "You took her money and you opened Ace Automotive. You took her money and you bought stuff for the house." We again fail to see how the fact that the police officer asked these questions of Do-isher was material. Other evidence presented to the grand jury indicated that Doisher had spent a large amount of money shortly after Sherry Stewart's death. The officer's questions which were read to the grand jury as part of Doisher's interview could not have had an undue prejudicial impact. THE TRIAL TESTIMONY OF ALLAN PERRY, DORA HAUGE, AND CHARLES STEWART Allan Perry, who was called as a prosecution witness, was a former friend of Bobby Doisher. Perry testified as to a conversation which he had with Doisher. Perry testified that when he asked Doisher if he still had his .45 caliber automatic, Doisher told him he had to get rid of it "because there was too much heat." Perry also testified that when Doisher spoke about Sherry Stewart's death he made statements like: "Business is business," "A man's got to do what a man's got to do," and "People get out of line, they get stepped on." Perry also testified as follows to a statement Do-isher made to him: [My] [mjemory is that he said something to the effect that — one of 3 things, either yes, he had been present at the time of the murder or yes, he knew of the murder, or just that she did deserve to die. One of the 3. Perry was then impeached by the prosecution because in an earlier statement before the grand jury Perry had testified that Doisher told him he was present when Sherry Stewart was killed. Perry was impeached by the defense on a number of grounds. He had criminal charges pending. The defense suggested that Perry may have been hoping to get a deal from the prosecution. Perry admitted making a statement to a defense investigator which implied he was going to try to act as though he knew more than he did about Doisher's case in order to obtain concessions from the prosecution: I figured what I knew about Bobby [Do-isher] isn't enough to really hurt his ass anyway, and if I could fake it long enough to even hold out and give the impression to these people that I knew something. Perry was also impeached on numerous other grounds. Following his testimony, Perry rode in an elevator with Charles Stewart, Sherry Stewart's father, and Dora Hauge, a friend of Mr. Stewart's. According to Hauge and Stewart, Perry told them that he knew Doisher committed the murder and he knew Doisher had thrown the gun in the Knik River. The state wished to recall Allan Perry to impeach him with this statement. The state also wanted to call Dora Hauge and Charles Stewart to prove that Perry made the statement. The state's theory, which was presented to the trial judge in an evi-dentiary hearing where the three witnesses testified, was that the statement of Allan Perry was admissible for impeachment purposes. The state argued that Perry's testimony at trial concerning Doisher's statement was much weaker than his earlier grand jury testimony. In addition, Perry had implied he really did not know that much about Doisher's case, but was fabricating testimony in order to get favorable treatment from the prosecution on his own charge. The prosecution argued Perry's statement was admissible to show that Perry really did know more about Doisher than he was willing to say, and that Perry's grand jury testimony, which more strongly implicated Doisher, was more believable than Perry's trial testimony. Doisher argued that Perry's opinion that Doisher killed Sherry Stewart, and threw the .45 caliber automatic in the Knik River, was merely inadmissible opinion testimony. Do-isher also argued that an opinion by a friend of his that he killed Sherry Stewart would have great prejudicial impact. The trial judge ruled that the testimony of Allan Perry, Charles Stewart, and Dora Hauge was admissible to impeach Perry. He further ruled that the probative value of Perry's statements outweighed any unfair prejudicial impact the evidence might have. We do not find that the trial judge committed error in his ruling. Opinion testimony can be admissible when used for impeachment purposes: [W]hen the out-of-court statement is not offered at all as evidence of the fact asserted, but only to show the asserter's inconsistency, the whole purpose of the opinion rule, to improve the objectivity and hence reliability of testimonial assertion, is quite inapplicable. Hence, though many earlier decisions . . . and some later opinions, exclude impeaching statements in opinion form, the trend of holdings and the majority view is in accord with the commonsense notion that if a substantial inconsistency appears the form of the impeaching statement is immaterial. C. McCormick, Law of Evidence, § 35 at 70 (2nd ed. 1972) (citations omitted). See also Bentley v. State, 397 P.2d 976, 978 (Alaska 1965). If the offered statement is ambiguous as to whether or not it is impeaching, it should generally be admitted. The trial judge has considerable discretion in making this decision: Seemingly the test should be, could the jury reasonably find that a witness who believed the truth of the facts testified to would have been unlikely to make a prior statement of this tenor? Thus, if the previous statement is ambiguous and according to one meaning would be inconsistent with the testimony, it should be admitted for the jury's consideration. In applying the criterion of material inconsistency reasonable judges will be likely to differ, and a fair range of discretion should be accorded to the trial judge. Moreover, it is to be hoped that instead of restricting the use of prior statements by a mechanical use of the test of inconsistency, the courts will lean toward receiving such statements in case of doubt, to aid in evaluating the testimony. (Footnotes omitted.) C. McCormick, Law of Evidence, § 34 at 68-9 (2nd ed. 1972) (footnotes omitted). Here Perry's statement could have been merely his opinion that Doisher shot Sherry Stewart, and that Doisher threw the gun into the Knik River. However, it also could show that Perry knew much more than his trial testimony, or even his grand jury testimony suggested, and that Perry's lack of memory was not genuine, but an attempt to aid Doisher. Perry's statement as related to Charles Stewart and Dora Hauge was positive: "I know Doisher did it," "I know he killed her and threw the gun in the Knik River." This statement could reasonably be interpreted by a jury to indicate that Perry's equivocal trial testimony was watered down in an attempt to aid Doisher. It was therefore not error for the trial judge to conclude that Perry's statements were relevant for the purpose of impeachment. The next question is whether the probative value of Perry's statement for impeachment purposes was outweighed by the danger of unfair prejudice. This is a question which is within the discretion of the trial judge. The decision of the trial judge may only be reversed if there is an abuse of discretion. Also, there is a presumption in favor of admitting relevant evidence: If the balance between probative value and prejudicial effect . is close, the Judge should probably decide to admit the evidence. In other words, there is a slight presumption in favor of admitting relevant evidence. In order to overcome this minimal presumption, the prejudicial effect must be demonstrably greater than the probative value of the evidence. Commentary, Alaska R.Evid. 403. The trial judge carefully balanced the probative value of Perry's statement against the possible unfair prejudice. He held a full evidentiary hearing outside the presence of the jury and gave a cautionary instruction to the jury. We find no error. THE TESTIMONY OF PEGGY GARDNER Doisher contends that the court erred in admitting testimony by Peggy Gardner from which the jury was allowed to infer that he had made an admission by silence. About a month after the murder, Doisher drove to Seward for the day with Gardner and their respective children. When they returned at night, they found Karen Doisher, his wife, spray painting epithets on Gardner's car. On seeing Doisher and Gardner drive up, Karen Doisher got into her car, tried to run it into Gardner's car, and ran it into the house and knocked out a post. Doisher tried to calm his wife and get her out of the car. Eventually, she ran up a hill behind the house, followed by Doisher and Gardner. There, among other things, she said to Gardner, "He'll do to you what he did to Sherry." Doisher made no response to this statement, nor did Gardner. The trial court ruled that this was an admission by silence and allowed it into evidence. Doisher contends that the conditions for admission set forth in Blue v. State, 558 P.2d 636, 645 n.21 (Alaska 1977), were not met, and thus the court was in error. In Blue, the court said: Because of the weakness of the correlation between guilt and an admission by silence or an equivocal or evasive response, the courts have imposed various conditions upon the introduction into evidence of a statement on the theory that it is an implied admission. To constitute proof of such an admission, the evidence must disclose that: (1) the statement was extrajudicial, (2) it was incriminatory or accusative in import, (3) it was one to which an innocent man would in the situ ation and surrounding circumstances naturally respond, (4) it was uttered in the presence and hearing of the accused, (5) he was capable of understanding the incriminatory meaning of the statement, (6) he had sufficient knowledge of the facts embraced in the statement to reply to it and (7) he was at liberty to deny it or reply to it. Doisher's main contention is that the accusation was not made in a situation and under circumstances as to which an innocent man would naturally respond. Doisher maintains that the situation was so tumultuous that it was unreasonable to expect a man to respond to an accusation from his wife when she was in what he characterizes as an hysterical frenzy. The trial judge held an evidentiary hearing on this issue. Subsequently, the judge ruled that there was an accusation of a serious crime, that the defendant heard the accusation, and that he did not respond. The trial judge ruled that it was a reasonable inference that Doisher would have normally responded to this accusation, and that his failure to respond was some evidence of guilt which the jury could weigh. We are inclined to give some deference to the trial judge, who heard the witnesses testify, m determining whether the factors, which are a prerequisite to the admission into evidence of an admission by silence, have been met. We hold that there was sufficient evidence to conclude that the testimony of Peggy Gardner was admissible as demonstrating an admission by silence. There remains the issue of whether the probative value of this admission by silence was outweighed by its prejudicial impact. This is a close question. As the court indicated in Blue, the probative value of an admission by silence is often weak. There is certainly a substantial hazard that a jury might misuse the evidence to conclude that Karen Doisher believed that her husband murdered Sherry Stewart. However, under Alaska R.Evid. 403 the trial court does have considerable discretion in determining whether the "probative value is outweighed by the danger of unfair prejudice." The trial court weighed all the factors carefully. We do not find an abuse of discretion. THE ADMISSION INTO EVIDENCE OF THE PLASTER CAST Doisher objects to the admission into evidence of the plaster cast which the troopers made of the shoe print found beside the body of Sherry Stewart. He also objects to the admission into evidence of a photograph of the cast. Doisher contends that the cast was in a badly deteriorated condition when it was admitted, and that the photograph and cast were of such poor quality that the admission of them into evidence would mislead the jury. There is no question that the plaster cast was in a badly deteriorated condition at the time of trial. The cast had apparently been made of a poor quality plaster and did not set up properly. The cast started to deteriorate shortly after it was made in May of 1977. By September 14, 1977, it had split into two pieces, and a photograph of the cast was taken. By the time of trial, the cast was in five pieces. The trial judge has wide discretion in admitting evidence. The only question for us to determine is whether the trial judge abused his discretion in determining that the probative value of the evidence was outweighed by the danger of unfair prejudice. We hold that there was no abuse of discretion. The cast was certainly relevant if for no other reason than to show that the troopers had attempted to take a plaster cast at the scene of Sherry Stewart's murder. As a matter of fact, the cast was used by both a state and defense expert to compare with the shoe which was seized from Doisher's home pursuant to the search warrant. We cannot see how the admission into evidence of the cast or the photograph of the cast could have resulted in unfair prejudice to the defendant, or could have confused or misled the jury. The testimony concerning how the cast was taken and its subsequent deteriorated condition was clear. We find no error. THE TESTIMONY OF JOHN SAUVE Doisher objects to the trial court's ruling that a state witness, John Sauve, could testify as an expert witness. Sauve testified as an expert in comparing the plaster cast of the shoe print, which was found next to Sherry Stewart's body, with one of the shoes which was seized from Bob Doisher's home. Sauve was the person who took the photograph of the plaster cast, and used that for comparison also. Sauve testified he could not say conclusively that Doisher's shoe made the print, but that it "probably made the print." At the time Sauve testified, he was a laboratory technician for the state troopers. His main area of expertise was in fingerprint comparisons. He had custody of the cast and ran tests on it. Sauve testified that he had been trained in tool mark comparisons. Sauve testified that a tool mark is classified as the mark left by one object upon another, including the mark left by a shoe upon another object, and the field includes comparisons of objects like shoes with plaster casts. Sauve testified that he had been involved approximately 100 times in the area of cast footprint comparisons. He had never testified in this area before. However, Sauve outlined a long history of on-the-job training in tool mark comparisons. He also testified about his background in photography. The trial court found that Sauve was qualified as an expert in tool mark comparisons and photography. The court followed the rule in State v. Phillips, 470 P.2d 266, 270 (Alaska 1970), and Ferrell v. Baxter, 484 P.2d 250, 267 (Alaska 1971), that a witness need not devote full time to an area of knowledge in order to qualify as an expert, and that it suffices if the witness has the requisite intelligence and reasonable contact with the subject matter to demonstrate expertise with reasonable skill. The question for the trial court to ask in deciding whether to let a person testify as an expert is "whether the jury can receive appreciable help from this particular person on this particular subject." Handley v. State, 615 P.2d 627, 631 (Alaska 1980), quoting from Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965). The trial court has great discretion in making this determina tion, and the decisions of the trial court are reviewable only for an abuse of discretion. Handley, 615 P.2d at 630. We hold that the trial court did not abuse its discretion in allowing John Sauve to testify as an expert witness. JURY INSTRUCTIONS A. Instruction Number 7. Doisher argues that some of the jury instructions which the court gave were incorrect. Count I of the indictment charged Doisher with premeditated murder in violation of former AS 11.15.010. The court granted Doisher's motion for judgment of acquittal on that count. The court ruled that there was insufficient evidence of premeditation to allow Count I to go to the jury. The court instructed the jury on Count II of the indictment, which charged Doisher with felony-murder in violation of former AS 11.15.010. Count II charged that Doisher killed Sherry Stewart by shooting her in the perpetration of a robbery. This is the count upon which the jury convicted Doisher. Doisher has appealed because the court mentioned Count I of the indictment in its instructions. The relevant instruction, Instruction Number 7, reads as follows: No. 7 The indictment charges: That on or about the 17th day of May, 1977 at or near Wasilla, in the Third Judicial District, State of Alaska, Bobby Doisher being of sound memory and discretion, did unlawfully, purposely and with deliberate and premeditated malice kill Anita F. Stewart by shooting her. COUNT II That on or about the 17th day of May, 1977, at or near Wasilla, in the Third Judicial District, State of Alaska, Bobby Doisher being of sound memory and discretion, did unlawfully and purposely kill Anita F. Stewart by shooting her in the perpetration of robbery. While the indictment charges two counts of wrongdoing you are instructed that the only count that you should consider is Count II of this indictment. You must disregard in its entirety Count I and confine your deliberations to the allegations and the essential elements of Count II. There was no objection to this instruction, and therefore Doisher asks this court to find that giving this instruction was plain error. Burford v. State, 515 P.2d 382 (Alaska 1973). We do not find that it was error to give this instruction. The instruction clearly tells the jury to disregard Count I. The jury was aware of both counts of the indictment. At the beginning of the trial, the trial judge read the indictment. Therefore, it may very well have been less confusing and less prejudicial to let the jury be aware that Count I was no longer before them, and that they should disregard Count I. Since Doisher did not object or point out any possibility of prejudice at trial, it is reasonable for us to assume that he felt this was a reasonable procedure. We find no error. B. Instruction Number 3. Doisher also contends that the trial court was incorrect in giving Instruction Number 3, which reads as follows: No. 3 Before a person may be found guilty of a crime, the State at the very least must have proven beyond a reasonable doubt that that person intentionally committed an act forbidden by law. Therefore, before the defendant in this case may be found guilty of a crime, you must find that the State has established beyond a reasonable doubt that under the statute set out in these instructions, the defendant was forbidden to do the act charged in the indictment, and that he in fact knowingly committed the act. A person's knowledge of doing the act may be shown by the circumstances attending the doing of it, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing said act. The law assumes that every person intends the natural consequences of his voluntary acts. Therefore, the intent that is required to be proven as an element of a crime may be inferred from a defendant's voluntary commission of the act forbidden by law. [emphasis added.] Doisher did not object to this instruction at trial. He must therefore meet the plain error standard. Doisher contends that the emphasized language of the above instruction shifts the burden of proof to him to show any defense of lack of intent. In Menard v. State, 578 P.2d 966, 968 (Alaska 1978), and Howard v. State, 583 P.2d 827, 831 (Alaska 1978), the Supreme Court of Alaska condemned use of the so-called Mann instruction. That instruction reads as follows: It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused. [Emphasis supplied]. Menard, 578 P.2d at 968 (emphasis in original). The Alaska Supreme Court held that although giving the above instruction was error, "we decline to hold that this error will always be deemed reversible." Menard, 578 P.2d at 970. The key language which creates the problem in the above instruction is the emphasized portion, "So unless the contrary appears from the evidence." This language could be interpreted as shifting the burden of proof to a defendant. This language is not present in the instruction which the trial court gave in Doisher's case. The language "the law assumes" in the instruction in Doisher's case may create similar problems, but the language is not as objectionable as the language "So unless the contrary appears from the evidence." The instruction given in Doisher's case is far superior to the instruction complained of in Menard. Also, Doisher's intent was not a key issue in the case: the state pursued a felony murder theory, while Doisher contended that he did not shoot Sherry Stewart at all. We hold that giving Instruction Number 3 was not plain error. C. Instruction Number 4. Doisher also argues that Instruction Number 4 erroneously placed upon him the duty of producing evidence of an affirmative defense. The language complained of in Instruction Number 4 reads as follows: The law does not impose upon a defendant the duty of producing any evi dence, except if he has stated an affirmative defense under the law. Doisher did object to this instruction. In most cases a defendant is required to present some evidence of the existence of an affirmative defense in order to have the benefit of the affirmative defense. Some examples where an affirmative defense requires this are insanity defenses or a claim of self defense. W. LaFave & A. Scott, Criminal Law § 8 at 47 (2d ed. 1972). In this case Doisher did raise an alibi defense, but alibi is not an affirmative defense. The court gave the jury an instruction on alibi. The alibi instruction makes it clear that the prosecution had the burden of proving Doisher's presence at the scene beyond a reasonable doubt. The instruction does not discuss whether this was an affirmative defense where Doisher had a duty to present some evidence. However, the instruction makes it clear that Doisher did present evidence on this issue, and that the prosecution had the duty to prove his presence at the scene beyond a reasonable doubt. We find no error. D. The Robbery Instruction. Doisher contends that Instruction Number 9 was defective in that it failed to define all the elements of the crime of robbery, including the requirement of specific intent to permanently deprive the victim of something of value: No. 9 The essential elements which the state must prove to warrant conviction of the defendant of the crime of murder in the first degree by perpetrating robbery as charged in Court II of the indictment are: That on or about the 17th day of May, 1977 at or near Wasilla, in the Third Judicial District, State of Alaska, Bobby Doisher, being of sound memory and discretion did unlawfully, purposely kill Anita F. Stewart by shooting her in the perpetration of robbery or attempting to perpetrate robbery. Robbery is defined as follows: "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 ." If the state has proved these essential elements to your satisfaction beyond a reasonable doubt then you should find the defendant guilty, but if the state has failed to prove any of the essential elements beyond a reasonable doubt then you should acquit the defendant. When all of the evidence considered by you and taken as a whole points equally to the defendant's innocence as well as his guilt, you must give the defendant the benefit of the doubt and find him not guilty. Doisher objected to Instruction Number 9, but on the ground that he felt the jury should be instructed that in order to find the defendant guilty of robbery, they must find he committed all the elements of robbery. He did not specifically request that all the elements be set out. He did not specifically mention anything about the requirement of a specific intent to perma nently deprive the victim of something of value. It is therefore not clear that he requested the trial court to instruct the jury on all the elements of robbery. However, we do not need to reach the issue of whether Doisher properly raised his objection. We hold that the jury was properly instructed under the facts of this case. The robbery statute itself as set forth in the instruction adequately informed the jury of the major elements of robbery for purposes of this case. The only element of robbery which Doisher has pointed out which is not clearly covered by the statutory language is the element of specific intent to permanently deprive the person of the property. However, in the context of this felony-murder by robbery it is patently absurd to suggest that the perpetrator did not intend to permanently deprive the owner of the property. We find no error. E. Instructions on Admission By Silence. Doisher has objected to the instructions which the court gave on admissions by silence. The court's instructions were as follows: No. 16 In this case there has been testimony elicited that an incident occurred at the defendant's home in Eagle River, when the defendant and the witness Peggy Gardner returned from Seward, that the defendant's wife made a statement, in the presence of the defendant, to Peggy Gardner as follows: "He's going to do to you what he did to Sherry." The evidence further indicates that the defendant made no response to this statement. You are instructed that if a statement is made by another person in the presence of a party to the action, containing assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true and his conduct is thus receivable against him as an admission of such belief. The justification for receiving such evidence is not based upon the assumption that the party has intended to express his assent and thus has adopted the statement as his own, nor upon the theory that a duty or obligation to speak has been cast upon him, but rather upon the probable state of belief to be inferred from his conduct. It is the failure to deny that is significant. No. 17 Evidence of such an accusatory statement must be viewed with utmost caution. In determining the weight to be given to it, you should consider all the circumstances under which it was made. When silence is the only response by the defendant, the accusation must have occurred (1) in the defendant's presence; (2) within his hearing; (3) he must have understood it; (4) it ordinarily must have embraced facts within his personal knowledge; (5) he must have been physically able to speak; (6) psychologically at liberty to speak; and (7) the statement and surrounding circumstances must have naturally called for a reply. Doisher first objects on the ground that the beginning of Instruction Number 16 is an unwarranted comment on the evidence. However, these facts were uncontested. Doisher testified that Karen Doisher made the statement to Peggy Gardner in his presence after he and Peggy Gardner had returned from a trip to Seward. Also Doisher never specifically objected to the instruction on the ground that it constituted a comment on the evidence. We therefore hold that the factual statement made in the "admission by silence" instructions did not constitute error under these facts. Doisher also contends that the "admission by silence" instructions were confusing, and misstated the law. The instructions on the admission by silence could probably have been better drafted. However, taking the two instructions as a whole, we believe that they adequately communicated the law to the jury. C. McCormick, Law of Evidence § 270, at 651-52 (2nd ed. 1972). THE DENIAL OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL Doisher argues that the trial court should have granted his motion for judgment of acquittal on Count II of the indictment. Count II was the felony-murder (robbery) count. The court did grant Doi-sher's motion for judgment of acquittal on Count 1 of the indictment, finding insufficient evidence of premeditation. Both parties agree that the proper standard of review for this court is stated in Beck v. State, 408 P.2d 996, 997 (Alaska 1965): [T]he evidence and the inferences to be drawn therefrom are to be viewed in a light most favorable to the state. The question, then, is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt. We have reviewed the record and evidence in this case, and hold the trial court was correct in denying Doisher's motion for judgment of acquittal. DOUBLE JEOPARDY Doisher argues that the court committed error in submitting Count II, the felony murder count, to the jury. He contends that since the court granted the motion for judgment of acquittal on Count I, premeditated murder, and since Count I and Count II involved the same conduct, he was twice placed in jeopardy for the same offense. This contention has no merit. Premeditated murder and felony murder are two separate theories constituting first degree murder under former AS 11.15.010. Premeditated murder requires "deliberate and premeditated malice." Felony murder does not require "deliberate and premeditated malice"; it requires only that there be an intentional killing during the commission of certain felonies. Therefore premeditated murder and felony murder require proof of different elements, and it is possible to be convicted of felony murder even though there is not enough evidence of premeditation to go to the jury on premeditated murder. There is no violation of double jeopardy. The judgment of the superior court is AFFIRMED. BRYNER, C. J., not participating. . A defense expert witness, Bart Reid, testified that the shoes seized at Doisher's residence were probabiy not the shoes which made the print beside Sherry Stewart's body. . A citizen informant who reports a crime or gives other information to the police is afforded greater credibility than a traditional police informant, who is usually a criminal himself and is frequently motivated by concessions from the police or by revenge. Erickson v. State, 507 P.2d 508, 517 (Alaska 1973). . The trial court also found Mooney was not motivated by a prior promise of immunity from the prosecution. . An earth shoe has a heel lower than its sole, and is wide at the toe. . The information that Thomas Mooney had been arrested for operating a motor vehicle under the influence of alcohol and may have been in possession of a trace of cocaine was not before the magistrate. We find that this information, had it been placed before the magistrate, would not have caused him to deny the search warrant. See State v. Davenport, 510 P.2d 78, 82 (Alaska 1973). . See also Moreau v. State, 588 P.2d 275, 280 (Alaska 1978). The supreme court in Moreau also indicated reluctance to notice as plain error matters which raised the exclusionary rule. . The United States Supreme Court has also spoken on this issue in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). . The application for search warrant was made on September 14, 1977. . At the search warrant hearing the trooper told the magistrate that Doisher denied owning a weapon. . See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). . Perry's testimony about his statement varied significantly from that of Hauge and Charles Stewart. Hauge and Stewart testified that Perry was unequivocal in what he said: "I know Doisher did it. I know he killed her and threw [the gun] in the Knik River." The words related by Hauge and Charles Stewart differed as they described the conversation, but the above is the essence of their testimony. Perry was more equivocal. He stated he told Charles Stewart, "I told him that I thought that on the basis of my knowledge of Bob [Doisher] over the period that I've known him, it's my belief that he would, to get rid of the weapon, throw it in the Knik River." Perry also denied he said, "I know Bobby did it." . The trial judge also gave the jury a cautionary instruction. . Alaska R.Evid. 403 reads as follows: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Alaska R.Evid. 403 had not been adopted at the time this case was tried, but the rule merely codifies the court's common law powers. See Commentary, Alaska R.Evid. 403. . Professor McCormick describes the theory of an admission by silence, or alternatively, an adoptive admission as follows: If a statement is made by another person in the presence of a party to the action, containing assertions of facts, which if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak has traditionally been receivable against him as an admission. C. McCormick, Law of Evidence, § 270 at 651-52 (2d ed. 1972). . These are the factors enumerated by the Alaska Supreme Court in Blue v. State, 558 P.2d at 645 n.21. . See Alaska R.Evid. 403 set forth in note 18, and the corresponding discussion, supra at 253-254. . Doisher's wife did not testify at the trial, apparently because Doisher exercised his marital privilege. This privilege is currently embodied in Alaska R.Evid. 505. . See also the Commentary to Rule 403, supra at 18. . We find that Watson v. State, 387 P.2d 289, 291 (Alaska 1963), is distinguishable from the present case. In Watson, the defendant had shot and killed the victim. The police were summoned, and questioned the defendant for about two hours. Near the conclusion of the investigation by the police, Mrs. Watson, who had not seen the homicide, was informed that her husband had shot the victim. She said to him "It's your temper, your temper has done it again." This statement was admitted into evidence. Watson was convicted, and argued on appeal that his wife's statement was not admissible. The prosecution argued on appeal that this was an admission by silence. However, the record did not show whether Watson had responded to this statement. Since the defendant's lack of response, or his equivocal response is a prerequisite to having an admission by silence, the lack of testimony concerning the response was fatal to its admission. The supreme court also said that it was perfectly reasonable to assume that a man who had been questioned for two hours by the police would not respond to such a question from his wife. Although the court did not raise the issue in Watson, the defendant also may have had a constitutional right not to answer such a question in the presence of the police. J. Wigmore, Evidence, § 821 n.3 at 309-10 (Chadbourne rev.ed.1970). Blue v. State, 558 P.2d 636, 645 n.21 (Alaska 1977). In Doisher's case the testimony was clear that he did not respond to his wife's accusation. Doisher had not been subjected to long police questioning; we do not have a conflict with Doisher's constitutional rights as we could have in a situation in which he was in the presence of police officers. . Alaska R.Evid. 403. See note 18, supra. . See discussion page 257, supra. . The instruction given in Menard is identical to the instruction given in Mann v. United States, 319 F.2d 404, 407 (5th Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). . We would refer the trial courts to two alternative instructions approved by the 5th Circuit in United States v. Chiantese, 560 F.2d 1244, 1255-56 (5th Cir. 1979). Those instructions read as follows: 1. It is reasonable to infer that a person ordinarily intends the natural and probable consequences of his knowing acts. The jury may draw the inference that the accused intended all of the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any intentional act or conscious omission. Any such inference drawn is entitled to be considered by the jury in determining whether or not the government has proved beyond a reasonable doubt that the defendant possessed the required criminal intent. 2. Intent ordinarily may not be proved directly, because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. You may consider any statement made and [any act] done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. As I have said, it is entirely up to you to decide what facts to find from the evidence. . In most cases the prosecution must prove the defendant was present at the scene of the crime. The defendant can create a reasonable doubt that he was present at the scene of the crime by proving alibi — that he was somewhere else. Alibi is not an affirmative defense and the defendant has no duty to prove alibi. By raising an alibi defense he is merely rebutting the prosecution case. State v. Skinner, 503 P.2d 381 (Kan.1972); People v. Pearson, 19 I11.2d 609, 169 N.E.2d 252, 255 (1960). . The alibi instruction which the court gave reads as follows: The nature of the offense with which the defendant is here charged is such that his presence at the time and place of its commission is essential to his guilt, and the burden is upon the State to prove beyond, a reasonable doubt that the defendant was then and there present. The defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal. . 1 California Jury Instructions, Criminal Instr. 9.10, at 367 (4th rev. ed. 1979), sets out the elements of robbery as follows: In order to prove the commission of the crime of robbery, each of the following elements must be proved: 1. That a person had possession of property of some value however slight, 2. That such property was taken from such person or from his immediate presence, 3. That such property was taken against the will of such person, 4. That the taking was accomplished either by force or violence or by fear or intimidation or by both, and 5.That such property was taken with the specific intent permanently to deprive such person of the property. . The Supreme Court of Alaska decided that it was unnecessary to list the elements of robbery other than by reciting the statute in Thomas v. State, 391 P.2d 18, 24-5 (Alaska 1964). However, we wish to caution that these cases turn on their specific facts, and that generally it is the better practice to instruct on the specific elements of robbery. . U.S.Const. amend. V; Alaska Const, art. 1, § 9. . Former AS 11.15.010 reads as follows: A person who, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate, rape, arson, robbery, or burglary kills another, is guilty of murder in the first degree, and shall be sentenced to imprisonment for not less than 20 years to life. This statute has now been repealed and replaced by AS 11.41.100 and AS 11.41.110. . The following instruction defining premeditation and deliberation was approved in Gray v. State, 463 P.2d 897, 905 n.11 (Alaska 1970): Murder in the first degree as charged in the Indictments must be accompanied by a clear deliberate intent to take life. The intent to kill must be the result of deliberation and must have been formed upon a pre-existing reflection and not under a heat of passion or other condition such as precludes the idea of deliberation. The law does not require that such deliberation shall exist for any particular period of time or that any prescribed period of time shall elapse between the formation of the intent to kill and the act of killing. It is necessary only that the act of killing be preceded by, and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer to constitute murder in the first degree, regardless of how rapidly or slowly these mental processes succeed each other or how quickly or tardily they are followed by the act of killing. The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different circumstances. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and reasons for and against such a choice, and having in mind the consequences decide to and commit the unlawful act causing death. . For a discussion on the differences between felony murder and premeditated murder under former AS 11.15.010, See Gray v. State, 463 P.2d 897 (Alaska 1970). In Gray, both Willie Gray and Dewey Gray were convicted of premeditated murder and felony murder for killing a police officer during an armed robbery of a liquor store. On appeal, the convictions for felony murder were reversed because the trial court did not instruct that felony murder requires an intentional killing. Willie Gray's premeditated murder count was dismissed and he was retried and convicted of felony murder. Gray v. State, 487 P.2d 680 (Alaska 1971). Dewey Gray's conviction for premeditated murder was affirmed, and his felony murder conviction was reversed. The court also held that although it was proper to go to the jury on both premeditated murder and felony murder, and that although it was possible for a person to be guilty of both charges, only one conviction could be entered as a person should be guilty of only one offense for one murder even though he might be guilty under two different theories. Gray, 463 P.2d at 910-11.

10439182

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

Lamoureaux v. Totem Ocean Trailer Express, Inc.

1981-08-21

Nos. 4593, 4730

539

547

632 P.2d 539

632

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

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

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

Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Appellants, v. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, Sea Star Stevedore Co., Inc., and Anchorage Independent Longshoreman’s Union # 1, Appellees. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, and Sea Star Stevedore Co., Cross-Appellants, v. Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Cross-Appellees. Nos. 4593, 4730. Supreme Court of Alaska. Aug. 21, 1981. Spencer C. Sneed, Hartig, Rhodes, Norman & Mahoney, Anchorage, for appellants and cross-appellees. Ann K. Stokes, Bradbury, Bliss & Rior-dan, Inc., Anchorage, for appellee Union. Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for remaining appellees and cross-appellants. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and BLAIR, Superior Court Judge. Blair, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

4140

25331

BURKE, Justice. Jerome LaMoureaux filed suit in the superior court for personal injuries sustained in a collision between two trucks used to transport cargo at the Port of Anchorage. Billie Marjorie LaMoureaux, his wife, sued for loss of consortium. Jerome LaMoureaux was waiting to make a left turn when he was struck from behind by a vehicle driven by Terry Rising-er. Risinger was a longshoreman dispatched by Longshoreman's Local # 1 (Union) to work for Sea Star Stevedoring (Sea Star) and was driving a vehicle owned by Totem Ocean Trailer Express (TOTE). Ri-singer and Sea Star were found liable for LaMoureaux's injuries after a jury trial and no question as to their liability remains on appeal. LaMoureaux has appealed with respect to the trial court's instructions on damages. Also, the Union was granted summary judgment prior to trial and La-Moureaux has appealed, contending that the Union owed a duty to the public, including the plaintiff, not to dispatch a longshoreman whom it should have known was an unsafe driver. The appellees, except for the Union, have cross-appealed on the question of attorney's fees. LaMoureaux suffered a ventral hernia in the accident, and also experienced pain in his neck, shoulders, back, and arms. The hernia was repaired soon after the accident, and the major element of LaMoureaux's claim is continuing pain and numbness in his upper body. LaMoureaux was eventually diagnosed as suffering from thoracic outlet syndrome, or an interference with the blood flow and nerve paths to the arms, and was operated on twice for this condition. LaMoureaux continues to experience pain and numbness in his arms, which prevent his return to work as a truck driver. However, medical testimony at the trial indicated that while these symptoms persisted, treating physicians were unable to demonstrate objective reasons for them, and there was testimony that they may have had a psychological basis. LaMoureaux admitted that he had complained of pain and tiredness in his arms, shoulder, and neck prior to the accident, but testified that this happened only occasionally, after many hours of work, and did not require him to miss work. LaMoureaux testified that the accident aggravated his condition and that he now experiences a constant ache. The defendants called several physicians who testified that they had treated LaMoureaux in the past ten years, and who stated that LaMoureaux had complained of numbness and tiredness in his arms. These physicians were generally unable to find an objective basis for his problems. There was testimony that LaMour-eaux complained of pain and numbness up to ten days before the accident. LaMoureaux did not tell the doctors who treated him after the accident that he had previously suffered similar symptoms. However, there was testimony that the accident could have aggravated his prior injuries, including a preexisting thoracic outlet syndrome. LaMoureaux's counsel did not ask any expert witness to attempt an apportionment of the injury that preexisted the accident and that occurring subsequently- Prior to trial the defendants had made an offer pursuant to Civil Rule 68, to allow a judgment of $150,000 to be entered against them. The offer was not accepted, and the case went to trial with the plaintiffs apparently seeking damages in excess of $1,000,-000. Following trial, the jury found Risinger and Sea Star liable to the plaintiffs and fixed their damages at $26,311.72 for Mr. LaMoureaux's injuries and at $8,000 for Mrs. LaMoureaux's loss of consortium. However, LaMoureaux was found to have been partially at fault, reducing his recovery by 28.5 percent. The court denied La-Moureaux's motions for judgment notwithstanding the verdict, additur, or a new trial. LaMoureaux filed a notice of appeal, and, following the court's decision on attorney's fees, cross-appellants filed a notice of cross-appeal as to that issue. The parties also entered into discussions concerning satisfaction of the judgment of the trial court. LaMoureaux's counsel sought to reach an agreement with counsel for Risinger and Sea Star for voluntary payment of the judgment without affecting the pending appeals. These negotiations broke down over LaMoureaux's refusal to guarantee return of any possible overpayment of attorney's fees. LaMoureaux subsequently coerced payment of the judgment by obtaining a writ of execution against Sea Star's assets. The defendants thereupon moved in the trial court for entry of satisfaction of judgment. LaMoureaux opposed the motion, and submitted a "Partial Satisfaction of Judgment," claiming he did not intend to affect the status of his appeal by his action. The trial court did not rule on the motion. I Appellees have moved to dismiss LaMour-eaux's appeal, contending that he has forfeited his right to appeal by voluntarily accepting the benefits of the judgment from which he has appealed. We deferred consideration of the motion until after completion of briefing and oral argument. Though the doctrine relied upon by appel-lees is of ancient origins, we have confronted it on just one occasion. In DeWitt v. Liberty Leasing Company of Alaska, 499 P.2d 599, 602 n.17 (Alaska 1972) we held that the appeal was not barred where the only issue was the trial court's denial of costs and attorney's fees. This decision comports with a recognized exception where a severable portion of a judgment is at issue. See Annot., 169 A.L.R. 985, 1029-30 (1947). Here, it is apparent that no exception is applicable and LaMoureaux does not argue otherwise with respect to the points addressed in his brief. He contends instead that there would be little likelihood of a smaller verdict if a retrial was ordered. LaMoureaux claims any danger that the defendants would not be able to collect the amount of the overpayment if a lower verdict was returned could be eliminated by requiring that he post a bond sufficient to cover any possible reduction. We believe the proper approach is that taken by some federal courts of looking to whether "payment of a judgment is made and accepted under such circumstances as to indicate an intention to finally compromise and settle a disputed claim." Gadsden v. Fripp, 330 F.2d 545, 548 (4th Cir. 1964). By this method courts should be able to determine whether a live controversy is still present on appeal. However, none of the federal cases involve a situation where the judgment creditor compelled satisfaction of the award. In such a situation we are faced with the objective manifestation of an intent to settle the controversy accompanied by subjective protestations of a desire to proceed with the appeal. Here we find that LaMoureaux did not intend to abandon his appeal and we therefore decline to dismiss his appeal. However, in future cases we will not examine the circumstances accompanying the compelled satisfaction of a judgment, but will instead require the party executing on the judgment to have posted an appropriate bond before execution, as an objective indication of his intent to pursue the appeal. II LaMoureaux asked that the jury be instructed that if they were unable to make an apportionment between his preexisting injury and that suffered in the accident then the defendants were liable for his entire injury. This instruction effectively places the burden on the defendants to show what portion of the injury predated the accident, as their failure to do so would allow recovery for the preexisting injury as well as that caused by the defendants. In contrast, the trial court instructed the jury as follows: A person who has a condition or disability at the time of an injury is not entitled to recover damages therefor. However, he is entitled to recover damages for an aggravation of such pre-existing condition or disability proximately resulting from the injury. This is true even if the person's condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy per son probably would not have suffered any substantial injury. In other words, the law provides that a defendant takes the plaintiff as he finds him. Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional damages caused by the aggravation. This instruction was taken almost verbatim from the Book of California Approved Jury Instructions. Cal.Jury Instes., Civ., No. 14.-65 (6th ed. 1977). The court reasoned that LaMoureaux was better able, as a matter of policy, to bear the burden of proof on the extent of injury brought about by the accident. LaMoureaux does not dispute that in the ordinary case he is only entitled to recover for the aggravation to any preexisting injuries. However, he argues that the jury must also be told what to do in the event they are unable to determine what part of his injuries was caused by the accident and what part predated it. In contending that the defendants should be liable in this situation for his entire condition, as his proposed instruction provides, LaMoureaux relies upon cases from other jurisdictions approving such an instruction, and on tort policies favoring compensation of innocent victims. We have not previously passed on the question, though it was mentioned in Irving v. Bullock, 549 P.2d 1184, 1187 (Alaska 1976). In Irving we did approve the instruction given by the trial court here, but expressly noted that we would not then decide the issue of whether the instruction was objectionable because it failed to place the burden of proof on the defendant to show what portion of the damages resulted from the preexisting condition. Id. at 1187. The problem presented is hardly new or uncommon. It may be one of causation, or whether and to what extent the defendant brought about the plaintiff's injuries. Because causation may be difficult or impossible to prove, the courts have looked to the policies of tort law to determine which party should bear the risk of a failure of proof. Thus, in the landmark case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), where each of two defendants fired bird shot in the direction of the plaintiff, but he was hit in the eye by only one pellet, the court placed the burden on the defendants to absolve themselves of liability at the risk of being responsible for the entire damage. Though each defendant acted wrongfully, absent such placement of the burden of proof plaintiff would recover nothing unless he was able to fix the blame on one of the two wrongdoers. The greater injustice was thought to be in denying all redress to the plaintiff, rather than making one defendant pay for more damage than he caused. Id. at 4. In a similar fashion, courts recognize that a defendant whose acts aggravate a plaintiff's preexisting condition is liable only for the amount of harm actually caused by the negligence. 2 F. Harper & F. James, The Law of Torts § 20.3, at 1128 (1956); W. Prosser, Law of Torts § 52, at 318 (4th ed. 1972). But it is often difficult to determine how much of a plaintiff's injury is due to the preexisting condition and how much to the aggravation caused by the defendant. The first step in this situation is to relieve the plaintiff of proving with great exactitude the amount of aggravation: The requirements of proof usually have been somewhat relaxed in such cases, and it has been said that no very exact evidence will be required, and that general evidence as to the proportion in which the causes contributed to the result will be sufficient to support a verdict. W. Prosser, supra, at 319 (footnote omitted). Harper and James call this letting "the jury make the best guess they can at apportionment on whatever evidence has been made available in the case." F. Harper & F. James, supra, at 1129 (footnote omitted). They state that this "seems to be the usual way of handling the problem where plaintiff shows the total extent of his injury and it also appears that defendant's act merely aggravated a pre-existing condition." Id. at 1129-30. Here LaMoureaux urges us to go further and adopt a system placing the burden on the defendants to show the extent to which their contribution fell short of the whole injury. He invokes the same policy referred to above — not allowing the culpable defendant to take advantage of plaintiff's inability to prove his loss. However, one of the causes of LaMoureaux's injury is an innocent one, his preexisting condition, and this situation seems to warrant different treatment than that involving two possible tortfeasors. LaMoureaux's argument that the rationale for reallocating the burden of proof is even more compelling in his case, as there is no other defendant from whom he can obtain recompense, ignores another fundamental reason for placing the burden of proof on the defendant. This is the desire to place the burden of proof on the party with the greatest access to the relevant evidence. Where two tortfeasors are involved, they presumably can furnish evidence as to their degree of contribution to plaintiff's injury. But, if the plaintiff is suffering from a preexisting injury, he or she is in the best position to furnish information on the degree to which that injury was aggravated by the defendant's acts. Judge Souter based his decision on this factor. In refusing to give LaMoureaux's proposed instruction he said, I believe that the Plaintiffs are better able to bear that burden of proof than are the Defendants. The reason being, of course, that . . it's Mr. Lamoureaux's own body, it is Mr. Lamoureaux's own prior history which is known far better to him than ever could be known to the Defendants. Even if a plaintiff does come forward with evidence as to an earlier injury, he or she may still be confronted with the problem of the inability of medical experts to determine the amount of aggravation. This is the situation faced by several of the courts which have held that a plaintiff is entitled to an instruction placing the burden on the defendant to show apportionment at the risk of being held liable for the entire damage. In such a situation there may be some basis for a decision to impose the entire liability on the defendant, because his or her conduct has created the uncertainty as to apportionment of the injury. See McNabb v. Green Real Estate Co., 62 Mich.App. 500, 233 N.W.2d 811, 819 (1975). However, a decision to place the entire liability on the defendant is an extreme measure, and we do not believe that it should be done absent a showing of compelling injustice to the plaintiff. Thus, Pros-ser states that "entire liability will be imposed only where there is no reasonable alternative." W. Prosser, supra, at 314. With regard to some of the cases cited by LaMoureaux he says: "There are even courts which have placed upon the defendant the burden of apportionment where part of the damages have been due to an innocent cause." Id. at 320 (footnote omitted). Here, there are no circumstances pointing to a compelling injustice. LaMoureaux testified as to the amount of intermittent discomfort before the accident as contrasted with the "constant ache" afterwards. Doctors also testified to his prior medical condition, as well as to his post-accident symptoms. Thus, there was ample evidence on which the jury could have determined the extent of aggravation. There was no evidence or indication that apportionment was impossible, so there was no basis in the record for giving the requested instruction. Ill We need not discuss LaMoureaux's remaining specifications of error with respect to the conduct of the trial, because they are relevant only to the question of the liability of Risinger and Sea Star, which is not in dispute on appeal. Because of our holding that LaMour-eaux's damages were properly measured in the trial against the other defendants, we also need not determine whether the Union was properly dismissed from the action. This conclusion would ordinarily follow from the principle that a plaintiff may not proceed further against a joint or concurrent tortfeasor where a judgment and a satisfaction against another tortfeasor has been obtained. Restatement (Second) of Torts § 886, Comment b (1979); Restatement (Second) of Judgments § 95, Comment d (Tent.Draft No. 3, 1976); W. Prosser, supra, at 299-300. Here, however, we determined that we would not dismiss his appeal in this instance, for the reasons stated earlier in our opinion. Thus, we would be inclined to review LaMoureaux's claim against the Union were it not for the principles of collateral estoppel. The key issue at trial was the amount of damages, and we have held that LaMoureaux received a fair trial on this question. No other circumstance suggests another trial on the question of damages is appropriate. Compare Pennington v. Snow, 471 P.2d 370, 377-78 (Alaska 1970); see Restatement (Second) of Judgments § 68.1 (Tent.Draft No. 1, 1973), § 88 (Tent.Draft No. 2, 1975). LaMoureaux's right to proceed against other possible tortfeasors does not include the right to relitigate questions necessarily determined in the prior trial, Restatement (Second) of Judgments § 94, Comment a (Tent.Draft No. 3,1976), and no purpose can be served by deciding whether the Union is liable since LaMoureaux's damages have been conclusively determined and completely satisfied. IV With respect to the cross-appeal on costs and attorney's fees, we are first asked to reverse the trial court's determination that LaMoureaux prevailed until the offer of judgment under Civil Rule 68 was made, while the cross-appellants prevailed after that time. The determination of the prevailing party is reviewable under the abuse of discretion standard. Continental Ins. Co. v. U. S. Fidelity & Guar. Co., 552 P.2d 1122, 1125 (Alaska 1976). Here, we believe the court could properly decide it was plaintiffs' diligent efforts during lengthy pretrial discovery that led to the offer of judgment. Though cross-appellants find it difficult to conceptualize how both parties could have "prevailed," such a ruling has ample precedent in our past decisions. Scott v. Robertson, 583 P.2d 188, 194 (Alaska 1978); Jakoski v. Holland, 520 P.2d 569, 578 (Alaska 1974). Therefore we uphold the trial court's "prevailing party" determinations. We find more merit in the cross-appellants' argument that the lower court erroneously computed the award of attorney's fees. In determining the appropriate fee award, the court decided that departure from the schedule of fees set out in Civil Rule 82(a)(1) was appropriate "due to the complexity of the issues involved, both legal and factual, which necessitated both extensive trial preparation and trial participation." The court therefore multiplied the Rule 82(a)(1) amounts by three. The court determined that greater time and effort was required prior to trial than in actual trial participation, and therefore awarded LaMoureaux four-sevenths of the amount ascertained by multiplying the Rule 82(a)(1) amount by three. While we find no abuse of discretion in this decision, we think the court erred in effectuating its award. By its reasoning, the court indicated a desire to give LaMoureaux slightly greater compensation for the time for which he was found to have prevailed, than was given to cross-appellants for their efforts. Thus, LaMoureaux's award should be the amount determined by Judge Sou ter ⅛ formula for his counsel's efforts (four-sevenths of the tripled amount) less that given to cross-appellant's counsel (three-sevenths of the tripled figure), or one-seventh of the triple Rule 82(a)(1) amount. As LaMoureaux instead received four-sevenths with no offset for cross-appellants, we reverse the attorney's fee award and remand the case for recomputation in accord with our understanding of the lower court's original intent. The motion to dismiss is DENIED. The judgment is AFFIRMED in part and REVERSED in part, and the case is REMANDED. COMPTON, J., not participating. . The claims against TOTE were dismissed pri- or to trial, and though it is a party its liability is not urged on appeal. Appellants have not objected to the award for loss of consortium made to Mrs. LaMour-eaux, and we will therefore refer only to Jerome LaMoureaux in the portion of this opinion discussing their appeal. . Civil Rule 68 provides: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in this offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. . See Annot., 169 A.L.R. 985 (1947). . See also United States v. Hougham, 364 U.S. 310, 312-13, 81 S.Ct. 13, 15-16, 5 L.Ed.2d 8, 12 (1960); United States ex rel. H & S Inds. v. F. D. Rich Co., 525 F.2d 760, 763-65 (7th Cir. 1975); Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 752 (9th Cir. 1969); Annot., 5 L.Ed.2d 889 (1961); 9 J. Moore, Federal Practice ¶ 203.06, at 3-26 to 3-27 (2d ed. 1980). . The proposed instruction provided in relevant part; Where a pre-existing condition, disability or infirmity has been aggravated, activated, or accelerated by the collision, the Defendants must prove by a preponderance of the evidence what expenses, pain, suffering, disability, or impairment are attributable solely to Plaintiffs condition at the time of the collision, that is, which Plaintiff would have suffered even if the collision had not occurred. If Defendants do not prove by a preponderance of the evidence what portion of Plaintiffs present disabled condition resulted from Plaintiffs preexisting condition, Defendant is liable for the entire disability. That is, if the evidence does not provide you with a reasonable basis for apportioning Plaintiffs disabled condition between that caused by the pre-existing condition and that caused by the collision, Defendant is liable for the entire disability. . E. g., Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, 812-13 (1963); Graham v. Roberts, 441 F.2d 995, 998 n.3 (D.C.Cir.1970); Kawamoto v. Yasutake, 49 Haw. 42, 410 P.2d 976, 980-81 (1966); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397, 404-06 (1967); McNabb v. Green Real Estate Co., 62 Mich.App. 500, 233 N.W.2d 811, 819-20 (1975); Fosgate v. Corona, 66 N.J. 268, 330 A.2d 355, 357-58 (1974); Foster v. Baptist Memorial Hospital, 506 S.W.2d 775, 778-79 (Tenn.App.1973). . See note 2, supra. . Civil Rule 82(a)(1) provides: (a) Allowance to Prevailing Party as Costs. (1) Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: ATTORNEY'S FEES IN AVERAGE CASES Contested Without Non-Trial Contested First $2,000 25% 20% 15% Next $3,000 20% 15% 12.5% Next $5,000 15% 12.5% 10% Over $10,000 10% 7.5% 5% Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. . This division arose from LaMoureaux's counsel's suggestion to the court that about 400 of the 700 hours he spent on the case came before trial.

10441466

Billy J. HUCKABY, Appellant, v. STATE of Alaska, Appellee

Huckaby v. State

1981-09-03

No. 5197

975

977

632 P.2d 975

632

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

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

Billy J. HUCKABY, Appellant, v. STATE of Alaska, Appellee.

Billy J. HUCKABY, Appellant, v. STATE of Alaska, Appellee. No. 5197. Court of Appeals of Alaska. Sept. 3, 1981. Dana Fabe, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant. Charles M. Merriner, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1443

8900

OPINION PER CURIAM. Bily Huckaby appeals from a conviction for reckless driving, AS 28.35.040. The sole issue in the merit appeal concerns the admissibility of a breathalyzer test result. The sentence is also appealed as excessive. Huckaby was indicted and tried for three counts of negligent homicide growing out of a single vehicle accident during which he lost control of a pickup truck he was driving; it left the road and turned over. The decedents were friends of Huck-aby riding as passengers in the rear-bed of the truck. The evidence at trial established that Huckaby was speeding and had been drinking. The breathalyzer examination administered to Huckaby after the accident resulted in a .17 blood alcohol count. Huckaby makes two separate attacks on the admission of the breathalyzer test result at his trial. First, he contends that the superior court erred in refusing to hold an evidentiary hearing on his motion to suppress, which was based on an affidavit of his counsel that the breathalyzer machine may not have been properly calibrated since the machine required thirty minutes to warm up as opposed to the twenty minutes the manufacturer's manual indicated should be required. Second, Huckaby claims that because the state did not meet its burden of proving that the statutory foundational requirements were met, the court erred in admitting the breathalyzer result. Huckaby challenged the "breathalyzer" with a pretrial motion for an order in li-mine. The trial court did not deny the motion on its merits but simply held that Huckaby's factual assertions were insufficient to present a probability of machine malfunction or warrant an evidentiary hearing. We agree. In any event, Hucka-by waived the issue by failing to object to the introduction of the breathalyzer evidence at trial. We find no error. Huckaby contends that the court was clearly mistaken in categorizing him as a worst offender and that the one-year sentence imposed is excessive. Generally, the maximum sentence should not be imposed without some foundation for characterizing the defendant as the worst type of offender within the class of persons convicted of a particular crime. Sielak v. State, 581 P.2d 226, 227 (Alaska 1978); Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971); Waters v. State, 483 P.2d 199, 201 (Alaska 1971). Although personal characteristics are often stressed in determining whether or not a defendant is a worst offender, e. g., Wortham v. State, 537 P.2d 1117, 1120 (Alaska 1975), the nature of the crime may itself support a categorization as a worst offender. Wilson v. State, 582 P.2d 154, 156-57 (Alaska 1978); Burleson v. State, 543 P.2d 1195, 1201 (Alaska 1975); see Morris v. State, 592 P.2d 1244, 1246 n.7 (Alaska 1979) (worst offender status not limited to crimes of violence). Obviously the sentencing judge relied on the nature of the crime in this case, saying he considered Huckaby's driving "as bad a situation as I can contemplate." He stressed the danger Huckaby's driving had created to his passengers, the motorcyclist, and other persons on the road. The evidence at trial amply supports the judge's conclusion that Hucka-by's driving was about as reckless as it could have been for the entire time he drove on the Glenn Highway. To characterize him as a worst offender was not clearly mistaken. See generally Rosendahl v. State, 591 P.2d 538, 541 n.9 (Alaska 1979) (affirming maximum sentence for failure to give assistance). Huckaby suggests that the severe sentence indicates that the judge, despite his comments, placed undue emphasis on the fact that three people died. We believe Huckaby's extreme recklessness warranted his sentence. We cannot say the record suggests that the judge improperly considered the three deaths. That there were three people in the rear of his pickup who were extremely vulnerable in case of any accident was an undisputed fact at trial and one the judge could properly consider at sentencing in evaluating the extent of defendant's recklessness. See Alexander v. State, 611 P.2d 469, 482 (Alaska 1980). Huckaby also argues that his sentence is excessive in the light of statistics which show that the normal sentence for reckless driving is zero to three or five days in jail, barring an extensive record of prior traffic violations and that thirty to sixty days is typical for cases involving a death. These statistics would be relevant only if it were shown that the other offenders were similarly situated with Huckaby. Compare Salazar v. State, 562 P.2d 694, 696 (Alaska 1977) (identically situated offenders should receive like punishment) with Ferguson v. State, 606 P.2d 382, 383 (Alaska 1980)(sen-teneing is an individual process and all persons committing the same crime should not necessarily receive like sentences). We think the sentencing judge was not clearly mistaken in rejecting those cases as not sufficiently comparable and that any disparity is not unjustifiably irrational. The sentencing judge carefully discussed the Chaney factors and the weights he accorded them. The severity of Huckaby's offense within the crime of reckless driving and the need to deter him, to deter others, and to reaffirm societal norms justify the one-year term. The sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 814 (Alaska 1974). AFFIRMED. . Many of the factors often stressed in declaring a person a "worst offender" are simply inapposite in a traffic case-for instance, whether the crime is violent, premeditated, or intended to harm multiple victims. See generally Wilson v. State, 582 P.2d at 156; Bordewick v. State, 569 P.2d 184, 186-87 (Alaska 1977); Burleson v. State, 543 P.2d at 1201. In a traffic case more relevant considerations may include duration of the offense, number of people put at risk, probability that someone or something would be injured, nature of the likely injury, and factors known to the driver that made his driving more dangerous (e. g., intoxication, defects in the vehicle, and poor road conditions). . A trial judge imposing sentence may consider any facts relevant to the defendant's reformation or the need to protect the community from the defendant or those similarly situated, which are verified in the record. Nukapigak v. State, 562 P.2d 697 (Alaska 1977). Thus, Huckaby is incorrect in reading Avery v. State, 514 P.2d 637, 645 (Alaska 1973) to preclude the court's consideration of the three deaths in sentencing him. In Avery, the court did not question the trial court's right to consider evidence produc ed at trial which was material to sentencing; rather, it found that the trial court gave "undue emphasis" to a count in the indictment about which the jury could not agree. Id. at 646. Although the supreme court's reference is obscure, it clearly does not mean that a jury's decision (or lack of a decision) is res judicata or collaterally estops the trial judge in making his own fact findings. See Alexander v. State, 611 P.2d 469, 482 (Alaska 1980). The difference in burden of proof makes collateral estoppel unavailable. See Avery v. State, 616 P.2d 872, 874 (Alaska 1980). The supreme court has never articulated a burden of proof at sentencing proceedings and it may be that there is no burden of proof, cf. State v. 45,621 Square Feet of Land, 475 P.2d 553, 555 (Alaska 1970) (where the court held there was no burden of proof in condemnation actions since the court was required to award just compensation whether or not either side produced evidence). Nevertheless, if there is a burden on the state (a question we do not decide), it is no more than to produce evidence which is clear and convincing. See, Note, 66 Geo. L. J. 1515, 1543 (1978). We would, however, caution judges rendering conclusions inconsistent with implicit jury findings to make their determination and the supporting reasons clear. Here the trial court specifically declined to consider the charge from which Huckaby was acquitted. We do not find that he unduly emphasized the underlying facts. . His emphasis was consistent with the supreme court's observation in other motor vehicle cases that the nature of the crime — no criminal intent but serious consequences — mandates heavy emphasis in sentencing on deterrence of others and the reaffirmation of societal condemnation for driving while intoxicated. Bishop v. State, 573 P.2d 856 (Alaska 1978); Sandvik v. State, 564 P.2d 20, 25-26 (Alaska 1977); Godwin v. State, 554 P.2d 453, 455 (Alaska 1976); Layland v. State 549 P.2d 1182, 1184 (Alaska 1976).

9064052

Scott P. ROBART, Appellant, v. STATE of Alaska, Appellee

Robart v. State

2004-01-23

No. A-8313

787

796

82 P.3d 787

82

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T21:18:23.915479+00:00

CAP

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

Scott P. ROBART, Appellant, v. STATE of Alaska, Appellee.

Scott P. ROBART, Appellant, v. STATE of Alaska, Appellee. No. A-8313. Court of Appeals of Alaska. Jan. 23, 2004. Matthew W. Claman, Claman Law Firm, Anchorage, for Appellant. Douglas Kossler and Kenneth M. Rosen-stein, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Juneau, Attorney General, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

4889

30111

OPINION STEWART, Judge. A jury found Scott P. Robart guilty of using the state seal for an advertising or commercial purpose without the written permission of the lieutenant governor. On appeal, Robart claims that the statute protecting the state seal, AS 44.09.015, is preempted by federal copyright law. Robart also claims that the district court erred when it refused to issue a protective order to prevent the State from arguing that the state government was unaware of Robart's use of the state seal, that the jury was not instructed on Robart's theory of the "mistake of fact" defense, and that the general verdict form used did not ensure that the jury deliberated on all the elements of his defense. For the reasons expressed below, we find that federal copyright law does not preempt AS 44.09.015, that no error occurred when the district court refused to issue the protective order, that the jury was properly instructed on the mistake of fact defense, and that the general verdict form was adequate. Accordingly, we affirm Robart's conviction. Facts and proceedings This case began in 1996, when an employee of the State Department of Commerce and Economic Development wrote Robart and "invited him to submit 'one or more of your company's products' for consideration for a show featuring consumer products from Alaska[.]" The show was to appear on QVC, a home-shopping television cable channel. Robart decided to participate He wanted to use the state seal on a medallion commemorating the anniversary of the Alaska gold rush. At trial, Robart testified that he did some research regarding use of the state seal, and found the statute that required him to get permission from the lieutenant governor. He called the lieutenant governor's office and was told to put his request in writing; he did so, faxing his request soon after he had called. He got no response. Although he re-faxed his request, and made another phone call, he still received no response. Consequently, he testified that he thought the Heutenant governor's office did not think that the state seal was important, and that the office would not enforce the statute. But ke then called the governor's office, and submitted to that office the faxes he had sent to the lieutenant governor. He received no answer from the governor's office either. Because he had been ehcouraged by the Department of Economic Development to submit a product, he decided to proceed and to use the state seal on a medallion without permission. Robart submitted a form showing the design of his medallion, which had a reproduction of the state seal on one side. He testified that no one from the state said anything about his not having permission. Nor did anyone tell him not to proceed until he had the permission of the lieutenant governor. Robart said that because no one said anything to him, he thought that his using the medallion without permission was not an issue for anyone in the government. On February 1 and 2, 1997, various vendors, including Robart, displayed Alaska-made products at a trade show in Anchorage. Robart's medallion was one of those chosen to be sold on QVC. On April 17, 1997, the governor sent Robart a letter, congratulating him on his company's "selection as one of Alaska's top small businesses, and for earning the opportunity to present your product during the upcoming QVC live national broadcast." On May 24, 1997, Robart appeared on QVC marketing a silver and gold medallion commemorating the anniversary of the 1897 Alaska gold rush. A replica of the state seal was on one side of this medallion, while a design for the Gold Rush Centennial was on the other side John Lindback, then the lieutenant governor's chief of staff, watched the QVC show; when he saw Robart's medallion, he wondered if Robart had permission to use the state seal. Because Robart did not have permission, Lieutenant Governor Fran Ulmer, on May 29, 1997, sent him a letter, with a copy of AS 44.09.015, explaining that it had been her policy since taking office "that the state seal shall not be used for commercial purposes. She told him to stop selling the medallions because he was violating AS 44.09.015. Robart acknowledged receiving this letter.: He responded with a letter that same day. Although he claimed that he was "confused" by the liew-tenant governor's position, he did not admit. that he had known that he needed permission, nor did he claim that he thought he had any authorization to use the state seal. On August 6, 1997, two months after Ro-bart had been told to stop selling his medallions, Alaska State Trooper Curt Harris, posing as a buyer, purchased two of the medallions from Robart On August 12, 1997, shortly after this purchase, another trooper interviewed Robart. Robart told this trooper that he did not know that he needed permission to use the state seal. The State charged Robart with using the state seal for commercial purposes without the written permission of the lieutenant governor. Robart moved for dismissal on the grounds that the statute violated his federal and state constitutional rights to free speech. The district court agreed, concluding that "the state statute violated Robart's constitutional right to freedom of speech and expression. The State appealed. On appeal, after finding that the State had a legitimate governmental interest in regulating the commercial use of the state seal, we concluded that commercial use of the state seal was not protected speech. After we reversed the district court's dismissal, Ro-bart successfully petitioned the supreme court for a hearing. When granting the petition for hearing, the supreme court ordered the parties to brief whether federal copyright law preempted AS 44.09.015. After briefing and oral argument, however, the supreme court dismissed the petition as improvidently granted. The case then returned to the district court. There, Robart moved to dismiss the charge, arguing that federal copyright law preempted AS 44.09.015. Robart relied on the briefings that he and the State had submitted to the supreme court. Robart also submitted the transcript of the oral argument before the supreme court. Ultimately, District Court Judge John Lohff denied Ro-bart's motion. At trial, Robart claimed that his defense was a "mistake of fact" regarding whether he had gotten permission to use the seal. But at trial, Robart wanted the jury instructed that the governor (rather than the lieutenant governor) could and did give Robart written permission to use the state seal. To that end, Robart unsuccessfully sought a number of jury instructions that addressed various principles from agency law (agents and principals, and imputed knowledge), and the powers and duties of the governor. Most of these requests for instructions were denied, although the district court did agree to instruct the jury that the executive power of the state is vested in the governor, and that his office included the Heutenant governor and the governor's staff. In addition, the district court modified some of Robart's other proposed instructions. Robart also unsue-cessfully sought both a protective order to prevent the State from claiming that state employees were unaware that he was using the state seal on his medallion after February 1997, and an elaborate special verdict form. A jury found Robart guilty of violating AS 44.09.015. This appeal followed. Does federal copyright law preempt AS 44.09.015? Robart claims that federal copyright law preempts AS 44.09.015(a), which provides that a person "may not use or make a die or impression of the state seal for any advertising or commercial purpose, unless written permission has first been obtained from the Heutenant governor. Federal copyright law is found at 17 U.S.C. § 100-1832 (2000). Among other things, it provides in part that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . are governed exclusively by this title" 17 U.S.C. § 801(a). Section 301(a), however, is qualified by subsection (b), which provides that "[nlothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to" certain types of matters or actions. The first of these exceptions is "subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103 [of Title 17]. 4 The second exception does not apply in this case. The third exception addresses "activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [of Title 17]. Robart's position is that the state seal can only be protected by the federal copyright statute. Based on copyright law, he argues that the state seal is now in the public domain and can be used freely by the public. He concludes that the state cannot pass its own statute to provide protections similar to those in the copyright statute. The State's position is that AS 44.09.015 is not preempted, because it falls within the preemption exceptions listed in 17 U.S.C. § 301(b). The State argues that AS 44.09.015 falls within § 801(b)(1) and (b)(8). Under § 301(b)(1), federal copyright law does not preempt state law that addresses rights or remedies that do not come within the subject matter of copyright as set out in § 102 or 108. Meanwhile, under § 301(b)(8), federal copyright law does not preempt state law that addresses rights or remedies "with respect to . activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright[.]" The State argues that a state seal, because it is the symbol of a sovereign, is not a type of work that comes within the subject matter of copyright. We agree with the State-copyright law does not preempt the Alaska statute limiting the commercial use of the state seal. We believe it is clear that states have the power to protect symbols of their sovereignty. For instance, the Supreme Judicial Court of Massachusetts in Commonwealth v. R.I. Sherman Manufacturing Co., held that the commonwealth could prevent the use of its seal for advertising or commercial purposes. Convicted of violating a statute that prohibited the use of "'the great seal of the commonwealth, [or] any representation thereof, for any advertising or commercial purpose whatever," the defendant argued that the commonwealth had interfered both with the defendant's trademark and with the commerce clause of the U.S. Constitution. Finding that the commonwealth had appropriated its great seal "to itself as a symbol of its sovereignty, the court said that "(als against the commonwealth, the defendant cannot have any claim to a trademark. The fact that the commonwealth could protect its seal was to the court "too clear for argument. The court also found that because the statute "merely . protect[ed] the seal and coat of arms of the commonwealth," it did not conflict with the commerce clause. Likewise, the federal Court of Appeals for the District of Columbia in In re Cahn, Belt, & Co. recognized that as against a state, no person or entity can "acquire [an exclusive use] property right in the [state's] coat of arms . or any simulation thereof[.]" In addition, in Katz v. Department of Motor Vehicles, the California Court of Appeals ruled that the state had "the right to protect the legitimacy, credibility and reliability of its symbols and emblems because of the substantial impact the symbols may have on public attitudes and behavior. Katz had challenged the constitutionality of the state's power to prevent certain combinations of numbers, letters or both from appearing on personalized license plates. Before Congress can be said to have preempted an area that has traditionally been occupied by the states, "congressional intent to supersede state laws must be 'clear and manifest Here, federal copyright law is silent on this issue-state seals are not mentioned at all. Additionally, we cannot find a single federal or state case discussing the application of federal copyright law on laws protecting state seals. Nor have we- or the parties-found any other evidence that Congress intended to preempt the states' ability to protect and regulate their state seals. Moreover, state seals appear to be more akin to trademarks or service marks than they are to the type of work Congress intended copyrights to cover. The federal trademark statute-unlike the copyright statute-specifically provides for state flags, coats of arms, or other insignia by prohibiting them from being registered. See 15 U.S.C. § 1052 (2000). Additionally, the majority of cases addressing state seals are trademark cases there are no copyright cases addressing this issue. Although we recognize that trademark and copyright law can overlap, generally speaking, the two schemes address different concerns. Under the copyright statute, an author secures "the sole right to copy the protected work and to license others to produce copies. The copyright holder may not only "exploit his work commercially, [but] may also exercise the copyright in a purely proscriptive manner to prevent anyone from copying the protected work." Trademarks, however, are based on common law concepts of unfair competi tion; hence, the purpose of a trademark is to "prevent confusion as to the origin of goods or services and to prevent fraud and misrepresentation as to their source. Here, AS 44.09.015 does not provide the equivalent of copyright protection; rather, it provides protection analogous to trademark protection. Finally, as the State points out, despite the broad sweep of federal copyright law, and despite a specific statute that places all federal government work in the public domain, Congress has passed a statute protecting symbols similar to a state seal. Under 18 U.S.C. § 713(2) (2000), Congress has protected the great seal of United States, the seals of the President and the Vice President of the United States, the seal of the United States Senate, the seal of the United States House of Representatives, and the Seal of the United States Congress. Although Section 718(a) makes it a crime to use any of these seals "for the purpose of conveying . a false impression of sponsorship or approval by the Government of the United States," subsections (b), (c), (d), and (e) generally make it a crime merely to manufacture, reproduce, use, sell, or purchase any likeness of these seals (except the great seal of the United States) without permission from the appropriate agency. It seems evident that Congress, by protecting specific important federal seals that were left unprotected by copyright law (and by federal trademark law), did not intend to prohibit states from protecting seals that represent state sovereignty. For all the above reasons, we conclude that federal copyright law does not preempt AS 44.09.015, which protects the state seal from unauthorized commercial use. - Robart's requested protective order Robart claims that he was entitled to a protective order that prevented the State's witnesses from claiming that they did not know that he was using the state seal after state employees saw it as part of his initial submission for the trade show. Robart based this request on his claim that under the theory of "imputed knowledge," the knowledge of one state employee must be imputed to all other state employees. After hearing argument, Judge Lohff denied Ro-bart's motion. We find no error. Even assuming that Robart's 'theory of "imputed knowledge" among state agencies and employees was applicable in this case, Robart was convicted for using the state seal after the lieutenant governor expressly informed him that he was doing so illegally. It was not relevant what other state employees knew before Robart was warned. (Moreover, under Robart's "imputed knowledge" theory, when the lieutenant governor told him to stop using the seal, she acted on behalf of the governor.) Additionally, Robart has not shown how he was prejudiced. No State witness testified that they were ignorant of Robart's use of the state seal. In his reply brief, Robart argues that he wanted the protective order to prevent the State from arguing that the governor could not or did not give him permission to use the state seal. But he did not present this reason to Judge Lohff, nor-for the reasons explained in the next section-was Robart entitled to a protective order that prevented the State from making this argument. Was the jury instructed on Robart's theory of defense? Robart next claims that Judge Lohff should have given Robart's proposed jury instructions because these "instructions . described and defined Robart's theory of defense." At trial Robart characterized his defense as a mistalse of fact, but he claimed that to establish this defense, he was entitled to have the jury instructed on general principles of corporate agency law. To that end, Robart sought instructions that defined "agent" and the seope of an agent's authority. He also wanted the jury instructed that an act or omission of state employees was the act or omission of the governor, and that any act or omission of any state employee, includ ing the governor and the lieutenant governor, was the act or omission of the state. Most importantly, however, Robart wanted the jury instructed that both the governor and the lieutenant governor could grant permission to use the state seal. Ro-bart's desired defense, and his agency instructions, were based on the notion reflected in this last instruction: that because the governor is the head of the executive branch, he has the same authority as the lieutenant governor over the state seal. Judge Lohff properly rejected this instruction because it is not supported by the constitution or AS 44.09.015. The Alaska Constitution provides that the lieutenant governor "shall perform such duties as may be prescribed by law and as may be delegated to him by the governor." With regard to the state seal, the lieutenant governor has duties prescribed by law. In AS 44.19.022, the legislature expressly made the lieutenant governor the custodian of the state seal. Likewise, in AS 44.09.015, the legislature granted the lieutenant governor the authority to grant permission to use the state seal for a commercial use. These statutes show a clear legislative intent that the lieutenant governor has authority to permit use of the state seal for a commercial or advertising purpose. Although the governor can, by "appropriate court action or proceeding . enforce compliance with any constitutional or legislative mandate" nothing in the constitution allows the governor to supplant the lieutenant governor with regard to that person's "duties . prescribed by law." Hence, Judge Lohff properly rejected Ro-bart's instructions because they misstated the law-that is, contrary to statute, they told the jury that the governor could grant permission to use the state seal. Although Judge Lohff rejected Robart's assertion that the governor, as a matter of law, had the authority to grant permission to use the state seal, Judge Lohff allowed Ro-bart to present a legitimate mistake of fact defense. Judge Lohff instructed the jury that "Itlo prove that the defendant did not act under a reasonable mistake of fact, the state must prove" that "the defendant's mistaken belief that he had permission from the lieutenant governor to use a die or impression was not reasonable" and that "the defendant's reliance on a course of communication with the governor or the lieutenant governor in reaching his belief was not reasonable." This defense was based on evidence of the state's consistent failure to respond to Ro-bart's requests for permission, on the encouragement to produce the medallions, and on the congratulatory letter from the governor. This defense properly allowed Robart to argue to the jury that the state, by its actions, "led him to believe that the State permitted his use of the seal." We conclude that Judge Lohff did not err when, rejecting Robart's characterization of the mistake of fact defense, he denied Ro-bart's proposed jury instructions. Robart also claims that error occurred when, at the end of trial, Judge Lohff changed two instructions that he had given at the beginning of trial, when he gave the jury some preliminary instructions. Of these, one explained the elements of the offense, while another explained the elements of the defense. In each of these, however, the preliminary instructions omitted the statutory requirement that Robart have "written" permission from the lieutenant governor to use the state seal for a commercial purpose. Later, when discussing the final instructions, the State pointed out that these instructions, to accurately set out the elements of the statute, had to have the word "written" added. Judge Lohff agreed, but Robart objected. On appeal, Robart argues that changing the preliminary instructions "vitiated" his defense. But Judge Lohff was required to instruct the jury on the essential elements of the offense. Moreover, the defense of mistake of fact instruction did not require that the permission be in writing. The language of this instruction allowed Robart to argue, based on the encouragement he received from state agencies and on his correspondence with the governor and the Heutenant governor, that he had a reasonable "mistaken belief that he had permission from the lieu tenant governor" to use the state seal. In addition, Robart has not shown how his defense was prejudiced. The record shows that prior to trial he was clearly placed on notice by both the statute and the charging document that he had to have written permission to use the state seal. Before trial, Robart's position was that the governor's April letter was "specific written permission" to use the seal. As for his defense, Robart did not claim in his opening statement that he had written or unwritten permission to use the seal. Instead, he asserted that it had been a reasonable mistake of fact for him to rely on the pattern of non-response from the lieutenant governor, the letter from the governor, and the encouragement he received from other state agencies. In addition, Judge Lohff told Robart early in the trial that he could argue as part of his mistake of fact defense that he had reasonably considered that this letter constituted "written permission" to use the state seal. We conclude that Judge Lohff did not err when he corrected the erroneous preliminary instructions. Under the cireumstances of this case, Robart's defense was not prejudiced. Robart's other requested instructions Robart also claims that his theory of defense required the trial court to instruct the jury that the State could not claim that it was ignorant of the law and to apply the definition of "writing" that is included in the Uniform Commercial Code. Robart further claims that the jury should have been given an elaborate definition of what constitutes "acting unreasonably." He also claims that to ensure that the jury considered his defense, he was entitled to a special verdict form. Judge Lohff refused to give the first instruction, and modified the other two; he also rejected Robart's proposed special ver-diet form. © Although the trial judge must instruct the jury on the essential elements of an offense or a defense, the trial judge has broad discretion to decide what other instructions to give the jury. Here, we find no abuse of discretion. Robart argues that the first of these instructions was important because he relied on the government to warn him that he did not have permission to use the seal. But even assuming that such an instruction would ever be warranted in a criminal case, Robart was warned by the lieutenant governor to stop using the state seal; Robart was charged for using the state seal only after he ignored that warning. Robart next argues that his other two requested instructions were necessary to allow him to present his defense. But "[als long as the instructions actually given by the trial court adequately set forth the applicable law, a more elaborate explanation of the defendant's theory of the case" is not required unless it "would substantially aid the jury in arriving at a just verdict. The instructions as given by Judge Lohff adequately informed the jury as to what constitutes a "writing" under AS 44.09.015, and as to what "acting reasonably" means. Here, the jury was instructed that a writing "includes printing, typewriting or any other intentional reduction to tangible form." From this, Ro-bart was allowed to argue that the governor's congratulatory letter, despite its lack of relevant language, was a "writing." Meanwhile, the jury was instructed that "acting reasonably" meant that "[In deciding whether a party acted reasonably or unreasonably, you may consider what a reasonably prudent person would do under similar cireumstances" and that "[aleting reasonably may consist of doing something that a reasonably prudent person would do, or it may consist in not doing something that a reasonably prudent person would not do." Again, this was suffi cient to allow Robart to argue that he had acted reasonably, and that the State had acted unreasonably. Accordingly, we conclude that no error occurred by the rejection or modification of these three instructions. Judge Lohff also rejected the special verdict form. Robart argues that the special verdict form was required to ensure that the jury properly considered the elements of his mistake of fact defense. He made a similar argument below, but Judge Lobff rejected this argument and found that the jury could follow the instructions setting out Robart's defense. We conclude that Judge Lohff did not abuse his discretion by using a general verdict form. Conclusion Robart's conviction is AFFIRMED. . AS 44.09.015(a) & (b). . State v. Robart, 988 P.2d 1114, 1114 (Alaska App.1999). . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. at 1115. . Id. . Under AS 44.09.015(b), "[vliolation of this section is a misdemeanor, and upon conviction is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both." . Section 102(a) provides that "[clopyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This section then provides a list of categories of works of authorship: ' (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. Section 102(b) provides that "liln no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Section 103 applies to compilations and derivative works of the items listed in § 102, and is not applicable in this case. . Section 106 provides that [Slubject to sections 107 through 121 [none of which apply in this case}, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. . The state seal is provided for in article XV, § 21, of the Alaska Constitution. . 189 Mass. 76, 75 N.E. 71, 72 (1905). . Id. at 71. . 1d. . Id. at 72. . Id. . Id. . 27 App. D.C. 173 (1906). . Id. at 178-79. . 32 Cal.App.3d 679, 108 Cal.Rptr. 424 (1973). . Id. at 428. . Id. at 425. . Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995) (citations omitted). . See R.I. Sherman Mfg. Co., 75 N.E. at 71; In re Cahn, Belt, & Co., 27 App. D.C. at 173. . See, eg., Bicentennial Comm'n. v. Olde Bradford Co., 26 Pa.Cmwlth. 636, 365 A.2d 172, 176 (1976) ("Although the laws governing copyrights and trademarks may overlap as applied to a single item, they are intended to grant quite different forms of protection to their holders."). . Id. (citation omitted). . Id. . Id. . See 17 U.S.C. § 105. . Alaska Const. art. III, § 7. . Id. art. III, § 16. . See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) ("[Thhe trial court is under a duty to instruct the jury on the essential elements of the offense."). . Stoneking v. State, 800 P.2d 949, 950 (Alaska App.1990). . Robart, 988 P.2d at 1114. . Lee v. State, 760 P.2d 1039, 1041 (Alaska App.1988).

10437316

Colin LAYNE, Appellant, v. Ann V. NILES, Appellee

Layne v. Niles

1981-08-14

No. 5887

234

236

632 P.2d 234

632

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

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

Colin LAYNE, Appellant, v. Ann V. NILES, Appellee.

Colin LAYNE, Appellant, v. Ann V. NILES, Appellee. No. 5887. Supreme Court of Alaska. Aug. 14, 1981. George E. Weiss, Anchorage, for appellant. Ann V. Niles, in pro. per. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

1300

7804

OPINION BURKE, Justice. Colin Layne and Ann V. Niles, husband and wife, petitioned the superior court for dissolution of their marriage, pursuant to AS 09.55.231(a). The superior court, on its own motion, dismissed the petition, stating: This matter is dismissed becav »e the court does not have jurisdiction over the children of the marriage and is therefore unable to grant a Decree of Dissolution of Marriage under AS 9.55.234(a). Colin Layne appeals from the order of dismissal. We affirm. Layne and Niles were married on June 24, 1972, in the State of New York. There are two minor children of the marriage: Gerald, age eight, and Patrick, age five. The children reside with their mother in Cleveland, Ohio. Layne, a member of the United States Army, has been a resident of Alaska for two years. The children have visited their father in Alaska, but have had no other contacts with the state. Their last visit occurred in the summer of 1979. In their petition, the parents agreed that custody of the children should be awarded to the mother. They further agreed that Layne should have rights of reasonable visitation, including temporary custody of the children during summer vacations. Layne agreed to pay $100.00 per month per child for the support of the children, plus a $200.00 clothing allowance for each school year. The petition, filed December 22, 1980, was heard by the superior court's standing master on February 9, 1981. Layne appeared and was questioned by the master. Niles did not attend, having previously appeared and waived notice of the time and place of hearing. At the conclusion of the hearing, the master stated: Under Alaska law, the court must have jurisdiction over the children in order to be able to make a decision in this case. That means the children must have lived here for at least six continuous months and within six months of the filing of this petition on December 22,1980. Since the children have not lived here for at least six continuous months . of December 22, we cannot do anything concerning child custody. That means we cannot do anything in this case, because in these dissolutions the court has to make a decision as to custody, support and ending the marriage, or nothing. Therefore, this petition will have to be dismissed because we don't have child custody jurisdiction. . . . That means Ohio, wherever the . . . children are living, is the place where you have to file for dissolution or a divorce. We can't do anything here in this dissolution, under Alaska law, because the children are not here in Alaska, or have not been here for quite a time. Accordingly, the master recommended entry of an order of dismissal, which was signed by the Honorable Ralph E. Moody, Presiding Judge, on February 10, 1981. This appeal followed. When, as in the case at bar, a petition is brought pursuant to AS 09.55.231(a), the court may grant a decree of dissolution only "if the court, upon consideration of the information contained in the petition and the testimony of the spouse or spouses," makes certain findings. AS 09.55.234(a) and (d). One required finding is that "the agreements between the spouses concerning child custody, child support, visitation, spousal support and tax consequences, if any, division of property, and allocation of obligations are not grossly unfair, unjust, or inequitable and are in the best interests of the children of the marriage . . . ." AS 09.55.234(a)(2). Moreover, the court must "fully and specifically set out in the decree the agreements of the spouses relating to child custody, child support, visitation, [and] spousal support, .; and the court shall order the performance of those agreements." AS 09.55.234(e) (emphasis added). Thus, it appears that, where there are minor children, a petition for dissolution of marriage necessarily involves the issue of custody and a "child custody determination" within the meaning of Alaska's Uniform Child Custody Jurisdiction Act. AS 25.30.010-.910. As used in the Act, a " 'custody determination' means a court decision and court orders providing for the custody of a child, including visitation rights . . . . " AS 25.30.900(2). The term " 'custody proceeding' includes proceedings in which a custody determination is one of several issues, such as an action for divorce, dissolution of marriage, or legal separation . . . . " AS 25.30.900(3). AS 25.30.020(a) provides: (a) The superior court has jurisdiction to make a child custody determination by initial or modification decree if the conditions set out in any of the following paragraphs are met: (1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) the child is physically present in this state and is a child in need of aid as defined in AS 47.10.290; or (3) it (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction. Since none of these conditions were met in the case at bar, the superior court had no jurisdiction to make the "child custody determination" that is a prerequisite to the entry of a decree of dissolution under AS 09.55.234(a). Accordingly, the court was required to dismiss the petition on the ground stated. This holding, however, does not mean that Layne is without a remedy. Most of the relief that he seeks is available to him in an action for divorce filed pursuant to AS 09.55.070-.230. The error that he made was in filing an action for dissolution of the marriage, an alternative form of action governed by the provisions of AS 09.55.-231-.237. AFFIRMED. . We consider the order of dismissal a final judgment for purposes of Appellate Rule 202(a). . Niles has filed an "appearance and waiver" in this appeal as well. . The Constitution of Alaska provides that the jurisdiction of the superior court "shall be prescribed by law." Alaska Const, art. IV, § 1. The terms "by law" and "by the legislature" are interchangeable. Id, art. XII, § 11. Thus, the legislature's power to limit the court's jurisdiction in this instance is clear. . We summarily reject appellant's arguments that the trial court's action amounted to an abuse of discretion and violated his rights to due process and equal protection of the law, or the privilege and immunities clause of the state and federal constitutions. . AS 09.55.237 provides: "No spouse may be precluded from filing an action for divorce under AS 09.55.070-09.55.230 upon dismissal or denial of a petition filed under AS 09.55.231-09.55.237." . In an action for divorce, the court would still lack jurisdiction to make a custody determination. The court could, however, terminate the marriage and grant other relief. AS 09.55.205. . We see no reason why this error could not be corrected by a simple motion for leave to file an amended complaint. See Rule 15(a), Alaska R. Civ. P. Since not otherwise specified in the court's order, the dismissal was without prejudice. See note 5, supra, and Rule 41(a)(2), Alaska R. Civ. P.

10386763

Natalie Iris PINKERTON, Appellant, v. STATE of Alaska, Appellee

Pinkerton v. State

1989-12-29

No. A-2227

671

678

784 P.2d 671

784

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:32.162151+00:00

CAP

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

Natalie Iris PINKERTON, Appellant, v. STATE of Alaska, Appellee.

Natalie Iris PINKERTON, Appellant, v. STATE of Alaska, Appellee. No. A-2227. Court of Appeals of Alaska. Dec. 29, 1989. Tricia Collins, Juneau, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3764

22993

OPINION COATS, Judge. During the early morning hours of Sunday, March 30, 1986, Natalie Iris Pinkerton and her boyfriend, Peter Paulo, brought twenty-one-month-old R.J. to the hospital emergency room. Although R.J. appeared to be dead, physicians attempted to revive him. During these procedures, Dr. James Thompson noticed a bruise above R.J.'s belly button and estimated the injury to be one to three days old. He also noticed several bruises on R.J.'s head. On April 2, Dr. William Brady performed an autopsy on the body of R.J. Dr. Brady also noticed the bruises on the head and abdomen of R.J. Dr. Brady concluded that at the time of death R.J. had a severe cold, possibly early pneumonia. He also found extensive injury in the abdominal cavity. He believed the cold had preceded, and was aggravated by, the abdominal injury. He concluded that R.J.'s death was caused by a blow to the abdomen. The blow had ruptured a portion of R.J.'s small bowel as it was pressed against the back bone, causing bowel material to enter the abdominal cavity. This injury led to peritonitis and ultimately death from complications from the resulting infection. The police investigated the death. Based on the investigation; the police and prosecutors concluded that R.J. had been struck by Peter Paulo on the morning of March 29, when Pinkerton and Paulo's sister, Arlinda Miller, were shopping at garage sales. R.J. was alone with Paulo during this period of time. The state subpoenaed Pinkerton to testify before the grand jury. The state did not advise Pinkerton that she was a potential target of the grand jury's investigation or that her statements could be used against her. Pinkerton testified before the grand jury. After hearing other testimony, the grand jury asked for Pinkerton to be called to testify again. At this time, the prosecution advised Pinkerton of her Miranda rights. The court appointed counsel for Pinkerton, and Pinkerton, on the advise of counsel, refused to testify. The prosecutor informed the grand jury that Pinkerton had asserted her fifth amendment right not to testify. The grand jury indicted Paulo for manslaughter and for two counts of assault in the fourth degree. The grand jury indicted Pinkerton for criminally negligent homicide on the theory that she had failed to provide R.J. with medical care after he had been struck in his abdomen. AS 11.41.130(a). Paulo ultimately pled no contest to a reduced charge of criminally negligent homicide. Pinkerton's case went to trial. A jury convicted Pinkerton of criminally negligent homicide. Pinkerton appeals her conviction to this court. We reverse. The state's theory at trial was that Pinkerton had acted with criminal negligence in not seeking medical treatment for R.J. earlier given the severity of R.J.'s injuries and symptoms. Pinkerton called a pediatric surgeon who also taught pediatric surgery at the University of Washington Medical School as an expert witness. The doctor testified that he had reviewed the autopsy reports, the medical records, and the statements by Pinkerton concerning R.J.'s injuries. He indicated that young children with peritonitis can react to the injury in a variety of ways. He testified that Pinkerton's description of R.J.'s symptoms was consistent with and could be attributed to a child who had peritonitis. However, the doctor stated that the symptoms which Pinkerton described could also be attributed to a child who had the flu. He indicated that even a physician could be confused by the initial symptoms of peritonitis. He testified that the symptoms of peritonitis could mimic the symptoms of other childhood illnesses, particularly the flu. During cross-examination the prosecutor asked, "Isn't it true that you are biased against the prosecution as a result of your own trial for indecent liberties on one of your patients?" In response, the doctor asked if he could speak to the judge, and at that point Pinkerton asked for a hearing outside the presence of the jury. Judge Carpeneti called a recess and excused the jury. At an in camera hearing, the doctor told the court that he had faced criminal charges in the State of Washington on an indecent liberties charge. However, a jury acquitted him. He testified that the charges arose approximately four years before the Pinkerton trial. The doctor also told the judge that, prior to the Pinkerton trial, he had testified for the prosecution as an expert witness in a trial involving child abuse. The state argued that the fact that the doctor had been charged and tried by the State of Washington on a charge of indecent liberties would tend to make him biased against the prosecution. After considering the state's argument, Judge Car-peneti concluded that the state's line of inquiry attempting to establish that the doctor was biased against the state was improper. He concluded there was little evidence that the doctor was biased against the state, in particular because he had testified as a witness for the state shortly before the Pinkerton trial. He determined that bringing up the prior charge was unduly prejudicial and appeared to be inconsistent with the policies of Evidence Rule 609, which limits the admissibility of prior criminal convictions of a witness to convictions for dishonesty and false statement. Following the court's ruling, Pinkerton moved for a mistrial. Judge Carpeneti took the mistrial motion under advisement and cautioned the jury to disregard the prosecution's earlier question. Judge Car-peneti later denied the mistrial motion. On appeal, Pinkerton argues that Judge Carpeneti erred in refusing to grant her mistrial motion. In reviewing the decision of a trial judge denying a motion for a mistrial, we will reverse the decision of the trial court only where we conclude that the decision is clearly erroneous. In reviewing the trial judge's decision, we give deference to the fact that "[t]he trial judge has the opportunity to observe the tainted evidence in the context in which it is received by the jury." Roth v. State, 626 P.2d 583, 585 (Alaska App.1981). Where the trial judge gives a cautionary instruction withdrawing improper material from the jury's consideration, we assume that such an instruction can cure an error which may have occurred. Id. In McBeth v. State, 652 P.2d 120, 125-26 (Alaska App.1982), we concluded that counsel who wished to inquire about a prior crime or prior bad act of a witness must first make an application to the court to admit the evidence out of the presence of the jury. This procedure allows the court to weigh the probative value of the evidence against the prejudicial effect without exposing the jury to the prejudicial material. The prosecutor's questioning of the doctor without making a prior application to'the court was clearly improper and in violation of the evidence rules and our decision in McBeth. By asking whether he was biased against the state because he had been tried for indecent liberties with one of his patients, the prosecution may have substantially undermined the defense expert's credibility. The prosecutor is an officer of the court, and the prosecutor's statement that the doctor had been tried for indecent liberties with one of his patients might be given weight by the jury. The witness was not able to deny that he had formerly been tried on this charge. The doctor was a pediatric surgeon and his patients would have been children, so it was logical for the jury to infer from the question that he had been tried for indecent liberties with a child. The doctor was a critical witness for Pinkerton. His expert testimony, if believed, would have tended to establish that Pinkerton's description of R.J.'s symptoms was credible and that a reasonable, caring parent in Pinkerton's position could easily have mistaken R.J.'s symptoms for the flu and would have acted as Pinkerton did. By failing to make prior application to the court to admit evidence of the fact that the doctor had previously been tried for indecent liberties with a patient, the prosecution was able to get this evidence before the jury even though the trial judge ultimately concluded that it was inadmissible. Although we give due deference to the trial judge's superior ability to weigh the actual evidence in the case when he ruled on the mistrial motion, we conclude that the trial judge erred in failing to grant a mistrial. If the jury believed the doctor's testimony, this would have been a very close case on the facts. The prosecution's suggestion to the jury that the doctor had been tried on a charge of indecent liberties with a patient was a potential bombshell. The jury might have given little weight to the testimony of a physician who had faced such charges. We conclude that there is a substantial possibility that the prosecution's question which informed the jury that Pinkerton's expert witness was once tried on a charge of indecent liberties may have affected the jury's evaluation of his credibility and his testimony and ultimately the outcome of the trial. We conclude it would be improper to let this result stand. We are also reluctant to allow the prosecution to benefit from a clear violation of the evidence rules. We accordingly reverse Pinkerton's conviction. Our conclusion that we must reverse Pinkerton's conviction makes it unnecessary for us to decide most of the other issues which she raises. However, a few issues remain which we must decide. The first is Pinkerton's contention that Judge Carpeneti erred in failing to dismiss the indictment which charged her with negligent homicide. Prior to trial, Pinkerton asked the court to dismiss the indictment or, in the alternative, to suppress any of her testimony before the grand jury from use at trial. Pinkerton argued that she was a potential defendant at the time she was originally subpoenaed and that the state was obligated to inform her of her status as a potential defendant and to advise her to seek legal counsel concerning her rights. Judge Carpeneti agreed that Pinkerton was a potential defendant at the time the state originally subpoenaed her and that the state should have given her a target warning. However, Judge Carpene-ti refused to dismiss the indictment, concluding that the other evidence presented to the grand jury was sufficient to support the indictment. Judge Carpeneti did order, however, that the state could not use Pinkerton's grand jury testimony against her at trial. In United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), the United States Supreme Court concluded that the fifth amendment of the United States Constitution did not require the prosecution to give a target warning to potential defendants who were subpoenaed to testify before a grand jury. However, this court and the Alaska Supreme Court have concluded that article 1, section 22, the specific Alaska constitutional provision protecting the right to privacy, requires us to give article 1, section 9, our equivalent of the fifth amendment, a broad reading to protect the privacy of the citizens of Alaska. State v. Skan, 511 P.2d 1296 (Alaska 1973), provides some authority for concluding that the Alaska Supreme Court would interpret article 1, section 9, of the Alaska Constitution as requiring the prosecution to give target warnings to a potential defendant who appears before a grand jury. In Skan, the supreme court cited an American Bar Association standard which states where the prosecutor believes a grand jury witness is a potential defendant, the prosecution should give due regard for the privilege against self-incrimination[,] and the right to counsel requires that the prosecutor advise such a person, before seeking to require his testimony before a grand jury, that he may be implicated and that he should seek independent legal advice. 511 P.2d at 1297 n. 6 (quoting American Bar Association Standards Relating to the Prosecution Function and the Defense Function § 36, at 89-90 (Approved Draft 1971)). The footnote in Skan is clearly dicta in the sense that the supreme court did not hold that the prosecutor was required to give a potential defendant a target warning when he had subpoenaed the defendant to appear before the grand jury. Skan did not concern a defendant who was a grand jury witness called to testify without prior advisement of his rights. Rather, the defendant was challenging his indictment on the ground that the grand jury had relied on hearsay testimony. In addition, Skan is not a recent case. However, the supreme court appears to have cited the American Bar Association standard requiring the prosecutor to give target warnings with approval. The supreme court and this court have frequently cited to the American Bar Association's standards and found them to be persuasive in setting standards for the administration of criminal justice. We conclude that, in order to protect the right of privacy which is set forth in article 1, section 22, of the Alaska Constitution and the right of a person to not be compelled to incriminate himself, guaranteed by article 1, section 9, of the Alaska Constitution, the prosecution is required to give a target warning to a potential defendant who appears before a grand jury. As one court stated: It would seem that a witness who is unaware that he is a target of a grand jury investigation could not intelligently determine whether or not he needed counsel unless he was fully advised of the charges being considered against him; and until he has full knowledge regarding that matter, he will not know when to assert his constitutional claim of privilege against self-incrimination. It would also be difficult to believe that he could intelligently waive the right to counsel under such circumstances. State v. Ruggeri, 19 Utah 2d 216, 429 P.2d 969, 975 (1967). Although Judge Carpeneti determined that Pinkerton was a "target witness" of the grand jury investigation, the record does not reflect the standard which he applied in reaching this determination. We accordingly find that we must remand the case for Judge Carpeneti to determine whether Pinkerton was a target of the grand jury. We define the term "target witness" to include: (1) persons whom the state already has probable cause to arrest, (2) persons whom the state is either actively investigating or planning to investigate, and (3) persons who, during examination, clearly become the subjects of future investigation. See Ruggeri, 429 P.2d at 973. Of course, it must be foreseeable that the matter for which the witness is under investigation will be brought out during his testimony. To paraphrase the New York Court of Appeals, the witness must be on the target, even if he is not the bull's-eye. People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 654, 176 N.E.2d 571, 577 (N.Y.1961), cert. denied, 374 U.S. 104, 83 S.Ct. 1687, 10 L.Ed.2d 1027 (1963). A person who fits within one of these three categories would be a "target" witness unless the state had made a policy decision not to prosecute the witness prior to the time the witness was subpoenaed to testify. After concluding that Pinkerton was a target witness of the grand jury and was therefore entitled to a target warning, Judge Carpeneti concluded that it was not necessary to dismiss the indictment because the other evidence, excluding Pinkerton's testimony, was sufficient to support the indictment. He concluded that Pinkerton's testimony before the grand jury did not affect the grand jury's ultimate conclusion. We disagree. First, assuming that Pinkerton was entitled to a target warning, the prosecution obtained her testimony by violating her right against self-incrimination. Second, it is difficult to weigh the impact of Pinkerton's testimony. It is reasonable to infer that the grand jury would give their evaluation of Pinkerton and her testimony great weight. We are accordingly unable to conclude that Pinkerton's testimony before the grand jury did not appreciably affect the grand jury's decision to indict her. Accordingly, if Judge Carpeneti finds that Pinkerton was entitled to a target warning, we direct him to dismiss the indictment. Pinkerton also argues that Judge Carpeneti erred in failing to grant her motion for a judgment of acquittal. In the event that Pinkerton were to prevail on this issue, she would be entitled to be acquitted of the charges against her and the state would be precluded from retrying her. Therefore, we must decide this issue at this time. Pinkerton essentially argues that there was insufficient evidence to show that her failure to obtain medical treatment for R.J. was a legal or proximate cause of his death. In order to prove that Pinkerton was guilty of criminally negligent homicide under AS 11.41.130(a), the state needed to prove not only that Pinkerton had acted with criminal negligence in failing to obtain medical treatment for R.J., but also that her criminally negligent failure to obtain medical treatment was a legal or proximate cause of his death. In ruling on a motion for judgment of acquittal, the trial court is to view the evidence and the inferences therefrom in the light most favorable to the state. The court is to deny the motion for judgment of acquittal if "fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt_" Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983) (quoting Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)). Therefore, a motion for judgment of acquittal should be granted "only when fair-minded persons would have to agree that the state had failed to carry its burden of proof beyond a reasonable doubt. Otherwise, the motion should be denied." Snyder, 661 P.2d at 641 (quoting Gipson v. State, 609 P.2d 1038, 1040 (Alaska 1980) (emphasis in original)). We apply the same standard of review on appeal. Gipson, 609 P.2d at 1040. Pinkerton contends that, even when viewed in the light most favorable to the state, there was insufficient evidence regarding the offense to warrant conviction. Pinkerton claims R.J.'s symptoms in the hours between the time he was struck and the time of his death mirrored those he had exhibited at earlier points in his life when he was sick with the flu. Pinkerton argues that she responded to those symptoms as she had done before. She claims that none of the physicians who testified for the prosecution could state with reasonable medical certainty whether R.J. would have lived had she taken the child to the hospital earlier. However, at trial, the state presented evidence from medical doctors that R.J.'s stomach would have been distended, which was not normal for a child. Also, there was testimony that would support an inference that Pinkerton should have noticed a fresh, noticeable bruise on R.J.'s abdomen which would have been visible within an hour or two of the time that R.J. was struck. According to Drs. Thompson, Brady, and Kenneth Moss, R.J. would have felt intense pain if he moved or coughed, and he would most likely have gone into shock and run a very high fever. Possibly there would have been nausea and vomiting. The medical testimony presented by the state tended to establish that a child with peritonitis would exhibit symptoms different from other childhood diseases and that a reasonable parent observing the child would have realized that the child was seriously ill. Dr. Brady testified that R.J.'s injury could have been repaired by surgery. Dr. Moss testified that he was aware of two other children with similar injuries who had received medical treatment and survived. According to Pinkerton's medical expert witness, most children with this type of injury survive if they are alive when they arrive at the hospital. Accordingly, we conclude that "fair-minded men in the exercise of reasonable judgment could differ on the question of whether [Pinkerton's guilt had] been established beyond a reasonable doubt ." We conclude that Judge Carpeneti did not err in failing to grant Pinkerton's motion for judgment of acquittal. Pinkerton argues that the trial court erred in failing to excise from a taped interview a question in which Trooper McCoy stated, "We've had several calls from people that you have abused [R.J.]." Pinkerton objected to admission of this statement and Judge Carpeneti overruled the objection on the ground that the objection was untimely. We conclude that the probative value of the statement was outweighed by the danger of unfair prejudice. A.R.E. 403. Accordingly, if the case is retried, this statement of Trooper McCoy should not come into evidence. The conviction is REVERSED. . In McBeth we relied on Criminal Rules 608 and 609. Evidence Rule 608(b) and (c) provides in part: (b) Evidence of . specific instances of the conduct of a witness offered for the purpose of attacking or supporting that witness' credibility is inadmissible unless such evidence is explicitly made admissible by these rules.... (c) Admissibility. Before a witness may be impeached by inquiry into specific instances of conduct pursuant to subdivision (b), the court shall be advised of the specific instances of conduct upon which inquiry is sought and shall rule if the witness may be impeached by weighing its probative value against its prejudicial effect. Evidence Rule 609 reads in part: Impeachment of Evidence of Conviction of Crime. (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is only admissible if the crime involved dishonesty or false statement. (c) Admissibility. Before a witness may be impeached by evidence of a prior conviction, the court shall be advised of the existence of the conviction and shall rule if the witness may be impeached by proof of the conviction by weighing its probative value against its prejudicial effect. . The jury was never told that the doctor had been acquitted of these charges. The point is not that the jury should have been told of the acquittal. The point is that, once the question had been asked, telling the jury that the witness had been acquitted would not eliminate the potential prejudice. . The ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 3-3.6(2) (2d ed. 1980) provide: If the prosecutor believes that a witness is a potential defendant, the prosecutor should not seek to compel the witness's testimony before the grand jury without informing the witness that he or she may be charged and that the witness should seek independent legal advice concerning his or her rights.

10439204

STATE of Alaska, Petitioner, v. Horace LEWIS, Respondent

State v. Lewis

1981-08-20

No. 5792

547

551

632 P.2d 547

632

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

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

STATE of Alaska, Petitioner, v. Horace LEWIS, Respondent.

STATE of Alaska, Petitioner, v. Horace LEWIS, Respondent. No. 5792. Court of Appeals of Alaska. Aug. 20, 1981. Bill D. Murphree, Asst. Dist. Atty. and Harry L. Davis, Dist. Atty., Fairbanks, for petitioner. John Rosie, Whiting & Rosie, Fairbanks, for respondent. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

2543

15584

OPINION COATS, Judge. This case is a petition for review of an order of the superior court suppressing prosecution evidence because of discovery violations. We formerly granted the petition and have decided to reverse the order of the superior court. The defendant in this case, Horace Lewis, is currently awaiting trial on a charge of sexual assault in the third degree. Lewis was charged with sexually penetrating M. T. knowing that she was incapacitated. The evidence which the trial judge ordered not to be used at trial consisted of the results of tests performed by experts employed in the FBI laboratory in Washington, D.C. The tests were performed on physical evidence which included vaginal fluid smear slides prepared by a physician after he examined M. T. immediately following the alleged sexual assault and on clothing which the police seized from Lewis the morning following the incident. The reports indicated that semen containing spermatozoa was present in the vaginal fluid smear slides and on the shirt and undershorts of the defendant. The prosecution has claimed that this evidence is critical to its case since it is the only "objective evidence indicating sexual penetration and ejaculation" other than the testimony of M. T. The FBI's formal written report on the evidence was not produced by the state until the morning of trial. Apparently, the failure to make timely production of the report was due to a combination of factors: the state's delay in sending the evidence off to the FBI, the FBI case backlog being such that they could not promptly perform the examination, and the illness of the FBI examiner. Faced with this discovery violation, which was in addition to earlier discovery violations, and emphasizing that the state could have requested a continuance when it became clear that it could not meet its discovery obligations, the trial judge ruled that the test results and the testimony concerning them should be excluded from trial. Sanctions for a violation of Alaska R.Crim.P. 16 are governed by Alaska R.Crim.P. 16(e) which provides: (1) Failure to Comply with Discovery Rule or Order. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed or enter such other order as it deems just under the circumstances. (2) Willful Violations. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. The rule provides that appropriate sanctions are discretionary with the trial court. However, numerous Alaska cases have indicated that if there is a violation of the discovery rules the appropriate remedy is generally for the trial court to grant a continuance. The leading case is Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976) where the court said: The proper procedure for a trial court faced with prosecution failure to disclose to the defense evidence that it is required to provide, until just before it plans to use such evidence, is to grant a continuance long enough to allow the defense attorney adequate time to prepare. [Footnotes omitted.] Although the supreme court has not completely ruled out excluding evidence as a possible sanction, the court has indicated that Generally, in civil cases as well as criminal, we have not favored sanctions for violation of court rules and orders by counsel where the sanctions would have adverse effects on the rights of the parties, rather than on the offending attorneys themselves. This position is consistent with the position taken in the American Bar Association Standards for Criminal Justice § 11-4.7 (Second Ed.1980). The commentary to the ABA standards on discovery violations, which is similar to Alaska R.Crim.P. 16(e), recommends that in the event of discovery violations the court ordinarily should order the parties to disclose evidence and grant continuances when necessary. On the use of the sanction of excluding evidence, the commentary states: The exclusion sanction is not recommended because its results are capricious. Thus, exclusion of prosecution evidence may produce a disproportionate windfall for the defendant, while exclusion of defense evidence may lead to an unfair conviction. Either result would defeat the objectives of discovery, [footnotes omitted] We conclude that the Alaska cases and the best policy arguments dictate that the remedy of exclusion of significant evidence should be used by the trial court only in rare situations. Applying these principles to this case we conclude that the record before us does not show that this one was of those rare situations where the exclusion of evidence was justified. There may be times when late discovery of evidence places a party at such a significant disadvantage that exclusion of the evidence is appropriate. However, this record does not show that, given a continuance, Mr. Lewis would be seriously handicapped in going to trial at a later date. The record also does not show that this was an intentional violation of the discovery rules or that there were other extreme circumstances which might justify the sanction of exclusion of critical evidence. We are not unmindful of the need for trial judges to maintain control over discovery and to assure orderly and timely compliance with the rules of criminal procedure. We are, furthermore, not unsympathetic with Judge Hodge's efforts to deal in this case with a troublesome situation involving repeated discovery violations by the prosecution which, on the whole, displayed a lamentable disregard of its duty to comply with the rules of discovery and the court's orders aimed at assuring compliance with the rules. However, we believe that the trial court's authority to impose costs and monetary sanctions and its ability to exercise the contempt powers provided for by law afford a sufficient range of alternatives by which the seriousness of such discovery violations could be impressed upon the prosecution. In the absence of substantial prejudice to the defendant's case, we believe that appropriate redress for discovery violations should normally lie in the use of these alternatives. We therefore reverse the order of the trial court excluding the evidence of the test results and REMAND to the trial court for further proceedings. . AS 11.41.430(a)(2) reads as follows: Sexual assault in the third degree, (a) A person commits the crime of sexual assault in the third degree if he engages in sexual penetration with a person who he knows (1) is suffering from a mental disorder or defect which renders him incapable of appraising the nature of the conduct under circumstances in which a person who is capable of appraising the nature of the conduct would not engage in sexual penetration; or (2) is incapacitated. (b) Sexual assault in the third degree is a class C felony. . The FBI examiner carried the report with him when he flew into Fairbanks from Washington, D.C. the night before the trial began. However, a few days prior to trial, the state did receive a summary of the report by telephone. . The alleged assault took place on October 16, 1980, and the defendant was indicted on October 22, 1980. The letter transmitting the physical evidence to the FBI laboratory for requested examination is dated November 17, 1980. The state offers no explanation for the delay. . The defendant argues that the examinations were actually performed much sooner than indicated. According to hand-written notes prepared on the semen examination forms used by the FBI, work was performed on January 5, 1981. The report, however, is not dated until February 6, 1981, and was not produced until February 10, 1981. . As the trial date grew near, the state claims that it repeatedly tried to make contact with the laboratory to determine why the report had not been received. At that time, the state was informed that Mr. Reem, who had examined the vaginal smears, was ill and had been out of the office for a few days. . At the omnibus hearing, the trial judge had suppressed evidence of conversation between police officers and Lewis which allegedly took place the morning after the incident. The evidence was suppressed because the state did not comply with a discovery order to produce a tape recording of the conversation. Another discovery problem concerned the efforts of the defense to contact an important witness, Nancy Chace, who had testified at the grand jury. The defense filed a motion to take Ms. Chace's deposition. The state represented that the witness would be available for trial and that "at the present it appears she will appear and testify for the defense if she is subpoenaed and tendered any fee as required by law." Relying on this information and on the state's representation at the omnibus hearing that it expected to bring her back for trial, the trial judge did not order the deposition to be taken but rather ordered the state to make Ms. Chace available for an interview by the defense at least four days prior to trial. In spite of a "bona fide effort to bring the witness in," the state did not produce Ms. Chace as required by the order issued at the omnibus hearing. The state maintained that attempts to locate the witness through friends and family were unsuccessful. On the morning of trial, the trial judge found that the state was unable to locate Nancy Chace, and that this failure to produce was not deliberate, and he offered the defendant a continuance to give adequate time to locate the witness. The defendant declined the continuance. During pre-trial proceedings, the court found another discovery violation by the state involving photographs taken in connection with the case. According to the defense, upon request that the photographs be made available for diácovery on January 20, 1981, the state responded that there was "nothing in the file." It is the state's contention, on the other hand, that the photographs were in police custody all along and available for viewing at the police station several weeks before trial. The court agreed with the defendant that the state had an obligation to reveal the whereabouts of the photos. Consequently, the trial judge excluded the photographs from use as evidence at trial. None of these rulings is before us in this petition and we express no opinion on them. .This language is quoted in Johnson v. State, 577 P.2d 230, 233 (Alaska 1978). See also Stevens v. State, 582 P.2d 621, 624 (Alaska 1978). . In Williams v. State, 600 P.2d 741, 742 (Alaska 1979) the court said: Failure to produce evidence under Rule 16, however, does not automatically result in exclusion of evidence. The appropriate remedy . is within the trial court's discretion. Exclusion of the evidence is simply one alternative available for the court. The federal criminal rules specifically provide for exclusion of evidence. Fed.R.Crim.P. 16(d)(2) provides in part: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. See also Bachner v. Pearson, 479 P.2d 319, 324 (Alaska 1970). . Johnson v. State, 577 P.2d 230, 234 (Alaska 1978). . ABA Standards § 11-4.7 provides: If an applicable discovery rule or an order issued pursuant thereto is not promptly implemented: (a) the court may: (i) order the noncomplying party to permit the discovery of the material and information not previously disclosed; (ii) grant a continuance; or (iii) enter such other order as it deems just under the circumstances; or (b) the court may subject counsel to appropriate sanctions upon a finding that counsel willfully violated the rule or order. . The following is a more complete version of the views set forth in the ABA Standards for Criminal Justice § ll-4.7(a): [An order to disclose] would be appropriate where the noncompliance is attributable to inadvertence or confusion and where prompt compliance would give the receiving party the benefit of the disclosure. . . . The court is also authorized to order a continuance. A continuance alone would be appropriate where the necessary disclosures were made too late to be of use, while a continuance might accompany an order for disclosure where even a prompt disclosure would not permit the receiving party to benefit from the disclosure. . . . Finally, the court is authorized to "enter such other order as it deems just under the circumstances." The general authorization to tailor a remedy to fit the circumstances is intended to give a full rein to "the ingenuity of trial courts with respect to matters peculiarly suited to their judgment and administration." . . The exclusion sanction is not recommended because its results are capricious. Thus, exclusion of prosecution evidence may produce a disproportionate windfall for the defendant, while exclusion of defense evidence may lead to an unfair conviction. Either result would defeat the objectives of discovery. In addition, the exclusion of defense evidence raises significant constitutional issues. [Footnotes omitted.] . In Christie v. State, 580 P.2d 310, 312 n.2 (Alaska 1978) the court dealt with the remedy of dismissal of a case for discovery violations. The court said in part: We have stated that dismissal is rarely an appropriate remedy for untimely compliance with discovery. Rather a continuance should be granted. If a violation of Criminal Rule 16 is "willful," sanctions may be imposed. We recognize that in certain circumstances, proceeding with the trial may impinge upon substantial rights of the defendant or deny a fair trial; in such cases dismissal may be the remedy consistent with due process. [Citations omitted.] . Lewis made no showing before the trial court ruled to exclude the evidence that he would be seriously handicapped in going to trial at a later date. On appeal Lewis' attorney has indicated that a continuance creates hardship because he has several witnesses, some from out of state, who would have to be rescheduled. We are aware that rescheduling witnesses, including making new plane reservations, having the witness rearrange their schedules, and perhaps even resubpoenaing the witnesses, which is no small matter if they are out of state witnesses, may be necessary. However, there is no representation that any of these witnesses cannot appear at a later date. Lewis' attorney also points out on appeal that a continuance imposes a hardship on his client because he would have a serious felony charge pending for a longer period of time if a continu- anee is granted. We find that these factors, standing alone, are insufficient to justify the suppression of critical evidence in this case. . The trial court has broad discretion to take any other steps necessary to make further orders to remedy the violation of the discovery rules.

10568696

Glen E. SHAFER, Appellant, v. STATE of Alaska, Appellee

Shafer v. State

1969-06-23

No. 1034

466

470

456 P.2d 466

456

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:38.206299+00:00

CAP

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

Glen E. SHAFER, Appellant, v. STATE of Alaska, Appellee.

Glen E. SHAFER, Appellant, v. STATE of Alaska, Appellee. No. 1034. Supreme Court of Alaska. June 23, 1969. Warren A. Taylor, Fairbanks, for appellant. Robert H. Wagstaff, Asst. Dist. Atty., Fairbanks, for appellee.

2060

11868

OPINION Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ- DIMOND, Justice. In the district court a jury found appellant guilty of driving while under the influence of intoxicating liquor. The conviction was affirmed by the superior court. An appeal has been taken to this court where appellant contends that the state failed to prove his guilt beyond a reasonable doubt. Appellant did not move for a judgment of acquittal, either at the close of the state's case or at the close of all the evidence, as he was permitted to do under Criminal Rule 29. Under our decision in Rank v. State, this would result in a waiver of appellant's right to question the sufficiency of the evidence to support the verdict, which appellant is attempting to do here. Such a rule is in accord with the well settled doctrine in the federal courts in applying Rule 29, Federal Rules of Criminal Procedure, from which our Criminal Rule 29 was adopted. But we also said in Rank that even in the absence of a motion for a judgment of acquittal, we would consider the question of the sufficiency of the evidence in order "to prevent a manifest miscarriage of justice." There would be such a miscarriage of justice if the evidence were not sufficient to support a guilty verdict, because "it is the imperative duty of a court to see that all the elements of his [the defendant's] crime are proved, or at least that testimony is offered which justifies a jury in finding those elements." What this means, then, is that in every case, whether or not a motion for a judgment of acquittal has been made, we are obliged to review the question of the sufficiency of the evidence to support the verdict in order to determine whether plain error has been committed in a matter so vital to a defendant in a criminal case. This conclusion is not inconsistent with a fair reading of Criminal Rule 29.. That rule does not in so many words require a motion for a judgment of acquittal as a prerequisite to reviewing the sufficiency of the evidence on appeal. Moreover, we have held that in a judge-tried case a defendant can test the sufficiency of the evidence on appeal without having moved for a judgment of acquittal. The reason given is that when a defendant enters a not-guilty plea he is requesting acquittal at the court's hands, and therefore a motion to the same end is unnecessary. We see no reason why the same theory should not be applicable in a jury-tried case, because there a not-guilty plea equally asks for judgment of acquittal. In addition, under Criminal Rule 29(a), if the evidence is insufficient to sustain a conviction, the court is required to enter a judgment of acquittal, not merely on the motion of the defendant, but on "its own motion." And this requirement is not restricted to a judge-tried case, but is applicable to a jury trial as well. In either case the court will have failed to comply with Criminal Rule 29(a) if it does not enter a judgment of acquittal when the evidence is insufficient to sustain a conviction, even in the absence of a motion. This would amount to plain error affecting the defendant's substantial rights which could not be disregarded and which would be reviewable on appeal. This analysis of Criminal Rule 29, suggested by Professor Wright in his work on federal practice and procedure, means that appellant here did not waive his right to question the sufficiency of the evidence by failing to move for a judgment of acquittal. To the extent that Rank v. State holds otherwise, it is disapproved. While driving his automobile, appellant collided with the truck driven by Gary Lundgren in the city of Fairbanks. Lund-gren called the Alaska State Troopers who arrived at the scene of the accident and arrested appellant for driving while under the influence of intoxicating liquor. Appellant claims that testimony that his eyes were red and his speech slurred was insufficient to justify a conviction because he showed that the reddish condition of his eyes was normal because of broken blood vessels, and that his speech was slurred due to false dentures. Appellant testified that he had had only a part of a pitcher of beer preceding the accident, and his son, Michael, testified that appellant was sober and his speech coherent and that he had no odor of alcohol about him. There was evidence of intoxication other than that relating to appellant's bloodshot eyes and slurred speech. Lundgren testified that the smell of alcohol on appellant was very strong, and that he had difficulty in walking. Lundgren said he thought appellant was drunk. State Trooper Solberg, one of the arresting officers, testified that appellant's balance was unsteady and faltering, and tht he smelled quite strongly of alcohol. Solberg believed that appellant was drunk. Trooper Lee, the other arresting officer, testified that appellant's face was flushed, that he smelled very strongly of alcohol, that he had difficulty in maintaining his balance and that he was incoherent. It was Lee's opinion that appellant was drunk. In determining whether the evidence is sufficient to support a jury finding that appellant's guilt was proved beyond a reasonable doubt, the evidence and inferences to be drawn therefrom are to be viewed in a light most favorable to the state. As we stated in Beck v. State — The question, then, is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt. We believe there was substantial evidence to support the jury's verdict that appellant was guilty of the offense with which he was charged. The jury heard the testimony of the witnesses and had the opportunity to observe their demeanor. It is the jury's function, and not ours, to determine the credibility of the witnesses. If the testimony of Lundgren and of Troopers Solberg and Lee were accepted by the jury as true, one could reasonably conclude there was no reasonable doubt that appellant had been driving while under the influence of intoxicating liquor. The collision between appellant's automobile and Lundgren's truck took place when appellant was making a turn off the Steese Highway on to Trainor Gate Road. Appellant attempted to show that the accident was not his fault because the shoulder of Trainor Gate Road was in such a bad and ragged condition that he was obliged to make a wider turn than would normally have been necessary, thus causing his car to come almost to the center line of the road where an accident could take place if another car, such as Lundgren's, had its bumper over the center line. In order to substantiate his claim, appellant offered in evidence photographs of the southeast corner of the intersection where the accident took place. Since the photographs depicted only a part and not the whole of the scene of the accident, the court granted the state's request to have the jury view the scene in accordance with Criminal Rule 27(b). The court told the jury that the purpose of allowing them to view the scene of the accident was to see for themselves the pavement width of Trainor Gate Road and to observe the edge of the pavement and compare it with the pavement edge as it appeared in the pictures. Appellant contends that it was error to allow the jury to view the accident scene because they could not get an accurate impression of the intersection as it existed at the time of the collision. The basis for this contention is that at the time of the accident in May 1967 the intersection was free of ice and snow, whereas at the time of the trial in January 1968, the presence of ice and snow prevented the jury from seeing the ragged, broken edge of the intersection pavement. If the jury could not see the edge of the pavement and compare it with what was described by appellant and was shown in the pictures, all this would mean is that the state was unable to show that the scene of the accident was in some way different from that described by appellant and as disclosed by the pictures introduced in evidence. This could not possibly result in any prejudice to appellant. There was no error in allowing the jury to see the scene of the accident. The order of the superior court affirming the judgment of the district court is affirmed. .Crim.lt. 29 provides: (a) Motions for Judgment of Acquittal. Motions for directed verdict shall not be used and motions for judgment of acquittal shall be used in their place. The court, on motion of a defendant or of its own motion, shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed, if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the state's ease is not granted, the defendant may offer evidence without having reserved the right. (b) Reservation of Decision on Motion — Renewal of Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the ease to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the motion is denied and the case is submitted to the jury, the motion may be renewed within 5 days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned the court may on such motion set aside the verdict and order a new trial or enter judgment of acquittal. If no verdict is returned the court may order a new trial or enter judgment of acquittal. . 373 P.2d 734, 737 (Alaska 1962). . 2 Wright, Federal Practice and Procedure § 469, at 265 (1969). . Rank v. State, 373 P.2d 734, 737 (Alaska 1962). . Clyatt v. United States, 197 U.S. 207, 222, 25 S.Ct. 429, 433, 49 L.Ed. 726, 732 (1905). . Id. See Crim.R. 47(a) which provides: Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . Martin v. City of Fairbanks, Opinion No. 562, 456 P.2d 462 (Alaska 1969); Beck v. State, 408 P.2d 996, 998 (Alaska 1965). . Hall v. United States, 286 F.2d 676, 677 (5th Cir. 1960), cert. denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961) ; De Luna v. United States, 228 F.2d 114, 116 (5th Cir. 1955). . In Martin v. City of Fairbanks, Opinion No. 562, 456 P.2d 462, 464 (Alaska 1969), a judge-tried criminal case, we said: At the close of tbe case-in-chief, if the prosecution has failed to establish the defendant's guilt, the trial judge should, sua sponte, order a judgment of acquittal. . Crim.R. 47 (b) provides: Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. . 2 Wright, Federal Practice and Procedure § 469, at 265-266 (1969). . 373 P.2d 734, 737 (Alaska 1962). . 408 P.2d 996, 997 (Alaska 1965). . Beck v. State, 408 P.2d 996, 997-998 (Alaska 1965). . Crim.R. 27 (b) provides: When the court deems proper, it may order a proper officer to conduct the jury in a body to view the property which is the subject of the litigation or the place where a material fact oe-curred and to show such property or place to them. While the jury is making its inspection no one shall speak to it on any subject connected with the trial. The court may order the person applying for a jury view to pay the expenses connected therewith. Battese v. State, 425 P.2d 606, 609 (Alaska 1967).

10568852

6,656 SQ. FT., more or less; D. W. Collart, Hazel Collart, Jerry Lee Collart; City of Kodiak; Kodiak Island Borough; Ruth C. Coffin; and all unknown owners, Appellants, v. STATE of Alaska, Appellee

6,656 Sq. Ft. v. State

1969-07-09

No. 981

480

482

456 P.2d 480

456

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:38.206299+00:00

CAP

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

6,656 SQ. FT., more or less; D. W. Collart, Hazel Collart, Jerry Lee Collart; City of Kodiak; Kodiak Island Borough; Ruth C. Coffin; and all unknown owners, Appellants, v. STATE of Alaska, Appellee.

6,656 SQ. FT., more or less; D. W. Collart, Hazel Collart, Jerry Lee Collart; City of Kodiak; Kodiak Island Borough; Ruth C. Coffin; and all unknown owners, Appellants, v. STATE of Alaska, Appellee. No. 981. Supreme Court of Alaska. July 9, 1969. George Vogt, Kodiak, for appellants. No appearances for appellee. Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

1564

8827

DIMOND, Justice. In a condemnation action brought by the state a master's report was filed on August 21, 1967, valuing appellants' land at $8,610. On September 28, 1967 appellants Ruth Coffin and D. W. Collart filed a notice of appeal from the master's report. On the appeal a jury trial was held and a verdict returned valuing appellants' land at $14,976. Approximately two weeks after the jury's verdict was returned, the state moved under Civil Rule 12(h) (2) to set aside the verdict and dismiss the appeal from the master's report. The state's theory was that the court had no jurisdiction to hear the appeal because appellants' notice of appeal had not been filed within 10 days after service of the notice of the filing of the master's report, as required by Civil Rule 72(h)(4). After the motion to dismiss had been filed, appellants moved for an order enlarging the time for filing the notice of appeal from the master's report. This latter motion was denied and the state's motion to dismiss the appeal was granted. An appeal was then taken to this court. In denying appellants' motion for enlargement of time and granting the state's motion to dismiss the appeal, the superior court was of the view that the 10-day period for appealing from a master's report under Civil Rule 72(h)(4) was "jurisdictional", in the sense that the court had no jurisdiction to grant an extension of time to take an appeal if the application for such extension was not made within 10 days after service of notice of the filing of the master's report. We believe the court was mistaken. We held in State v. 1.163 Acres, More or Less, Chuckwm, Inc., that the 10-day time requirement in Civil Rule 72(h) (4) did not preclude the court from granting an enlargement of time for taking an appeal under Civil Rule 6(b). The latter rule provides that the specified period within which an act is required to be done under the rules may be enlarged even if the motion for enlargement is filed after expiration of the specified period, where the failure to act was the result of excusable neglect. And there is no question of jurisdiction involved apart from the question as to when the motion for enlargement of time was made. The court has jurisdiction over an appeal taken after the time prescribed by rule, either by virtue of its authority to enlarge the time for taking the appeal under Civil Rule 6(b), or by virtue of its authority under Civil Rule 94 to relax or dispense with a rule in any case where it shall be manifest to the court that a strict adherence to the rule would work injustice. It was error for the court to deny appellants' motion for enlargement of time for appeal and to dismiss the appeal on the basis of a lack of jurisdiction. In his brief on appeal, and in an affidavit filed in support of the motion for enlargement of time in the superior court, appellants' counsel asserts facts which he contends justified the granting of the motion. He states that he resides and practices law in Kodiak, Alaska, that the notice of filing of the master's report was mailed to him from Anchorage on August 31, 1967, that following receipt of the notice he flew to Anchorage to confer with the state's attorney regarding this case and two other condemnation actions in which he was involved, that the latter two cases were settled at the conference, and that it was determined that an appeal would be taken as to this case. According to appellants' counsel, on the conference date there were then three days remaining of the 10-day time period for filing the notice of appeal under Civil Rule 72(h) (4), that counsel had no office and no secretary in Anchorage and in order to prepare a notice of appeal he would have been required to use commercial secretarial services, that before returning to his office in Kodiak he wished to travel to Kenai on business, and that because of these circumstances the attorney for the state agreed with appellants' counsel that the notice of appeal could be filed upon the latter's return to Kodiak. The notice of appeal was filed on September 28, 1967, which counsel states was upon his return to Kodiak from Anchorage by way of Kenai. Counsel also states that the matter of the late filing of the appeal was brought to the attention of the superior court judge, and that the judge "stated that if no one else raised the point, he saw no reason why he should." Finally, counsel points to the fact that the state did not raise any question as to the timeliness of the appeal until after the case had been tried by a jury and a verdict returned. We shall not pass upon the questions 'of wh'ether what counsel has recited amounts to a showing of excusable neglect under Civil Rule 6(b) so as to justify the granting of appellants' motion for enlargement of time for taking the appeal, or whether it constitutes a sufficient showing under Civil Rule 60(b) so as to justify the court in relieving appellants from the order dismissing their appeal in the event appellants file an appropriate motion for relief under that rule, or whether this is an appropriate case under Civil Rule 94 for the court to relax or dispense with the requirement of Civil Rule 72(h)(4) as to the time for taking an appeal from a master's report. These matters are committed in the first instance to the discretion of the superior court. It is not our function to pass upon such matters until after the superior court's discretionary power has been exercised. Since the court below has not decided those questions, the case will be remanded in order that that may be done. The order denying appellants' motion for an enlargement of time for filing a notice of appeal and dismissing the appeal from the master's report is reversed. The case is remanded for further proceedings consistent with the views expressed in this opinion. . AS 09.55.320 provides: Right to jury trial as to damages and value of property. An interested party may appeal the master's award of damages and his valuation of the prop erty, in which case there shall be a trial by jury on the question of the amount of damages and the value of the property, unless the jury is waived by the consent of all parties to the appeal. . Civ.R. 12(h) (2) provides: A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. . Civ.R. 72(h) (4) provides: A party who has appeared or answered before the filing of a master's report may appeal within ten (10) days after being served with notice of the filing of the master's report. Any other interested person desiring to appeal from a master's report must take his appeal within ten (10) days after the filing of such report. . 449 P.2d 776, 778-779 (Alaska 1968). . Civ.R. 6(b) provides: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, 50(b), 52(b), 59(b), and (d) and (e), and 60(b), except to the extent and under the conditions stated in them. . Civ.R. 94 provides: These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice. . Vogt v. Winbauer, 376 P.2d 1007, 1010 (Alaska 1962); Bridges v. Alaska Housing Authority, 349 P.2d 149, 155 (Alaska 1959). . Civ.it. 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party or Ms legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; ⅜ * ⅜ (6) any other reason justifying relief from the operation of the judgment.

10443767

Curwood GACKSTETTER and Betty Gackstetter, Appellants, v. STATE of Alaska, Appellee

Gackstetter v. State

1980-10-24

No. 4976

564

567

618 P.2d 564

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Curwood GACKSTETTER and Betty Gackstetter, Appellants, v. STATE of Alaska, Appellee.

Curwood GACKSTETTER and Betty Gackstetter, Appellants, v. STATE of Alaska, Appellee. No. 4976. Supreme Court of Alaska. Oct. 24, 1980. Teresa L. Foster, Cole & Downes, Fairbanks, for appellants. William R. Satterberg, Jr., Asst. Atty. Gen., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and ROWLAND, Superior Court Judge.

1527

9221

OPINION RABINOWITZ, Chief Justice. This appeal arises from an eminent domain proceeding. In 1976, the State of Alaska, in connection with the construction of the New Steese Expressway, condemned 3.464 acres of Curwood and Betty Gackstet-ter's property. Dirt and gravel, useful as fill for the cuts and depressions created by the highway construction, were removed by the state and deposited elsewhere along the project. The case was referred to a master for determination of just compensation to be paid to the Gackstetters. The master awarded the Gackstetters $24,740.00, based on a conclusion that the highest and best use of the property was residential. It is undisputed that applicable Fairbanks North Star Borough zoning ordinances and restrictions prohibited development of the subject property as a gravel pit. The award was reached by determining the fair market value of the Gackstetters' property before and after the taking. The Gackstetters appealed to the superior court. The state then moved for partial summary judgment, seeking a ruling that evidence of the value- of the fill material would be inadmissible at trial. The superi- or court granted the motion, ordering that: Any evidence of special value or benefit to the property by virtue of the condemnation or due to the condemnor's needs or uses shall be inadmissible. The Gackstetters have appealed this ruling of the superior court. On appeal, the Gackstetters do not contest the master's finding as to highest or best use of the property, nor do they dispute the compensation award as it was determined by the fair market value method. They admit that evidence of the value of the fill material was properly excluded from the determination of fair market value, since the value of the fill was created solely by the taker's demand for it. United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392, 1399 (1949); United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 280, 87 L.Ed. 336, 343 (1943). Instead, the Gackstetters proceed on the theory that fair market value is not constitutionally mandated, is inapplicable on the instant facts, and did not accord them just compensation. In their view, a form of unjust enrichment resulted from the state's non — compensable use of the fill material, and because of this, the measure of just compensation should be the value of the land to the condemnor. In addition, the Gackstetters contend there were material issues of fact in dispute which rendered summary judgment inappropriate. We cannot agree that employment of the fair market value test in the case at bar precluded the Gackstetters from receiving just compensation. It is a basic tenet of eminent domain law that just compensation is determined by what the owner has lost and not by what the condemnor has gained. In Nichols it is stated that: The just compensation to which an owner is entitled when his property is taken by eminent domain is regarded in law from the point of view of the owner and not of the condemnor. In other words, just compensation in the constitutional sense is what the owner Has lost, and not what the condemnor has gained. The United States Supreme Court defined just compensation in the following manner: The just compensation required by the Constitution to be made to the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public. Bauman v. Ross 167 U.S. 548, 574, 17 S.Ct. 966, 976, 42 L.Ed. 270, 283 (1897); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 1437, 93 L.Ed. 1765, 1772 (1949). This court has followed the same principle in measuring just compensation: The term just compensation implies full indemnification to the owner for the property taken. In other words the property owner should be placed as fully as possible in the same position as he was prior to the taking of his property. Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 150 (Alaska 1971). Fair market value is usually equated with just compensation, as it provides an objective standard by which to measure the loss to the owner. Nevertheless, as the Gackstetters point out, fair market value is not the end in itself, but merely a means to achieve the goal of just compensation. 4 J. Sackman, Nichols on Eminent Domain § 12.2 (rev. 3d ed. 1979); see also Babinec v. State, 512 P.2d 563, 570 (Alaska 1973) appeal after remand, 586 P.2d 966 (Alaska 1978). However, none of the authorities cited by the Gackstetters support their contention that value-to-the-taker is an appropriate measure of just compensation in the factual context of this case. In particular, the Gackstetters' reliance on State v. Hammer, 550 P.2d 820 (Alaska 1976), is misplaced. In Hammer we held that a temporary loss of profits during relocation, necessitated by condemnation, was compensa-ble. In criticizing the argument that no recovery should be had for the destruction of a business incidental to condemnation, we stated: This approach has several serious flaws. First, it conflicts with our principle of compensation, which, instead of looking at the benefit to the condemnor as a measure of compensation, looks to the loss to the owner, as measured by an objective standard. In the case at bar, the state appropriated residential property from the Gack-stetters for which the Gackstetters were justly compensated through employment of a fair market valuation measure. We thus conclude that the superior court did not err in its determination that consideration of value to the state of the fill and gravel it received from the Gackstetters' land was an inappropriate measure of just compensation. AFFIRMED. BOOCHEYER, J., not participating. . The Gackstetters' property was bounded by Engineer Creek Basin to the north and the bowl occupied by Fairbanks to the south. Materials utilized from the Gackstetters' land were deposited elsewhere on the project to fill the depression existing in the adjacent valley. The Gackstetters maintain they should be compensated for the value of the material taken from their land. . Fair market value is defined as the amount of money "which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses for which the land was suited and might in reason be applied." 4 J. Sackman, Nichols on Eminent Domain § 12.-2[ 1] (rev. 3d ed. 1979) (footnotes omitted). . The order of partial summary judgment was entered on August 13, 1979. The final judgment was entered in this case on September 25, 1979, pursuant to a stipulation for entry of final judgment, signed by the parties on August 13, 1979. That stipulation provided that the Gack-stetters retained the right to appeal the superi- or court's order of partial summary judgment, and that the final judgment would be regarded as the operative document for appeal time computations. . The Gackstetters raised the following issues: 1. Whether the highway project in question was designed to take advantage of fill material on Defendant's property. 2. Whether from a purely engineering standpoint, and taking into account the goals of the highway project, it was necessary for the route to cross Defendant's property. 3. The amount of fill removed and used in the project, and the dollar value of such fill. .3 J. Sackman, Nichols on Eminent Domain § 8.61 (rev. 3d ed. 1979) (footnotes omitted). See also id. at § 12.21; Uniform Eminent Domain Code, committee comment to § 1004, reprinted in id., App. D-3 at App. 344.133. . Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 150 (Alaska 1971). . In 4 J. Sackman, Nichols on Eminent Domain § 12.1 [5] (rev. 3d ed. 1979) (footnotes omitted), it is stated that: The basic concepts of value which have been developed with relation to property acquired by means of eminent domain fall generally into three categories: (a) Value to taker, (b) Value to owner, (c) Market value. Value to the taker, while ordinarily rejected as a standard, is occasionally considered as an element in the determination of value where, as a factual proposition, the present adaptability of the property for the projected use is a determinative factor in creating a demand for such property by purchasers in the ordinary market. In other words, where special availability of the property for public use is an element in the establishment of general market value it may be considered. . State v. Hammer, 550 P.2d 820, 824 (Alaska 1976). . Our holding makes it unnecessary to address the Gackstetters' contention that the existence of genuine issues of material fact precluded the entry of partial summary judgment.

10443772

Jim BOOKEY, d/b/a Bookeys, Appellant, v. KENAI PENINSULA BOROUGH, Appellee

Bookey v. Kenai Peninsula Borough

1980-10-24

No. 4878

567

570

618 P.2d 567

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Jim BOOKEY, d/b/a Bookeys, Appellant, v. KENAI PENINSULA BOROUGH, Appellee.

Jim BOOKEY, d/b/a Bookeys, Appellant, v. KENAI PENINSULA BOROUGH, Appellee. No. 4878. Supreme Court of Alaska. Oct. 24, 1980. C. R. Baldwin, Rogers & Baldwin, Kenai, for appellant. Joseph L. Kashi, Andrew R. Sarisky, Sol-dotna, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

1242

7559

OPINION MATTHEWS, Justice. The issue in this case is whether a municipality may impose a civil penalty for failing to remit sales taxes. We hold that such a penalty is authorized. During 1976, Jim Bookey collected sales taxes in his Soldotna and Kenai restaurants. However, he did not remit them on time. The Kenai Peninsula Borough filed suit in District Court in order to collect the penalty provided for in KPB 5.16.260(B): Failure to File a Return: A seller who fails to file a return as required by this chapter or who fails to remit taxes collected by him, or which should have been collected by him is subject to a penalty of 5% of the taxes collected, or which should have been collected, per month to a maximum of the higher of 25% or $300.00. The filing of an incomplete return is the equivalent of filing no return. The parties stipulated that Bookey was delinquent in remitting sales taxes to. the Borough and that the amount sought, $1,141.39, was properly computed. Each party moved for summary judgment. Boo-key contended that the Borough was without power to enforce a civil penalty for late payment of sales taxes; the Borough took the opposite position. The District Court found for the Borough and, on appeal to the Superior Court, that court affirmed. Boroughs and cities may levy and collect a sales tax. AS 29.53.415(a); AS 29.53.440. Cities may do so in the "manner provided for boroughs." AS 29.53.440. AS 29.48.010 provides: General powers. Municipalities have the following general powers, subject to other provisions of law: (8) to enforce ordinances and to prescribe penalties for violations; . . AS 29.48.200 provides: Penalties. For the violation of an ordinance, the assembly or council may prescribe punishment not to exceed a fine of $500 or imprisonment for 30 days, or both. However, the punishment authorized under this subsection may be imposed only if an ordinance is codified and copies of the ordinance are made available for distribution to the public. AS 29.53.415(d) states: If the assembly of a home rule or, general law borough charges interest on sales taxes not paid when due, the rate of interest may not exceed eight per cent a year upon the delinquent taxes and shall be charged from the due date until paid in full. The Borough contends that civil penalties for the late remission of sales taxes are authorized under AS 29.48.010(8). It argues that the $500 limitation imposed by AS 29.48.200 does not apply to civil penalties, as that statute is concerned exclusively with criminal cases. Bookey's argument is that while AS 29.-48.200 is solely concerned with criminal cases, by implication, it precludes the imposition of a civil penalty. He points out that the Borough ordinance provides for a penalty potentially in excess of the $500 limitation prescribed under AS 29.48.200. Further, he notes that the eight per cent interest limitation on sales taxes not paid when due, set forth in AS 29.53.415(d), loses much of its meaning when a municipality is able to tack on penalty charges. Bookey argues further that the Alaska statutes pertaining to the levy of general property taxes specifically provide for a penalty not to exceed ten per cent, in addition to eight per cent interest. AS 29.53.180. The absence of similarly specific authorization with respect to sales taxes indicates a legislative intention to withhold such authorization, according to Bookey. Overall, we think a close question is presented. We hold in favor of the power to impose a civil penalty primarily because our state constitution requires that a liberal construction be given to the powers of municipalities, a rule of interpretation that is echoed by AS 29.48.310-330. We stated concerning these provisions in Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1120-21 (Alaska 1978) (footnote omitted): The constitutional rule of liberal construction was intended to make explicit the framers' intention to overrule a common law rule of interpretation which required a narrow reading of local government powers. The foregoing summary should have at least a cautionary effect on the judiciary. We should not be quick to imply limitations on the taxing authority of a municipality where none are expressed. More specifically, we agree with both parties that AS 29.48.200 only applies to criminal penalties. We do not read it as a limitation on the power to impose civil penalties. Merely because a criminal remedy is specifically authorized does not mean that it is meant to be the exclusive method of enforcement. See City of Anchorage v. Baker, 376 P.2d 482 (Alaska 1966); McQuillan, Municipal Corporations § 44.135(a) (3rd ed. 1969). Further, we agree with the Borough that the power to impose civil penalties is granted by AS 29.48.010(8). A normal and unstrained reading cohveys this meaning. Such a power does, to some extent, interfere with the policies implied in the $500 fine limitation of AS 29.48.200 and the eight per cent interest limitation of AS 29.53.415(d), which are that the consequences of non-compliance be limited in severity. It is also true that the power could be more clearly expressed, as it is in the case of the authorization for the penalty pertaining to property taxes set out in AS 29.53.180. Nevertheless, these considerations are not sufficiently strong to justify the conclusion that the power to ordain a civil penalty has not been granted. AFFIRMED. BOOCHEVER, J., not participating. . The City of Kenai, the City of Soldotna, and the Borough all imposed a sales tax on Boo-key's businesses during 1976. The Borough collects the sales taxes for the Cities and then remits to each City its share of taxes collected. The Borough brought suit on its own behalf and on behalf of the Cities. Both Cities have enacted ordinances identical to KPB 5.16.260. . Alaska Const, art. X, § 1 provides: The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax levying jurisdictions. A liberal construction shall be given to the powers of local government. . AS 29.48.310 -330 provide: AS 29.48.310. General construction. A liberal construction shall be given to all powers and functions of boroughs and cities conferred in this title. AS 29.48.320. Extent of powers. Unless otherwise limited by law, boroughs and cities may have and may exercise all powers and functions necessarily or fairly implied in or incident to the object or purpose of all powers and functions conferred in this title. AS 29.48.330. Enumeration of powers. Specific examples within an enumerated power or function conferred upon boroughs or cities in this title are illustrative of the object and not a limitation on or exclusion from the exercise of the power or function. .We disapprove the suggestion in Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1224 (Alaska 1975) to the contrary. . See City of Louisville v. Fisher Packing Co., 520 S.W.2d 744 (Ky.1975) which held that a municipality had the power to impose a late payment penalty by implication from the statutory grant of authority to impose the tax, even though a specific statutory provision authorized penalties with respect to other taxes.

10444197

Ida Marie HINKEL, Appellant, v. ANCHORAGE, a Municipal Corporation, Appellee

Hinkel v. Anchorage

1980-10-24

No. 4508

1069

1077

618 P.2d 1069

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Ida Marie HINKEL, Appellant, v. ANCHORAGE, a Municipal Corporation, Appellee.

Ida Marie HINKEL, Appellant, v. ANCHORAGE, a Municipal Corporation, Appellee. No. 4508. Supreme Court of Alaska. Oct. 24, 1980. Joseph A. Kalamarides, Eckert, Kalamar-ides & Associates, Anchorage, for appellant. Donald L. Starks, Asst. Municipal Prosecutor, and Theodore Berns, Municipal Atty., Anchorage, for appellee. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

5406

32161

OPINION Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. MATTHEWS, Justice. On February 26, 1978, Anchorage police officer William Thompson witnessed an automobile accident involving Ida Marie Hinkel. Hinkel's vehicle, traveling at a high rate of speed, ran a red light and smashed into a vehicle in the intersection. Thompson first assisted the driver of the other vehicle. He then turned his attention to Hinkel who was still sitting in her car in the middle of the street. Thompson asked Hinkel to show him her driver's license and to get out of the car. Both requests were refused. He then advised Hinkel that if she did not cooperate she would be placed under arrest. The officer then opened the right front door of the vehicle and asked her to step out of the car. She again refused. Thompson advised her that she was under arrest, took hold of her and her purse which was next to her on the front seat, and proceeded to pull her out of the vehicle. In the course of the struggle the purse was left in the vehicle. Hinkel was escorted by Thompson to the back seat of his patrol car. Shortly thereafter a wrecker appeared in response to Thompson's call. Another policeman, Officer Cox, also arrived and began to assist the wrecker driver. Cox took Hinkel's purse from the vehicle and brought it to Thompson in the patrol car, remarking that the purse was quite heavy. Thompson opened the purse and discovered that it contained a loaded handgun. Thompson testified that the purse was taken from Hinkel's vehicle because it was going to be towed away and that it would have been normal procedure to return the purse to a person under arrest in Hinkel's position, but not without first searching it. Hinkel was subsequently charged with carrying a concealed weapon in violation of an Anchorage Municipal ordinance, and with reckless driving. The district court granted her motion to suppress the handgun. The Municipality petitioned for review and the superior court reversed. Hinkel was then convicted of the concealed weapon charge after a jury trial. She has appealed from that conviction, claiming that the search of her purse was unlawful. A search conducted incident to an arrest is an exception to the general rule that no search is lawful without a warrant. The question for decision in this case is whether the search of Hinkel's purse falls within that exception. A container on the person of an ar-restee at the time of the arrest may be seized, opened, and searched as an incident to the arrest, Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978); McCoy v. State, 491 P.2d 127, 139 (Alaska 1971), unless the container is too small to contain a weapon and the arrest is for a crime, such as reckless driving, for which no evidence could exist in the container. Middleton v. State, 577 P.2d at 1055; Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977). This is so even though it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be accomplished simply by seizing the container and removing it from the reach of the arrestee. The most complete discussion of this point is found in McCoy v. State, 491 P.2d 127, 131-39 (Alaska 1971). In McCoy, the defendant was arrested for attempting to use a forged airline ticket. He was taken to the police station and while in an interrogation room a package was found in his jacket which he had draped over the back of the chair in which he was seated. The package was opened without a warrant and found to contain cocaine. The contention was made that the two reasons justifying searches incident to arrests, protecting the arresting officer and preventing the destruction of evidence, suggested by Mr. Justice Frankfurter in his dissent in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and relied on by the majority in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), serve as limitations on searches of the person of the arrestee as well as those of the area within his immediate control. Justice Erwin, writing for this court, considered the argument and rejected it: Our dissenting brothers suggest that Frankfurter's twin rationales also supply the analysis for judging the propriety of searches of the arrestee's person as well as his environs. They reason that after the officer had taken possession of the packet there was no danger that McCoy might remove from it a weapon, an implement of escape, or destructible evidence. Consequently, they argue, the exigency justification of the search evaporated and the warrant requirement attached. We do not believe that this is a correct interpretation of Chimel. While it is clear from Chimel that the twin rationales suggested by Frankfurter supply the appropriate analytic scheme to define the area "within [the arrestee's] immediate control," it by no means follows that they also supply the appropriate analysis for limiting searches of the arrestee's person . Chimel was concerned not with searches of the person, but with the wide ranging warrantless searches of dwellings which Rabinowitz had legitimized.... . . [T]he Court did not intend to limit the intensity of searches of the person incident to a lawful arrest but was concerned instead only with limiting searches of the area surrounding him when he was arrested.... . Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. 491 P.2d at 133-4 (footnotes omitted). The court in McCoy also concluded that the exigencies of the search were to be judged at the time of the arrest rather than at the time that the item is opened: The exigent circumstances were clearly present when the packet was in McCoy's possession at the time of arrest; the search once justifiable, does not violate the fourth amendment remedy because the exigency is removed at the time the search is conducted. 491 P.2d at 137 (footnote omitted). We have most recently reaffirmed McCoy in Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978). Middleton was arrested for armed robbery of a liquor store, taken to the police station, and placed in an interrogation room. Twenty minutes to a half hour later she was asked to take everything out of her pockets and place them on a table. She placed her billfold there and a policeman took it and searched it. He found a folded piece of paper which he opened and discovered that it contained a sketch of the floor plan of the premises which had been robbed. Middleton argued that this search was unlawful because once the billfold was in the possession of the police there was no justifying exigency, since there was then no danger that its contents could be destroyed. We unanimously rejected this argument on the authority of McCoy. 577 P.2d at 1055. Certain containers in the possession of one who is arrested and which are located in the immediate area of the arrest may be seized but not searched under the incident to arrest exception. We so held in Metcalfe v. State, 593 P.2d 638, 640 (Alaska 1979). Metcalfe was arrested while carrying a box in his arms. He was taken to the police station where the box was searched. We held that the search of the box could not be upheld under the incident to arrest exception because no exigent circumstances justified it. In so holding we quoted the following from United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 551 (1977): Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. 593 P.2d at 640. The question in this case is whether the search of Hinkel's purse is to be governed by Middleton and McCoy or by Metcalfe. The answer, we believe, is suggested by the language quoted from Chadwick in Met-calfe, set forth above, which pointedly excepts personal property "immediately associated with the person of the arrestee" from the requirement that an exigency must exist to justify a search. This language must mean that containers found in clothing pockets may be searched. In our view it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. It would be possible, of course, to treat containers found in clothes pockets, such as billfolds, differently from items such as purses which are not carried in pockets but serve the same purpose. However, we can think of no reasons to justify such a distinction. We conclude that Hink-el's purse was property immediately associated with her person and, therefore, was properly searched incident to her arrest. Our conclusion is supported by a recent case of the Court of Appeals for the Seventh Circuit, United States v. Berry, 560 F.2d 861 (7th Cir. 1977), vacated on other grounds, 571 F.2d 2 (7th Cir. 1978), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978). The court noted the distinction made in Chadwick between personal property which is immediately associated with the person of the arrestee and that which is not: The court appears to be distinguishing-for purposes of whether a warrant is required to search property in police custody that was seized from a suspect at the time of the arrest-between searches of an arrestee's clothing, as in Edwards, or items that were in his pockets, as in Robinson, from searches of other possessions, such as luggage, that were within his immediate control. Warrantless searches of the former items after they come in police custody can be characterized as searches of the arrestee's person because they do not involve any greater reduction in the arrestee's expectations of privacy than that caused by the arrest itself. Warrantless searches of the latter items, however, affect privacy interests other than those reduced by the arrest itself and thus can be conducted only so long as the danger exists that the arres-tee might gain access to the property to seize a weapon or destroy evidence. 560 F.2d at 864. The item seized in Berry was an attache case. The court concluded that it was more like luggage than property immediately associated with the person and indicated that a purse would be within the latter category: Returning .to the instant case, we believe that the search of the attache case is better characterized as a search of possessions within the arrestee's immediate control than as a search of his person. First, as a matter of common usage, a briefcase is not an item carried on an individual's person in the sense that his clothing or items found in his pockets are. Second, as was true of the footlocker in Chadwick, the privacy interest in the attache case here centered on its contents rather than on the container itself. A search of the interior constituted "a far greater intrusion into fourth amendment values" than either Wilson's arrest or the im-poundment of the case. Finally, unlike a purse that might be characterized as "immediately associated with the person of the arrestee" because it is carried with the person at all times, the attache case here was more like luggage in that Wilson was not carrying it when he left the building, but rather removed it from an auto trunk immediately before his arrest. Id. As we have indicated there is a line to be drawn between containers which may be searched incident to an arrest and those which may not be, once any danger that the arrestee may gain access to the container to seize a weapon or destroy evidence no longer exists. Such a line is required if Middleton and McCoy on the one hand and Met-calfe on the other are to be reconciled. We think such a reconciliation is possible and adopt the approach suggested by Chadwick to accomplish it. We recognize, however, that it may legitimately be questioned whether the line drawn is sufficiently perceptible to be observed in practice. Ultimately, of course, experience will give us the answer. We think that the only logical alternative to today's decision would be to overrule Mid- die ton and McCoy. We could then adopt the rule that no container found on the person of an arrestee could be searched without a warrant so long as the alternative of seizure and removal from the reach of the arrestee were available. If the ar-restee desired the return of the container prior to his release from custody he could consent to its search. While such a rule would not be difficult to follow, we are not persuaded that overruling Middleton and McCoy is necessary or desirable. AFFIRMED. . Middleton v. State, 577 P.2d 1050 (Alaska 1978); Zehrung v. State, 569 P.2d 189 (Alaska 1977); Schraff v. State, 544 P.2d 834 (Alaska 1975); McCoy v. State, 491 P.2d 127 (Alaska 1971). . This holding is consistent with the limitations expressed in McCoy v. State, 491 P.2d 127, 138 (Alaska 1971) and Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) referred to at page 1070, supra, because the search involved here was for weapons not evidence. . Other authorities supporting our view that a purse is an item immediately associated with the person are: United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir. 1978), cert. denied 435 U.S 972, 98 S.Ct. 1615, 56 L.Ed.2d 64 (1978); United States v. Venizelos, 495 F.Supp. 1277 (S.D.N.Y.1980); Sumlin v. State, 587 S.W.2d 571, 577 (Ark.1979) (en banc); People v. Harris, 164 Cal.Rptr. 296, 303, 105 Cal.App.3d 204 (Cal.App. 1980); People v. Flores, 160 Cal.Rptr. 839, 844, 100 Cal.App.3d 221 (Cal.App.1979); State v. Sabater, 601 P.2d 11, 13-14 (Kan.App.1979), cert. denied 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 272 (1980); State v. Thompson, 596 P.2d 174, 179 (Kan.App.1979); Dawson v. State, 40 Md.App. 640, 395 A.2d 160, 167 (1978); State v. Webb, 560 S.W.2d 318 (Mo.1977). Contra United States v. Farrar, 470 F.Supp. 128, 131 (S.D.Miss.1979); People v. Redmond, 73 Ill.App.3d 160, 28 lll.Dec. 774, 780-85, 390 N.E.2d 1364, 1370-75 (1979); Ulesky v. Florida, 379 So.2d 121, 125-26 (Fla.App.1979).

10443789

James J. RIBAR, Appellant, v. H & S EARTHMOVERS, Appellee

Ribar v. H & S Earthmovers

1980-10-31

No. 4505

582

585

618 P.2d 582

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

James J. RIBAR, Appellant, v. H & S EARTHMOVERS, Appellee.

James J. RIBAR, Appellant, v. H & S EARTHMOVERS, Appellee. No. 4505. Supreme Court of Alaska. Oct. 31, 1980. James A. Parrish, Parrish Law Office, Fairbanks, for appellant. Michael C. Geraghty, Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for appel-lee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and CRASKE, Superior Court Judge.

1582

9768

OPINION MATTHEWS, Justice. In this case, a disabled worker claims that diagnosis of a preexisting disease was delayed because symptoms of an on-the-job injury misled his attending physicians, causing them to misinterpret the significance of later symptoms of the preexisting disease. The worker claims that the portion of his disability caused by the delayed diagnosis of the preexisting disease is com-pensable because of the on-the-job injury's alleged causal relationship to the delayed diagnosis. James J. Ribar was employed by H & S Earthmovers [H & S]. While at work in Fairbanks, after dark on December 12, 1975, in heavy ice fog and with the temperature at -48°, he backed a vehicle he was operating into a truck. That night, after work and while driving to Anchorage, Ribar began to feel pain in his neck. The next day he filed a report of the on-the-job injury and visited a doctor at the Fairbanks Medical and Surgical Clinic [Clinic], who diagnosed "acute cervical strain syndrone [sic] severe." Ribar was treated with physical therapy, a neck collar, and pain medication. He was not permitted to return to work and continued to report to the doctor. At the end of December, Ribar's condition had improved, but he had still not returned to work. By January 5, 1976, his pain was more severe, and his overall condition had worsened. By January 10, he was experiencing excruciating neck pain, numbness in the upper extremities, and muscle spasms. The diagnosis of cervical strain and the method of treatment were concurred in by another Clinic physician. On January 14, Ribar was admitted to the Clinic. Ribar's condition continued to deteriorate. By January 16, he was unable to move his arms and legs and could not sit up by himself. The Clinic physicians continued to treat him for a severe cervical strain. Finally, on January 21, he was flown to Seattle for treatment at the University of Washington Hospital. A myelogram was performed; it showed a partial blockage in the cervical region of the spine. Surgery was performed on January 22 and a tumor, which had been constricting the spinal cord, was removed. Ribar was left a quadriplegic. Ribar sought permanent disability compensation from the Workmen's Compensation Board [Board]. The Board found that the symptoms of the tumor had not been masked by the on-the-job injury and that therefore the injury was noncompensable. It is evident that the Board used the word "masked" in the narrow sense of covered, rather than in the broader sense of confused. The Board stated: What is at issue is whether the symptoms associated with a cervical strain "masked" the symptoms of the spinal tumor. At the hearing Dr. Mead was asked the specific question, if in his opinion the symptoms were "masked." He said "no." They may have been "confused" but they were not "masked." The Superior Court, in affirming, agreed with the Board that masking in the sense of concealment was required, stating: Appellant argues, "If in fact the on-the-job injury misled claimant's physicians to his detriment, the detriment is compensable. This rule should obtain whether or not the failure to correctly diagnose the pre-existing informity [sic] might be labeled as 'malpractice' ".... However, the inquiry is not whether the physician was misled. It is whether or not the symptoms were masked. H & S argues that there was substantial evidence to support the Board's conclusion that the symptoms of the preexisting disease were not, in fact, obscured or concealed by the industrial injury. Ribar does not challenge the Board's findings, but simply says they are irrelevant. Furthermore, Ribar does not claim on appeal that any actual concealment of symptoms occurred. The issue involved is essentially a causation question, says Ribar: Was the on-the-job injury a substantial factor which contributed to his quadriplegia? He contends that the Board improperly required him to establish that the physical symptoms of his preexisting disease were obscured or concealed by the industrial injury. In fact, he says, all he needed to show was that the proper diagnosis was delayed because of the accident. H & S believes the theory advanced by Ribar, that a delayed diagnosis absent obscuring of the disease symptoms is compensable, is "wholly contrary to the policy behind workmen's compensation," inasmuch as it places the burden of the doctor's error on the employer. The issue thus raised is a question of law. The Board rejected Ribar's theory of the case and as a result did not reach a determination regarding the facts which would control if his legal theory had been accepted. Ribar cites an Oregon case, Waibel v. State Compensation Department, 471 P.2d 826 (Or.App.1970), with remarkably similar facts in support of his legal position. In Waibel a worker was hit by a piece of timber, causing him to fall on his back against a log. Concussion and cervical strain were diagnosed. He returned to work with a back brace, but continued to feel back pain, and continued to visit a physician. Seven months after his on-the-job injury, a spinal tumor, resulting from Hodgkin's disease, was diagnosed. Waibel recovered compensation. The court reasoned: [T]he accident of August 4, 1966, and the symptoms which immediately followed it led the claimant and his attending physicians into believing that the symptoms he experienced from that time until March 11, 1967, were traumatic rather than the product of Hodgkin's disease. It seems probable that if the trauma had not "masked" the Hodgkin's disease symptoms Waibel would have received treatment for the disease at an earlier date.... 471 P.2d at 830. H & S claims that Waibel is a case involving actual hiding of the underlying symptoms, and that it therefore cannot be read to support the broader theory of recovery suggested by Ribar. As phrased by the Oregon court, the question it faced was this: If the happening of an accident delays the diagnosis of a pre-existing disease with the result that the disease is not treated as promptly as it otherwise would have been, is the injured workman entitled to industrial accident compensation for the physical consequences of the delay in treatment for the disease? 471 P.2d at 827. It is impossible to determine from the Waibel opinion whether the Oregon court concluded that the injury symptoms must have actually obscured the disease symptoms. It does appear, however, that Waibel exhibited symptoms indicative of the disease and inconsistent with the injury prior to the time that the correct diagnosis was made. Thus Waibel supports Ribar's position. We think that it makes little difference whether an industrial accident causes a delayed diagnosis of an underlying condition by actually concealing the symptoms of the condition or by merely causing confusion in the mind of the treating physician. In each case the condition is not discovered and appropriately treated because of the accident. The question in both cases is the same: was the accident a substantial factor in contributing to the applicant's condition in the sense that it delayed proper diagnosis and treatment of the tumor. H & S argues that acceptance of Ribar's theory will necessarily make employers liable for the consequences of medical malpractice. There are at least two problems with this argument. The first is that there is no testimony in this case that Ribar's physicians fell below the applicable standard of care owed by a doctor to his patient. A physician may be wrong in a diagnosis without being negligent. Second, even if there was negligence, the general rule is that the consequences of medical negligence committed while treating a com-pensable injury are themselves compensa-ble. 1 A. Larson, The Law of Workmen's Compensation § 13.21 (1978); J. Stein, Damages and Recovery § 144 (1972); W. Prosser, The Law of Torts § 44, at 278-79 (4th ed. 1971). The evidence presented on the question whether Ribar's accident was a substantial factor in bringing about his paralysis was conflicting. This case must therefore be remanded to the Board for resolution of this question. REVERSED AND REMANDED. BOOCHEVER, J., not participating. . The Board stated: 15. We agree with the applicant's statement of the law that if the symptoms of applicant's cervical injury "masked" the more serious symptoms of a spinal cord compression, then the disability of the applicant is compensable. However, as previously stated, we believe the evidence indicates that the symptoms of spinal cord compression were not masked. .Leaming v. State Accident Ins. Fund, 528 P.2d 1352 (Or.App.1974) is not contrary authority, for there the fact of the industrial injury did not change the method of treating the claimant. In the present case, it is Ribar's position that his accident did cause his physicians to act differently than they would have had his accident not taken place. . See Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 598 (Alaska 1979); Cook v. Alaska Workmen's Comp. Bd., 476 P.2d 29, 35 (Alaska 1970). . The consequences of this rule are tempered somewhat by the fact that the employer is entitled to be reimbursed for compensation paid for injuries caused by the negligence of a physician. AS 23.30.015. . Drs. Mead and Harris thought the accident caused confusion and delayed a proper diagnosis; Dr. Rogers did not agree that the cervical strain had confused the treating physicians.

10443763

Jacob J. WALKER and Annie F. Walker, Appellants, v. William A. WHITE and Catherine P. White, Appellees

Walker v. White

1980-10-24

No. 4574

561

564

618 P.2d 561

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Jacob J. WALKER and Annie F. Walker, Appellants, v. William A. WHITE and Catherine P. White, Appellees.

Jacob J. WALKER and Annie F. Walker, Appellants, v. William A. WHITE and Catherine P. White, Appellees. No. 4574. Supreme Court of Alaska. Oct. 24, 1980. Frederic E. Brown, Fairbanks, for appellants. Peter J. Aschenbrenner, Aschenbrenner & Saveli, Fairbanks, for appellees. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

1545

9539

OPINION RABINOWITZ, Chief Justice. Jacob and Annie Walker appeal from the superior court's entry of an injunction against their attempted foreclosure, pursuant to a deed of trust, against property they sold to William and Catherine White, and from the superior court's dismissal of their counterclaim seeking judgment on a promissory note executed by the Whites. The Walkers contend that the court erred in granting summary judgment. We affirm in part and reverse in part. In July 1964, the Walkers conveyed to the Whites by warranty deed title to real property located in Fairbanks. One year later, the Whites executed a promissory note to the Walkers for $6,992.81. Simultaneously, the Whites executed a deed of trust, naming the Walkers as beneficiaries. The parties differ as to the exact date that the Whites ceased making payments on the note, but agree that it was in 1969. The Whites' cessation was apparently prompted by their discovery that the house on their land encroached on another lot, contrary, they claim, to the Walkers' representations. On January 5,1978, the trustee under the deed of trust recorded a notice of default and election to sell. The sale, originally scheduled for April, was rescheduled for October 21. On October 5, the Whites filed the instant action to enjoin it. They contended that the foreclosure was barred by the six-year statute of limitations pertaining to actions upon a contract or liability, express or implied, AS 09.10.050, and that the Walkers were barred from collecting on the note until they cured their breaches of warranty. In their answer to the complaint, the Walkers argued with regard to the statute of limitations claim that the Whites had acknowledged the debt within six years of the attempted foreclosure, and with regard to the warranty claim that the Whites knew of the problems with the property. They also counterclaimed, requesting judgment on the note in the event their deed of trust remedy should be held time-barred. The Whites moved for summary judgment, and after hearing oral argument on the motion, the superior court issued an opinion granting the Whites' motion. It based its decision on the statute of limitations, and did not reach the warranty claim. The Walkers then moved for reconsideration, upon the grounds that the court failed to consider evidence that it should have taken into account, and that it incorrectly interpreted the relevant statutes. The motion was denied and this appeal followed. Before this court, the Walkers contend that the superior court erred in not considering three letters written to them which, they argue, established the Whites' acknowledgment of the subject debt: a 1975 letter from William White, a 1973 letter from Catherine White, and a 1978 letter from an attorney purportedly representing Catherine. The superior court refused to consider them because of its belief that they were not submitted in compliance with Alaska Rule of Civil Procedure 56(e). The letters were filed with the superior court, in response to the Whites' request for production made two months earlier, at 3:38 p. m. on January 29, 1979, only seventeen hours before oral argument on the summary judgment motion. The Walkers rely on Jennings v. State, 566 P.2d 1304 (Alaska 1977), where we said: The formal issues framed by the pleadings are not controlling on a motion for summary judgment; the court must consider the issues presented by the other material offered by the parties on the motion to determine whether the Rule 56 request should be granted. Thus the court will examine the pleadings to ascertain what issues of fact they present and then consider the affidavits, depositions, admissions, answers to interrogatories and similar material to determine whether any of these issues are real and genuine and whether any of the post-pleading material suggests the existence of any other triable genuine issues of material fact. The parties need not formally offer their outside matter as evidence or have it marked as an exhibit at the hearing on the motion. Given this process, the court is obliged to take account of the entire setting of the case on a Rule 56 motion. Id. at 1310, quoting 10 C. Wright & A. Miller, Federal Practice and Procedure § 2721, at 475-76 (1973) (footnotes omitted). We agree that Jennings is controlling here, and conclude that the letters were properly before the superior court in connection with the summary judgment motion. We therefore must consider whether the letters constitute an acknowledgment of the debt sufficient to remove the bar of the statute of limitations. The controlling provision on this question is AS 09.10.200, which provides, in relevant part: Acknowledgment or promise. No acknowledgment or promise is sufficient evidence of a new or continuing contract to take the case out of the operation of this chapter [AS 09.10, defining limitations on various types of actions] unless the acknowledgment or promise is contained in writing, signed by the party to be charged, and, as to instruments affecting real estate, acknowledged and recorded in the office of the recorder of the district where the original contract was filed or recorded. Because the letters were not recorded, we agree with the Whites that they cannot revive any time-barred remedies based on the deed of trust, which is an "instrument affecting real estate" within the meaning of AS 09.10.200. The superior court reached the same conclusion in dictum in its opinion, and from our reading of the Walkers' briefs we believe they have conceded this point. Thus, we affirm the portion of the superior court's judgment enjoining the Walkers from seeking to enforce the deed of trust, and ordering them to request the trustee to reconvey the property at issue to the Whites. However, we have concluded that the portion of the judgment prohibiting the Walkers from acting to enforce their promissory note against the Whites personally must be reversed. Although this note was executed in connection with the sale of real estate, it is a personal note, and therefore is not subject to the recordation requirement of AS 09.10.200. Construing the letters most favorably to the Walkers, we are of the opinion that excerpts from the letters of both William and Catherine White constitute, as a matter of law, acknowledgments of the debt within the intendment of AS 09.10.200. The Whites contend that an acknowledgment under AS 09.10.200 must be "direct, unqualified and unconditioned." We cannot agree. The purpose of the statute of limitations is "to protect against the difficulties caused by lost evidence, faded memories and disappearing witnesses." Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971). This purpose is not advanced by imposing rigorous requirements of formality on acknowledgments. Such requirements, in our opinion, would only heighten the statute's unfortunate effect of occasionally barring meritorious claims. See 1A A. Corbin, Corbin on Contracts § 223 (1963) (written promise or acknowledgment "may be sufficient even though it is informal and is in need of much explanatory evidence"). The judgment of the superior court is affirmed in part and reversed in part, and the case is remanded for further proceedings upon the Walkers' counterclaim based upon the subject promissory note. BOOCHEVER, J., not participating. .Alaska R.Civ.P. 56(e) reads: Form of Affidavits-Further Testimony-Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. . Alaska R.Civ.P. 56 is virtually identical to Fed.R.Civ.P. 56. . The Whites do not contest the Walkers' position on this procedural question. . In a motion for summary judgment, the trial court is required to draw all reasonable inferences in favor of the non-moving party and against the movant. Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974). . William White wrote, "I would like to get things together and settle up with you in full. Or monthly or how ever." Catherine White's letter refers to "the debt owed herein," and calls her advice to the Walkers on how they might collect that debt "my last opportunity to try to help make it right." We observe that the note signed by the Whites made them jointly and severally liable to the Walkers, so that the Walkers need only show acknowledgment by either Mr. or Mrs. White, or both.

10568504

Janet MADDOCKS and Georgia McLaughlin, d/b/a Anchorage Hotel Beauty Salon, Appellants, v. Ida Jane BENNETT, Appellee

Maddocks v. Bennett

1969-07-09

No. 1006

453

461

456 P.2d 453

456

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:38.206299+00:00

CAP

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

Janet MADDOCKS and Georgia McLaughlin, d/b/a Anchorage Hotel Beauty Salon, Appellants, v. Ida Jane BENNETT, Appellee.

Janet MADDOCKS and Georgia McLaughlin, d/b/a Anchorage Hotel Beauty Salon, Appellants, v. Ida Jane BENNETT, Appellee. No. 1006. Supreme Court of Alaska. July 9, 1969. Charles W. Hagans, Hagans & Opland, Anchorage, for appellants; James K. Singleton, Anchorage, of counsel. James N. Wanamaker, Wanamaker & Dickson, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

5260

31085

BONEY, Justice. Appellants have appealed from an adverse jury verdict rendered in a personal injury suit. Plaintiff, Mrs. Bennett, went to defendant Anchorage Hotel Beauty Salon at 5 p. m., on May 17, 1966, to have her hair dyed. She requested that a Lady Clairol product "Loving Care," be used; and defendant Janet Maddocks, a beauty operator, applied the dye to Mrs. Bennett. A patch test, a means of determining whether one is allergic to the dye, was not given to Mrs. Bennett, although such a test was required by the manufacturer's instructions 24 hours before each application of the dye. All parties agree that the failure to give the test was negligent. Subsequently, all of Mrs. Bennett's hair fell out. Mfs. Bennett claimed the dye caused the loss of hair, filed suit, and recovered a $7,200 verdict. On appeal, appellants question the admissibility of the deposition testimony of Doctor Baker, appellee's medical expert. They assert that Doctor Baker's testimony (a) was predicated in part on a concededly erroneous statement of fact contained in a hypothetical question and (b) may not have attained the required degree of medical certainty. Appellants also question the sufficiency of the evidence concerning causation. In his deposition, Doctor Baker was asked a lengthy hypothetical question by counsel for appellee; this question covers several pages in the transcript. One of the assumptions stated in the question was the following: [Fjurther assume that on the evening of the treatment Mrs. Bennett notices a burning sensation on her face and a tingling sensation on the scalp. This assumption was admitted to be unsupported by any evidence. What was shown in Mrs. Bennett's direct testimony was that the evening after the evening of the treatment Mrs. Bennett noticed her face was mottled, and that she had felt tired all day. The next morning she felt a burning sensation on her face. Her eyes were swollen, her scalp itched, and she experienced nausea, diarrhea and a headache. There were two other sources of information available to the jury concerning Mrs. Bennett's reactions: the histories of complaints given by her to her treating physicians Doctors Wilson and Dunn. Doctor Wilson testfied that plaintiff told him that the day following the application of the dye "she felt chilly, ill, had some diarrhea, had some itching on her body and her scalp and her arms " Doctor Dunn stated that plaintiff told her that the next day there was a burning sensation on the scalp with some reddening, sore throat, and general feeling of ill health. The histories given to these doctors were taken close in time (several weeks) to the events in question. The trial court recognized that the hypothetical contained an unsupported assumption. At the end of plaintiff's case, the court warned the jury specifically to consider the effect of the false assumptions and the court issued a cautionary instruction at the end of the case. It was the trial court's opinion that the unsupported assumption was not material enough to invalidate the entire opinion of the doctor, but would only affect the weight which should be accorded the opinion. This court in Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965) took a liberal view toward the admissibility of expert opinion. In Crawford the court was dealing with the question of whether the expert had sufficient facts at his disposal to render an opinion and whether the facts had to be listed as assumptions in a hypothetical question. The issue of an unsupported assumption in a hypothetical question was not raised in Crawford. This court had occasion to follow Crawford in the case of West v. Administratrix of Estate of Nershak, 440 P.2d 119 (Alaska 1968). In Nershak, this court upheld the admissibility of a medical expert's opinion whidg, was based on a hypothetical question. The doctor stated that the cause of death was a beating given deceased by West, although the doctor stated his autopsy did not reveal a specific cause of death. Appellant had argued that since the autopsy did not show a specific cause of death, the doctor's opinion could not have been supported by sufficient facts. This court cited Crawford for the proposition that a jury should normally be the one to determine if an expert's opinion is based on sufficient facts, and that [I]f the trial judge felt that the jury could receive appreciable assistance from the opinion of the expert witness, this court would not interfere with his exercise of discretion in allowing the testimony to go to the jury, in the absence of an abuse. West at 121. The West case, like Crawford, did not deal with a hypothetical containing a false assumption. In Zerbinos v. Lewis, 394 P.2d 886 (Alaska 1964) this court did consider the situation of a hypothetical question containing an unsupported assumption. In Zer-binos, the unsupported assumption was later shown to be true; however, this court held it was permissible for the trial court to exclude the question until all the facts were in evidence which would go into the hypothetical. The hypothetical question was never reasked in Zerbinos. That case predates Crawford and Nershak, and is distinguishable from them. This court in Zer-binos briefly discussed the legal issues concerning hypothetical questions by stating that "the facts upon which a hypothetical question is based must be proved" either before or after the question is introduced. There was no discussion of material as opposed to immaterial facts. There was no occasion for extended discussion by this court in Zerbinos because of the importance of the unsupported fact. The hypothetical question in Zerbinos can be summarized as follows: (1) assuming a prior spinal pathology of a given kind (this was shown); (2) assuming the accident in question caused what has been diagnosed as acute cervical sprain (this part was not shown) ; (3) would the sprain aggravate the original pathology? The entire question revolved around the unsupported assumption that the accident caused a sprain. Although the rule is often stated that a hypothetical question must not contain unsupported facts, probably a majority of courts recognize that strict adherence to the rule would be impractical and pointless. An important case of this viewpoint is Treadwell v. Nickel, 194 Cal. 243, 228 P. 25, 34 (1924). The opinion can have little, if any, value unless the material facts assumed in such question are substantially true, and the court may properly so instruct the jury whenever there is conflicting evidence as to the truth of the assumed facts. Such opinion evidence does not, however, necessarily become wholly valueless because there is some variance between the facts assumed in the question and the factual facts proven. What weight should be given in such cases to the opinion of the expert witnesses is a question for the jury under proper instructions from the court. In Treadwell the California court held proper the refusal to give an instruction which stated that the jury should disregard an expert's opinion if any material fact upon which he based his opinion was untrue. California courts have adhered to the Treadwell doctrine; for example, Division of Labor Enforcement v. Gifford, 137 Cal. App.2d 259, 290 P.2d 281, 286 (1955) where it was stated [M]inor variances between the facts assumed and the facts in evidence do not render the question incompetent. In the Gifford case the plaintiff had died of kidney failure due to long standing high blood pressure. The hypothetical assumed that 8 months before his final hospitalization, Gifford had been hospitalized and "had a blood pressure of 250 to 280 for a period of four weeks." The evidence showed that his blood pressure was 250 to 280 when he entered the hospital, but there was no evidence as to what it was during the four weeks he stayed in the hospital. This the court held to be a minor variance. Another helpful case on this point is Culver v. Sekulich, 80 Wyo. 437, 344 P.2d 146, 151 (1959). In Culver the court carefully reviewed the hypothetical questions and concluded that there was some evidence to support every hypothetical question though not every statement in every hypothetical was supported by evidence. There was in general "a fair climate for the consideration of the views of the expert witnesses." In this case the questions had assumed exact times and distances as to when and for how long an airplane had been attempting to land in a snowstorm; the testimony had been vague but generally supported the question in that the plane had been very low and was heard for half an hour. One test which appears very often is that the unsupported fact must be "material." 2 J. Wigmore, Evidence § 680 at 799-800 (3d ed. 1940) states that to render the subsequent opinion inadmissible, the unsupported fact must be "important" and not merely a "trifling." In summary some courts openly allow discretion to the trial judge to allow hypothetifals with immaterial variances to go to the jury. Most courts state that the facts in a hypothetical question must be supported by some evidence, but they usually mean the material facts. We believe that consistent with the liberal attitude toward expert opinion and hypothetical questions which this court has already adopted, the appropriate procedure is to allow immaterial variances to go to the jury with the appropriate cautionary instructions. This view is consistent with the facts of the Zerbinos case, which did not present the opportunity to adopt the above rule, because the unsupported fact was the crux of the hypothetical question. Furthermore it is our opinion that the trial judge in this case was not mistaken in finding the variance immaterial. In the present case after the hypothetical question was answered, Doctor Baker testified that most probably an allergy caused the hair loss, and he then stated, "The only other possibility would be coincidence in that her hair would have fallen out anyway, which I would have found highly unlikely." We believe that this statement supports the inference that the doctor's analysis was based in part on a process of elimination; the cause of the hair loss was the allergic reaction because no other explanation seemed reasonable to him. Thus, it is likely that Doctor Baker would not have considered the unsupported fact material to his opinion. Appellants have asserted as a second error the trial court's decision to allow Doctor Baker's testimony to go to the jury; appellants claim the testimony lacked the required degree of certainty. In response to this allegation, appellee claims (1) appellants waived this point because their brief does not comply with Supreme Court Rule 11(a) (6) ; (2) appellants waived this point by introducing part of the doctor's testimony themselves; (3) appellants waived this point because the testimony was not objected to at the pretrial deposition; (4) the trial court properly admitted the testimony. It is only necessary to consider the first and fourth points, the first because it relates to this court's rules and the fourth because it is decisive. Appellee's claim that appellants failed to comply with Supreme Court Rule 11(a) (6) is rejected. Appellee claims that nowhere in appellants' brief do appellants set forth the full substance of the evidence erroneously admitted and the grounds of objection urged at trial. Both of these requirements are contained in Rule 11(a) (6). However, appellants' specification of error 3 does set out the parts of Doctor Baker's testimony in which he gives his opinion. The quoted opinion is appropriately cited to the transcript. Appellants quote their objection made during the trial, and this objection contains the reason urged for exclusion of the testimony, i. e., that the opinion was pure speculation not reaching the certainty required of a medical opinion. Appellants even quote the trial court's reasoning in overruling the objection. It is clear from their specification of error that they objected to all of Doctor Baker's testimony at trial and on appeal. Furthermore, the grounds for the objection are the same on appeal as they were at trial. Certainly appellants have more than complied with the requirements of the rule. The fourth point of appellee obviates the other points on waiver. It seems clear that Doctor Baker's testimony was certain enough and therefore properly admitted. Appellants argue that this court has adopted the standard of "reasonable medical certainty" as the measure of proof of causal connection required in those cases where expert medical opinion is required. Appellants appear to argue that certainty is more than probability. Appellants do not point to any particular portion of Doctor Baker's testimony which is uncertain. This court has not had occasion to specifically rule on the degree of certainty required in a medical expert's opinion. However, this court has ruled on the amount of medical proof required to sustain damage awards. In the present case since the testimony of Doctor Baker was appellee's entire case as to medical causation, the standards should be the same. In Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964) this court took the position that damages must be shown to be reasonably certain to be permanent or in their duration if not permanent. Although not stated expressly, this court in Saslow cited with approval the Restatement of Torts § 912, comment e (1939) which speaks in terms of "probabilities." The issue in Saslow was whether "possibilities" could be admitted. The court decided possibilities were admissible if there was other evidence showing reasonable certainty. In City of Fairbanks v. Nesbett, 432 P.2d 607, 618 (Alaska 1967), as dictum, the standard of reasonable certainty of damages was again approved. Then in Beaulieu v. Elliott, 434 P.2d 665, 675 (Alaska 1967) this court held The trial court found that it was a reasonable medical probability that Elliott's condition, would continue for the remainder of his life. Such a finding, in turn, justifies the court's conclusion that Elliott should be awarded damages for pain and suffering for the remainder of his life. This court in the past has equated reasonable certainty with reasonable probability. This view point is widely accepted. In Crawford v. Seufert, 236 Or. 369, 388 P.2d 456, 459, 2 A.L.R.3d 354 (1964) the Oregon court stated For medical opinion testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect. If the probabilities are in balance, the matter is left to speculation. The Supreme Court of Washington has upheld the following medical opinion as meeting the standard of certainty: My opinion is that as a result of her trauma she probably suffered a contusion, and she possibly has a post-traumatic syndrome due to the spasm of the muscles in the cervical area and it aggravates this headache; more or less keeps it as a source of irritation to her. Clevenger v. Fonseca, 55 Wash.2d 25, 345 P.2d 1098, 1103-1104 (1959) (emphasis supplied). Judged by the standards set out, Doctor Baker's testimony met the required degree of certainty. In answer to the long hypothetical question, he stated "with reasonable probability her reaction most likely could be an allergy or hypersensitivity reaction to some substance applied to her hair." Q Now, Doctor, I would ask you further, assuming the assumptions I have given you, as to whether you could form an opinion with reasonable medical certainty as to whether or not the loss of hair in respect to Mrs. Bennett was caused by the hair dye application. A Yes. Q Could you give us that opinion, Doctor ? A I think that the loss of hair could have been caused by whatever substance was applied to her hair at the beauty parlor. * (The following is direct examination offered by defense.) Q Do you have an opinion, Doctor, based on reasonable medical certainty on more probable than not basis, as to whether or not the hair loss was caused by the hair dye application? A I would feel on the basis of probability that there is a reasonable probability that the application might have been a cause. The trial court was of the opinion that Doctor Baker's testimony did meet the required test of certainty. The trial court denied the motion to strike the doctor's testimony for this reason and because the court felt the objection was waived because it was not made at the time of the deposition in order to give counsel a chance to obviate the difficulty. Since it appears that the testimony was sufficiently certain, and the trial court's ruling was not in error, there is no need to decide the questions of waiver. As a third point, appellants raise several interesting questions about who has the burden of proving the causal relation between a negligent failure to act and the resulting damages, and how it should be proved by whoever has to prove it. Appellee argues that appellants took a negligent risk by failing to patch test before dying Mrs. Bennett's hair. The application of the dye caused the hair loss due to an allergic reaction which was the combined result of the dye and the level of ap-pellee's antibodies which had been created by prior contact with the product. Ap-pellee claims to have made a prima facie case by showing that the dye caused the damage and that the failure to patch test was negligent. Appellee claims it was up to appellants to show, if they could, that if a patch test had been done, the results within the 24 hour period required by the manu facturer would have been negative and thus the dye would have been applied anyway. That is, it was the obligation of appellants to negate the causal connection between the negligent failure to act and the damages. As a second argument appellee claims that there was sufficient evidence to conclude that if the patch test had been done it would have prevented the damage by alerting appellants within 24 hours to the possibility of an allergic reaction. Appellants admit that the failure to patch test was a negligent act. However, they deny that the evidence showed that the dye caused the hair loss. (Since Doctor Baker's testimony is admissible, this point is without merit in our opinion.) Appellants strongly contend that the burden was on appellee to show that had a patch test been done it would have been effective in preventing the damages. Appellants further contend that appellee failed in this showing. According to conventional thinking, a plaintiff must prove every element in his case including the causal relationship between the negligent act and the injury. Where the act is the failure merely of a legal duty, causation is established only when the doing of the act would have prevented the result; if the result would have happened just as it did whether the alleged actor had done his duty or not the failure to perform the duty was not a factor in the result, or, in other words, did not cause it. J. Beale, The Proximate Consequences of an Act, 33 Harv.L.Rev. 633, 637 (1920) quoted in Loibl v. Niemi, 214 Or. 172, 327 P.2d 786, 789 (1958). In Sowles v. Moore, 65 Vt. 322, 26 A. 629 (1893) (cited by W. Prosser, Torts § 41 n. 11 [3d ed. 1964]) the plaintiff's horses were frightened and ran into an opening in a frozen lake. The opening was not guarded or barricaded by defendant who had created the opening. The court stated The fact whether such a fence would have prevented the occurrence of the injury may be a difficult one for the jury to find, but the burden is on the plaintiff to show this 26 A. at 630 (emphasis added). In Ford v. Trident Fisheries Co., 232 Mass. 400, 122 N.E. 389 (1919) plaintiff failed to prove cause in fact because there was no evidence that failure to properly lash a small boat to the deck of a ship contributed to the drowning of a seaman who sank without a trace immediately upon falling overboard. Appellee argues that the case is analogous to a res ipsa loquitur case, and ap-pellee cites Weiss v. Axler, 137 Colo. 544, 328 P.2d 88 (1958) for support. Perhaps the present case could have been a proper case for the application of the doctrine of res ipsa loquitur. Appellee could have merely shown that she went to appellant's beauty salon, had her hair dyed, and suffered total loss of hair due to the dye. Then by showing that the dying process was in the control of appellants and that loss of hair doesn't ordinarily occur without negligence, a res ipsa loquitur case might have been established. Then it would have been up to appellants to show that all the procedures and materials used in dying were proper and that any failure to exercise due care (patch test) would not have prevented the occurrence. However, the present case was tried on count I of the amended complaint, which is a detailed and direct claim of negligence on the part of appellants in failing to administer the patch test. In the pleadings and at trial the theory of res ipsa loquitur was not mentioned. In arguing the case to this court, appel-lee states that a primia facie case was made out by showing that the dye caused the hair loss and that it was a negligent risk to fail to give the patch test. This theory is un acceptable. Either the case is one of simple negligence and the specific negligent act or omission must be connected causally to the damage, or it is a res ipsa loquitur case, in which it is not necessary to establish the precise act or omission constituting negligence. Rather, it is shown that the fact of injury caused by the hair dye ordinarily does not occur without negligence. In Weiss v. Axler, supra, the plaintiff pleaded both theories, and the jury was instructed on the doctrine of res ipsa loquitur. For that reason, the Colorado court held the allegations of specific negligence did not preclude proof of general negligence. However, in the present case only the claim of specific negligence was before the court and jury. Even less applicable to the present case than res ipsa loquitur is appellee's analogy to violation-of-statute cases, e. g., Rogers v. Dubiel, 373 P.2d 295 (Alaska 1962). These cases are only concerned with the negligence of the act and not with causation in fact. The omission of a trafffic signal to an automobile driver who could not have seen it if it had been given is not a cause of the ensuing collision. W. Prosser, Torts § 41 at 242 (3d ed. 1964). In Peterson v. Nielsen, 9 Utah 2d 302, 343 P.2d 731, 734 (1959), plaintiff was travel-ling at an illegally excessive speed, but even if she had been going a lawful speed she could not have avoided the accident. Therefore her contributory negligence (established by showing a violation of a statute) was not a cause of the accident. In Waugh v. Suburban Club Ginger Ale Co., 83 U.S.App.D.C. 226, 167 F.2d 758 (1948), a truck driver failed to signal for a turn, but there was no evidence the signal would have been seen by the plaintiff who was riding a bicycle. The court found no causal relationship between the violation by plaintiff and the injury. Violation of statute cases really have nothing to do with causation. As the cases above show, a violation of a statute only determines if the actor's conduct is negligent. A reasonable man is presumed to be a lawful one. Whether the unlawful and hence negligent actions cause the damage is a separate inquiry. In summary, because omitting the patch test was the specific negligent omission complained of, the burden was on ap-pellee to prove that the omitted test if it had been performed would have prevented the hair loss. Had appellee chosen to plead and try the case on a res ipsa loquitur theory, this conclusion might have been different. To prove cause in fact, appellee had to show the truth of the following statement: if the patch test had been given, results would have occurred within the 24 hour waiting period indicating an allergic reaction. The question which arises first is what are legitimate ways to prove the truth of this kind of statement. The criterion of truth must be set up in face of the fact that this type of statement by its nature can never be subjected to any direct empirical test. Appellants suggest that appel-lee could have proved the truth of the above statement by taking a patch test before trial. This is erroneous. Appellee's level of antibodies was necessarily different after the full application of the dye. Such a test before trial might not be totally irrelevant, but it would not have proved anything. Appellants also claim that the only other "proof" was the actual results of the dye, and these results show a reaction 4 hours after the 24 hour period required by the manufacturer. Again this is not proof. Appellee correctly points out that a patch test would have been conducted on a different part of the body where the skin would be thinner. Of course, one would be looking for results of a test as opposed to "noticing" by chance the results of a hair dye 29 hours later. Thus in spite of appellants' claims, there was no empirical way to actually test the conditional statement, i. e., that if a patch test had been given, it would have been effective. The way in which such a statement is proved is by reference to scientific laws. For example, if it is an empirical law that matches under certain conditions ordinarily will light, then to prove that "this match if it had been struck would have lighted," one should prove that it is an ordinary match and the relevant circumstances were such that matches ordinarily light when struck. Appellee did use the above method to try to prove her case. There was evidence from Doctors Dunn, Loomis, and Wilson that patch testing is generally very effective on people who have antibodies to the tested material. Referring to the above analysis, appellee tried to establish as an empirical law that patch tests on allergic people produce results. Appellee then tried to establish that she was an allergic person. She showed prior contact with the dye, and Doctor Baker testified that probably the dye caused the hair loss through an allergic reaction. This was the major part of appel-lee's proof that a patch test would have been effective. Appellants criticize this kind of proof, stating that because patch tests are not effective in every case, the argument fails. This is erroneous. It is more logical to reason that because patch tests are very often effective on allergic persons, and appellee was an allergic person, then probably the test would have been effective on appellee. Appellee need not establish certainty, only probability. For these reasons we believe that the inference appellee attempted to draw from the fact that patch testing is generally effective, should be considered a proper element of the proof that a patch test in this case would have prevented the hair loss. Strictly speaking it is the only possible way appellee could prove her case. If a patch test taken just before trial had been positive, appellants could have objected because of the likelihood that the full application of the dye had made Mrs. Bennett much more reactive than before. If she had very positive results from the full application within the 24 hours, appellants could have claimed it was irrelevant due to the great difference in the amount of dye applied. Appellants would be right, but this illustrates the logic of our ruling in this instance. It should be mentioned that there was some evidence that appellant was having some reaction on the day following the treament, thus within 24 hours. At the 29 hour point Mrs. Bennett said to her husband that she had felt funny all day. When she went to see Doctor Wilson a week after the dye application, she told him that the day after the application she felt "chilly, ill, had some diarrhea, had some itching on her body and her scalp and her arms but she also said that her arms had been itching some for three days previous to going to the hairdresser." On June 3, 1966, two and one-half weeks after the incident, Mrs. Bennett told Doctor Dunn that the day following the treatment there was a burning sensation on the scalp with some reddening and she felt very poorly, her throat was sore. She stated that she did not feel very well and that these symptoms lasted for about two days. "[Djuring that time she noted that her hair was falling out quite rapidly. " It is uncontradicted that hair came out during the beauty treatment. Thus viewing the evidence in the light most favorable to plaintiff, we find that a reasonable person could conclude that if a test had been performed, a reaction would have occurred within 24 hours. Because a reasonable person could conclude that more likely than not the test would have shown some indication of an allergic reaction, appellee did establish cause in fact sufficiently to take the case to the jury. The judgment below is affirmed. . In the Nershak opinion the text of the hypothetical question was not set out. . Zerbinos v. Lewis, 394 P.2d 886, 888 n. 1 (Alaska 1964). . 2 B. Jones, Evidence § 416 (5th ed. 1958); O. McCormick, Evidence § 14 (1954). . The case is briefly discussed in 23 Mich. L.Rev. 411 (1925). . Grand Island Grain Co. v. Rousli Mobile Home Sales, Inc., 391 F.2d 35, 41 (8th Cir. 1968); Mercer v. Department of Labor & Indus., Wash., 442 P.2d 1000, 1002 (1968). . Sup.Ot.R. 11(a) (6) states that briefs shall contain A specification of errors relied upon which shall be numbered and shall set out separately and particularly each er ror intended to be urged. When the error alleged is to the admission or rejection of evidence, the specification shall quote the grounds urged at the trial for the objection and the full substance of the evidence admitted or rejected, and refer to the page number in the transcript as contained in the record on appeal where the same may be found. * . Accord, Town & Country Sec. Co. v. Place, 79 Ariz. 122, 285 P.2d 165, 167 (1955); Kocky Mt. Trucking Co. v. Taylor, 79 Wyo. 461, 335 P.2d 448, 452 (1959). . Accord, Gutman v. Bronx Borough Bank, 188 App.Div. 664, 177 N.Y.S. 173 (1919) ; Loibl v. Niemi, 214 Or. 172, 327 P.2d 786, 789 (1958). . Richards v. Oregon Short Line R. Co., 41 Utah 99, 123 P. 933, 937 (1912) ; W. Prosser, Torts § 40 n. 68 (3d ed. 1964). . See Crawford v. Rogers, 406 P.2d 189, 193 (Alaska 1965) (dictum). . This type of statement is a counterfac-tual conditional statement, i. e., it is conditional in form and runs counter to fact. N. Goodman, Fact, Fiction & Forecast 13 (1955). . Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).

10443757

Albert F. MONSMA, Appellant, v. Zola Emilie MONSMA, Appellee

Monsma v. Monsma

1980-10-24

No. 4761

559

561

618 P.2d 559

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Albert F. MONSMA, Appellant, v. Zola Emilie MONSMA, Appellee.

Albert F. MONSMA, Appellant, v. Zola Emilie MONSMA, Appellee. No. 4761. Supreme Court of Alaska. Oct. 24, 1980. Valerie M. Therrien, Fairbanks, for appellant. Lyle R. Carlson, Fairbanks, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

1323

8197

OPINION PER CURIAM. Albert F. Monsma appeals from the superior court's decree which was entered in his divorce action against his wife, Zola Emilie Monsma. The Monsmas were married in 1963, and have two daughters, born in 1967 and 1970. During the course of the marriage, Zola developed a severe alcohol problem. Albert has expended approximately $24,000 in attempts to rehabilitate Zola. Albert is employed by the federal government as a telephone supervisor at Ft. Wainwright, and earns around $3,000 a month before taxes. Zola is unemployed; according to Albert she has worked only sporadically since the marriage, and has never contributed to the upkeep of the family. Albert filed for divorce in March, 1977. Both parties initially sought custody of the children. By stipulation, Albert was eventually given custody, and Zola was not obligated to pay child support. The parties could not agree, however, on a division of their marital property. Following the trial, the superior court granted the division of property proposed by Zola, with one major change: most of the marital assets were awarded to Albert. However, he was required to make a cash payment to Zola computed as follows: (1) One-half of the value of all of the marital assets, less (2) the value of the marital assets awarded to Zola, and less (3) the amount of $17,900 representing $100 per child per month until each reaches eighteen years old, since custody of the children was given to Albert. This resulted in Zola receiving the tangible assets in the amount of $28,075, together with attached payment from Albert of $10,397. Albert's primary contention in this appeal is that the division of assets is inequitable. We cannot agree that the superior court abused its discretion in effectively awarding Zola half of those assets. The superior court properly took into account Albert's earnings, Zola's lack of any real earning potential, and the nearly fifteen-year duration of the marriage. See Merrill v. Merrill, 368 P.2d 546, 547 n.4 (Alaska 1962). We find no support in the record for Albert's contention that the superior court did not consider Albert's substantial past payments for Zola's medical treatment in arriving at its property and support rulings. We also find unpersuasive appellant's complaint that the cash payments he must make to Zola place an "impossible financial burden" on him. The superior court's order may indeed require Albert to alter his lifestyle, and even necessitate the sale of some of his real estate holdings. Our statement in Allen v. Allen, 554 P.2d 393, 395-96 (Alaska 1976), responds to this concern: Appellant next argues that the judgment has imposed an impossible financial burden on him. Of course, all divisions of property are likely to result in some financial burden. Our task is to determine whether in this case the judge abused his discretion by imposing a financial burden which is "clearly unjust." Courtney v. Courtney, supra. Appellant must demonstrate such injustice to cause us to reverse a decision by the trial court. Mr. Allen is certainly in a position to alleviate his monthly payments by refinancing or liquidating assets, such as the van and electronic equipment, or by trading down to a less expensive vehicle than his Cadillac. It is not unreasonable to expect a party to a divorce to have to reorganize financially, at least on a short term basis. While the result in this case may be harsh, as between the parties we cannot say that it is clearly unjust. Similarly, appellant may face some financial burdens, but he can liquidate some of his assets. Under the facts of this case, we hold that the property division is not clearly unjust. Albert also attacks the superior court's classification of his vested federal civil service retirement fund contribution as a marital asset. He claims this is contrary to the recent decisions in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (Railroad Retirement Act) and Cose v. Cose, 592 P.2d 1230 (Alaska 1979), petition for cert. filed, - U.S. -, 100 S.Ct. 2149, 64 L.Ed.2d 786 (1980) (military retirement pay). We find this contention to be without merit. Hisquierdo involved a conflict between state and federal law regarding the allocation of retirement benefits under the Railroad Retirement Act. The Supreme Court found that the state marital property rule contravened the intention of Congress and held that under the Supremacy Clause, the federal statutory scheme pre-empts state law. Accordingly, in Cose we attempted to ascertain whether Congress intended military retirement pay to be classified as a marital asset. We considered several sections of the military retirement statutes: Some clues as to Congressional intent can be gathered from the statutes and pertinent background materials. Although the statutes are silent as to rights of dependents of the retiree, they do include a method by which the serviceman can use a portion of his retired pay to purchase an annuity for his widow. 10 U.S.C. § 1447-1455. Under this plan only a widow, not a surviving ex-wife, is eligible for benefits. Moreover, when the wife can no longer be a beneficiary because of divorce, deductions from retired pay cease. 10 U.S.C. § 1434(c). In the passage of the law setting up this plan, provisions which would have protected ex-wives were stricken from the law before its passage. 118 Cong.Rec.S. 29810-12 (1972). In this respect Congress purposefully excluded ex-wives from bene- fitting under the plan. One searches the statutes in vain for any indication that Congress has ever treated retired pay as property or has intended retired pay to be divisible upon divorce. 592 P.2d at 1232 (footnote omitted). In contrast to Cose and Hisquierdo, Congress in 1978 specifically added a provision to the civil service retirement laws concerning retirement payments as marital property: Payments under this subchapter which would otherwise be made to an employee, Member, or annuitant based upon his service shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Any payment under this paragraph to a person bars recovery by any other person. 5 U.S.C. § 8345(j)(l). Since there is no conflict between Alaska marital property rules and the federal statute, we find no reason to overrule the superior court's classification of Albert's federal civil service retirement benefits as a marital asset. One point raised by Albert, however, does require a remand of this case to the superior court for further proceedings. The superior court failed to allocate several existing marital debts, especially bills outstanding for Zola's medical treatment. AFFIRMED in part, and REMANDED for further proceedings in regard to the one issue of allocation of marital debts. BOOCHEVER, J., not participating. . Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bailey v. Bailey, 567 P.2d 315 (Alaska 1977). . The Supreme Court placed great emphasis on 45 U.S.C. § 231m, part of the Railroad Retirement Act: Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.... . The rationale for considering retirement benefits as marital property was well expressed by Justice Matthews in his concurring opinion in Cose v. Cose, 592 P.2d 1230, 1232 (Alaska 1979). . We have examined appellant's other specifications of error and have concluded that they are lacking in merit.

10443753

Melvin Anthony LeDUFF and Michael Wayne Thornton, Appellants, v. STATE of Alaska, Appellee

LeDuff v. State

1980-10-24

Nos. 4117, 4136

557

558

618 P.2d 557

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

Melvin Anthony LeDUFF and Michael Wayne Thornton, Appellants, v. STATE of Alaska, Appellee.

Melvin Anthony LeDUFF and Michael Wayne Thornton, Appellants, v. STATE of Alaska, Appellee. Nos. 4117, 4136. Supreme Court of Alaska. Oct. 24, 1980. Robert B. Downes, Cole & Downes, Fairbanks, for appellant LeDuff. David C. Backstrom, Asst. Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage^ for appellant Thornton. 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 and MATTHEWS, JJ., and DIMOND, Senior Justice.

840

5323

OPINION PER CURIAM. Melvin LeDuff and Michael Thornton were tried jointly and convicted for the sale of $75.00 worth of cocaine to a Fairbanks police undercover agent in July, 1977. They have appealed both their convictions and the resulting sentences. Because they raise identical issues, their appeals have been consolidated. Unbeknownst to LeDuff and Thornton, the agent tape-recorded the sale and several telephone calls leading up to the sale. Over their objections, these recordings were admitted into evidence at their trial. Both now assign this ruling as error, because the agent did not obtain a warrant for his recordings. We held in State v. Glass, 583 P.2d 872 (Alaska 1978), that a warrant was necessary in this situation. However, in response to the state's petition for rehearing in that case, we subsequently ruled that the warrant requirement would be applied prospectively only, except for the four cases considered together on the issue. State v. Glass, 596 P.2d 10 (Alaska 1979). No arguments raised by the defendants here persuade us to change that view. LeDuff and Thornton also claim that the trial judge erred in denying their motions for judgment of acquittal. They argue that AS 17.10.010, under which they were charged, prohibits the sale only of natural cocaine, derived from coca leaves, and that the state's chemist testified on cross-examination that his tests did not exclude the possibility that the substance sold by Thornton and LeDuff was D-cocaine, an artificial compound not produced from coca leaves. However, the chemist also testified that to the best of his knowledge D-cocaine had never been synthesized in any quantity. Construing his testimony most favorably to the state, we conclude that reasonable persons could find beyond a reasonable doubt that D-cocaine was not involved here. Hence the motion for judgment of acquittal was properly denied. See United States v. Hall, 552 F.2d 273, 276 (9th Cir. 1977), rejecting the "D-cocaine defense" for the same reason. Both defendants claim that their sentences were excessive. LeDuff was sentenced to four years' incarceration, with two suspended. Thornton was given seven years, with four and one-half suspended, because he had a prior drug-related conviction. We find that the sentencing judge properly considered the Chaney factors, and acted within the bounds of his discretion in emphasizing the need to deter both defendants from further drug offenses. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). We also cannot conclude that the sentences were clearly mistaken, in spite of the relatively good records of both LeDuff and Thornton. Cocaine offenses are serious; AS 17.10.200 prescribes a maximum sentence of ten years and a minimum of two for any cocaine offense, including possession. We noted in Waters v. State, 483 P.2d 199, 201 (Alaska 1971), that sales are more serious than mere possession for personal use. Indeed, just last year we affirmed a three-year unsuspended sentence for sale of a small amount of cocaine by a defendant with a sold employment record and only one shoplifting conviction. Elliott v. State, 590 P.2d 881 (Alaska 1979). The judgment is AFFIRMED. BOOCHEVER, J., not participating. . State v. Glass, 583 P.2d 872 (Alaska 1978); State v. Thornton, 583 P.2d 886 (Alaska 1978); Aldridge v. State, 584 P.2d 1105 (Alaska 1978); Coffey v. State, 585 P.2d 514 (Alaska 1978). . We see no special significance in the fact that one of the cases to which we applied the new warrant requirement, State v. Thornton, 583 P.2d 886 (Alaska 1978), involved one of these defendants and the same undercover agent. . Alaska R.Crim.P. 29(a). . AS 17.10.010 bans the sale of narcotic drugs. AS 17.10.230(13) defines narcotic drugs to include coca leaves and other substances "having similar physiological effects." Section 230(10) defines coca leaves to include "cocaine and any compound, manufacture, salt, derivative, mixture, or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine, ecgonine or substances from which cocaine or ecgonine may be synthesized or made." . Cocaine produced from coca leaves is known as L cocaine. D cocaine (destro cocaine) has the same molecular structure as L cocaine (levo -cocaine); the only difference between the two is the direction in which each will rotate polarized light. . Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). . State v. Chaney, 477 P.2d 441, 444 (Alaska 1971). . This was LeDuff's first conviction, and Thornton had only one prior misdemeanor drug conviction. LeDuff was a high school graduate with a good employment history. Thornton holds a G.E.D., and his employment record is somewhat spottier, but several friends and relatives vouched for his good character.

6988911

David F. STONE, Petitioner, v. STATE of Alaska, Respondent

Stone v. State

2011-07-01

No. S-13524

979

983

255 P.3d 979

255

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T21:16:54.789786+00:00

CAP

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

David F. STONE, Petitioner, v. STATE of Alaska, Respondent.

David F. STONE, Petitioner, v. STATE of Alaska, Respondent. No. S-13524. Supreme Court of Alaska. July 1, 2011. Beth Lewis Trimmer, Assistant Public Advocate, and Rachel Levitt, Acting Director, Office of Public Advocacy, Anchorage, for Petitioner. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Respondent. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

2504

15762

OPINION WINFREE, Justice. I. INTRODUCTION We granted this petition to consider the narrow question of whether under the Federal Constitution a eriminal defendant's court-appointed counsel must, upon the defendant's demand after lawful sentencing pursuant to a plea agreement, file a petition for discretionary sentence review by this court when AS 12.55.120(a) precludes an appeal of right to the court of appeals. We now answer "yes" to that question. II. FACTS AND PROCEEDINGS David Stone was charged with manslaughter, two counts of assault, and driving under the influence. Because Stone was already on probation from earlier unrelated convictions, the State also filed petitions to revoke his probation (PTRs). Represented by an attorney from the Public Defender Agency, Stone reached an agreement with the State reducing the manslaughter charge to criminally negligent homicide and then pleaded no contest to the four charges and the PTRs. The maximum term for Stone's most serious offense was 10 years of incarceration, and the plea agreement required a composite sentence between 5 and 12 years. The superior court entered judgment and sentenced Stone to a total of 18 years with 4 years suspended for the four charges and to an additional 350 days for the PTRs, leaving Stone 9 years and 350 days to serve. Soon after judgment was entered another attorney from the Public Defender Agency asked Stone if he wished to appeal his convietion or sentence. Stone responded that he believed his sentence was ilegal under Blakely v. Washington and asked for both a motion under Criminal Rule and an appeal. The attorney reviewed Stone's file, spoke with Stone's previous counsel, advised Stone that given the suspended portion of his sentence it did not exceed his plea agreement cap, and concluded, "I do not believe you can appeal your sentence." The attorney took no further action. Stone petitioned pro se for post-conviction relief, alleging that his sentence was illegal and excessive, and that the attorney's failure to object to or appeal from his sentence constituted ineffective assistance of counsel. But Stone abandoned his Blakely argument and instead argued that (1) all of the four charges against him should have merged into one charge under Whitton v. State, thereby precluding his composite sentence, and (2) the sentence of 18 years with 4 suspended was "clearly excessive under the totality of the cireumstances" of his case. Stone also argued that his attorney had been ineffective for failing to contest his sentence in the superior court and for failing to appeal the sentence after it was imposed. An attorney was appointed to represent Stone, and Stone amended his petition. In this petition Stone abandoned his Whitton argument and instead argued that his composite sentence exceeded both the plea agreement range and the maximum 10-year sentence he could have received for the most serious charge against him, the latter of which violated Mutschler v. State The State answered the petition by pointing to the four-year suspended portion of Stone's sentence and arguing that Stone was not sentenced in excess of either the plea agreement range or the statutory maximum for the most serious charge against him. Stone replied that it was nonetheless ineffective assistance of counsel to fail to appeal the sentence when Stone requested it, regardless of his arguments' merits. The superior court denied Stone's application for post-conviction relief. The court first rejected Stone's Mutschler argument, concluding that the suspended portion of a sentence is not counted when measuring a composite sentence against a statutory maximum-only time served is considered. The court then concluded it was "unwilling to find that an attorney is ineffective on the sole basis that the attorney did not advance a meritless argument" because attorneys have an "ethical duty not to file frivolous pleadings." Stone appealed to the court of appeals, arguing that it was ineffective assistance per se for his attorney to fail to file the requested appeal after entry of his sentence, and it was error for the superior court to deny his petition based on the merits of the arguments that would have been raised on appeal. Stone requested the restoration of his right to appeal his sentence. The State argued that because Stone no longer questioned the legality of his sentence, it could not have been ineffective assistance of counsel to fail to appeal his sentence on that basis. But the State itself then raised a somewhat different question-whether, aside from questions about the legality of a sentence, it would be ineffective assistance of counsel to fail to file a sentence appeal limited narrowly to a claim of exces-siveness. The State first noted that because Stone's sentence was entered under the terms of a plea agreement and the sentence was less than a specified maximum sentence, under AS 12.55.120(a) Stone had no right to appeal his sentence on the ground of exces-siveness. The State conceded that Stone could have petitioned this court for our discretionary review of his sentence for exces-siveness," but argued that (1) whether to file a petition for discretionary sentence review was a decision left to counsel, not the client, and (2) Stone had not shown that the failure to file a petition for discretionary sentence review rose to the level of ineffective assistance of counsel. Stone replied by acknowledging the difference between the right to appeal and the right to petition, but claimed he was entitled to appellate review regardless of the terminology that he had used. He further countered that the decision whether to seek appellate review belonged to the client, not the attorney. The court of appeals affirmed the superior court's decision, noting that throughout the course of the post-conviction-relief proceedings Stone had relied on, and then abandoned, a number of different substantive challenges to the legality of his sentence. The court also noted that Stone lacked the right to appeal the alleged exeessiveness of his sentence because under AS 12.55.120(a), defendants who plead no contest and are sentenced according to a plea agreement "often lose" that right. The court declined to decide whether any and all appellate attacks on the severity of a sentence imposed under a plea agreement are foreclosed, holding only that reasonable judges and attorneys could have concluded that Stone had no right to appeal his sentence on the ground of exces-siveness. Taking up the issue of a possible petition for discretionary review, the court likewise held that because it was reasonably debatable whether all competent judges and attorneys would have known that Stone's attorney had no right to refuse Stone's request for appellate review of his sentence, it was not incompetence per se to do so. It concluded that Stone "failed to establish that the Public Defender Agency acted incompetently or otherwise violated its professional duty to Stone merely because the Agency declined to file the petition for sentence review that Stone requested." Stone petitioned us for hearing, arguing that a petition for discretionary sentence review by this court is first-tier appellate review invoking the federal constitutional right to appointed counsel and the related right to III. STANDARD OF REVIEW We apply our independent judgment to constitutional questions " including questions about the extent of a criminal defendant's right to counsel. We interpret Alaska Appellate Rules de novo. We adopt "the rule of law most persuasive in light of precedent, reason, and policy." IV. DISCUSSION The federal constitution affords criminal defendants the right to counsel for first-tier appellate review. "[Flirst-tier review differs from subsequent appellate stages 'at which the claims have onee been presented by [appellate counsel] and passed upon by an appellate court. " Defendants have no federal right to counsel for subsequent appellate proceedings. Alaska Statute 12.55.120(a) provides that when a criminal defendant enters into a plea agreement and receives a sentence in accordance with that agreement, the defendant may not appeal the sentence as excessive. Consistent with that statute, Alaska Appellate Rule 215(a)(1) takes away a defendant's right to appeal felony sentences exeeeding two years if "the sentence was imposed in accordance with a plea agreement that provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence." But Appellate Rule 215(a)(5) allows a defendant to seek discretionary review by this court "for any sentence not appealable under Appellate Rule 215(a)(1)." A petition under Rule 215(a)(5) is a defendant's first chance to have an appellate court "pass upon" the superior court's sentence, even if we deny the petition, and therefore review of that petition is first-tier appellate review. Because Stone pleaded no contest and his sentence was within the agreement's maximum range, the appellate review available to him for his excessive sentence claim was to petition this court under Appellate Rule 215(a)(5). Stone therefore had a right under the Federal Constitution to the assistance of counsel in filing such a petition. The right to counsel "requires that [an attorney] support [a] client's appeal to the best of [the attorney's] ability." If after receiving the attorney's advice the client is not con-vineed to give up the right to petition for sentence review, the attorney must file the petition. An attorney who refuses to file a petition for review at the client's request essentially denies that client the assistance of counsel for the client's first-tier appellate procedure. If the attorney believes the client's requested petition only raises issues that are "wholly frivolous," the attorney may file a brief with the court and seek permission to withdraw. Stone's attorney neither filed a petition nor took any precautionary procedures.Stone did have the benefit of counsel in filing his petition for post-conviction relief and therefore had the opportunity to raise all of his specific claims that his sentence was illegal both in the superior court and in the court of appeals. But at no time did the superior court or court of appeals consider whether Stone's sentence, although within the plea agreement range, was excessive. Stone is therefore entitled to require his court-appointed counsel to file a petition for our discretionary review of his sentence for examination. V. CONCLUSION Having answered the question raised by the petition and clarified Stone's federal constitutional right to require his court-appointed counsel to file a petition under Alaska Appellate Rule 215(a)(5) for our review of his sentence for excessiveness, we GRANT Stone leave to file such a petition within 30 days. No further proceedings on Stone's petition for post-conviction relief are necessary. CHRISTEN, Justice, not participating. . See AS 11.41.130(b) (categorizing criminally negligent homicide as class B felony); AS 12.55.125(d) (establishing 10-year maximum sentence for most class B felonies including criminally negligent homicide). . 542 U.S. 296, 313-14, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (requiring facts used to increase sentence above statutory maximum to be determined by jury). . Alaska Criminal Rule 35(a) allows the trial court to correct an illegal sentence at any time. . The attorney mistakenly considered only three out of the four counts against Stone. However, the analysis would be the same even if the attorney had considered all four counts because the four-year suspension brings the sentence below the plea agreement cap. . 479 P.2d 302, 314 (Alaska 1970) (merging robbery and robbery with firearm into single offense for double jeopardy purposes). . 560 P.2d 377, 380 (Alaska 1977) (citing Cleary v. State, 548 P.2d 952, 956 (Alaska 1976) (precluding imposition of consecutive sentences totaling more than maximum sentence for most serious offense without specifically finding extended confinement was necessary to protect public from further criminal conduct by defendant)). . AS 12.55.120(a) provides in part: A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspend-ed incarceration for a felony offense or exceeding 120 days for a misdemeanor offense may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive, unless the sentence was imposed in accordance with a plea agreement under the applicable Alaska Rules of Criminal Procedure and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence. . See Alaska R.App. P. 215(a)(5) (allowing discretionary review by supreme court of sentence's excessiveness if not appealable to court of appeals). . See note 7, above. . See Risher v. State, 523 P.2d 421, 424 (Alaska 1974) ("All that is required of counsel is that [counsel's] decisions, when viewed in the framework of the trial pressures, be within the range of reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions."). . See id. at 424-25 (describing standard for ineffective assistance of counsel claims). . Diaz v. State, Dep't of Corr., 239 P.3d 723, 727 (Alaska 2010). . See Risher, 523 P.2d at 423 (discussing federal right to counsel as constitutional right). . Cameron v. Hughes, 825 P.2d 882, 884 n. 2 (Alaska 1992) (holding interpretation of appellate . Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Halbert v. Michigan, 545 U.S. 605, 609-10, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). . Id. at 611, 125 S.Ct. 2582 (quoting Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). . Ross v. Moffitt, 417 U.S. 600, 610, 618-19, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). . See Halbert, 545 U.S. at 610, 125 S.Ct. 2582 (holding criminal defendants have right to counsel for first-tier appellate procedures). . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . This is unlike when the attorney decides not to raise selected issues on appeal in order to pursue a different appellate strategy. See Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (holding appellate counsel may elect to ignore potential issues on appeal to focus court's attention on other arguments). . See Anders, 386 U.S. at 744, 87 S.Ct. 1396 (outlining procedures for attorney's withdrawal when issues on appeal are wholly frivolous). We do not need to decide here whether the attorney has other options. . Earlier in this case the State took the position that if Stone files a petition for our review of his sentence, the State will have the right to file a cross-petition on a number of issues, such as (1) whether seeking review would be a breach allowing the State to repudiate the plea agreement and prosecute Stone on the original charges, or (2) whether the sentence was too lenient. These issues are not before us at this time.

10568805

Twyla Mae RUBEY, Appellant, v. CITY OF FAIRBANKS, Appellee

Rubey v. City of Fairbanks

1969-06-23

No. 956

470

480

456 P.2d 470

456

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:38.206299+00:00

CAP

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

Twyla Mae RUBEY, Appellant, v. CITY OF FAIRBANKS, Appellee.

Twyla Mae RUBEY, Appellant, v. CITY OF FAIRBANKS, Appellee. No. 956. Supreme Court of Alaska. June 23, 1969. Thomas E. Curran, Jr., of Savage, Erwin & Curran, Anchorage, for appellant. Stephen S. DeLisio, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

5417

32297

DIMOND, Justice. In a trial by the district court without a jur,y, appellant was convicted of the offense of assignation, a misdemeanor. The judgment of conviction was affirmed by the superior court. An appeal was then taken to this court. Appellant's first point is that she was not adequately advised of her right to counsel under the requirements of Miranda v. Arizona, and therefore her signed statement in which she admitted the offense with which she was charged should not have been admitted into evidence against her. City Police Officer Tannenbaum testified that prior to questioning appellant he advised her of "her rights". When asked what rights he was talking about, he said: I told her that I was a police officer and I was going to ask her questions in connection with the arrest that particular morning and she didn't have to answer any of my questions, and anything that she did say would be used against her in Court and she was entitled to an attorney and I asked her if she wanted to call an attorney and she said no. Later he stated, with regard to appellant's right to counsel, that he advised her: "[Sjhe's entitled to an attorney and one would be provided for her if she did not have the funds to get one." Appellant's contention here is that Tan-nenbaum's warning that she had the right to retained or appointed counsel was not enough — that a complete Miranda warning required that she be informed she had the right to the presence of an attorney both before and during interrogation. Miranda does require that a defendant be warned of his right to the "presence of an attorney" — of the right to have "counsel present" during any questioning. But the fact that Tannenbaum did not specifically tell appellant that she had the right to have counsel "present" during questioning does not mean that she was not advised of her right in this respect. He told appellant, prior to questioning, that he was a police officer, that he intended to ask her questions in connection with her arrest, that she did not have to answer any questions, that anything she did say would be used against her, and that she was entitled to an attorney. He then asked her, also prior to interrogation, if she wanted to "call an attorney" and she answered "no." Considering the circumstances in which Tannenbaum said to appellant what he did, we believe that appellant must have understood that if she had asked for an attorney he would have been present during the questioning. The warning given as to her right to counsel, together with the query as to whether she wanted to call an attorney, all of which took place prior to questioning, reasonably would leave the impression in appellant's mind that if she had wished to have counsel represent her the questioning would have been deferred until after she had time to consult with an attorney. This conclusion is strengthened by the fact that appellant not only did not request the presence of an attorney, but expressly stated she did not wish to call one. There is no reason to believe that appellant did not understand what her rights were. In speaking of appellant Officer Tannen-baum said: She appeared to be fairly educated, she looked as if she knew what I was talking about, and she seemed to understand and comprehend what I was saying. We construe appellant's actions as amounting to a knowing and intelligent waiver of her right to have counsel present. In order to reach the conclusion urged by appellant, that she was not adequately advised of her right to counsel, we would have to assume that appellant may not have waived her right to counsel if she had been told expressly that her right in this regard was to have counsel present during questioning. And such an assumption logically would require another assumption — that if appellant had understood she had the right to the "presence of an attorney", rather than just the right to an attorney in general, she would have then requested or demanded that an attorney be present at the questioning, rather than saying as she did, that she did not wish to call one. These are not reasonable assumptions to make under the circumstances. Appellant was properly advised of her right to counsel, retained or appointed, under Miranda and the cases where the requirements of Miranda have been considered by us. She knowingly and intelligently waived that right. The statement she signed, admitting the offense with which she was charged, was properly admitted into evidence. A man named Potter had telephoned appellant at Tannenbaum's suggestion and had made arrangements to meet appellant in Room 201 of the Polaris Building in Fairbanks. Tannenbaum gave Potter some marked money. Tannenbaum testified that he and Potter had a prearranged plan whereby Potter would turn over the marked money to appellant, and Potter would then open the door to Room 201 and let Tan-nenbaum in. After Tannenbaum had waited in the hall of the Polaris Building for about 20 minutes, Potter opened the door to Room 201 and asked Tannenbaum to come in. Potter stood in the doorway unclothed. Tannenbaum entered the room and saw appellant entering the bathroom with only a slip on. At this time Potter pointed to appellant and said, "[Yjou're under arrest for prostitution." Almost immediately thereafter Tannen-baum advised appellant that she was under arrest, and asked her for the money that Potter had given her. Tannenbaum testified: She said I'm not going to give it to you, I earned it. I said well, I'm afraid you're going to have to ah give it to me and that's when she took it out of her bra and handed it to me*** Appellant contends that the acquisition of the money by Tannenbaum was the result of an unreasonable search and seizure. Appellant at first refused to hand over the money to Officer Tannenbaum, and then capitulated at his insistence. Since she revealed the location of and handed over the money at a police officer's demand, there was a search and seizure, rather than a voluntary surrender of the money. The kind of search and seizure forbidden by constitutional provisions is that which is unreasonable. A search and seizure would be unreasonable if done without a search warrant, unless the facts are such to bring the case within an exception to the rule that there must be a search warrant. The exception we are concerned with here is that which recognizes the validity of a search and resulting seizure made without a warrant when the search is made incident to a lawful arrest. And since the arrest in this case was made without a warrant, and the offense involved was a misdemeanor, the lawfulness of the arrest depends on whether the arresting officer was present at the commission of the offense. Tannenbaum had overheard the telephone conversation between Potter and appellant where arrangements were made for the latter to meet appellant in Room 201 of the Polaris Building for purposes of prostitution. When Tannenbaum entered the room Potter was unclothed and appellant was partially unclothed. Tannenbaum heard Potter say to appellant that she was "under arrest for prostitution." These circumstances would give Tannenbaum reason to be aware that at the time he told appellant she was under arrest she was committing the offense of assignation because she was engaged in an act in furtherance of an appointment previously made for prostitution or lewdness. What Tannenbaum observed, considered in the light of his prior knowledge, was sufficiently indicative of the offense of assignation being in the course of commission. The arrest made without a warrant was lawful, and a search and seizure, made as it was incident to such a lawful arrest, was not unreasonable. Appellant contends that testimony regarding Tannenbaum's seizure of the money was inadmissible because appellant was not at that time given a Miranda type warning as to her right to remain silent and to have retained or appointed counsel represent her. There is no merit to this contention. Miranda forbids the use in evidence of a statement made by a defendant in custody who was not warned of his privilege against self-incrimination and his right to counsel. The Miranda rule has no application to the question of whether a search and seizure is lawful. Officer Tannenbaum testified that the Polaris Building where Potter met appellant was located inside the City of Fairbanks. He also testified that the police station from which Potter placed the telephone call to appellant was in the city. However, the Key Board Club where appellant received the call was outside the city. Appellant contends that the term "assignation" means appointment, that an appointment is the essence of the offense of assignation, and that since appellant made an appointment to meet Potter while she was outside the city limits the court, which was trying a violation of a municipal ordinance, had no jurisdiction over the offense. This contention is untenable. The offense of assignation includes not only the making of an appointment for prostitution or lewdness, but also "any act in furtherance of such appointment." Appellant kept the appointment she had made by meeting Potter at the Polaris Building. It was at the Polaris Building that she received money from Potter and engaged in the act of prostitution. These were acts in furtherance of the appointment, they constituted "assignation" within the definition of that offense, and they took place within the City of Fairbanks. The court had jurisdiction to try this violation of the city's ordinance. Appellant lists some 26 instances where the Alaska legislature by statute has regulated the criminal aspects of sexual activity. Assignation is not included — it is not made a crime by the legislature. Appellant argues that the legislature's extensive regulation of sexual behavior is evidence of its intent to pre-empt this field so that any phase of such behavior not made criminal by the legislature may not be made criminal by a political subdivision of this state. Appellant argues from this that the attempt to make assignation an offense by the City of Fairbanks is invalid. Appellant relies primarily on the California Supreme Court decision in the case in In re Lane, That case invalidated a portion of the Los Angeles Municipal Code which made criminal any sexual intercourse by one to whom the other party was not married. The court held that the state legislature had pre-empted the field of sexual offenses, that since simple fornication or adultery was not made a crime by state law, the legislature had determined by implication that such conduct should not be criminal in California, and that the attempt at local regulation of this subject was in conflict with state law and was void. We are not persuaded to adopt the doctrine of the Lane case. California's constitutional prohibition against local regulations is different from Alaska's. Article XI, section 11 of the California constitution provides that a city "may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws." Article X, section 11 of the Alaska constitution provides that a home rule city, such as Fairbanks, "may exercise all legislative powers not prohibited by law or by charter." There is no legislative enactment in Alaska that expressly prohibits a home rule city from making assignation a criminal offense. We do not find such prohibition from the fact that the Alaska legislature has extensively covered the field of sexual offenses. We believe there would have to be some additional factor from which the intent of the legislature to prohibit local regulation in this area could be reasonably inferred. We are not aware of any such factor in this case. We shall not pass further on the general subject of pre-emption by state law, because the subject is complex and has not been adequately briefed in this case. Potter telephoned appellant from the police station at Tannenbaum's request. According to Tannenbaum's testimony the conversation between Potter and appellant was as follows: Mr. Potter dialed the number and ah***2**¡i¡ah*** heard someone pick up the phone on the other end, and it was a male a man that answered the phone and he said, "Key Board Club" and ah Potter said ah let me talk to Twyla. It was a moment or two and then I heard the female's voice, Mrs. Rubey's voice that saids [sic] hello and Potter said this is Willie. He saids [sic], hey can I see you tonight? And ⅛ she saids [sic] well, do you want to go for fifty? He saids [sic] yea, I've got fifty, I'll go for fifty. And then she saids [sic] well, I'll meet you in twenty minutes at the Polaris Building room 201. He saids [sic] o. k. I'll see ya. And that was it. Appellant contends that a "conspiratorial association" between Officer Tannenbaum and Potter induced appellant to commit the offense of assignation. What appellant is urging is the defense of entrapment. In order for there to be entrapment, the facts must show that the criminal design originated not in the mind of appellant, but in the minds of Tannenbaum and Potter, and that appellant was induced by these people to commit the offense of assignation which she would not otherwise have committed. Viewing the evidence in a light most favorable to the state, we believe that entrapment is not disclosed by the facts. According to the telephone conversation as related by Tannenbaum, appellant stated her willingness to meet Potter and gave her "price" of $50 in response to the innocuous question of whether Potter could "see" appellant that night. This would tend to show that appellant was disposed to commit the offense of assignation even without the inducement of Potter or Tannenbaum. The facts indicate that the criminal design originated in appellant's mind, and the most that Potter and Tannenbaum did was to encourage appellant's boldness. Potter was not a witness at the trial. Tannenbaum testified as to the telephone conversation between Potter and appellant, as we have already noted. Appellant objected to this testimony, contending at the trial and also here that to allow that testimony was to deny appellant's right to be confronted with a witness against her. Appellant is correct. The sixth amendment to the federal constitution and article I, section 11 of the Alaska constitution provide that in all criminal prosecutions the accused is entitled "to be confronted with the witnesses against him." The primary interest served by this requirement is to afford a defendant the right of cross-examination. Appellant was denied this right. By allowing Tannenbaum to testify as to the telephone conversation between appellant and Potter, the court in effect allowed Potter to be a witness against appellant, since what Potter is reported to have said is that he wished to see appellant on a particular night, that in answer to her question as to whether he would "go for fifty" he expressed his willingness to pay appellant $50 for what presumably was to be an act of prostitution, and that he was agreeable to meeting appellant in Room 201 of the Polaris Building in 20 minutes. Appellant was not afforded the right to test the veracity of this testimony by cross-examination of Potter. She was denied her constitutional right to be confronted with this witness against her. The testimony of Tannenbaum as to what Potter said on the telephone was inadmissible. In his dissent our colleague states that where non-hearsay evidence is admitted, "no question of [the] constitutional right of confrontation is involved." Although in many situations the hearsay rule and the confrontation requirement serve the same purpose, we do not believe it always follows that since certain evidence is not hearsay its admission does not violate the accused's right of confrontation. Both the federal and Alaska constitutions provide that an accused is entitled "to be confronted with the witnesses against him." Potter was a witness "against" appellant, because what he was reported to have said on the telephone implicated her in the criminal act of assignation. Appellant had the right to cross-examine Potter in order to ascertain whether he actually did say what he is reported to have said. It has been said that the right of confrontation is a "fundamental right essential to a fair trial in a criminal .prosecution." The question is whether denial of that right, as was done here, requires a reversal of the judgment of conviction. We have a harmless error rule —Criminal Rule 47 (a) providing that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." This applies to constitutional errors as well as to others. All trial errors which violate constitutional provisions do not automatically call for a reversal. But such errors cannot be declared harmless if there is a reasonable possibility that evidence admitted in violation of constitutional rights might have contributed to the conviction. Another way of putting it is that before a constitutional error can be held to be harmless, the court must be able to declare a belief beyond a reasonable doubt that the error was harmless — that it did not contribute to the verdict obtained. In holding that appellant was convicted of the offense of assignation, the trial judge said that appellant's statement, in which she admitted committing the offense, "would indicate that there was such an assignation." The judge then went on to discuss the substance of the telephone conversation between Potter and appellant, as testified to by Tannenbaum, and concluded with the statement: "This is sufficient to prove the charge beyond a reasonable doubt." It would seem from this that the judge, in holding that appellant was guilty of the crime charged, relied not alone on appellant's written confession, but in addition on the evidence of Potter's conversation with appellant. If this is true, then one could say that such conversation, evidence of which we have held to be inadmissible, did contribute to the ultimate finding of the judge that appellant was guilty. In this circumstance a literal application of the Chapman rule would seem to require a reversal of the conviction. But we cannot be blind to the fact that there was evidence other than the telephone conversation which was more than adequate to sustain the conviction. Tannen-baum testified that he had observed Potter and appellant in a room at the Polaris Building in an unclothed state, which was a strong indication that they had previously made arrangements to meet there for purposes of lewdness or prostitution. There was the evidence of the marked money which Tannenbaum had given to Potter and which Potter had paid to appellant. There was appellant's signed confession where she admitted that she was a prostitute, that she was engaged in an act of prostitution at about 4:00 a. m. on January 2, 1967 in Room 201 of the Polaris Building, the date, time and place that Tannenbaum testified he observed appellant and Potter together, that she had charged $50 for act of sexual intercourse with a man whom, according to her description and Tannenbaum's testimony was Potter, and that she had agreed to engage in the act of sexual intercourse when Potter talked to her on the street and later called her at the Key Board Club— appellant stating: "[H]e wanted me to meet him so I told him where, I told him to meet me at the Polaris room 201." There was no evidence, or even any suggestion, that appellant's confession was not given knowingly and voluntarily. She did not deny having made it. We have held that the confession was admissible because appellant had been adequately advised of and had knowingly and intelligently waived her rights under Miranda. We are aware of no reason why the trial judge, in weighing the evidence, should not have given full weight to the confession. We are unable to ignore the fact that the confession, when considered in the light of evidence other than that of the telephone conversation, was entirely sufficient to establish appellant's guilt beyond a reasonable doubt. Under the requirement of the Chapman rule on harmless constitutional error, we are able to declare a belief that the error in admitting Tannenbuam's testimony as to the telephone conversation between appellant and Potter was harmless beyond a reasonable doubt. The judgment of the superior court affirming the judgment of the district court is affirmed. . The offense charged was a violation of the Fail-banks City Code, section 6.301 (a) (1) of which defines "assignation" as meaning: [T]he making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). . In Miranda v. Arizona the United States Supreme Court held that when a person is taken into custody in connection with a criminal matter or is otherwise deprived of his freedom of action in any significant way by the authorities and is subject to police interrogation, the person must be warned prior to any questioning that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. In the absence of such a warning and proof of a knowing and intelligent waiver of one's privilege against self-incrimination and right to retained or appointed counsel, no evidence obtained as a result of the police interrogation can be used against the defendant. Hammonds v. State, 442 P.2d 39, 40-41 (Alaska 1968). .Miranda v. Arizona, 384 U.S. 436, 444, 470, 86 S.Ct. 1602, 16 L.Ed.2d 694, 706-707, 721 (1966). . Thessen v. State, 454 P.2d 341 (Alaska 1969). . Thessen v. State, 454 P.2d 341 (Alaska 1969); Nicholi v. State, 451 P.2d 351 (Alaska 1969); Soolook v. State, 447 P.2d 55 (Alaska 1968). . Thessen v. State, 454 P.2d 341 (Alaska 1969). . In Brown v. State, 372 P.2d 785, 790 (Alaska 1962) we said: "A seizure contemplates a forcible dispossession of the owner and it is not a voluntary surren der." See Sleziak v. State, 454 P.2d 252 (Alaska 1969). . Goss v. State, 390 P.2d 220, 223 (Alaska 1964) ; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777, 780 (1964). . Drahosh v. State, 442 P.2d 44, 46 (Alaska 1968). . United States v. Viale, 312 F.2d 595, 600 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ot. 1291, 10 L.Ed.2d 199 (1963). . See Sleziak v. State, 454 P.2d 252, 259 (Alaska 1969). . Fairbanks Code of Ordinances § 6.301 (a) (1). . 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897 (1962). . In re Lane, 58 Cal.2d 99, 22 Cal. Rptr. 857, 372 P.2d 897, 900 (1962). . See 1 Antieau, Municipal Corporation Law § 5.38, at 292.38 (1968). . See 1 Antieau, Municipal Corporation Law § 3.36, 5.35, 5.38 (1968); 50 Calif. L.Rev. 740, 741-42 (1962) ; Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harv.L.Rev. 737, 744-45 (1959); Chavez v. Sargent, 329 P.2d 579, 584 (Cal.Dist.Ct.App.1958); Ayers v. City of Tacoma, 6 Wash.2d 545, 108 P.2d 348, 352 (1940); People ex rel. Pub. Util. Comm'n v. Mountain States Tel. & Tel. Co., 125 Colo. 167, 243 P.2d 397, 399 (1952). . Goresen v. State, 482 P.2d 326, 327 (Alaska 1967). . Id. . J. Williams, Entrapment — A Legal Limitation on Police Technique, 48 J. Orim.L.C. & P.S. 343, 345 (1957). .Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934, 937 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923, 926 (1965); Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420, 422 (1966); C. McCormick, Law of Evidence § 19, at 40 (1954). . U.S.Oonst. Amend. VI; Alaska Const, art. I, § 11. . Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965). . Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171, 173 (1963). . Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 E.Ed.2d 705, 710-711 (1967); Thessen v. State, 454 P.2d 341, 350 (Alaska 1969). . Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171, 173 (1963); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710-711 (1967). . Chapman, v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710-711 (1967); Thessen v. State, 454 P.2d 341, 350 (Alaska 1969).

10568613

Jack MARTIN and Antoinette R. Genis, Appellants, v. CITY OF FAIRBANKS, Appellee

Martin v. City of Fairbanks

1969-06-23

No. 1048

462

466

456 P.2d 462

456

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:38.206299+00:00

CAP

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

Jack MARTIN and Antoinette R. Genis, Appellants, v. CITY OF FAIRBANKS, Appellee.

Jack MARTIN and Antoinette R. Genis, Appellants, v. CITY OF FAIRBANKS, Appellee. No. 1048. Supreme Court of Alaska. June 23 1969. William B. Emmal, Fairbanks, for appellants. Howard Staley, Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND, RABINO WITZ, CONNOR and BONEY, JJ-

2085

12246

BONEY, Justice. After a trial without a jury in the district court, appellants, Jack Martin and Antoinette Genis, were each convicted of violating Fairbanks City Ordinance § 4.408(c) by allowing minors to remain on premises licensed to sell intoxicating beverages. Appellant Genis was also convicted on another count under the same ordinance: serving liquor to minors. On appeal to the superior court appellants questioned the sufficency of the evidence as to whether vodka and bourbon were shown to be intoxicating beverages, whether Genis served the minors, and whether Martin and Genis allowed the minors to remain on the premises. The superior court affirmed the convictions, and appellants took this appeal. In this court appellants again question the sufficiency of the evidence to support their convictions. In appellants' statement of points on appeal to this court, appellant Genis raises a new issue: that she could not be convicted on two counts under the ordinance, because both counts arose out of the same act. Before determining whether the evidence to support the convictions was sufficient, several procedural issues must be clarified. Appellants ask us to judge the sufficiency of the evidence as of the time of appellants' motion for acquittal which was made at the close of the prosecution's case-in-chief. Although appellants cite no authority, we presume that their motion for acquittal was made pursuant to Criminal Rule 29(a). This case was tried before a judge, not a jury. This court in Beck v. State, 408 P.2d 996, 998 (Alaska 1965) has held that Crim inal Rule 29(a), dealing with motions for acquittal, applies only to jury-tried cases, and that a defendant in a judge-tried case can test the sufficiency of the evidence on appeal without ever having moved for judgment of acquittal. In so deciding, this court relied upon DeLuna v. United States, 228 F.2d 114, 116 (5th Cir.1955) where it was said: Rule 29 of the Federal Rules of Criminal Procedure substituted motions for judgment of acquittal in lieu of motions for directed verdict. It seems to us that there is no occasion for such a motion in a trial by the court without a jury under Rule 23, Federal Rules of Criminal Procedure. It must naturally be assumed on such a trial that the defendant is requesting acquittal at the court's hands, otherwise there would be no occasion for him to plead not guilty, and submit to a trial. In the present case a motion for acquittal was entertained by the district court at the close of the prosecution's casein-chief. Based on Beck and DeLuna such a motion does not have any substantive effect. At the close of the case-in-chief, if the prosecution has failed to establish the defendant's guilt, the trial judge should, sua sponte, order a judgment of acquittal. The trial judge may permit the defendant to argue a motion for acquittal at this time, if the judge feels that argument of counsel would be helpful in deciding the adequacy of the case-in-chief. However, such a motion is not a prerequisite to any subsequent proceedings in a judge-tried case. Furthermore, with regard to viewing the record on appeal, the motion for acquittal has no more effect in a judge-tried case than in a case tried before the court and a jury. If the trial judge refuses to order an acquittal after the case-in-chief, the defendant may test the refusal by introducing no evidence and resting his case directly. If the defendant proceeds to put on his case, he risks curing any defects which may have existed in the prosecution's case-in-chief. On appeal the record as a whole is viewed, not just the prosecution's case-in-chief, regardless of when a motion of acquittal is made. This rule of law is applied in the federal courts under Federal Rules of Criminal Procedure 29(a) which is similar to the Alaska rule. The rule is also uniformly applied in state courts. In 8 Moore, Federal Practice ¶[ 29.05 (1968) recent criticism of the rule is discussed; however, we conclude that an adequate attack on the rule has not been demonstrated. Thus on appeal the record as a whole will be considered, not just the prosecution's case-in-chief. Viewing the record as a whole, the standard for testing the sufficiency of the evidence to support a finding that guilt has been proven beyond a reasonable doubt is set forth in Beck v. State, 408 P.2d 996, 997 (Alaska 1965) and recently in Lanier v. State, 448 P.2d 587, 594 (Alaska 1968): when presented with a specification of error that the trial court erred in failing to grant a motion for judgment of acquittal, the Supreme Court will consider only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them. Viewing the record most favorably to the prosecution, the question is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellants' guilt. In support of Martin's conviction the court found as follows: Mr. Martin's testimony stated that he was informed hy Defendant Genis that there was someone who failed to produce identification or who was a minor at this table eight to ten minutes before the officers arrived. This is sufficient, the court feels, for conviction upon Count One in the charge against Jack Martin. Mr. Martin testified that he couldn't leave the bar because it would close down, not a cent would be earned while he wasn't behind it. When the officer questioned him about serving drinks, he left the bar quickly enough. Martin had testified that he was the only bartender on duty the night that the minors came to The Flame Lounge. He admitted that he knew the minors were there "no more than ten minutes" before the police arrived. He was specifically informed by the waitress (Genis) that there were minors on the premises, and he told the waitress to get them out. Martin stated he kept his eye on them after that, and the waitress went about her business. When the police arrived he again told the waitress to get the minors off the premises. He did not personally attempt to get the minors to leave; nor did he notice if the waitress tried to get them to leave after he instructed her to get them out. Mr. Nicholas (one of the minors) testified he and his minor companion had been served three or four drinks at*The Flame. Nicholas stated that as soon as the police arrived, the waitress for the first time asked him for some identification. Mr. Tallón, the other minor, testified he had three or four drinks at The Flame, and that no one asked for his identification except the police when they arrived. Martin's testimony was confused and evasive. Strong weight should be given to the determination of the trial court judge who was able to judge Mr. Martin's demeanor. In conclusion according to the standards set forth above, there appears to be substantial evidence to support the conviction of Martin. As stated above the minors testified that they each had three or four drinks at The Flame and that they were not asked for identification until after the police arrived. Genis admitted the minors were at The Flame and that she was the only waitress that night, but denied serving the minors drinks. She admitted knowing that they were minors prior to the time the police arrived, but she indicated that she was in the process of trying to get them to leave. Genis, too, was confused and evasive in her answers, and thus great weight should be accorded the trial court's determinations. We find there is substantial evidence supporting both counts of Genis' conviction. Appellant Genis upon appeal to this court questions the legality of her conviction on two counts which she claims arose out of the same act. Although there may be some question as to the timeliness of this issue, we can quickly dispose of the issue on its merits. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed. 2d 1405 (1958) the Supreme Court upheld three convictions which arose out of a single act. The three separate offenses which were created by the one act were selling forbidden drugs not in the original stamped package, selling such drugs without a written order from the buyer, and facilitating the concealment and sale of drugs knowing the same to have been unlawfully imported. The court stated The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic. Id. at 389, 78 S.Ct. at 1283, 2 L.Ed.2d at 1408. In Gore a single act by the defendant broke several different laws and properly resulted in sentences for each law which was broken. Whether the defendant committed one act or two is a semantic problem that should not be determinative. What is crucial is that the laws which are broken are not coextensive. If each requires proof of some fact which the other does not, then there is no duplication. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, 309 (1932). With regard to the ordinance in question, it punishes one who, knowingly or without obtaining an affidavit, serves minors or allows minors to remain on licensed premises. Serving minors intoxicating liquor and allowing minors to remain on the premises are not coextensive prohibitions. Each provision could be violated without violating the other. In this particular case appellant Genis by serving the minors three or four drinks on the premises violated both provisions and was accordingly sentenced for each violation. The judgments below are affirmed. . Section 4.408(c) provides A licensee, or his employee, who allows to remain upon licensed premises where intoxicating liquor is sold, a person under the age of twenty-one (21) years not in company of his parent or legal guardian or spouse who has attained the age of twenty-one (21) years, or sells, gives, or serves intoxicating liquor to a person under the age of twenty-one (21) years without having procured the signature of the person upon a statement as provided in this section, or who knowingly sells, gives, or serves intoxicating liquor to or allows the person to remain on licensed premises where intoxicating liquor is sold, is guilty of a misdemeanor. . Crim.R. 29(a) states Motions for directed verdict shall not be used and motions for judgment of acquittal shall be used in their place. The court, on motion of a defendant or of its own motion, shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed, if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the state's case is not granted, the defendant may offer evidence without having reserved the right. .United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202, 207-208 (1954); Hiatt v. United States, 384 F.2d 675, 676 (8th Cir. 1967) cert. denied 390 U.S. 998, 88 S.Ct. 1203, 20 L.Ed.2d 97 (1968); Maulding v. United States, 257 F.2d 56, 58, 17 Alaska 592 (9th Cir. 1958). . State v. Villegas, 101 Ariz. 465, 420 P.2d 940, 942 (1966); State v. Lamphere, 233 Or. 330, 378 P.2d 706 (1963); State v. Mudge, 69 Wash.2d 861, 420 P.2d 863 (1966). . See Phillips, The Motion for Acquittal, a Neglected Safeguard, 70 Yale L.J. 1151 (1961) and Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963).

10443778

AMBASSADOR INSURANCE COMPANY, Appellant, v. KENNETH I. TOBEY, INC., Appellee

Ambassador Insurance Co. v. Kenneth I. Tobey, Inc.

1980-10-24

No. 4589

572

574

618 P.2d 572

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

AMBASSADOR INSURANCE COMPANY, Appellant, v. KENNETH I. TOBEY, INC., Appellee.

AMBASSADOR INSURANCE COMPANY, Appellant, v. KENNETH I. TOBEY, INC., Appellee. No. 4589. Supreme Court of Alaska. Oct. 24, 1980. Alan Sherry, Merdes, Schaible, Staley & De Lisio, Inc., Anchorage, for appellant. R. R. De Young, David M. Freeman, Ba-rokas & Martin, Anchorage, for appellee. Before RABINOWITZ, C. J. , and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

1389

8605

OPINION BURKE, Justice. The issue in this appeal is whether the superior court erred in granting a defend ant's motion for summary judgment, in an insurance company's suit for indemnification. On August 28, 1975, Harry O'Neill was seriously injured, when he was assaulted by an off-duty employee of an Anchorage the-atre, Cinema One. On February 4, 1976, O'Neill filed suit against North Pole Enterprises, Cinema One's owner. North Pole was served with the complaint and summons on February 29,1976, giving it twenty days to answer. See Rule 12(a), Alaska R.Civ.P. Thus, its answer to the complaint was due on March 20, 1976. Rule 6(a), Alaska R.Civ.P. At the time of the assault, North Pole was insured by Ambassador Insurance Company, whose policy designated Kenneth I. Tobey, Inc., as its agent and authorized representative. A few days after it was served, North Pole contacted its local insurance agent, Ralph Blanchard, who sent copies of the complaint and summons to Tobey. Tobey, located in Seattle, mailed those materials to Ambassador's home office in New Jersey. The suit papers were received by Ambassador on March 16, 1976. The next day, March 17, Ambassador wrote to Crawford and Company, an Anchorage adjusting firm, asking Crawford to contact local counsel for advice on O'Neill's complaint which stated a claim coming within the coverage of the policy. Apparently, Crawford did not receive Ambassador's request, or other notice of O'Neill's action, until March 24, 1976. By that time, a default had already been entered against North Pole. Crawford immediately obtained counsel for Ambassador, who, on March 25, moved to set aside the default. Before that motion could be heard, however, O'Neill offered to settle for policy limits, provided that his settlement offer was accepted by April 30, 1976. Rather than expose itself, or North Pole, to the possibility of far greater liability, in the event judgment was obtained in excess of that amount, Ambassador accepted O'Neill's offer and settled the case for $100,000. The lawsuit giving rise to this appeal followed. On November 3, 1977, Ambassador filed suit against Tobey and others, seeking indemnification for the loss that it incurred in settling with O'Neill. The policy in effect at the time O'Neill was assaulted, unlike earlier policies that Ambassador had written for North Pole, provided no coverage for North Pole's Cinema One operation. In addition, the policy excluded from its coverage claims, such as O'Neill's, based upon "assault and battery." In its complaint against Tobey, Ambassador alleged that it had been estopped from raising these policy defenses, in O'Neill's suit, because of negligence on the part of Tobey, its agent. Tobey's negligence, according to the complaint, consisted of (1) Tobey's failure to advise Ambassador in a timely manner of the pending lawsuit; (2) its failure to take any further action to avoid entry of the default; and (3) Tobey's failure to advise North Pole of the lack of coverage under the policy, and its own responsibility, therefore, to appear and defend itself. Tobey answered Ambassador's complaint, denied liability, and thereafter moved for summary judgment. See Rule 56, Alaska R.Civ.P. His motion was granted by the superior court and this appeal followed. We reverse. Ambassador first contends that there was a material issue of fact as to whether Tobey breached the duty of care that it owed to Ambassador, relative to protecting Ambassador from the danger of a default. Given the fact that O'Neill's complaint had to be answered by March 20, 1976, Ambassador argues that Tobey failed to exercise reasonable care in mailing the suit papers to it, both from the standpoint of when it mailed the papers and Tobey's failure to use some speedier method of communication, such as telex or telephone. Ambassador further argues that after mailing the papers Tobey was additionally obligated to do everything reasonably possible to protect Ambassador's interests, such as asking for an extension of time for the filing of an answer to O'Neill's complaint. Tobey's duty in this regard was to communicate the information regarding the suit to Ambassador within a time frame that would allow Ambassador a reasonable time within which to respond to the suit. We believe that this duty was fulfilled. O'Neill's pleadings were received by Ambassador on March 16, 1976. The answer to the complaint was not due until March 20, and the default was not entered until March 23. Ambassador had sufficient time to take whatever action was necessary to protect its own interests. It certainly had ample time to arrange for the filing of a timely answer or, if deemed necessary or desirable, to request an extension of the time within which to do so. We believe, therefore, there was no breach by Tobey of its duty to timely communicate and summary judgment in this respect was properly entered. Ambassador's second contention concerns Tobey's alleged negligence in making certain representations to North Pole. In its complaint, Ambassador claimed that Tobey was also negligent in failing to inform North Pole that there was no coverage under the policy in effect at the time of the assault upon O'Neill. In its opposition to Tobey's motion for summary judgment, Ambassador expanded its argument to include allegations that Tobey had negligently advised North Pole that it could rely on Ambassador to defend it and that O'Neill's complaint was being taken care of by the insurance company. Thus, in the superior court, Ambassador argued that there were material questions of fact, including: (1) whether Tobey's assurances caused North Pole to forego securing its own attorney; (2) whether those assurances caused North Pole to rely on Ambassador to defend it, thereby allowing the default to be entered against it; (3) whether such reliance was reasonable under the circumstances; (4) whether, as a result, Ambassador was es-topped from raising its alleged policy defenses; and (5) whether Tobey's conduct toward North Pole was a proximate cause of the loss suffered by Ambassador. Ambassador's second argument, we believe, has merit. As to each of the foregoing issues, there were material questions of fact. It is clear that Tobey was the authorized agent of Ambassador. As such it had at least apparent, if not actual, authority to make representations to North Pole, Ambassador's insured, about the company's intentions with regard to O'Neill's complaint. According to the affidavit of Myron Ace, North Pole's president, North Pole failed to enter a timely appearance or otherwise act to defend itself because of Tobey's assurances that the matter was being taken care of by Ambassador and that North Pole did not need to hire its own lawyer. There is also evidence that North Pole had been told that O'Neill's claim was covered by the policy. Whether Tobey made the statements in question, whether those statements were relied upon by North Pole to its detriment, whether such reliance was reasonable, and whether Tobey's conduct was a proximate cause of the loss suffered by Ambassador, were questions for the jury. Thus, we conclude that the court erred in granting Tobey's motion for summary judgment. Summary judgment is appropriate only when "there is no genuine issue as to any material fact and [the moving] party is entitled to judgment as a matter of law." Rule 56(c), Alaska R.Civ.P. That was not the case here. The judgment of the superior court is REVERSED. . As noted in the text of our opinion, infra, the policy in effect at that time did not provide coverage for North Pole's Cinema One operation. . O'Neill's injuries were extremely serious. His complaint asked for damages exceeding $2,000,000. . We reject Tobey's argument that this issue was not adequately raised in the court below. If necessary, Ambassador should be allowed to amend its complaint to more clearly state this basis for its claim. See 6 Moore's Federal Practice § 56.27[1] (1979). . Our resolution of this case makes it unnecessary for us to reach Ambassador's argument that the superior court erred in its award of costs and attorney's fees.

10443786

ANCHORAGE MUNICIPAL EMPLOYEES ASSOCIATION, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Anchorage Municipal Employees Ass'n v. Municipality of Anchorage

1980-10-31

No. 4562

575

581

618 P.2d 575

618

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:20.464117+00:00

CAP

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

ANCHORAGE MUNICIPAL EMPLOYEES ASSOCIATION, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

ANCHORAGE MUNICIPAL EMPLOYEES ASSOCIATION, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 4562. Supreme Court of Alaska. Oct. 31, 1980. Fredric R. Dichter, Teamsters Union Local 959, Anchorage, for appellant; Joe P. Josephson, Howard S. Trickey, and Ronald W. Lorensen, Josephson, Trickey & Loren-sen, Inc., Anchorage, of counsel. Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

3452

22129

CONNOR, Justice. In this case we are once again asked to interpret Section 4 of the Public Employment Relations Act (PERA), ch. 113, SLA 1972, which authorizes the legislative body of any political subdivision to reject application of the Act to its public employees. The specific question presented for review is whether the Municipality of Anchorage is governed by the provisions of PERA, despite the attempt by it and its governmental predecessors to exempt themselves from the Act. The superior court held that PERA did not apply, and granted summary judgment in favor of the Municipality. We affirm. In 1972 the legislature enacted the Public Employment Relations Act, AS 23.40.-070-.260, which conferred upon public employees the right to organize and bargain collectively with their employers. Simultaneously with the enactment of the PERA, the legislature repealed former AS 23.40.-010 which permitted but did not require public employers to recognize and bargain collectively with labor organizations representing their employees. PERA was signed by the Governor on June 7, 1972, and became effective on September 5, 1972. Both the City of Anchorage (the City) and the Greater Anchorage Area Borough (GAAB), the governmental predecessors of appellee, the Municipality of Anchorage, recognized and engaged in collective bargaining with various labor organizations elected by their employees under former AS 23.40.020. On August 8, 1972, one month before the effective date of the PERA, the City by resolution exercised its option under Section 4 to reject application of the Act. The GAAB Assembly passed its resolution rejecting coverage under PERA in April of 1973 and at the same time enacted a com prehensive local employee relations ordinance which was supported by representatives of various labor organizations. Both GAAB and the City continued to bargain collectively with labor organizations elected by their employees, under their local procedures, after their respective exemptions from PERA. In September of 1975, the GAAB and the City merged into a single home rule municipality. On October 14, 1975, the new Municipality of Anchorage, the appellees here, passed a resolution formally rejecting application of PERA to its employees. The Municipality's labor relations were governed under GAAB's labor ordinance until April, 1976, at which time the Municipal Assembly adopted its own comprehensive labor relations ordinance. It is a provision of this ordinance which has sparked the present controversy. As originally adopted, the ordinance stated that "[t]he provisions of the Personnel Rules and Regulations may not be varied by negotiation except as expressly so authorized therein." On January 10, 1978, the Assembly adopted ordinance 77-376 (substitute) which amended the above section of former AO 69-75 to provide that provisions of the "Personnel Rules and Regulations may be substituted by negotiated agreements," (emphasis added) with the exception of three specified areas which are still non negotiable. When the Municipality refused to bargain over certain of the items removed from collective bargaining by AO 77-376, the Anchorage Municipal Employees Association (AMEA) brought suit in the superior court seeking a declaration that the Municipality is governed by PERA and an order requiring the Municipality to bargain collectively over the disputed items. AMEA appeals from the superior court's denial of its motion for summary judgment and award of summary judgment in favor of the Municipality. AMEA presents three alternative theories in support of its assertion that the Municipality is bound by the requirements of PERA despite its explicit exemption pursuant to Section 4. First, it contends that the authority to opt out of PERA under Section 4 is not applicable to the Municipality or its predecessors. Next, AMEA argues that, assuming the availability of Section 4, the Municipality and its predecessors did not effectively exercise their exemption thereunder. Lastly, AMEA contends that even if there has been a properly executed exemption, the Municipality may not conduct its labor relations in a manner which is inconsistent with state policy as expressed in PERA. I The argument advanced most forcefully by AMEA is that the option to reject PERA pursuant to Section 4 is not applicable to local governments such as the Municipality or its predecessors. Central to our resolution of this issue is the proper interpretation of Section 4, Chapter 113, SLA 1972, which provides with relation to PERA: "This Act is applicable to organized boroughs and political subdivisions of the state, home rule or otherwise, unless the legislative body of the political subdivision, by ordinance or resolution, rejects having its provisions apply." AMEA interprets this section as basically a "grandfather clause" designed to permit local governments, which were in existence at the time PERA took effect and were not already engaged in collective bargaining with their employees, to maintain the status quo and to avoid having collective bargaining suddenly imposed upon them with the adoption of PERA. In light of this interpretation, AMEA urges us to construe Section 4 as authorizing rejection of PERA for only a limited period of time after its enactment and then only by those local governments which had not yet undertaken collective bargaining with their employees. An adoption of this construction would render the exemptions of all three government entities involved here ineffective, since at the time the statute was enacted, the Municipality was three years from existence, and both of its predecessors were already engaged in collective bargaining with their employers. The Municipality contends that there is nothing in the legislative history or other extrinsic evidence to support AMEA's interpretation of Section 4. In the absence of any clear evidence indicating that the legislature intended otherwise, the Municipality submits, Section 4 should be construed consistently with its plain meaning, as "a simple local option provision" allowing municipalities to reject coverage by PERA and regulate their labor relations matters on a local level. While acknowledging that there is no legislative history shedding light on the meaning of Section 4, AMEA contends that its interpretation is supported by our decision in State v. Petersburg and other provisions of PERA. In Petersburg, we first construed Section 4 in the context of the entire Act. There we found the most clear expression of the legislature's intent in adopting PERA in the portion of the Act's statement of policy which reads: "The legislature declares that it is the public policy of the state to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government. These policies are to be effectuated by (1) recognizing the right of public employees to organize for the purpose of collective bargaining; (2) requiring public employers to negotiate with and enter into written agreements with employee organizations on matters of wages, hours, and other terms and conditions of employment... ." In light of such a strong statement in favor of public employees' right to organize and bargain collectively, we declined to construe Section 4 in a manner which would substantially interfere with the employees' assertion of those rights. Thus we held that "the right and power of the City to reject the Act become[s] subordinated to the rights of the employees granted by the same legislation" once the public employer becomes "aware of substantial organizational activity" on the part of its employees. 538 P.2d at 267. AMEA argues that the limitation imposed in Petersburg upon a public employer's ability to reject PERA is applicable to those governments already engaged in collective bargaining with their employees pursuant to a local scheme. A municipality is "aware of organizational activity" by virtue of having bargained with representatives of its employees, AMEA maintains, and is thus precluded from rejecting PERA. This argument misconstrues our holding in Petersburg by taking it out of context from the factual setting in that case. The City of Petersburg took no action towards exercising its option to reject PERA until more than six months after the Act's effective date and after it became aware of organizational efforts by its employees to be represented by a particular union. The majority held: "Rejection of the PERA after becoming aware of such activity constitutes a gross and impermissible interference with the employees' freedom to choose which collective bargaining association should represent them." Id. The majority's primary concern in Petersburg was that, given a broad open-ended construction, the exemption provision could be used as a means of blocking attempts by public employees to pursue the rights granted them by PERA. There is nothing in the instant case to suggest that the exemptions of the Municipality or its predecessors served to eliminate, diminish, or even affect existing rights of employees. Rather, the rejections of all three government entities merely served to perpetuate the status quo. AMEA itself acknowledges that "from a practical point of view, nothing particularly remarkable or disturbing (in the eyes of the municipality's employees) resulted from these rejections. Collective bargaining between public employer and employee proceeded and was carried out in a manner wholly consistent with labor relations 'models' generally and with the PERA, specifically." In fact, even the Municipality's substitution of the ordinance which sparked this controversy actually expanded rather than diminished the employees' rights. It would be a different matter if a municipality which had previously engaged in collective bargaining with its employees, upon the enactment of PERA, opted out in order to avoid recognizing a particular employee organization, as in Petersburg, or in order to gain an undue advantage in a labor dispute or the negotiation of a new collective bargaining agreement. Rejection of PERA under those circumstances constitutes a deliberate interference with the right of employees to organize and bargain collectively in derogation of the Act's express declaration of policy. Here all evidence indicates that all three governments exempted themselves solely for the purpose of retaining local control over their labor relations, and with the clear intent of continuing collective bargaining rather than to interfere with established employee rights. Petersburg does not prohibit rejection of PERA under these circumstances. Nor does Petersburg set a limited time period of six months after the enactment of PERA during which the exemption must be exercised, thus precluding exemption by newly formed governments such as the Municipality which were not in existence during that period. Petersburg merely holds that a public employer which chooses to opt out of PERA must do so promptly, rather than at its leisure, and that under the facts of that case, six months was adequate time for the City to act. The decision does not deprive a newly formed municipality of the option to reject PERA, so long as it does so promptly after its formation and without interfering with the employees' exercise of their established rights. To hold, as AMEA urges, that the exemption option was only intended to be available for a limited period of time after the enactment of PERA would basically rob Section 4 of any continued validity even though it is still printed in the Alaska Statutes. Had the legislature wanted Section 4 to be of temporary duration, we think it would have so indicated. We are even less persuaded by AMEA's assertion that the legislature intended that collective bargaining within the state be done in accordance with PERA or not at all. AMEA contends that the repeal of the permissive authority in former AS 23.40.010 deprived local governments of the power to engage in collective bargaining on a local level. This argument erroneously assumes that public employers in Alaska are prohibited from engaging in collective bargaining with their employees absent statutory authorization. We have previously recognized the power of local governments to adopt their own system of collective bargaining, despite the repeal of AS 23.40.010, and have even stated that Section 4 of PERA "allows political subdivisions of the state to reject the act's provisions for conduct of labor relations and to substitute their own provisions." Alaska Public Employees Ass'n v. Municipality of Anchorage, 555 P.2d 552, 553 (Alaska 1976). More importantly, we will not construe a statutory provision in a manner which is inconsistent with the express objective of that very legislation. The legislature expressly declared that the state policy of promoting harmonious and cooperative relations in public employment relations can best be effectuated by requiring public employers to bargain collectively with their employees. It is, therefore, most difficult to construe the Act to prohibit local governments, which effectively rejected PERA, from engaging in collective bargaining under their own local ordinances. It is far more likely that Section 4 was added to PERA to give political subdivisions of the state the freedom to fashion their own labor ordinances and systems of collective bargaining. In sum, we find nothing in PERA or our decision in Petersburg to support the interpretation of Section 4 proffered by AMEA and thus hold that the Municipality and both of its predecessors had the option pursuant to Section 4 to reject coverage under PERA, and engage in collective bargaining on a local level. II Alternatively, AMEA argues that even if Section 4's exemption option is available to governments which are already engaged in collective bargaining, neither the Municipality nor its predecessors effectively exercised their option to reject PERA. AMEA contends that the City acted prematurely, that GAAB acted to late, and that the Municipality acted in violation of its Municipal Charter. The Municipality's Charter provides that the new government shall be the legal successor to the "rights, titles, actions, suits, franchises, contracts, and liabilities" of the former government. AMEA contends that the City, as the legal successor to the liabilities of its former governments, is subject to PERA by virtue of its predecessors' failure to enact timely exemptions. However, we need not determine what effect the new charter would have on the Municipality's ability to exercise its exemption had the former governments been bound by PERA, since we have concluded that both the City and GAAB did in fact validly opt out of PERA. There is no merit to AMEA's claim that the City's resolution rejecting PERA was ineffective because it was adopted pri- or to the effective date of PERA. The City's resolution was passed during the 90 day interim period between the Act's enactment and its effective date. Article II, section 18 of the Alaska Constitution provides that laws passed by the legislature become effective 90 days after enactment. This delay gives those affected by the new legislation notice and an opportunity to prepare for changes which the law makes. It also provides an opportune time for those governments which choose to reject PERA to do so promptly and before their employees have commenced exercising their rights under the Act. The GAAB adopted its resolution rejecting PERA approximately seven months after the effective date of PERA. AMEA maintains that this exemption was not timely enacted and is thus invalid under Petersburg. As previously indicated, we think that whether a local government has exercised its option to reject PERA in a sufficiently timely fashion is best determined by looking at the circumstances of the individual case rather than setting an inflexible deadline. Although seven months may be considered untimely under some circumstances, there is nothing in the present case to indicate that GAAB acted less than conscientiously and diligently in acting to reject PERA. The Personal Director of GAAB contacted the state on several occasions between June, 1972, when the Act was enacted, and December, 1972, regarding the applicability of PERA and the procedures to be followed in rejecting it. He was never informed of any time limitations under Section 4. In January, 1973, the Mayor's recommendation was immediately considered at both a public meeting and special assembly meeting. There was general agreement that labor relations should be controlled on a local level, but that no action should be taken to reject PERA until a local ordinance was adopted. The resolution rejecting PERA was passed immediately upon enactment of a local labor ordinance. This is clearly not a situation, as in Petersburg, where the City dealt with the question of the applicability of PERA at its leisure, while its employees were in the process of undertaking substantial activities in pursuit of their rights under the new Act. Therefore, we conclude that GAAB's exemption was timely and effectively enacted. We hold that the Municipality is validly exempted from the requirements of PERA both as the legal successor of its predecessors' exemptions, and by virtue of its own independent act of rejecting PERA. Accordingly, the Municipality is free to formulate and apply its own labor relations practices and policies. Ill Finally, AMEA argues that even if the Municipality is free to conduct its labor relations according to its own scheme, it cannot do so in a manner which conflicts with state policy as expressed in PERA. The Municipality's ordinance, AMEA maintains, is inconsistent with PERA's express policy in favor of mandatory collective bargaining insofar as it makes certain terms and conditions of employment non-negotiable. Although we agree that there is an inconsistency between the state and local law, "a municipal ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute." Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974). To hold that a local ordinance, adopted by a municipality which has effectively exempted itself from the requirements of PERA is invalid unless consistent in all respects with the provisions of PERA would basically make Section 4 a meaningless provision. In effect, AMEA is attempting to bring in through the back door the construction of Section 4 which we have already rejected. As long as Section 4 is still part of the Act we cannot conclude that all collective bargaining must be conducted in accordance with the requirements of PERA. Local governments which have validly rejected PERA are free to develop a local scheme of collective bargaining which varies from the state scheme as provided in PERA. We hold that the Municipality's labor ordinance is valid, and affirm the judgment of the superior court in favor of the Municipality. AFFIRMED. . Former AO 69-75 provided: "Each collective bargaining agreement made after the effective date of this ordinance shall incorporate by reference the then current Personnel Rules and Regulations of Anchorage in their entirety. The provisions of the Personnel Rules and Regulations may not be varied by negotiation except as expressly so authorized therein. Any changes made to the Personnel Rules and Regulations during the term of any collective bargaining agreement shall not be applicable to that agreement." . AO 77-376 (substitute) provides in relevant part: "Each collective bargaining agreement made after the effective date of this chapter shall incorporate by reference the then current Personnel Regulations of Anchorage. The provisions of the Personnel Regulations may be substituted by negotiated agreements except Rule 12.7, Length of Service; Rule 14, Holidays, and Rule 15, Leave, which shall not be negotiable." AO 77-376 is codified as Anch.Mun.Cd. § 3.70.-170. .Although AMEA alleges that the amended ordinance diminished employee rights, in fact it expanded the items that were to be subject to collective bargaining. .AMEA argued a quite different interpretation of Section 4 before the superior court: that it was intended to cover municipalities which were in existence at the time PERA was enacted and had already developed or were in the process of developing their own local labor relations ordinance. Although we will not generally address an argument raised for the first time on appeal, we have decided to consider appellant's present interpretation of Section 4 because it is within the general realm of arguments presented to the superior court, and because the issue is one of public importance involving no factual disputes. . 538 P.2d 263 (Alaska 1975). . AS 23.40.070. . We assign no significance to the fact that Section 4 was printed in the Special and Temporary Acts portion of the Alaska Statutes rather than being codified with the remainder of PERA. The language of Section 4 is also printed as an editors note in the body of the Act and it has not been repealed, . In Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula Borough Sch. Dist. Classified Ass'n, 590 P.2d 437 (Alaska 1979), we acknowledged that the right of non-certified school employees, who are not covered by PERA, arose from the school district's local labor relations policy. . AS 23.40.070. . The non negotiable items are longevity pay, holidays and leave. See note 2, supra.

10579832

Lawrence M. BRAYTON, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Appellee

Brayton v. City of Anchorage

1963-11-19

No. 219

832

835

386 P.2d 832

386

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:06.657575+00:00

CAP

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

Lawrence M. BRAYTON, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Appellee.

Lawrence M. BRAYTON, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Appellee. No. 219. Supreme Court of Alaska. Nov. 19, 1963. Lawrence M. Brayton, in pro. per. Millard F. Ingraham, Fairbanks, presenting appellant’s oral argument. Richard O. Gantz and Harland W. Davis, Anchorage, for appellee. Vasken Minasian, Anchorage, presenting appellee’s oral argument. Before NESBETT, C. J., and DIMOND and AREND, JJ.

2037

12036

NESBETT, Chief Justice. While a candidate for state office in June of 1960 appellant attached approximately fifty political posters to telephone utility poles belonging to' appellee city. This was a violation of a City of Anchorage Ordinance. Appellee caused the posters to be removed and commenced suit in the district magistrate court to recover the cost of removal in the sum of $43.50. Appellant appealed to the superior court from a judgment in favor of the appellee. The superior court affirmed the judgment of the magistrate court and appeal was taken to this court. Appellant's first point is that the city had no standing to commence the action, because a municipal corporation is a creature of the legislature, has no powers not expressly or impliedly conferred upon it by the legislature, and that that body had not conferred on municipal corporations the power to commence a suit of th;s nature. At the time the action arose a municipal corporation was permitted by statute to maintain an action to recover damages for an injury to its corporate rights or property. The posting of signs on city property can be an injury to corporate rights or property. In the case before us the magistrate found that the posters constituted a safety hazard to telephone linemen required to climb the poles. It seems clear enough that under these facts appellee municipal corporation did have the power to commence the action. Not mentioned in the briefs of either party is the fact that at the time the action arose appellee was a home rule city and therefore clothed with considerably broader powers than the usual municipal corporation in Alaska. Since this point has not been treated as an issue, we shall not attempt to define the extent of the power of a home rule city to maintain actions at law. The parties have devoted a considerable portion of their briefs to a discussion of whether recovery by the ap-pellee can be supported on the theory of contract or on waiver of the trespass and as a suit in assumpsit. Our rules of Civil Procedure provide that there shall be only one form of actioi-*, known as a civil action, and that all of the rules shall be construed to secure the just, speedy and inexpensive determination of every action. This court has heretofore held that a party should be granted the relief to which he is entitled under the evidence, regardless of the theory of his pleadings. Here the evidence supported the magistrate's finding that appellant had committed a trespass and that appellee was entitled to reimbursement for the cost of restoring the property to its original state. Appel-lee was entitled to the relief granted regardless of the theory upon which its claim for relief was based. There is no merit to appellant's argument that since violation of the ordinance was punishable as a misdemeanor, appellee was restricted to the commencement of a criminal action. The violation was a breach of the peace and dignity of the appellee city. Under the ordinance ap-pellee was empowered to prosecute appellant for the commission of a misdemeanor, but it was not obligated to do so. Appellant's act was also a trespass. Therefore appellee had the legal right to prosecute a civil action for damages resulting from the trespass. The latter right does not spring from the ordinance in question. It is. the common law right of every individual which had been extended to appellee municipal corporation by statute in Alaska. Appellant's .last contention is that the City of Anchorage ordinance is unconstitutional in that its enforcement violates his right to freedom of speech and of press as guaranteed under the First and Fourteenth Amendments to the United States Constitution. It is true that the ordinance prohibits the type trespass committed by appellant. Its enforcement would prevent appellant from attaching his political posters to any city property. To that extent appellant's right to freedom of speech and of press would be restricted. On the other hand, the United States Supreme Court has specifically recognized the right of a city to forbid trespasses in similar cases. In Schneider v. State the court pointed out that a city cannot require all who wish to disseminate ideas to present them to municipal authorities who have the discretion to approve or disapprove dissemination, but may prohibit trespasses and otherwise reasonably regulate many of the common methods of exercising the right of freedom of press and speech such as distributing handbills, leaflets and canvassing. The judgment below is affirmed. DIMOND, J., concurs. . Section 3-1 (c), Code of Ordinances of the City of Anchorage states: "No person shall attach, place, paint, write, stamp or paste any sign, advertisement or other matter upon any lamp post, electric light, railway, telephone or telegraph pole, shade tree, fire hydrant, or boxing covering them; or on any bridge, pavement, sidewalk or crosswalk, public building, or any property or thing belonging to the city, or any article or thing within any park; provided, this section shall not be construed to prevent any public officer from so doing for any public purpose." . Section 56-2-1 A.C.L.A.1949 in effect when this action arose, stated in pertinent part: "An action may be maintained by any incorporated town in either of the following cases: "Fourth. To recover damages for an injury to the corporate rights or property of such public corporation." . See, ALASKA CONST, art. X, secs. 1, 9 and 11 (1959); Anchorage, Alaska, Municipal Charter, sec. 1.4 (1959). . Civ.R. 2. . Civ.R. 1. . Mitchell v. Land, 355 P.2d 682, 687 (Alaska 1960). . Fort v. Brighton Ditch Co., 79 Colo. 462, 246 P. 786, 787 (1926). . Williams v. Dickenson, 28 Fla. 90, 9 So. 847, 849 (1891); Austin v. Carswell, 67 Hun. 579, 22 N.Y.S. 478 (Sup.Ct.1893). . See. 56-2-1 A.C.L.A.1949. See, ALASKA CONST, art. X, sees. 1, 9 and 11 (1959), Anchorage, Alaska, Municipal Charter, see. 1.4 (1957). . Anchorage, Alaska, Code of Ordinances, sec. 3-1 (c) (1957). . 308 U.S. 147, 164, 60 S.Ct. 146, 84 L. Ed. 155, 166 (1939).

10351533

Scott A. HIGGINS, Appellant, v. Phillip BRIGGS, Superintendent, Cook Inlet Pre-Trial Facility, Alaska Dept. of Corrections, Appellee

Higgins v. Briggs

1994-06-24

No. A-4732

539

544

876 P.2d 539

876

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:15:06.660728+00:00

CAP

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

Scott A. HIGGINS, Appellant, v. Phillip BRIGGS, Superintendent, Cook Inlet Pre-Trial Facility, Alaska Dept. of Corrections, Appellee.

Scott A. HIGGINS, Appellant, v. Phillip BRIGGS, Superintendent, Cook Inlet Pre-Trial Facility, Alaska Dept. of Corrections, Appellee. No. A-4732. Court of Appeals of Alaska. June 24, 1994. Scott A. Higgins, pro se. John K. Bodick, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before COATS and MANNHEIMER, JJ., and WOLVERTON, District Court Judge. Sitting by assignment of the chief justice made pursuant to Article IV, Section 16 of the Alaska Constitution.

3107

19733

OPINION MANNHEIMER, Judge. Scott A. Higgins appeals the superior court's denial of his petition for writ of habe-as corpus. For several years, Higgins had been a prisoner in the custody of the Alaska Department of Corrections. As punishment for Higgins's various violations of prison rules, the Department of Corrections had, at different times over the last five years, taken away portions of the good time credit Higgins accrued under AS 33.20.010. Higgins filed a petition for writ of habeas corpus in the superior court, claiming that the Department of Corrections had imposed excessive penalties for his violations of prison rules— that his violations of the rules were too minor to merit such an extensive loss of good time credit. Higgins further argued that, if his good time credit was restored, he would be entitled to immediate parole release under AS 33.20.040(a). Higgins's petition followed a tortuous path through the superior court. The State asserted that the court should treat Higgins's petition as an application for post-conviction relief under Alaska Criminal Rule 35.1. The court initially agreed with the State and, under Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973), the court appointed the Public Defender Agency to represent Higgins. However, the Public Defender Agency almost immediately asked the court to vacate their appointment. The Agency argued that, under Department of Corrections v. Kraus, 759 P.2d 539, 540 (Alaska 1988), Higgins could pursue neither a petition for writ of habeas corpus nor a petition for post-conviction relief. Instead, the Agency argued, Higgins's sole remedy was an administrative appeal, and the Agency did not have the statutory authority to represent Higgins in an administrative appeal. See AS 18.85.100. Superior Court Judge Karen L. Hunt ultimately accepted the Public Defender Agency's characterization of the litigation. Relying on the Alaska Supreme Court's decision in Kraus, Judge Hunt ruled that Higgins's only avenue of relief was through an administrative appeal. Moreover, relying on Kraus and on McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), Judge Hunt ruled that, in an administrative appeal, Higgins could litigate only allegations of constitutional error (generally, failure of the Department to afford him due process in the disciplinary proceedings). Because Higgins did not argue that he had been denied due process, but rather argued that the Department had imposed disproportionate penalties for his various infractions of prison rules, Judge Hunt concluded that Higgins's petition did not raise constitutional issues. Instead, Judge Hunt concluded that Higgins's petition was in the nature of a consolidated sentence appeal from a series of Department of Corrections disciplinary decisions. Judge Hunt therefore dismissed Higgins's lawsuit. Higgins appeals this dismissal. He contends that the superior court should have allowed him to litigate his claims either as a petition for writ of habeas corpus under Alaska Civil Rule 86 or as a petition for post-conviction relief under Alaska Criminal Rule 35.1. To answer Higgins's contention, we must examine not only the propriety of the superior court's ruling but also the limits of this court's jurisdiction. Unlike the supreme court, this court is a creature of statute. Our jurisdiction is defined by the legislature in AS 22.07.020. Under the pertinent portions of AS 22.07.-020(a), we have appellate jurisdiction in all superior court actions involving "(1) criminal prosecution; (2) post-conviction relief; . (5) habeas corpus; [and] (6) probation and parole". If Higgins is correct that he should have been allowed to pursue a petition for writ of habeas corpus or a petition for post-conviction relief, then AS 22.07.020(a)(2) and (a)(5) give us the authority to review the superior court's decision denying Higgins the requested relief. On the other hand, if this is an administrative appeal, then this court does not have jurisdiction to review the superior court's decision. Under AS 22.05.010(a), "a party has only one appeal as a matter of right from an action or proceeding commenced in either the district court or the superior court." And AS 22.05.010(c) declares that "decision[s] of the superior court on an appeal from an administrative agency may be appealed to the supreme court as a matter of right." From these two statutory provisions, it follows that if a party wishes to exercise the right of appeal from the superior court's decision of an administrative appeal, the party must take that appeal to the supreme court, not to this court. This is, in fact, where such appeals have gone since this court was established in 1980. See Kraus, 759 P.2d 539, as well as Hertz v. Carothers, 784 P.2d 659 (Alaska 1990), and Owen v. Matsumoto, 859 P.2d 1308 (Alaska 1993). This court has the authority — indeed, the obligation — to determine whether Higgins's litigation falls within our subject-matter jurisdiction. See O'Link v. O'Link, 632 P.2d 225, 226 n. 2 (Alaska 1981). To decide this jurisdictional question, we must necessarily decide whether the superior court correctly characterized Higgins's claim as an administrative appeal, if we agree with the superior court that Higgins's litigation is an administrative appeal, we would necessarily also conclude that we have no appellate jurisdiction to rule on the merits of the superior court's order dismissing that appeal. We now turn to the superior court's ruling that an administrative appeal is Higgins's sole method for challenging the Department of Corrections' revocations of his good time credit. Review of the superior court's decision presents two issues. First, is Higgins entitled to any type of judicial review .of the Department of Corrections' decisions to take away his good time credit? Second, if Higgins does have a right to judicial review, what procedural mechanism(s) must he follow to obtain that review? Both of these issues are purely legal questions. We therefore decide them without deference to the superior court's ruling. Conner v. State, 696 P.2d 680, 682 (Alaska App.1985). In McGinnis v. Stevens, the Alaska Supreme Court established due process standards for prison disciplinary proceedings. The court held that prisoners have only a limited right to judicial review of prison disciplinary proceedings: Since Wolff [v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ] acknowledges that a prison disciplinary proceeding is not a criminal prosecution, . a [right of] appeal to the superior court is not required by the federal constitution. Nor is a right to an automatic appeal, as a matter of due process, required by Alaska's constitution.... In our view, the primary law source for resolution of disciplinary proceeding issues is the Division of Corrections' regulations. Interpretation and application of these regulations should be, and is, committed in the first instance • to employees of the Division of Corree-tions[.] McGinnis, 543 P.2d at 1235-36. However, in a footnote to the above-quoted text, the supreme court added: If fundamental constitutional rights are alleged to [have been] abridged in disciplinary proceedings, it would be the duty of the court to inquire into the allegations. McGinnis, 543 P.2d at 1236 n. 45. In Kraus, the supreme court was asked to clarify the scope of judicial review granted by McGinnis. Kraus involved two prisoners, Kraus and Winter, who had lost good time credit as a result of their violation of prison rules. Seeking reinstatement of their good time credit, the prisoners filed administrative appeals to the superior court under Alaska Appellate Rule 602. The State asked the superior court to dismiss both appeals for lack of jurisdiction; when the superior court refused to dismiss the appeals, the State brought a petition for review to the supreme court. Kraus, 759 P.2d at 539-540. The supreme court reaffirmed that, under McGinnis, "prisoners have a right to judicial review of major disciplinary proceedings [when] issues of constitutional magnitude are raised". Kraus, 759 P.2d at 540. The court also held that, because the prisoners had suffered loss of good time credit, the disciplinary proceedings against them had been "major" for purposes of applying McGinnis. Kraus, 759 P.2d at 540 n. 3. The court next rejected the State's contention that prisoners should invoke their right of judicial review by filing a petition for writ of habeas corpus or a petition for post-conviction relief. We reject the state's argument for several reasons.... [I]n McGinnis we referred to the judicial review of major disciplinary proceedings as an appeal.... [W]e agreed . that [this] review would be based on the tape recording of the disciplinary proceedings. A review on the record, as distinct from de novo reception of evidence, is a characteristic of appeals . [Moreover], this court has consistently shown a preference for reviewing adjudicative decisions of an administrative agency by means of an appeal.... The essential question is a functional one: does the claim before the superior court challenge a prior administrative decision? If the answer is affirmative, Appellate Rule [602] applies. Kraus, 759 P.2d at 540 (citations omitted). See also Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990) (per curiam), where the court summarized this aspect of Kraus: "In Department of Corrections v. Kraus . [we] determined that the judicial review of inmate disciplinary proceedings, when constitutionally required, must be conducted in an appeal rather than any other type of proceeding." On appeal, Higgins contends that McGin-nis and Kraus do not necessarily mean that an administrative appeal is .the sole method for challenging Department of Corrections disciplinary decisions. Higgins argues that habeas corpus and post-conviction relief petitions present alternative procedural avenues for pursuing his claims. Higgins admits that Kraus appears to foreclose his argument, since the supreme court in Kraus expressly rejected the State's contention that prisoner lawsuits should be prosecuted as petitions for writ of habeas corpus or as petitions for post-conviction relief. Nevertheless, Higgins asserts that his lawsuit is distinguishable from Kraus because his case involves, not just the loss of good time credit, but the loss of so much good time credit that restoration of this credit would result in his immediate release from prison (on mandatory parole). We reject Higgins's argument for two reasons. First, the Alaska Supreme Court has consistently interpreted McGinnis and Kraus to mean that an administrative appeal is the sole method for seeking judicial review of prison disciplinary decisions. See Hertz, 784 P.2d at 660. Compare Owen v. Matsumoto, 859 P.2d 1308 (Alaska 1993), in which the court ruled that a prisoner challenging the Department's calculation of his underlying sentence should not seek judicial review through the appellate process. Applying the "functional" test it had used in Kraus, the court declared that appellate review was inappropriate because the Department's calculation of a sentence does not arise from a trial-like event. That is, when calculating a prisoner's sentence, the Department does not engage in fact-finding or in an exercise of discretion that would produce "records reviewable on an administrative appeal". Owen, 859 P.2d at 1310. Higgins, like the prisoners in Kraus, was clearly seeking judicial review of a trial-like event — or, rather, review of a series of trial-like events: the Department of Corrections' various "sentencing" decisions over a five-year span (their decisions regarding how much good time credit to revoke for Higgins's various violations of prison rules). The primary adjudicative events had already occurred; Higgins was asking the superior court to review the Department's adjudications for abuse of discretion. The supreme court has declared that the essential question is one of function: what role did Higgins ask the superior court to' play? The answer here, as it was in Kraus, is that Higgins was asking the superior court to engage in the equivalent of appellate review. Thus, Higgins's lawsuit must be categorized as an administrative appeal. Higgins asserts that his case is different because, if the Department's sanctions are found to be excessive and reversed, he will be entitled to parole release. But whether or not Higgins would be entitled to parole release, the anticipated judicial function of the superior court would not change. In Kraus, the supreme court ruled that the sole way in which the superior court may exercise this appellate function is through an administrative appeal. A second reason for rejecting Higgins's argument is that it would reward delay and lack of diligence. During the five-year period that Higgins complains of, each time the Department of Corrections took away a portion of Higgins's good time credit, Higgins was entitled to appeal the Department's decision (if he had a colorable claim that the Department had violated his constitutional rights). For five years, Higgins never appealed. Now he asserts that he is entitled to additional procedural rights (the right to pursue either a petition for writ of habeas corpus or a petition for post-conviction relief) because, over this five-year period, the accumulated loss of good time credit has come to equal the number of days remaining in his sentence. Neither a petition for writ of habeas corpus nor a petition for post-conviction relief was intended to take the place of a direct appeal. The "writ of habeas corpus is an extraordinary remedy and will not ordinarily be granted when there is another adequate remedy." Taggard v. State, 500 P.2d 238, 241 n. 7 (Alaska 1972). And Criminal Rule 35.1(b) declares that a petition for post-conviction relief "is not a substitute for[,] nor does it affect[,] any remedy incident to the proceedings in the trial court", nor is it a substitute for "direct review of the sentence or conviction". Moreover, a prisoner who inexcusably fails to appeal can not thereafter take advantage of his own neglect to justify a collateral attack on his conviction or sentence (by arguing that the requested collateral attack must be allowed since the right to appeal has expired). See Stone v. Powell, 428 U.S. 465, 478 n. 10; 96 S.Ct. 3037, 3044 n. 10; 49 L.Ed.2d 1067 (1976) ("[Njonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings."); Sunal v. Large, 332 U.S. 174, 182, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982 (1947) (absent extraordinary circumstances, the remedy of habeas corpus is not available to defendants "who accept the judgment of [the trial court] and do not appeal"); Billings v. Maass, 86 Or.App. 66, 738 P.2d 222, 223 (1987) ("The remedy of habeas corpus is not available to parties who neglect to seek appellate review of the challenged decision."). We therefore reject Higgins's argument that, because he waited so long to appeal the Department of Corrections' various disciplinary decisions, he now should stand in a better legal position than a prisoner who followed the proper procedures and pursued timely appeals. For these reasons, we agree with the superior court that Higgins's sole procedural mechanism for challenging the Department of Corrections disciplinary decisions was an administrative appeal under McGinnis and Kraus. Under the facts of this case, Higgins was not entitled to pursue either a petition for writ of habeas corpus or a petition for post-conviction relief. Because we conclude that Higgins's lawsuit was properly characterized as an administrative appeal, we have no jurisdiction to decide the merits of the superior court's decision dismissing that appeal for failure to state a constitutional claim. We therefore do not address Higgins's assertions (1) that he in fact had constitutional claims to raise, (2) that the superior court should have ordered disclosure of all of the Department's records, and (3) that the superior court should have ordered the Public Defender Agency to represent Higgins at public expense. For the same reason, we do not address Higgins's claim that Department of Corrections officials violated the rules governing prisoner discipline established in the class-action lawsuit Cleary v. Smith, No. 3AN-81-5274 Civ. Regarding the classification of Higgins's lawsuit as an administrative appeal, the judgement of the superior court is AFFIRMED. In all other respects, this appeal is DISMISSED .for want of jurisdiction. BRYNER, C.J., not participating. . Several times in the past, this court has entertained appellate litigation involving the calculation of prisoners' good time credit. See Briggs v. Donnelly, 828 P.2d 1207 (Alaska App. 1992); Sou-za v. State, 792 P.2d 289 (Alaska App.1990); and Helton v. State, 778 P.2d 1156 (Alaska App.1989). See also Bishop v. Anchorage, 685 P.2d 103, 106 (Alaska App. 1984) (issue moot because the district court lacked subject-matter jurisdiction). Donnelly and Souza came to us on appeal from habeas corpus litigation; Helton came to us on appeal from a denial of post-conviction relief. However, in none of these appeals were we asked to determine whether a habeas corpus petition or a petition for post-conviction relief was the proper vehicle for litigating the prisoners' claims in the superior court. Moreover, in all these cases, the issue litigated in the trial court was purely one of constitutional or statutory construction: how was a prisoner's good time credit to be calculated under the pertinent sections of AS 33.20 and the regulations of the Department of Corrections? It therefore appears that, under the test laid down in Owen v. Matsumoto, none of these cases would have been an "administrative appeal". . See also Haynes v. State Commercial Fisheries Entry Comm'n, 746 P.2d 892, 893 (Alaska 1987), in which the supreme court held that a claim for injunctive relief had to be characterized as an administrative appeal because the superior court could grant the requested injunctive relief only if it determined that the Fisheries Entry Commis sion's administrative decision was erroneous. And see Ballard v. Stick, 628 P.2d 918, 920 (Alaska 1981), and Owsichek v. State, 627 P.2d 616, 620 (Alaska 1981), in which the supreme court held that, when an action for injunctive relief seeks the same type of administrative review from the superior court as could be had through a normal appeal from an administrative order, the action for injunctive relief must be treated as an appeal. . The Alaska Supreme Court has ruled that post-conviction relief should be granted to a prisoner who wished to appeal but whose attorney inexcusably failed to file the appeal. McCracken v. State, 482 P.2d 269, 272-73 (Alaska 1971). Compare Pore v. State, 452 P.2d 433 (Alaska 1969). But Higgins offers no reason for his failure to appeal the various Department of Corrections disciplinary sanctions during the past five years. Moreover, the relief granted in such cases is the right to pursue an appeal, not the right to a new trial or a new sentencing.

6915409

Johnnie J. GAMBLE, Appellant, v. STATE of Alaska, Appellee

Gamble v. State

2014-09-19

No. A-11042

714

718

334 P.3d 714

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Johnnie J. GAMBLE, Appellant, v. STATE of Alaska, Appellee.

Johnnie J. GAMBLE, Appellant, v. STATE of Alaska, Appellee. No. A-11042. Court of Appeals of Alaska. Sept. 19, 2014. Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jean E. Seaton, Assistant District Attorney, Sitka, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, and ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

2279

14441

OPINION ALLARD, Judge. After being charged with three counts of violating a domestic violence protective order, Johnnie J. Gamble was found incompetent to stand trial and committed to the Alaska Psychiatric Institute (APTI) for 90 days in an effort to restore him to competency. At the end of the 90-day commitment, the trial court concluded that Gamble was competent to proceed to trial, despite his attorney's continuing objections that Gamble could not meaningfully participate in his own defense. Gamble was subsequently convicted of two counts of violating a protective order. Gamble appeals, arguing that the trial court erred in finding that he was competent to stand trial. For the reasons explained in this opinion, we affirm the trial court's ruling. Facts and proceedings The State charged Gamble in two separate cases with three counts of violating a domestic violence protective order. Shortly after Gamble's arraignment, Gamble's attorney requested a competency evaluation of Gamble to determine if he was legally competent to stand trial. Dr. Lois Michaud, a forensic psychologist at API, conducted a competency evaluation of Gamble on January 19, 2011. Dr. Mi-chaud reported that Gamble was very delusional and would be unable to consult with his attorney in a rational manner or present a rational defense. She observed that Gamble's delusions included his belief that he had already been to trial and that he needed to talk to a physicist because, in his words, "the theory of causality, cause and effect, everything is created by God and every physical thing possibly has already happened and can happen again." Dr. Michaud concluded based on the intensity and intrusiveness of Gamble's delusions that he was not competent to stand trial, Superior Court Judge David V. George, sitting as a district court judge, found Gamble incompetent to stand trial. Pursuant to AS 12.47.110(a), Judge George then ordered Gamble committed to API for 90 days for further evaluation and possible restoration to competency. Near the end of the 90 days, Dr. Michaud re-evaluated Gamble and concluded that his mental condition had improved under the structured setting of the psychiatric hospital and that he was now competent to stand trial. At the subsequent competency hearing, Dr. Michaud testified that when she first interviewed Gamble in January, his delusional ramblings and the intrusiveness of his delusional thoughts made him very difficult to interview. Gamble had greatly improved by the time he was re-evaluated, and his delusions were significantly "less intrusive" than before. Dr. Michaud concluded that while Gamble's delusions had not entirely disappeared, they no longer presented the same barrier to coherent and rational communication as before. However, Dr. Michaud specifically warned the court and the parties that exposure to an unstructured environment (like jail or trial) could cause Gamble's delusions to become more intrusive, and that Gamble's attorney "would be the first to know" if Gamble began to experience the type of active delusions that would render him incompetent. Gamble's attorney disagreed with Dr. Mi-chaud's conclusion that Gamble was competent to stand trial. The attorney argued that the nature of Gamble's delusions-his belief that everything happens in a loop, and that everything has happened before, including his trial-meant that Gamble was unable to effectively assist in his own defense, and that his case should therefore be dismissed under AS 12.47.110(b). Judge George concluded that the mere existence of Gamble's delusions, standing alone, did not necessarily prevent him from communicating with a reasonable degree of rational understanding with his attorney or otherwise prevent him from meeting the standard for competency. After observing Gamble's demeanor at the second competency hearing, the court found that Gamble was doing better and that he was not in one of his "more agitated states." The court further found that Gamble "appreciate[(d] the nature of the proceedings," understood the role of the parties and court, and was able to speak and convey thoughts to his attorney, including his various disagreements with his attorney's litigation strategy. The court therefore found Gamble competent to stand trial and scheduled a trial calendar call for the following month. At the calendar call a month later, Gamble's attorney indicated that he continued to have difficulties. communicating with Gamble. He requested that the trial judge communicate directly with Gamble to determine how Gamble would like to proceed. Judge George spoke to Gamble about the various options, and Gamble decided that he wanted to go to trial, that he wanted a jury trial, and that he wanted the two cases consolidated. The judge granted these requests and also made the following findings: I should note for the record, there has been some concern in the past about Mr. Gamble's mental state.... Today I found that he is responsive to the Court's inquiry; he appears to have a grasp of the understanding [of] his options and has been able to express himself and do so eoherently and I don't have any reason to . believe that he's not able to proceed at this time. So I want to make that finding for the record. A week later, on the morning of trial, Gamble's attorney renewed his motion to dismiss under AS 12.47.110(b). Gamble's attorney again argued that the nature of Gamble's delusions-his belief that everything had happened before and could happen again-made it impossible to communicate meaningfully with Gamble regarding his defense, and that he was not competent to stand trial. In response to the renewed motion, the prosecutor offered to leave the courtroom so the defense attorney could supplement the record with any specific examples of the communication problems he was having with Gamble. But the defense attorney indicated that he did not have anything to add to his argument at the earlier hearings. The judge then asked the defense attorney whether he believed Gamble's situation was any different than it had been at the last calendar call-that is, whether Gamble's condition had deteriorated in the week since the judge made his most recent findings related to Gamble's competency. The attorney indicated that the situation was the same. Based on this response, the court declined to revisit its prior competency ruling and reaffirmed its ruling that Gamble was competent to proceed. The case then went to trial The jury convicted Gamble of two counts of violating a protective order and acquitted him of the third count. This appeal followed. Did the trial court err in finding Gamble competent to stand trial? Under Alaska law, a defendant is incompetent to stand trial if, as a result of a mental disease or defect, the defendant is "unable to understand the proceedings against the defendant or to assist in the defendant's own defense." This standard necessarily incorporates the federal constitutional standard for competency to stand trial, which requires a defendant to have a rational and factual understanding of the proceedings against him and to have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. A defendant who is incompetent to stand trial may not be tried, convicted, or sentenced for the commission of a erime so long as the incompetency exists. The conviction of a defendant who is not competent to stand trial violates due process of law. Because the integrity of the judicial proceeding is at stake when the competency of a criminal defendant is in question, a trial court has a duty to order a competency evaluation whenever there is good cause to believe that the defendant may be incompetent to stand trials. Additionally, because a defendant's mental state may deteriorate under the pressures of incarceration or trial, a trial court is required to be responsive to competency concerns throughout the criminal proceeding. In the current case, Gamble does not dispute the trial court's finding on the first prong of the competency standard. That is, Gamble does not dispute that he understood the proceedings against him. Instead, his challenge is exclusively to the second prong of the competency test-whether he could participate in his own defense and consult with his lawyer with a reasonable degree of rational understanding. Gamble asserts on appeal, as he did below, that the nature of his delusional beliefs which made him believe that everything had already happened-prevented him from being able to assist in his defense or communicate with his attorney with a reasonable degree of rational understanding. But as the Alaska Supreme Court has previously recognized, "[t]he presence of some degree of mental illness is not an invariable barrier to prosecution." A defendant may have some degree of impaired functioning but still be "minimally able to aid in his defense and to understand the nature of the proceedings against him." To a large extent, therefore, "each case must be considered on its particular facts." Here, the record indicates that the trial court took the competency concerns raised by the defense counsel very seriously. The court held multiple hearings on Gamble's competency, including a full evidentiary hearing at which the forensic psychologist testified and was questioned by the prosecutor, the defense attorney, and the judge. Moreover, the court did not simply defer to the psychologist's opinion. Instead, the court made its own independent findings and continued to make additional findings at later hearings, demonstrating the court's awareness that Gamble's situation was not necessarily stable and that the highly intrusive delusions that previously presented a barrier to his competency could quickly return. On appeal, Gamble argues that the trial court should have deferred to the defense attorney's assertion that Gamble was unable to assist in his defense because the defense attorney was the only person in a position to make that assessment. - We agree that a defense attorney is in a unique position with regard to assessing a defendant's ability to assist in his own defense and that a defense attorney's assessment of the defendant's functioning is therefore an important factor for the court to consider. But ultimately the question of whether the defendant is competent to stand trial is a determination that the trial court must make independently based on all of the information before it. Thus, just as it would be error for the trial court to defer to the forensic psychologist's assessment of Gamble's competency, so too would it be error for the trial court to simply adopt the defense attorney's perspective of the defendant's incompetency, without making its own independent determination based on all the information before it. We note that despite being given the opportunity to provide more specific information to the trial court regarding the communication problems with Gamble, the defense attorney stated that he had no further information for the court to consider. We also note that the attorney did not request an additional forensic competency: evaluation. Nor did the attorney assert that Gamble's functioning had deteriorated since the previous hearing or that the court should make new findings on Gamble's competency. Instead, the defense attorney repeated his previous argument-that the nature of Gamble's delusions alone made Gamble incompetent to stand trial, and that the case should be dismissed on that basis. Given the record before us, we conclude that the trial court did not err in rejecting this argument and in finding that Gamble was competent to stand trial. Conclusion We AFFIRM the judgment of the superior court. . See AS 12.47.100. . AS 12.47.100(a). . See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). . AS 12.47.100(a). . Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); see also McKinney v. State, 566 P.2d 653, 658 (Alaska 1977) ('The accuracy of the factfinding process, the philosophy of punishment and the appearance of fairness in the adversary system are severely compromised by the conviction and sentencing of a defendant who is unable to consult with his attorney and rationally understand the charges against him."). . Leonard v. State, 658 P.2d 798, 799 (Alaska App.1983). . See Smiloff v. State, 579 P.2d 28, 36 (Alaska 1978) ("[The duty to determine competency is not one that can be once determined and then ignored."); AS 12.47.100(b). . See Dusky, 362 U.S. at 402, 80 S.Ct. 788. . Schade v. State, 512 P.2d 907, 914 (Alaska 1973) (footnote omitted). . Id. (citations omitted). . Id. . See Adams v. State, 829 P.2d 1201, 1207-08 (Alaska App.1992) (Bryner, C.J., concurring) (determination of competency is ultimately a legal matter, not a medical matter and superior court's deference to psychologist's opinion amounted to a failure to exercise judicial discretion and constituted an independent ground for reversal). . See, eg., McKinney, 566 P.2d at 660 (recognizing that a defense attorney's opinion on the client's competency or incompetency is an important, but not dispositive, factor for trial court to consider in its competency determination); see also ABA Criminal Justice Mental Health Standards 7-4.2 & commentary (addressing criminal defense attorney's ethical obligations to raise competency concerns even over defendant's objection and even though it may result in longer pre-trial detention and/or the stigma of institutionalization). . See, eg., Adams, 829 P.2d at 1207-08; United States v. Weston, 36 F.Supp.2d 7, 9 (D.D.C.1999) (citations omitted) ("[I}t is the duty of the District Court to make a specific judicial determination of competency to stand trial, rather than accept psychiatric evidence as determinative of this issue.").

6912844

Anna YOUNG, Appellant and Cross-Appellee, v. David KELLY, Appellee and Cross-Appellant

Young v. Kelly

2014-08-22

Nos. S-14857, S-14858, S-14897

153

164

334 P.3d 153

334

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Anna YOUNG, Appellant and Cross-Appellee, v. David KELLY, Appellee and Cross-Appellant.

Anna YOUNG, Appellant and Cross-Appellee, v. David KELLY, Appellee and Cross-Appellant. Nos. S-14857, S-14858, S-14897. Supreme Court of Alaska. Aug. 22, 2014. Rehearing Denied Sept. 29, 2014. Ted Stepovich, Law Office of Ted Stepo-vich, Anchorage, for Appellant and Cross-Appellee. John E. Casperson, Holmes, Weddle & Barcott, P.C., Seattle, for Appellee and Cross-Appellant. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

7350

44852

OPINION MAASSEN, Justice. I. INTRODUCTION Anna Young and David Kelly fished together on David's boat during their marriage, which lasted from 1982 to 1985. Eight years after the marriage was dissolved, the federal government established a program assigning individual fishing quotas (IFQs) to certain commercial fishers; David qualified for the program and was awarded quota shares. In 1995 he approached Anna and asked whether they could reach an agreement that would prevent litigation over her right to a marital share of the IFQs. Anna agreed to forgo suit; David began paying her money, sporadically and in varying amounts. After 18 years of this, David's payments stopped. Anna filed suit in 2011, alleging that David had breached their contract. She also filed a motion under Alaska Civil Rule 60(b)(6), seeking to reopen their 1985 property division and allocate the IFQs as a marital asset. The superior court granted summary judgment to David, deciding that any contract for something other than a marital share was too indefinite to be enforced, that the IFQs were not marital property, and that Anna therefore had no right of recovery. We affirm. II FACTS AND PROCEEDINGS Anna Young and David Kelly were married in 1982. During their marriage they both worked on David's fishing boat, the F/V Arrow. In January 1985 the couple dissolved the marriage, agreeing in the dissolution that they had no marital property and that the F/V Arrow belonged to David. Eight years later, in 1998, the federal government enacted regulations assigning individual fishing quotas to vessel owners or lessees who had made fixed gear landings of halibut or sablefish (black cod) during certain "qualifying years," 1988, 1989, or 1990. David had fished during the qualifying years and thus qualified for IFQs. The amount of his quota shares for halibut was calculated under the federal regulations using his five highest annual landings from the seven "base years," 1984 to 1990. One of David's highest-yielding base years was 1984, one of the years of his marriage, when he and Anna fished together on the F/V Arrow. In 1995, David learned that other ex-spouses had reopened their divorce proceedings for the purpose of allocating IFQs as marital property. David approached Anna about reaching an agreement that would dissuade her from litigating the ownership of his IFQs. The substance of their resulting agreement is in dispute. Anna described the agreement's terms in her complaint, deposition testimony, answers to interrogatories, and affidavits. The contract she alleged in her complaint was an agreement that she "was entitled to her marital share of the IFQs and that payments as to such would be made to [her] over time until paid in full." The complaint alleged that David had agreed to make the payments "when [Anna] needed [money] upon a reasonable request," and that his commitment would end ultimately by "a lump sum payment to be made [when Annal started a business [and] settled down." At her deposition, Anna testified that she and David never agreed on a specific amount that he owed her, and she still had no firm figure in mind. She testified that at the time they made their agreement no one knew what an IFQ was worth; "We didn't even know if [the IFQ program] was going to stick." She and David also never agreed that she was entitled to any particular percentage of the IFQs, were they to be someday valued. What they agreed to instead of a dollar figure, according to Anna's deposition testimony, was that "I would not bring lawyers into our business as long as he was fair with me, and we made a deal that he was going to be fair." Anna further testified that on the day they reached this agreement, David wrote her a check for $6,000. She testified that the next payment was to be made "[wlhenever I needed money," and that "for almost another ten years" she and David adhered to an arrangement by which he was "to give me money whenever I needed it, for a real good reason, because he didn't want me to dwindle my money away." She testified that there was no set amount David was to pay; she just made sure they made contact every year "and that he made some kind of a payment to me," the payments being "bigger in the beginning and . gradually [getting] smaller, down to two thousand the last time he made a payment." She also testified that David made some payments in "goods," entertaining her and her granddaughters at a restaurant in Seward and buying them "the most expensive wines," "[alnd he worked on my boat quite a bit, bought a lot of stuff for my boat," such as a radar. Anna testified at her deposition that she considered all these payments, "during that period of time until we settled," to be interest on what David owed her; she calculated that these interest payments eventually totaled about $30,000. Anna also testified that she and David probably never would have had to place a value on the IFQs as long as David had "kept his agreement"-that is, as long as he had "kept paying me until I was ready to start my business." She testified that at the time of her deposition she was ready to start her own business, a film-making studio, and she needed $100,000 to do it; that she might need more money next year; and that David "would have been obliged to [keep] supporting me with my business, as far as I'm concerned," because the IFQs "put him way up there [as] king of the mountain." She testified that there was "no limit" on what she could ask David for under their agreement. She also testified that since David had broken their agreement, what she wanted now was "the IFQs and . fifty percent of the money he's made with the IFQs so far." Anna also described the parties' agreement in answers to interrogatories. She again acknowledged that "(there was no set agreed amount as it was impossible to set a [dollar] value on [the IFQs] at that time." She again described a promise by David that he would get her started "in any business [she] want[ed] that doesn't involve fishing," and in the meantime she should "just ask [whenever] [she] need[ed] money for something legitimate." However, "I always had to have a good reason for why I need[ed] the money[;] he didn't want me to spend any of it on something that wasn't a necessity." She attested that David would usually pay only about 75% of what she asked for. She de-seribed one incident in which she demanded that David pay $1,500 for the down payment on a friend's hospitalization in Seattle, "or else our agreement not to get lawyers involved was off." When David moved for summary judgment on Anna's contract claim, Anna filed two affidavits in opposition: her own and one by Peggy Parker, president of a research firm with extensive experience in fisheries In Anna's affidavit, she asserted that David "promised me that I would get my share of the IFQs earned by the F/V Arrow while I was married to him and working as a crew member"; she also characterized her agreement with David as that "I would get money as I needed it" and "that he would provide a significant payment toward his debt onee I was ready to settle down or started another business as long as it wasn't fishing." In addition, she asserted that "[nlow I'll be asking for some of the black cod IFQs since I paid for the gear that got the 'Arrow' started fishing black cod. Parker, Anna's expert, calculated the value of Anna's marital share of the halibut IFQs on the assumptions that Anna's active fishing during one of the five base years represented 20% of the IFQ shares; that in the divorcee she would have received half of those shares; and that she would then have fished those shares herself as an IFQ holder on a halibut vessel and received a 40% share of the recovery. In Anna's answers to interrogatories, however, she took issue with the position of her expert as to the percentage of IFQs she was entitled to. Asserting that her "attorney worked it out to be 5%," she stated that "I personally feel that it should be closer to 10% in light of the way [David] forced me out of our marriage.. . [I] still believe I should get 10% of the IFQs and 50% boat share of the money made using those [IFQs] since 1994 [plus] interest in the gold David bought with his extra money since [the IFQs] started." It is undisputed that beginning in the fall of 1995, David made a number of payments to Anna in varying amounts. The amount of the payments gradually decreased over time, until eventually David stopped making payments altogether and avoided further contact with his former wife. In February 2011, Anna filed suit against David, alleging breach of contract and promissory estoppel. A year later she filed a motion under Alaska Civil Rule 60(b)(6), seeking to reopen the 1985 dissolution and allocate the IFQs as marital property. The superior court initially ruled that Anna's de-seriptions of the parties' contract were in many respects too indefinite and uncertain to be enforced, but her claim that David had promised her a marital share of the IFQs survived summary judgment because the court could determine her marital share; it further ruled that although the statute of frauds applied, so did the full-performance exception to the statute of frauds. The superior court also ruled that promissory estoppel could apply to David's promise to pay Anna a share of the quotas. In a subsequent order, however, the superior court ruled that the IFQs were not marital, because David did not qualify for the IFQs until years after the marriage had been dissolved, and Anna's marital share of the IFQs was therefore zero. Accordingly, the superior court dismissed Anna's suit for breach of contract and denied her Rule 60(b)(6) motion to reopen the dissolution. Anna appeals, arguing that a portion of the IFQs was marital property because she was married to and fished with David during one of the base years used to determine the IFQs' value. David cross-appeals, arguing that he has no contract with Anna, that any contract was barred by the statute of frauds, and that promissory estoppel does not apply to any promise he may have made. III. STANDARDS OF REVIEW We recently clarified the standard of review for decisions whether to classify property as marital. The characterization of property as separate or marital may involve both legal and factual questions. Underlying factual findings as to the parties' intent, actions, and contributions to the marital estate are factual questions. Findings of fact are reviewed for clear error, but whether the trial court applied the correct legal rule in exercising its discretion is a question of law that we review de novo using our independent judgment. We review motions for summary judgment de novo, affirming the superior court if the record presents no genuine issues of material fact and if the movant is entitled to judgment as a matter of law. In making this assessment, we draw all reasonable inferences in favor of the non-moving party. We review for abuse of discretion an order denying a Rule 60(b) motion. IV. DISCUSSION A. With The Possible Exception Of An Agreement To Pay Anna Her Marital Share, The Alleged Contract Is Not Enforceable Because It Lacks Definite And Certain Terms. In an action to enforce a contract, "Alaska plaintiffs must show: 'an offer encompassing all essential terms, unequivocal acceptance by the offeree, consideration, and an intent to be bound.'" To be enforceable a contract must also "have reasonably definite and certain terms." "The contract amount, in particular, must be definite and specific." "The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." Courts will fill in gaps where parties' reasonable expectations are clear, but they cannot impose performance where it is not clear the parties had a meeting of the minds. As explained above, the evidence Anna submitted described the parties' agreement in various ways, including (1) that David would pay Anna her marital share of the IFQs, and (2) that in lieu of determining Anna's marital share, David would give Anna money upon reasonable request, including the money to set her up in business when she was ready, and he would continue to support her thereafter without limit as long as she did not "bring lawyers into our business." The superior court carefully sifted through Anna's descriptions of the parties' agreement in its order denying summary judgment. The superior court concluded that Anna "has provided at least one description of her agreement with [David] that has sufficient definition for the Court to identify a breach and to craft a remedy," that agreement being "that [Anna] would receive her share of the [IFQs]." The other agreement described by Anna was essentially that David would pay indefinite sums of money for an indefinite time (but only if he agreed that the payments were necessary, and then not always in the amounts requested); the payments were either installments or interest payments on a principal amount that was itself undetermined. Any such agreement lacks the "reasonably definite and certain terms" necessary for contract formation, including the contract amount, and leaves the court without sufficient basis for determining whether the contract has been breached and, if so, how to formulate a remedy. Because there is no enforceable contract, we need not discuss the statute of frauds or its exceptions for part performance or full performance. Nor does promissory estoppel provide an alternate remedy; the doctrine requires an actual promise that "must be definitive, must be very clear, and must use precise language." The "actual promise" necessary for the application of promissory estoppel "is 'analytically identical to the acceptance of an offer in contract law." However, we agree with the superior court that a promise to pay the marital share of the IFQs-with the amount left to be determined-could ordinarily be definite enough to be enforced, since the law of marital property provides a basis for determining whether there is a breach and for creating an appropriate remedy. But this is not an ordinary case, given that (1) Anna herself at times described a different contract, (2) Anna's own testimony was in conflict over whether David's periodic payments over the course of 13 years were part of her marital share or only interest on that undetermined amount, and (8) Anna disagreed with the value of the marital share reached by her own expert. Even so we do not need to decide whether Anna's contract claim to a marital share properly survived summary judgment. Like the superior court, we conclude that the IFQs were not marital; there was thus no marital share to which Anna could have been contractually entitled. B. The IFQs Were Not Acquired During Marriage And Therefore Are Not Marital Property. We have held IFQs to be marital property and divided them between the divoreing parties on three previous occasions. In Ferguson v. Ferguson, the parties married in 1988 and divorced in 1994; their marriage spanned all the qualifying years. The parties in both Johns v. Johns and McGee v. McGee were married through all the base years and the qualifying years. These cases are thus readily distinguished from this one. Anna and David's marriage had been dissolved for eight years before the IFQ program even began; the first qualifying year was not until three years after the dissolution. Determining whether property is marital begins with AS 25.24.160(a)(4). The statute authorizes courts to "provide . for the division between the parties of their property, including retirement benefits, whether joint or separate, acquired only during marriage" (emphasis added). "The invasion of post-marital acquisitions for purposes of property division is obviously not permitted by the statute." And "the date for segregating marital from post-marital property is ordinarily the date of the functional termination of the marriage." Thus, we may consider the IFQs at issue here to be marital only if they were "acquired" during Anna and David's marriage. We have broadly interpreted the term "acquired" in order to accomplish the statutory goal that property division "fairly allocate the economic effect of divorce. For example, although pension benefits might not be received until long after divorce, we deem them acquired during mar riage to the extent the working spouse earns them during marriage; we held in Laing v. Laing that this is so "regardless of whether they have vested" before divorce. We adopted this rule because "[plension benefits are generally viewed as deferred compensation for services rendered and the employee spouse's right thereto is a contractual right," and " '[tlhe fact that a contractual right is contingent upon future events does not degrade that right to an expectancy." In short, under Laing, the contingent contractual right to a future benefit is sufficient basis on which to conclude that the benefit is "acquired" during marriage and is therefore marital It is undisputed in this case that the parties, during their marriage, lacked even the "expectancy" of a future benefit related to the IFQs. Anna acknowledged in the superi- or court that at the time of divoree the fishing business "had an uncertain[ ] but limited value"; she asserted in her affidavit that David assured her of her fair share "if IFQs ever happened." This uncertainty and speculation fall far short of an "expectancy," let alone the contingent contractual right that we held in Laing was sufficient to show that a future benefit was "aequired . during marriage." In Winther v. Samuelson, we interpreted McGee and Johns to mean that "[quotal shares should be considered marital property to the extent that the [quotal entitlement was earned during the marriage." This is consistent with our pension cases; it is also consistent with Ferguson, where the IFQ was acquired during a marriage that spanned the qualifying years, and this court looked to the husband's premarital labor during the base years to determine whether a portion of the IFQ was his separate property. The claim in Ferguson-that premarital work enhanced the value of an asset that was plainly earned during the marriage-is unlike the claim here: that marital work enhanced the value of an asset that did not even come into existence until years after the marriage was over. Anna contends that it is unfairly restrictive for the court to consider only the qualifying years in determining whether the IFQs are marital, since it is undisputed that marital labor during one of the base years did add to the asset's value once the asset came into being. We have recognized that property acquired outside of marriage can become marital property to the extent marital efforts contribute to its value. But cases applying this principle address premarital property brought into the marriage or separate property acquired during marriage; they do not address property that did not even exist during marriage, even in the sense of a contract right to someday receive it. We have never held that property acquired after divoree may become marital if, in retrospect, it can be seen to have more value than it would have had absent the marriage, and AS 25.24.160(a)(4) does not allow it. Practically speaking, there are few acquisitions and achievements in life that cannot be traced to life's earlier stages. Every advancement, bo nus, and business success is founded on a personal history that may well include marriage and divorce. But if at the time of divorce the parties can only speculate that certain property might come to exist in the future, with not even a contingent contractual right to ensure that it does, such property was not "acquired during marriage." We would do a major disservice to the express statutory language if we were to hold that such property was marital. The dissent argues that our decision today "ignor[es] the definition of 'acquisition' adopted in almost all equitable distribution states," Le., "that property is acquired whenever contributions create real value, and not only at the moment when legal title passes." But if the dissert's understanding of the general definition were correct, one would expect to find case law from other equitable distribution states holding that property not existing yet at the time of divorce-even in the inchoate sense of a contract right or expectancy-was nonetheless marital. Our decision is consistent with the majority definition as we understand it. The "real value" at issue in this case is the value Anna's work added to the value of the IFQ shares; that value was not created until the IFQ program came into existence, eight years after the marriage ended. C. The Superior Court Did Not Err In Denying Anna's Civil Rule 60(b)(6) Motion. We held in McGee that a motion to reopen a property division and allocate IFQs was properly brought under Civil Rule 60b)(6). We reasoned that the creation of the IFQ program in 1993 was the type of "extraordinary circumstance" contemplated by Rule 60(b)(6) because the couple "did not address or anticipate" the program when dividing their property. But since the quotas here are not marital property, there is no justification for reopening Anna and David's 1985 dissolution. The superior court did not err in denying the Rule 60(b)(6) motion. v. CONCLUSION The judgment of the superior court is AFFIRMED. FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting. . 50 C.F.R. § 679.40(a)(2)@)(A), 679.40(a)(3)G) (2013); Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries Off Alaska, 58 Fed. Reg. 59,376 (Nov. 9, 1993). . 50 C.F.R. § 679.40(a)(4)(ii) (2013). Unlike halibut, the base years for sablefish began in 1985, after David and Anna had separated. There is no dispute that Anna has no marital rights to sablefish IFQs, though she does claim an interest in them as a remedy for David's alleged breach of contract. . Anna had testified at her deposition that her agreement with David encompassed only halibut IFQs, not black cod IFQs. . The source of the 5% figure is unclear from the record. The calculations of Anna's expert, Parker, result in a 4% share (20% of David's total IFQ shares x .5 (Anna's marital share) x .4 (Anna's IFQ holder share)). . Beals v. Beals, 303 P.3d 453, 458-59 (Alaska 2013) (footnotes, internal quotation marks, and alterations omitted) (quoting Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006); Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005)). . Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 (Alaska 2008). . Id. . Frost v. Ayojiak, 957 P.2d 1353, 1355 (Alaska 1998) (citing Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996); McCall v. Coats, 777 P.2d 655, 657 (Alaska 1989). . Magill v. Nelbro Packing Co., 43 P.3d 140, 142 (Alaska 2001) (quoting Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)). . Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 879 (Alaska 2013); Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 485 (Alaska 1981). . Magill, 43 P.3d at 142. . Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1087 (Alaska 1985) (quoting Stenehjem, 631 P.2d at 485). . Magill, 43 P.3d at 142. . In her pleadings in the superior court, Anna also characterized the agreement as one for "her fair share"; she appears to equate this with her marital share. . Madonna, 298 P.3d at 879. . "Magill, 43 P.3d at 142. . See Hall, 695 P.2d at 1087. . Alaska Trademark Shellfish, LLC v. State, Dep't of Fish & Game, 172 P.3d 764, 767 (Alaska 2007) (internal footnote and quotation marks omitted). . Id. (quoting Brady v. State, 965 P.2d 1, 6, 11 (Alaska 1998)). . See Hall, 695 P.2d at 1087. . For example, Auna testified at her deposition that she and David would never have had to value the IFQs if David had "kept paying me until I was ready to start my business." . Stating that her "attorney worked [her marital share] out to [be] 5%" (apparently in reference to her expert's calculations), Anna asserted in an interrogatory answer that "it should be closer to 10% in light of the way [David] forced me out of our marriage." . Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996); Johns v. Johns, 945 P.2d 1222, 1224 (Alaska 1997); McGee v. McGee, 974 P.2d 983, 986 (Alaska 1999). . Ferguson, 928 P.2d at 598. . See Johns, 945 P.2d at 1224 (stating that parties "'were married in September 1984, and separated in October 1993"); McGee, 974 P.2d at 986 (stating that parties "married in 1978" and "filed for dissolution in March 1993"). . Bandow v. Bandow, 794 P.2d 1346, 1347 n. 2 (Alaska 1990). . Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994). . AS 25.24.160(a)(4) (stating that "the division of property must fairly allocate the economic effect of divorce by being based on consideration of" various listed factors). . Schmitz v. Schmitz, 88 P.3d 1116, 1129-30 (Alaska 2004) (citing Edelman v. Edelman, 3 P.3d 348, 356 (Alaska 2000)) (holding that the IRA in question was a marital asset subject to equitable division because it increased in value during the marriage). See also Williams v. Crawford, 982 P.2d 250, 254 (Alaska 1999) (holding that pensions earned during marriage are marital property subject to division upon divorce). . 741 P.2d 649, 655 (Alaska 1987). . Id. at 656 (citing Johnson v. Johnson, 131 Ariz. 38, 638 P.2d 705, 708 (1981) and In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, 567 n. 8 (Cal.1976)). . Id. at 656 (quoting Brown, 126 Cal.Rptr. 633, 544 P.2d at 566 n. 8 (Cal.1976)). . 10 P.3d 1167, 1171 (Alaska 2000) (emphasis added). . See Conner v. Commer, 68 P.3d 1232, 1235 (Alaska 2003) ("[Rletirement benefits earned during the marriage are marital property subject to equitable division."). . See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska 1996) (holding that a fishing quota is marital property to the extent that "the size of the quota share" is attributable to labor performed during the marriage). . Id. . Harrower v. Harrower, 71 P.3d 854, 858 (Alaska 2003). . See id. . For example, if a spouse holds an interest in intellectual property at the time of divorce, future royalties flowing from that property are marital "so long as such proceeds . are neither 'indefinite nor speculative.' " Lynch v. Lynch, 135 Conn.App. 40, 43 A.3d 667, 675 (2012) (holding that where an author during marriage secured "a contractual right to royalties from the sale of his book," the royalties were marital property subject to division); In re Marriage of Heinze, 257 Ill.App.3d 782, 197 Ill.Dec. 506, 631 N.E.2d 728, 731 (1994) (holding that where "the book royalty contracts were executed by petitioner and {[her publisher] during the marriage" and future royalties were not "unproven or speculative," the royalties were "analogous to pension payments to be made in the future" and "should have been classified as marital property"). Similarly, "'{clourts have generally held that the mere possibility of a future inheritance or gift does not constitute divisible property"; "[the lack of a legally enforceable right distinguishes future inheritances and gifts from other contingent assets such as unvested pensions, where the owning spouse has a presently existing legal right." 2 Brett R. Turner, EouttasLe Distrisurion or Property § 6.91, at 476 (3rd ed. 2005) (emphasis omitted). . Dissent at 163 (quoting TurnE® supra note 39, § 5.21, at 345). . McGee v. McGee, 974 P.2d 983, 990 (Alaska 1999). . 1d.

6915378

Patrick L. TICKETT, Appellant, v. STATE of Alaska, Appellee

Tickett v. State

2014-09-19

No. A-11043

708

714

334 P.3d 708

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Patrick L. TICKETT, Appellant, v. STATE of Alaska, Appellee.

Patrick L. TICKETT, Appellant, v. STATE of Alaska, Appellee. No. A-11043. Court of Appeals of Alaska. Sept. 19, 2014. Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

3267

20588

OPINION HANLEY, Judge. In November 2008, Patrick L. Tickett was driving his snow machine from Kotzebue to Noorvik at approximately sixty miles per hour after having consumed alcohol, marijuana, and cocaine. Two people with a team of sled dogs were on the trail at the same time. Tickett did not see the people or dogs until it was too late for him to avoid a collision. Tickett's snow machine struck the people, killing one and seriously injuring the other. A jury convieted Tickett of manslaughter, first-degree assault, and driving under the influence. Tickett claims the trial court erred by improperly restricting his eross-examination of one of the State's expert witnesses. We conclude that the superior court's limitation of Tickett's cross-examination of the State's expert was error. However, given the facts of this case, the error was harmless. Tickett also claims that the trial court erred when it allowed the State to introduce evidence that Tickett had ingested cocaine prior to the collision. We conclude that the court correctly denied Tickett's motion to exclude evidence of the cocaine. Finally, Tickett asserts his sentence is unlawfully severe. The sentence imposed by the superior court is not clearly mistaken. We therefore affirm the judgment of the superior court. Facts and proceedings At around 7:15 p.m. on November 19, 2008, Dr. Roger Gollub and Tracey Schaeffer went mushing with a team of sled dogs on a multi-use trail outside of Kotzebue. Gollub was dressed in a white wind suit that did not have reflectors. Schaeffer's parka had a reflector on the back of it, and the dog harnesses had reflective material on them. When they had traveled approximately four miles outside of town, Schaeffer noticed a snow machine approaching from behind. She decided to stay on the trail but began waving her headlamp to signal the driver of the snow machine. Tickett was driving the snow machine with Clarissa Cleveland as a passenger. Cleveland had contacted Tickett earlier that day to get a ride to Noorvik, Tickett's goggles were fogging up, he was driving the snow machine at a speed of approximately sixty miles per hour, and he did not see Schaeffer waving her headlamp. By the time Tickett saw Gollub and Schaeffer, it was too late to stop and the snow machine struck Schaeffer, Gollub, and the dog sled. On impact, Schaeffer was thrown from the sled, and Tickett and Cleveland were thrown from the snow machine. Although she was injured, Schaeffer walked back to the sled and saw that it had landed on Gollub. With Cleveland's help, Schaeffer lifted the sled off of Gollub. Schaeffer administered first aid to Gollub, who was severely injured. After unsuccessfully attempting to use a radio and start the snow machine, Tickett began walking back to Kotzebue to get help, and Cleveland ran after him. An unidentified person on a snow machine gave Tickett and Cleveland a ride back to Kotzebue. Tickett called 911 when they arrived at his mother's house at about 9:00 p.m. Gollub died from the injuries he sustained. Schaeffer suffered life-threatening injuries, remained in the hospital for two weeks, and continued to have complications following her release. When the police questioned Tickett on the night of the incident, an officer detected the odor of alcohol coming from him. Tickett initially denied having used alcohol prior to the crash but later admitted to having taken a couple of shots to "deal with the cold." He later told the police that he had taken two or three swigs of whiskey before heading to Noorvik. He also stated that he had smoked a joint of marijuana between 6:00 and 7:00 p.m. Cleveland later told the police that Tickett admitted using cocaine on the day of the incident. Cleveland also testified that even though she did not see Tickett drink any alcohol before the collision, and while he did not appear to be intoxicated, she smelled alcohol on him prior to the collision. Tickett consented to a blood draw, and a sample was taken shortly before midnight. The State's analysis of the blood sample revealed that Tickett's blood aleohol level was 069 percent. The defense analysis reflected a blood alcohol level of .052 percent. The Washington state toxicology lab also analyzed Tickett's blood and found that it contained substances indicating prior use of marijuana, cocaine, and alcohol (described in more detail below). A grand jury indicted Tickett on charges of second-degree murder and first-degree assault; the State added a charge of driving under the influence. Prior to trial, Tickett moved to preclude the State from introducing evidence of his cocaine use on the day of the crash, but the court denied the motion. Superior Court Judge Ben Esch presided over Tickett's trial. During the trial, the court granted Tickett's motion for a judgment of acquittal on the second-degree murder charge. Following the acquittal, the State argued that Tickett was guilty of the lesser-included offense of manslaughter for recklessly causing Gollub's death. The State argued that Tickett was reckless in that he drove under the influence of drugs and alcohol at a speed of sixty miles per hour with foggy goggles. Tickett countered that his actions were not reckless. He asserted that due to a number of factors, including the weather, Gollub's white clothing, and Schaeffer's head lamp allegedly being broken, he did not see the victims or the dog sled with enough time to stop. Tickett also argued that he was not intoxicated and that Schaeffer was at fault for not moving the sled off the trail. The jury ultimately convicted Tickett of manslaughter, first-degree assault, and DUI. The trial court sentenced Tickett to a composite sentence of 19 years with 4 years suspended, resulting in 15 years to serve. Tickett appeals his conviction and sentence. The trial court erred by precluding Tickett from using a treatise to cross-examine one of the State's experts On appeal, Tickett argues that the trial court erred when it precluded him from cross-examining one of the State's expert witnesses with a learned treatise. We agree with Tickett but conclude the error was harmless. The State presented two experts during the trial to support its theory that Tickett was intoxicated at the time of the crash. Stephan Palmer, a forensic scientist at the State crime laboratory, first testified regarding the test results for Tickett's blood and the effects of alcohol on people Without objection from the State, Tickett extensively cross-examined Palmer using a book entitled Alcohol and Drug Intoxication by Russell Rockerbie. The next day, the State presented a second expert witness, Brian Capron. Capron was a toxicology supervisor at the Washington state toxicology laboratory; he tested Tick-ett's blood sample for the presence of drugs. Capron testified that Tickett's blood contained carboxy THC (an inactive metabolite of marijuana), benzoyleegonine (the primary inactive metabolite of cocaine), and a small amount of cocaethylene (an active metabolite that forms when cocaine and alcohol are used concurrently). He further testified about the effects of marijuana and cocaine both sepa rately and in combination with aleohol. Dr. Patricia Sulik, an expert witness for Tickett, was listening telephonically to part of Ca-pron's testimony but had to hang up the phone so that she could board a plane to Alaska for the trial During cross-examination, Tickett attempted to use Rockerbie's book to question Ca-pron's opinion regarding how marijuana affects people. He asked Capron if he was aware of Rockerbie's book, and Capron replied that he had never heard of Rockerbic. When Tickett asked Capron to look at a particular page of Rockerbie's book, the State objected on the ground that Tickett had not established the proper foundation for introducing the book as a learned treatise under Evidence Rule 808(18). The trial court, over Tickett's objection, ruled that if Capron did not acknowledge Rockerbie's book as a learned treatise, then Tickett could not use it to cross-examine Capron. Tickett told the court that Sulik could establish that Rockerbie's book was an authoritative treatise within the meaning of Evidence Rule 808(18), but that Sulik was unavailable because she was flying to Alaska. The trial court ruled that Sulik's testimony would not make any difference. That is, the judge declared that even if Sulik testified that Rockerbie's book was a learned treatise, he would not allow Tickett to use Rockerbie's book to cross-examine Capron because Ca-pron did not personally acknowledge the book as a learned treatise. On appeal, Tickett argues that the trial judge misunderstood the foundational basis to introduce statements from a learned treatise, and that the judge incorrectly precluded him from using Rockerbie's book to cross-examine Capron. We agree. Alaska Evidence Rule 808(18) provides for the admission of hearsay statements contained in "learned treatises"-i.e., published works "on a subject of history, medicine, or other science or art"-to the extent that these hearsay statements either are "relied upon by [an] expert witness in direct examination" or are "called to the attention of an expert witness [during] cross-examination[.]" The proponent of the hearsay evidence must establish that the treatise in question is "a reliable authority," but Rule 808(18) allows the proponent of evidence to do this in one of three ways: through the testimony or admission of the expert witness, through other expert testimony, or by judicial notice. The second paragraph of the Commentary to Alaska Evidence Rule 808(18) clarifies that Alaska's hearsay exception for learned treatises is meant to codify the holding of Reilly v. Pinkus, and other "recent well considered state court decisions'"-i.e., the rule that litigants should be allowed to use learned treatises to cross-examine their opponents' expert witnesses when the treatise's status as an authority is established by any means, even though the witnesses themselves do not acknowledge the treatise as authoritative. In the present case, Tickett made an offer of proof that his expert, Sulik, would testify that Rockerbie's book was an authoritative work. The trial judge ruled that Sulik's testimony would be irrelevant-that Tickett would not be allowed to cross-examine Ca-pron with statements from Rockerbie's book unless Capron personally acknowledged the book as an authoritative treatise. This was error. However, we agree with the State that this error was harmless under the facts of Tickett's case. The State called Capron as an expert witness in toxicology to testify about the effects of alcohol and drugs, in particular marijuana and cocaine. Although Tickett was unable to cross-examine Capron using Rockerbie's treatise, Tickett did challenge Capron's testimony by using other authoritative sources. For example, when Tickett cross-examined Capron using scientific studies and another learned treatise, Capron agreed that it is possible for cocaine (a central nervous system stimulant) to reverse some of the fatigue that otherwise might be caused by marijuana (a depressant). Nor was Tickett completely barred from using the information in Rockerbie's book. He used Rockerbie's book to cross-examine the State's other expert, Palmer, and Tick-ett's own expert, Sulik, testified extensively about various statements in Rockerbie's book, including Rockerbie's conclusion that the combined effect of marijuana and alcohol could actually lower a person's risk of causing an accident. We also note that Tickett's primary defense was that his collision with Gollub and Schaeffer was an "unavoidable accident" and that he had not acted recklessly even if he had consumed intoxicating substances. Tick-ett argued that there was "almost no chance" that anyone else would be on the trail outside of Kotzebue when he was traveling, and that the chances were even smaller that he would encounter people who were not wearing reflective clothing and were stopped in the middle of the trail with a dog team. In his summation to the jury, Tickett only briefly mentioned the evidence of his intoxication-characterizing the State's evidence as "some vague confusing numbers about cocaine and marijuana." Tickett never mentioned Capron's testimony or that Sulik's testimony suggested that the jurors should discount Capron's opinions. Tickett contends that the trial court's restriction on Tickett's cross-examination rises to the level of constitutional error, and that the error therefore requires reversal of his conviction unless it is shown to be harmless beyond a reasonable doubt. We doubt that the trial judge's erroneous hearsay ruling in this case is of constitutional dimension. But in any event, we conclude that the ruling was harmless beyond a reasonable doubt. The trial court properly allowed the State to introduce evidence of Tickett's cocaine use Prior to trial, Tickett asked the superior court to bar the admission of any evidence that he had ingested cocaine before the collision. The court denied this motion, and Tickett now challenges the court's ruling. Tickett argues that the trial court should have excluded all evidence of the cocaine metabolite in his blood pursuant to Evidence Rule 403 because the probative value of this evidence was low and it was unfairly prejudicial. More specifically, he asserts that the amount of the metabolite found in his blood was insignificant and there was no evidence that his consumption of cocaine played a role in the collision. Tickett also asserts that the revelation of his cocaine use would lead the jury to believe he was a "drug user and of unsavory character." To establish the offense of manslaughter, the State was required to prove that Tickett recklessly caused the death of another person. To establish the offense of first-degree assault, the State had to prove that Tickett recklessly caused serious physical injury to another person by means of a dangerous instrument. And to establish the offense of driving under the influence, the State had to prove that Tickett drove a motor vehicle while under the influence of an alcoholic beverage or a controlled substance, singly or in combination. The trial judge could properly conclude that the challenged evidence was relevant to prove that Tickett acted recklessly and that he was under the influence. The State presented expert testimony that cocaine is a stimulant and that it can cause a person to be inattentive, to have difficulty with complex, divided-attention tasks such as driving, and to engage in aggressive, risk-taking behavior. Further, the prosecutor never suggested that the jury should use the evidence of Tickett's cocaine use for any other purpose. And Tickett never asked the judge to give a cautionary instruction on the potential misuses of this evidence. Given this record, we conclude the trial court did not abuse its discretion when it allowed the State to present evidence of Tickett's ingestion of cocaine. Tickett's sentence is not clearly mistaken The jury convicted Tickett of manslaughter, first-degree assault, and DUI. Because manslaughter and first-degree assault are class A felonies, and because Tickett caused serious injury and death during the commission of these offenses, he was subject to a presumptive sentencing range of 7 to 11 years on each count. For the DUI convietion, which is a class A misdemeanor, Tick-ett was subject to a maximum term of 1 year and a minimum term of 8 days of imprisonment. The sentencing court rejected Tickett's proposed mitigating factor that his conduct was among the least serious within the definitions of manslaughter and first-degree assault, and the court sentenced Tickett to a composite sentence of 19 years with 4 years suspended, resulting in 15 years to serve. Tickett claims on appeal that this sentence is clearly mistaken. "When a defendant [challenges] a composite sentence for two or more criminal convictions, this Court assesses whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history." In sentencing a defendant, Alaska courts consider the factors set forth in State v. Chaney and AS 12.55.005. These factors include: the seriousness of the offense, the defendant's criminal history and prospects for rehabilitation, the necessity of confining the defendant to prevent future harm to the public, deterrence, community condemnation, reaffirmation of societal norms, the effect on the vice-tim, and restoration of the victim and the community. Here, the sentencing court considered the above factors in formulating Tickett's sentence. The court noted that Tickett was nineteen years old at the time of these offenses and that he had had prior contact with the juvenile court, as well as convictions for consuming aleohol as a minor and violating the conditions of his release. The court also noted that while the charges were pending in this case, Tickett committed another, unrelated felony. The court recognized the positive steps Tickett had taken since this incident, including participating in a substance abuse program, graduating from high school, and completing vocational training. The court reasoned, however, that the tragic death of Gollub and serious injuries to Schaeffer were foreseeable consequences of operating a snow machine along a public trail at a high rate of speed, and with reduced visibility, while under the influence. The court considered the effect of the collision on the victims, including Gollub's family, and the court found that Schaeffer's injuries would affect her for the rest of her life. The court concluded that the primary Chaney goal was the reaffirmation of societal norms, and that Tickett's sentence needed to demonstrate the seriousness of impaired driving to the larger community. The court further reasoned that its secondary goal was deterrence and that isolation was also a factor. When reviewing a sentence on appeal, this Court will not disturb the sentencing court's decision unless it is clearly mistaken. Here, the sentencing court carefully considered the sentencing criteria. Based on our review of the record, we conclude that the sentence imposed by the superior court is not clearly mistaken. Conclusion The judgment of the superior court is AFFIRMED. .0 AS 11.41.110(a)(2). . AS 11.41.200(a)(1), (a)(3). . AS 28.35.030(a)(1), (a)(2). . AS 11.41.120(a)(1) (recklessly causing "the death of another person under circumstances not amounting to murder in the first or second degree"). . AS 11.41.200(a)(1) (recklessly causing "serious physical injury to another by means of a dangerous instrument"). . AS 28.35.030(a)(1) (driving a motor vehicle while "under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination"). . Alaska Evidence Rule 803(18) reads: The following [statements] are not excluded by the hearsay rule, even though the declarant is available as a witness: (18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. . 338 U.S. 269, 275, 70 S.Ct. 110, 94 L.Ed. 63 (1949). . AS 11.41.120(a)(1). . AS 11.41.200(a)(1). . AS 28.35.030(a)(1). . AS 11.41.120(b); AS 11.41.200(b). . AS 12.55.125(c)(2)(A). . AS 28.35.030(b). . AS 28.35.030(b)(1)(4). . Carlson v. State, 128 P.3d 197, 214 (Alaska App.2006) (original citations omitted). . 477 P.2d 441, 444 (Alaska 1970). . AS 12.55.005; Chaney, 477 P.2d at 444. . Nicholas v. State, 477 P.2d 447, 449 (Alaska 1970).

6917434

Earl Tyrone MORRIS, Appellant, v. STATE of Alaska, Appellee

Morris v. State

2014-09-26

No. A-11178

1244

1251

334 P.3d 1244

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Earl Tyrone MORRIS, Appellant, v. STATE of Alaska, Appellee.

Earl Tyrone MORRIS, Appellant, v. STATE of Alaska, Appellee. No. A-11178. Court of Appeals of Alaska. Sept. 26, 2014. David D. Reineke, under contract with the Alaska Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for the Ap-pellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

3437

20748

OPINION Judge ALLARD. Earl Tyrone Morris was convicted of see-ond-degree theft after he stole a Canada Goose parka from an outfitter in Anchorage. Under the law in effect at the time of Morris's offense, a person committed second-degree theft, a class C felony, if the person stole property valued at $500 to $25,000. Morris argues that there was insufficient evidence to support his conviction. Although he characterizes his claim as an attack on the sufficiency of the evidence the State presented at trial, his real dispute concerns the legal definition of the crime of second-degree theft. Specifically, Morris argues that, for purposes of determining the degree of theft he committed, the "market value" of the stolen property must be based on the property's wholesale price, not its retail price. Morris asserts that he was only guilty of third-degree theft, a misdemeanor, because the wholesale price of the stolen parka was only $330. Resolving Morris's claim hinges on the proper legal interpretation of AS 11,46.980(a), the statute that defines the "value" of stolen property as "the market value of the property at the time and place of the crime." As we explain in this opinion, the term "market value" has a recognized meaning at common law: the price at which the property would change hands in an arm's length transaction between a willing seller and a willing buyer who are aware of the pertinent facts. We therefore reject Morris's contention that the term "market value" has no ascertainable legal meaning. Additionally, in cases involving the theft of retail merchandise, the general rule is that the retail price of an item is prima facie evidence of its market value. Here, the State presented evidence that the retail price range of the parka was from $660 to $740. This means that the State's evidence (if believed) was legally sufficient to prove second-degree theft,. We therefore affirm Morris's conviction. Morris separately appeals his 2-year sentence as excessive. As Morris recognizes, we do not have jurisdiction to hear this claim. We therefore forward this portion of Morris's appeal to the Alaska Supreme Court under Appellate Rule 215(k). Factual and procedural background On February 15, 2011, a man walked into 6th Avenue Outfitters in Anchorage wearing a black Canada Goose Resolute parka-the same type of parka carried by the outfitter. An employee directed the man to the men's side of the store where the man tried on one or more parkas and then left the store. About fifteen minutes later, a store employee found a used Canada Goose parka lying on the floor that appeared to be identical to the parka worn by the man. Employees then discovered an empty space in the rack holding the Canada Goose parkas and concluded that a used parka had been switched for a new one. They searched the used parka and found an Alaska Quest card in the name of Earl T. Morris. About a week later, an employee of the outfitter spotted the man who had switched the parka. The general manager and another employee conducted a citizen's arrest of the man, who was later identified as Morris. Morris was wearing a new black Canada Goose Resolute parka at the time of his arrest. At trial, the general manager of 6th Avenue Outfitters testified that on February 15, 2011, the store was selling the stolen parka for $659.95. He stated that Canada Goose charged a wholesale price of $330 and suggested a retail price of $675, and that Canada Goose did not want its authorized retailers to sell its products for less than the "keystone," which is essentially double the wholesale price. An investigator with the Public Defender Agency testified that she searched the Internet on August 15, 2011, for the type of parka allegedly stolen by Morris and found a website selling the parka for $220.98. The State countered this assertion with evidence that the website the investigator had visited was not an authorized retailer of Canada Goose parkas and that the low-priced parka was probably a counterfeit. The State also presented evidence that Cabela's and Altitude Sports, two authorized retailers of Canada Goose parkas, advertised retail prices of $789 and $702 for their parkas. The jury subsequently found Morris guilty of second-degree theft. This appeal followed. The legal meaning of "market value" As explained earlier, former AS 11.46.1830(a)(1) defined second-degree theft as theft of property with a value of $500 to $25,000. Alaska Statute 11.46.980(a) further provides: Whenever it is necessary to determine the value of property [under Chapter 46-Of-fenses Against Property], that value is the market value of the property at the time and place of the crime unless otherwise specified or, if the market value cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime. The term "market value" is not further defined in the criminal code. Morris contends that the lack of a specific statutory definition for "market value" makes the term ambiguous. He argues that, given this ambiguity, the term should be construed, under the rule of lenity, in the light most favorable to him. In particular, Morris argues that in cases where an item of property is stolen from a retail store, the "market value" of the property must, as a matter of law, be the wholesale price the retailer paid to acquire the property, because that is the lowest possible valuation of the property. But the doctrine that ambiguous penal statutes must be construed in the defendant's favor only comes into play if the statute remains ambiguous after it has been subjected to recognized methods of statutory construction. Where, as here, a statute employs a term that has a recognized definition at common law, the legislature is presumed to have used the term in its common-law sense, unless the legislative history demonstrates that some other meaning was intended. "Market value" or "fair market value" is a legal term with a well-established meaning at common law: it is "the amount at which the property would change hands, be tween a willing buyer and a willing seller, neither being under compulsion to buy or sell and both having knowledge of the relevant facts." The Alaska courts have used this definition, or a slight variation of it, in both civil and criminal cases. Other jurisdictions likewise agree that, as a general matter, "market value" means the price a willing buyer would pay to a willing seller in the open market at a certain time and place. Indeed, the Alaska Criminal Pattern Jury Instructions use a variant of this common law definition of "market value" in the pattern instruction for AS 11.46.980(2). And Morris himself requested that the trial court instruct the jury with this definition (although the court denied his request). Thus, contrary to Morris's argument on appeal, the term "market value" has a recognized legal meaning. The relationship between anm item's wholesale and retail price and its "market value" As the term is used by the courts, the market value of an item is not necessarily the same as the price at which it was offered for sale, or the price at which it was purchased, whether in the wholesale or retail market. Rather, "market value" depends on a series of factors: who is doing the buying and who is doing the selling, when the transaction took place, and in what market (%.e., a retail or a wholesale market). But in the context of retail merchants selling goods to ordinary consumers, the weight of authority supports the rule that an item's retail price is prima facie evidence of its market value at the time of the theft. The basis for this rule was explained by the New York Court of Appeals in People v. Irrizari. To accept wholesale value in a case [involy-ing larceny from a department store] would be to ignore the facts of economic life. Stated very simply, it is the retailer's function in our economy to move goods to the consuming public and, in the process, the market value of the goods is unquestionably enhanced. In addition, the retailer expends money on various services including advertising, promoting, display and packaging in order to increase the interest of the public and make it more willing to buy. When, therefore, a thief steals an article from a department store, he steals something having a market value quite different from that which it has in the hands of the wholesaler. This does not mean that an item's wholesale price is entirely irrelevant to the determination of its market value in the retail market. The wholesale cost of an item may be particularly relevant, for example, in a case in which the wholesale cost is "disproportionately low in relationship to the listed sales price or . otherwise inconsistent with the victim-retailer's customary mark-up practices." Likewise, there will be times when the retail price of an item represents the hope of the retailer more than the reality of the market. Thus, a defendant might rebut the presumption that the retail price of an item represents its market value by offering evidence that "there are no willing buyers at the alleged price; [or that] even though there is a willing buyer at the alleged price, the price is unreasonable in light of local competitor's prices for the same or similar items; or . that the seller eustomarily sold the property at a discounted price." The defendant might also introduce evidence that a retailer's goods have lost their market value, such as when clothing has sat on the shelf for a long period of time and has gone out of style. Having rejected Morris's contention that the term "market value" should be interpreted under the rule of lenity to mean the wholesale price, we now turn to his actual claim of legal insufficiency. In Morris's case, the jury heard evidence that the stolen parka had a retail price of $659.95 and that other reputable retailers were asking even higher prices for the same parka. We conclude that a fair-minded juror could reasonably conclude based on this evidence that the market value of the stolen parka was more than $500. We therefore affirm Morris's convietion for second-degree theft. Conclusion We AFFIRM Morris's conviction, and we refer Morris's sentence appeal to the Alaska Supreme Court under Appellate Rule 215(k). Chief Judge MANNHEIMER, concurring. . Former AS 11.46.130(a)(1) (2012); AS 11.46.980(a) (defining the "value" of property as its "market value"). In 2014, the Alaska Legislature amended AS 11.46.130 to define second-degree theft as the theft of property valued between $750 and $25,000. Ch. 83, § 4, SLA 2014. This provision went into effect on July 1, 2014 and does not apply retroactively. Ch. 83, § 36, 42, SLA 2014. . See Chief Judge Mannheimer's concurrence, infra (explaining the difference between these types of appellate claims); see also Collins v. State, 977 P.2d 741, 751-52 (Alaska App.1999) (Mannheimer, J., concurring) (same). . See former AS 11.46.140(a)(1) (2012) (defining third-degree theft as the theft of property or services valued at $50 or more but less than $500). . Under AS 11.46.980(a), if the market value cannot reasonably be ascertained, the value of the stolen property is interpreted as the cost of replacement of the property within a reasonable time after the crime. . See AS 22.07.020(b); 215(a)(1). Alaska R.App. P. . De Nardo v. State, 819 P.2d 903, 907 (Alaska App.1991). . Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (holding that where there is no definition in a statute, a word in the statute is construed to have its common law meaning); Young v. Embley, 143 P.3d 936, 945 (Alaska 2006) (noting that when the statutory language and legislative history are ambiguous, Alaska courts look to the common law to discern legislative intent and interpret statutes). . See Black's Law Dictionary 597 (6th ed.1990); see also 50 Am.Jur.2d Larceny § 45 (2014) (" 'Fair market value,' for the purposes of establishing the grade of the offense of larceny, is the price the property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing."); 52B C.J.S. Larceny § 81 (2014). . See, e.g., Doyle v. Doyle, 815 P.2d 366, 370 n. 6 (Alaska 1991); Jones v. State, 1984 WL 908613, at *6 (Alaska App. Aug. 29, 1984) (unpublished). . See, eg., State v. Hall, 297 Kan. 709, 304 P.3d 677, 681 (2013); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69, 71 (1959); State v. Downing, 654 N.W.2d 793, 798 (S.D. 2002); Com. v. Hanes, 361 Pa.Super. 357, 522 A.2d 622, 625 (1987); People v. Johnson, 133 Mich.App. 150, 348 N.W.2d 716, 718 (1984). . See Alaska Criminal Pattern Jury Instruction AS 11.46.980(a) (2013). . See Hall, 304 P.3d at 681 ("market value" depends on the identity of buyer and seller); State v. Carter, 544 S.W.2d 334, 338 (Mo.App.1976) (value is defined situationally); State v. Campbell, 721 S.W.2d 813, 819 (Tenn.Crim.App.1986) ("market value" has no invariable definition}. . See, eg., Irrizari, 182 N.Y.S.2d 361, 156 N.E.2d at 70-71; Downing, 654 N.W.2d at 798-99; Hanes, 522 A.2d at 625; State v. McDonald, 312 Minn. 320, 251 N.W.2d 705, 707 (1977); State v. King, 164 N.J.Super. 330, 396 A.2d 354, 355-56 (N.J.Super.App.Div.1978); State v. Fish, - N.C.App. -, 748 S.E.2d 65, 68-69 (2013); Maisel v. People, 166 Colo. 161, 442 P.2d 399, 401 (1968); Calbert v. State, 99 Nev. 759, 670 P.2d 576 (1983); State v. Jennings, 125 Conn.App. 801, 9 A.3d 446, 454-55 (2011); People v. Cook, 233 Cal.App.2d 435, 43 Cal.Rptr. 646, 648 (Cal.App.2d Dist.1965); State v. Sorrell, 95 Ariz. 220, 388 P.2d 429, 431-32 (1964). But see Washington v. State, 751 P.2d 384, 387 (Wyo.1988) (defining market value as retail price); State v. Garza, 241 Neb. 256, 487 N.W.2d 551, 557 (1992) (price tags alone insufficient to establish market value). . 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959). . Id., 182 N.Y.S.2d 361, 156 N.E.2d at 70-71; see also King, 396 A.2d at 356 (quoting Irrizari); Maisel, 442 P.2d at 401 (same); Downing, 654 N.W.2d at 798-99 (same). . King, 396 A.2d at 356-57. . See Garza, 487 N.W.2d at 557 (noting that a price tag only represents the sum the retailer hopes to obtain, not necessarily the amount a willing buyer would pay); Carter, 544 S.W.2d at 338 (noting that a merchant may arbitrarily inflate or deflate the retail price such that it does not realistically represent the true value). . Hanes, 522 A.2d at 628; see also Irrizari, 182 N.Y.S.2d 361, 156 N.E.2d at 71. . See McDonald, 251 N.W.2d at 707 (citing People v. Fognini, 374 Ill. 161, 28 N.E.2d 95, 97 (1940). . See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App.2012).

6912944

Linden Karl FYFE, Appellant, v. STATE of Alaska, Appellee

Fyfe v. State

2014-08-29

No. A-11058

183

190

334 P.3d 183

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Linden Karl FYFE, Appellant, v. STATE of Alaska, Appellee.

Linden Karl FYFE, Appellant, v. STATE of Alaska, Appellee. No. A-11058. Court of Appeals of Alaska. Aug. 29, 2014. Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

4061

25703

OPINION ALLARD, Judge. Linden Karl Fyfe was charged with felony driving under the influence based, in part, on a Datamaster test showing that his blood alcohol level was .117 percent. At trial Fyfe raised the defense of necessity, arguing that his driving was justified because his girlfriend's daughter had been rushed to the hospital after an apparent seizure. The jury rejected that defense and convicted Fyfe. The superior court sentenced Fyfe to 20 months with 16 months suspended. The court also imposed a $20,000 fine-double the mandatory minimum fine for felony driving under the influence-based on the State's allegation that the offense took place in a traffic safety corridor. Fyfe contends that the $20,000 fine is illegal. He argues that the legislature did not intend to require courts to impose a double fine for felony driving under the influence in a traffic safety corridor. Based on the legislative history of the statute, we agree and therefore vacate Fyfe's $20,000 fine. Because the sentencing judge's remarks make clear that he would have imposed the $10,000 mandatory minimum fine for Fyfe's offense if he believed he had the discretion to do so, we direct the superior court to modify the judgment to reflect this mandatory minimum fine. Fyfe also argues that his Sixth Amendment right to confront the witnesses against him was violated because the court allowed the State to introduce reports verifying the calibration of the Datamaster machine used for his breath test even though Fyfe had no opportunity to cross-examine the author of the reports. Fyfe concedes that the admission of these hearsay reports was authorized under our decision in Abyo v. State, but he argues that Abyo and the cases that follow it should be overruled. We decline to overrule Abyo and find no violation of Fyfe's confrontation rights. Why we conclude that the legislature did not intend AS 28.90.030(a) to double the range of fines for felony driving under the influence Under AS 28.90.0830(a), a person is subject to a double fine if the person "violates a provision of [Title 28] or a regulation adopted under the authority of [Title 28] within a . traffic safety corridor." This provision, on its face, would seem to mandate a double fine for any driving under the influence offense committed in a traffic safety corridor because the offense of driving under the influence is a provision of Title 28. However, the plain meaning of a statute does not necessarily control in Alaska: In interpreting a statute, we look to the plain meaning of the statute, the legislative purpose, and the intent of the statute. We have declined to mechanically apply the plain meaning rule when interpreting statutes, adopting instead a sliding scale approach: The plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be. We apply this sliding seale approach even if a statute is facially unambiguous In, Johnnie v. State, an unpublished case, we assumed that the double-fine requirement in AS 28.90.080(a) applied to a person con-viected of driving under the influence. But the issue was not actually litigated in that case: Johnnie did not contest that he would be subject to a double fine if his offense occurred in a traffic safety corridor; instead, he contested the trial court's finding that he admitted, as part of his plea agreement, that his offense occurred within a traffic safety corridor. Consequently, the seope of the double-fine requirement in AS 28.90.0830(a) is a question of first impression for this Court. The 1998 legislature intended the double-Fine requirement to apply to traffic offenses Alaska Statute 28.90.0830(a) has its origins in a statute enacted in 1999, former AS 28.40.070, which required double fines for "offenses committed within highway work zones." The legislation that created that statute appears to have been first introduced in 1997 as House Bill 87. That bill provided in pertinent part: Fines for speeding offenses committed within highway work zones doubled. Whenever a person violates a provision of [Title 28] relating to speeding, or a regulation adopted under the authority of [Title 28] relating to speeding, or is convicted of reckless driving under AS 28.35.040 or negligent driving under AS 28.35.045 within a highway work zone, notwithstanding the amount of the fine or the maximum fine set under this title, the fine, or maxi mum fine, is double the amount provided in this title. Thus, as originally conceived, the legislation would have doubled fines only for three specified offenses committed in highway work zones: speeding, negligent driving, and reckless driving. Although House Bill 87 was discussed in committee, it was never enacted into law. In 1998, some of the language from House Bill 87 was incorporated into Senate Bill 304. That legislation, as introduced, contained the same language as the current version of AS 28.90.030(a) (minus the 2006 amendment extending the statute to traffic safety corridors) Thus, instead of enacting the House bill, which was targeted at three specific traffic and motor vehicle offenses, the legislature opted for the seemingly broader language doubling fines "(whenever a person violates a provision of [Title 28] or a regulation under the authority of [Title 28] within a highway work zone. Although this language on its face suggests that the legislature intended the double-fine requirement to apply to all traffic infractions, equipment violations, and motor vehicle criminal offenses enumerated in Title 28 of the Alaska Statutes, Title 13 of the Alaska Administrative Code, and some Title 2 regulations, the legislative history does not support such a broad construction of the statute. Sen. Dave Donley, the sponsor of Senate Bill 304, told the Senate Transportation Committee that the bill was intended to "double fines for moving traffic violations in construction zones." Donley emphasized that the legislation "does not deal with criminal law, only traffic violations." In this context, a state trooper informed the committee that the maximum fine for a traffic infraction (unless otherwise provided by statute) was $300. From this discussion, it appears that the legislature anticipated that the doubled fines that would result from enacting Senate Bill 804 would generally not exceed $600. At the same time, and in the same bill, the legislature amended AS 28.05.151, the statute that directs the supreme court to set bail, and municipalities to establish fines, for motor vehicle and traffic offenses that are amenable to disposition without court appearance. The legislature added the following subsection to that statute: (d) The supreme court, in establishing scheduled amounts of bail under this seetion, and each municipality that establishes or has established a fine schedule under this section shall provide that the scheduled amount of bail or fine, as applicable, for a motor vehicle or traffic offense that is committed in a highway work zone shall be double the amount of the bail or fine for the offense if it had not been committed in a highway work zone. (In 2006, the legislature amended this subsection to add traffic safety corridors. ) Thus, at a minimum, the 1998 legislature intended the double-fine requirement to apply to offenses listed in the bail and fine schedules established under AS 28.05.151(a)-that is, to non-criminal offenses amenable to disposition without court appearance. Because the sponsor of Senate Bill 304 clearly expressed an intent to limit double fines in highway work zones to noncriminal traffic offenses, it seems likely that the legislature understood the double-fine requirement to apply only to the offenses included in these schedules-that is, only to offenses amenable to disposition without court appearance-and not to fines imposed as part of a sentence for a criminal offense. But we do not need to resolve that broader issue in this case, because the only question before us is whether the legislature intended the statute to double fines for felony driving under the influence. Based on our review of the legislative history, we conclude that the 1998 legislature did not intend to double fines for felony driving under the influence in highway work zones. The 2006 legislature did not express an intent to change the 1999 law to double fines for felony driving under the influence In 2006, the legislature amended the 1999 statute to extend the double-fine requirement to traffic safety corridors. Otherwise the statute remained unchanged. This suggests that the 2006 legislature did not intend to alter the meaning or reach of the 1999 statute-other than to extend it to traffic safety corridors. "It is a general rule in the interpretation of statutes that provisions of an original act which are repeated in an amendment are considered as a continua tion of the original act." This conclusion is supported by the governor's transmittal letter accompanying the 2006 legislation. Referring to the 1999 statute, AS 28.40.070, the governor stated that: the provisions of . AS 28.40.070 currently provide for double fines or bail for motor vehicle or traffic offenses in areas designated as highway work zones. These provisions would be amended by adding references to traffic safety corridors. As recounted above, the only explicit change the 2006 legislature made to the statutory subsection at issue-AS 28.40.070 at the time of enactment, now renumbered AS 28.90.080(a)-was to extend its application to traffic safety corridors. At the same time, the legislature enacted AS 19.10.075(a), which gave the Department of Transportation and Public Facilities the authority to create traffic safety corridors. That subsection provides in pertinent part: Designation of traffic safety corridors; fines. (a) To promote traffic safety, the department may designate a portion of a highway to be a traffic safety corridor. The commissioner shall establish criteria for the designation and continuation of traffic safety corridors.... A motor vehicle or traffic offense committed in a traffic safety corridor is subject to a double fine as provided in AS [28.90.030 ]. The department shall erect signs designating traffic safety corridors and alerting the public that motor vehicle and traffic of fenses committed within a corridor are subject to double fines." The State argues that this language in AS 19.10.075(a) (in particular, the language characterizing the double-fine requirement in AS 28.90.0830 as applying to any "motor vehicle or traffic offense") expresses the legislature's intent to require double fines in traffic safety corridors for all motor vehicle and traffic offenses, including driving under the influence, regardless of the 1998 legislature's intent. We are not persuaded by this argument. As we explained earlier, when the legislature added subsection (d) to AS 28.05.151 in 1998, it used the phrase "motor vehicle or traffic offense" to refer to offenses the supreme court and municipalities determined were amenable to disposition without court appearance. This same language was carried over into the 2006 version of AS 28.05.151(d). Thus, both legislatures used the phrase "motor vehicle or traffic offense" in reference to these schedules of non criminal traffic and motor vehicle offenses. Moreover, we think if the 2006 legislature had intended to significantly expand AS 28.90.080(a) to include motor vehicle criminal offenses such as felony driving under the influence, as the State argues, it would have done so explicitly in AS 28.90.0830(a), rather than indirectly in AS 19.10.075(a). It might be that legislators in 2006 assumed-incorrectly, but reasonably given the broad language of the statute-that the 1999 statute already doubled fines for criminal motor vehicle offenses committed in highway work zones. If the 2006 legislature misconstrued the 1999 law in this manner and believed that this was the law it was extending to traffic safety corridors, that intent would seem to control. But the legislative history of the 2006 legislation does not support this view. That history contains multiple direct references to doubling fines for moving traffic violations, particularly speeding, but there is no direct reference to the bill, in the form that was enacted, doubling fines for driving under the influence or other criminal motor vehicle offenses. As the State points out, committee debate did touch on the enforcement of drunk driving laws. But because a portion of the fines collected from the traffic safety corridor program was earmarked for increased enforcement efforts, we do not read these discus sions as demonstrating a legislative intent to double fines for driving under the influence in traffic safety corridors. Although legislators were told that an estimated twenty to thirty percent of motor vehicle accidents were known to involve aleohol or controlled substances, the legislative history is silent on the substantial fines that might be collected for driving under the influence offenses committed in traffic safety corridors. (In 2006, as now, a first misdemeanor DUI offense carried a fine of not less than $1500 and a felony offense carried a fine of not less than $10,000. ) We acknowledge that, in the House Judi-clary Committee, Rep. Max Gruenberg questioned whether the requirement of double fines in traffic safety corridors should be extended beyond Title 28 to vehicular crimes penalized in Title 11, such as vehicular homicide (criminally negligent homicide committed by means of a vehicle) or assault with a dangerous instrument (third-degree assault) This discussion suggests that Rep. Gruenberg, at least, viewed the bill as applying to all motor vehicle offenses listed in Title 28. But the Department of Law's response to this inquiry conveyed that, contrary to this assumption, it did not understand the legislation to double fines for felony motor vehicle offenses, which the Department pointed out already carried substantial fines. Because the legislative history of the 2006 bill demonstrates no intent to change existing law (beyond extending it to traffic safety corridors), we conclude that the intent of the 1998 legislature controls. We therefore hold that AS 28.90.030(a) does not double the range of fines for felony driving under the influence in a traffic safety corridor. We accordingly vacate Fyfe's $20,000 fine. Because the judge's comments at sentencing make clear that the judge would have imposed the $10,000 mandatory minimum fine for Fyfe's offense if he believed he had the discretion to do so, we direct the superior court to modify the judgment to reflect this mandatory minimum fine. Why we conclude that Fyfe's confrontation rights were not violated At trial, the State offered evidence that the calibration of the Datamaster machine had been verified before and after Fyfe's breath test as required to ensure that the machine was functioning properly. Fyfe argues that the admission of these verification reports violated his Sixth Amendment right to confront the witnesses against him because the State did not present the testimony of the individual who performed the verifications and prepared the reports. In Crawford v. Washington, the United States Supreme Court held that the admission of out-of-court "testimonial" statements violates the defendant's Sixth Amendment right to confrontation unless the defendant (1) is able to cross-examine the person who made the testimonial statements, or (2) the person is unavailable and the defendant had a prior opportunity to cross-examine the person regarding the subject of the statements. In Crawford, the Supreme Court declared that statements in business records are by their nature normally not testimonial. Subsequently, in Abyo v. State, we held-in line with the weight of authority in other jurisdictions -that verification of calibration reports are non-testimonial business records under Crawford, and that such reports may be admitted against the defendant even if the author of the report is not subject to cross-examination. After we decided Abyo, a plurality of the Supreme Court held in Melendes-Ding v. Massachusetts that the defendant's right to confrontation was violated by the admission of an affidavit by a laboratory analyst asserting that the substance seized from the defendant was cocaine; the Court reached this conclusion because it found that the affidavit was "testimonial" and that the defendant had no opportunity to cross-examine the author. In McCarthy v. State, we addressed whether our decision in Abyo was still good law in light of Melendez-Diaz, and we concluded that it was. We noted that other courts that had considered the issue after Melendes-Diaz had almost uniformly agreed that breath-test machine calibration records are non-testimonial records that may be admitted without the testimony of the person who prepared them. Fyfe argues that Abyo and McCarthy were wrongly decided and should be overruled. We adhere to those decisions and uphold the superior court's decision to admit the verification of calibration reports in this case. Conclusion We VACATE Fyfe's $20,000 fine and direct the superior court to modify the judgment to impose a fine of $10,000, the mandatory minimum fine for felony driving under the influence. In all other respects, we AFFIRM the judgment of the superior court. . 166 P.3d 55 (Alaska App.2007). . "[A) 'traffic safety corridor' means a portion of a highway on which signs have been erected designating that portion as a traffic safety corridor under AS 19.10.075." AS 28.90.990(a)(27). . State, Dep't of Commerce, Community & Economic Development, Div. of Ins. v. Alyeska Pipeline Service Co., 262 P.3d 593, 597 (Alaska 2011) (internal quotation marks and citations omitted). . 2013 WL 6410182 (Alaska App. Dec. 6, 2013) (unpublished). . Id. at*1. . Ch. 64, § 2, SLA 1998. The statute enacted by this legislation, former AS 28.40.070, provided: Fines for offenses committed within highway work zones doubled. Whenever a person violates a provision of this title or a regulation adopted under the authority of this title within a highway work zone, notwithstanding the amount of the fine or the maximum fine set under this title, the fine, or maximum fine, is double the amount provided in this title. . H.B. 87, 20th Leg., 1st Sess. (as introduced). . -See 1997 House Journal 137. . S.B. 304, 20th Leg., 2nd Sess. (as introduced). . Id.; see also supra note 6. . Ch. 64, § 2, SLA 1998. . Minutes of Senate Transportation Committee, S.B. 304, Tape 98-4, Side A (Feb. 24, 1998) {emphasis added). . Id. . Minutes of Senate Transportation Committee, S.B. 304, testimony of Capt. Ted Bachman, Alaska State Troopers, Tape 98-4, Side B (Feb. 24, 1998). . See Putnam v. State, 930 P.2d 1290, 1293 (Alaska App.1996) (statutes enacted together are read in pari materia). . Ch. 64, § 1, SLA 1998. . Ch. 45, § 2, SLA 2006. . The bail amounts and fines established under AS 28.05.151(a) are the maximum fines for those offenses, notwithstanding the higher maximum fines that might be authorized elsewhere in the Alaska Statutes. Under AS 12.25.230(c), "lf a person cited for an offense for which an amount of scheduled bail or fine has been established appears in court and is found guilty, the penalty imposed for the offense may not exceed the bail or fine established for the offense." The bail amounts established by the Alaska Supreme Court in Administrative Rule 43.1, and the fines established by the Municipality of Anchorage in AMC 9.48.130, do not exceed $300 (the statutory maximum for an infraction under AS 28.90.010(d)). . See Ch. 45, § 4, SLA 2006. The underlined text was added: Fines for offenses committed within highway work zones and traffic safety corridors doubled. Whenever a person violates a provision of this title or a regulation adopted under the authority of this title within a highway work zone or traffic safety corridor, notwithstanding the amount of the fine or the maximum fine set under this title, the fine, or maximum fine, is double the amount provided in this title. . Green v. State, 462 P.2d 994, 1000 (Alaska 1969); see also Warren v. Thomas, 568 P.2d 400, 403 (Alaska 1977). . January 31, 2006, governor's transmittal letter for S.B. 261, 2006 Senate Journal 2037. . Ch. 45, § 1, SLA 2006. . Emphasis added. The sentence containing this italicized language was included in the bill as originally introduced. S.B. 261, 24th Leg., 2nd Sess. (as introduced, Feb. 1, 2006). . In 2007, "AS 28.90.030" was substituted for "AS 28.40.070" to reflect the 2006 renumbering of AS 28.40.070. See Revisor's notes following AS 19.10.075. . AS 19.10.075(a) (emphasis added). . Cf. McKinley v. State, 275 P.3d 567, 573 (Alaska App.2012). . As noted below, there was discussion about extending the bill to criminal motor vehicle offenses in Title 11, but this idea was rejected and no amendment was offered. . See Fiscal Note No. 4, H.C.S. C.S.S.B. 261, 24th Leg., 2nd Sess. (published Apr. 26, 2006) {noting that the legislation "provides for enhanced fines related to motor vehicle traffic offenses committed within a designated safety corridor"); Minutes of Senate Transportation Committee, S.B. 261, testimony of Lt. James Helgoe, Alaska State Troopers, 2:08:24 p.m. (Feb. 9, 2006) (stating that the legislation "would act as a deterrent for speeders"); Minutes of House Transportation Committee, S.B. 261, testimony of John MacKinnon, Deputy Commissioner of Highways and Public Facilities, 2:14:32 p.m. (Mar. 21, 2006) and Minutes of Senate Finance Committee, S.B. 261, testimony of MacKinnon, 9:07:11 am. (Mar. 21, 2006) (stating that the legislation would allow double "traffic fines" in traffic safety corridors); Minutes of House Judiciary Committee, S.B. 261, testimony of MacKinnon, 2:30:01 p.m. (Apr. 12, 2006) (noting that speeding fines generally ranged from $75 to $100, and that "doubling those fines [would] result in a lot of money"); Minutes of Senate Finance Committee, S.B. 261, questioning by Co-Chair Lyda Green, 9:33:15 a.m. (Mar. 21, 2006) (asking whether doubling fines in highway construction zones had made a "notable difference" in speeding); Minutes of House Finance Committee, S.B. 261, statement of Co-Chair Mike Chenault, 3:51:38 p.m. (Apr. 25, 2006) (suggesting that the intent of the legislation was to "fine careless drivers"); Minutes of Senate Transportation Committee, S$.B. 261, testimony of Director Jeff Ottesen, Division of Program Development, Department of Transportation and Public Facilities, 1:36:40 p.m. (Feb. 9, 2006) (stating that the intent of the legislation was to "keep [the] numbers of accidents down"); Minutes of Senate Transportation Committee, S.B. 261, testimony of Senator Gene Therriault, 1:38:53 p.m. (Feb. 9, 2006) (noting that Virginia had set a maximum fine of $500 in traffic safety corridors, on the theory that a definite fine would be a more effective deterrent). . AS 19.10.075(b); Minutes of Senate Finance Committee, S.B. 261, testimony of Deputy Com missioner of Highways and Public Facilities John MacKinnon, 9:07:11 a.m. (Mar. 21, 2006) (stating that the legislation would "couple increased enforcement with double traffic fines" and the resulting increased revenue would "be funneled to the Department of Public Safety to provide for the expense of the increased enforcement" in traffic safety corridors); Minutes of House Transportation Committee, S.B. 261, testimony of MacKinnon, 2:14:32 p.m. (Mar. 21, 2006) (stating that the legislation was "aimed at getting a handle on driver behavior by allowing the increase of enforcement and collecting double traffic fines"); January 31, 2006, governor's transmittal letter for S.B. 261, 2006 Senate Journal 2037 (noting that 50 percent of the fines would be allocated to highway safety programs). . Minutes of Senate Transportation Committee, S.B. 261, testimony of Lt. James Helgoe, Alaska State Troopers, 2:15:46 p.m. (Feb. 9, 2006). . Former AS 28.35.030(b)(1)(A), (n)(1) (2006). . Minutes of House Judiciary Committee, S.B. 261, 2:43:00 p.m. (Apr. 12, 2006). . Minutes of House Judiciary Committee, S.B. 261, testimony of Senior Assistant Attorney General Peter Putzier, Department of Law, 2:44:22 p.m. (Apr. 12, 2006). The maximum fine for felony driving under the influence, a class C felony, is $50,000. AS 28.35.030(b); AS 12.55.035(b)(4). The highest possible fine under Title 28 appears to be for using an electronic device while driving and causing the death of a person, a class A felony that carries a maximum fine of $250,000. AS 28.35.161(0)(4); AS 12.55.035(b)(2). . 541 U.S. 36, 124 S.Ct. 1354, 158 LEd.2d 177 (2004). . Id. at 53-54, 124 S.Ct. 1354. . Id. at 56, 124 S.Ct. 1354. . Abyo, 166 P.3d 55, 60 & n. 19 (Alaska App.2007); see also McCarthy v. State, 285 P.3d 285, 294 (Alaska App.2012) (Mannheimer, J., concurring). . Abyo, 166 P.3d at 60. . 557 U.S. 305, 129 S.Ct. 2527, 174 LEd.2d 314 (2009). . Id. at 307-11, 129 S.Ct. 2527. . McCarthy, 285 P.3d at 289. . Id. at 289 & n. 9.

6917413

Byron F. GEISINGER, Petitioner, v. STATE of Alaska, Respondent

Geisinger v. State

2014-09-26

No. A-11881

1241

1244

334 P.3d 1241

334

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:02:26.429743+00:00

CAP

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

Byron F. GEISINGER, Petitioner, v. STATE of Alaska, Respondent.

Byron F. GEISINGER, Petitioner, v. STATE of Alaska, Respondent. No. A-11881. Court of Appeals of Alaska. Sept. 26, 2014. Brooke V. Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Petitioner. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Respondent. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

1840

11884

OPINION Judge HANLEY. This petition for review raises the question of what statute of limitation applies to the filing of an application for post-conviction relief by a defendant who pursued a direct appeal of his sentence but not his conviction. Byron F. Geisinger was convicted of several crimes after a fatal motor vehicle collision, and he was sentenced to 16% years to serve. He appealed his sentence, arguing that it was excessive and that the court erred by rejecting his proposed statutory mitigating factor. We affirmed Geisinger's sentence. Geisinger then filed an application for post-conviction relief, claiming that the attorney who represented him at his trial was incompetent. The superior court dismissed that claim as untimely. The court ruled that, under AS 12.72.020(a)B)(A), the normal statute of limitation for filing an application for post-conviction relief-eighteen months from the date judgment was entered in the underlying criminal case-is not tolled while a defendant appeals his sentence. Geisinger's application was filed well outside that eighteen-month deadline. Geisinger petitions for review of the superior court's decision and the State concedes error. We now grant Geisinger's petition for review and, for the reasons explained below, hold that a defendant who appeals his sentence or his conviction, or both, has one year from the date the decision on appeal is final to file an application for post-conviction re-lief. Because Geisinger's application was filed within that deadline, the superior court erred in granting the State's motion to dismiss. Facts and proceedings Geisinger was convicted of manslaughter, leaving the scene of an injury accident, two counts of assault in the first degree, forgery, and driving under the influence. He filed a timely notice in this Court of a "merit appeal"-an appeal challenging the validity of his convictions. However, Geisinger's appointed counsel later determined that Geis-inger had no non-frivolous challenges to his convictions; the attorney therefore limited Geisinger's opening brief to claims attacking his sentence. We rejected those claims and affirmed Geisinger's sentence, and the supreme court denied Geisinger's petition for hearing. Geisinger's attorney then advised him that he had one year from the date the supreme court rejected his petition for hearing (that is, the date when our decision of his sentence appeal became final ) to file an application for post-conviction relief. Geisinger filed an application approximately seven months later challenging, inter alia, the competence of his trial attorney. On the State's motion, the superior court rejected as untimely Geisinger's claim that his trial attorney was ineffective. Geisinger then filed this petition for review. Why we conclude that the deadline for filing a post-conviction relief application following a sentence appeal is one year after the decision on appeal becomes final, and that Geisinger's application is therefore timely Under AS 12.72.010, any person who has been convicted of a crime in Alaska may institute a proceeding for post-conviction relief challenging his conviction or sentence, as long as the application raises claims permitted by the statute and the application is filed within the time limits codified in AS 12.72.020. Subsection (a)B)(A) of that statute provides that a post-conviction relief action is untimely if; (3) the later of the following dates has passed, except that if the applicant claims that the sentence was illegal there is no time limit on the claim: (A) if the claim relates to a conviction, 18 months after the entry of the judgment of the conviction or, if the conviction was appealed, one year after the court's decision is final under the Alaska Rules of Appellate Procedurel[.] The superior court interpreted this subsection to mean that if a defendant appeals his conviction-that is, argues on direct appeal that he is entitled to an acquittal or a new trial-the period for filing an application for post-conviction relief is tolled until one year after the appeal becomes final. But the court concluded that the statute of limitation is not tolled for a defendant like Geisinger who appealed only his sentence In that cireumstance, the court ruled, the application must be filed within eighteen months of the date judgment was entered in the criminal case. That is the same deadline that applies to a defendant who filed no appeal at all. The superior court reasoned that the plain language of the statute mandated this result: The statutory language is not ambiguous. The statute indicates that time is tolled if "the conviction was appealed." If the legislature had intended that the time would be tolled upon appeal of either the convietion or the sentence, it would have said this in the statute. The main problem with the superior court's interpretation of AS 12.72.020(a)(8)(A) is that it does not accord with the well-settled principle of statutory construction that "the same words used twice in the same act have the same meaning." As indicated in italics below, the statute uses the term "conviction" in different contexts: first, to characterize the nature of the claim raised in the post-conviction relief action and, later, to characterize the nature of the claim raised on direct appeal: (A) if the claim [raised in the post-convietion relief application] relates to a comnviction, [the application must be filed within] 18 months after the entry of the judgment . or, if the conviction was appealed, [the application must be filed within] one year after the court's decision is final under the Alaska Rules of Appellate Procedurel.] If we attempt to reconcile these two meanings of "conviction" in a way that preserves the superior court's ruling-by assuming that in both instances "conviction" means just "conviction," not "conviction or sentence"-then AS 12.72.020(a)(8)(A) would impose no deadline for an application that raises a claim related to the defendant's sentence. The State acknowledges that this cannot be what the legislature intended. Moreover, this interpretation would render another part of the same statute superfluous. As related above, the legislature expressly provided in AS 12.72.020(a)(8) that there is no time limit for filing an application for post-conviction relief challenging a sentence as illegal. There would be no reason for the legislature to create this limited exception if its intent was to eliminate the statute of limitations for all post-conviction relief applications raising sentencing claims. In addition, as Geisinger points out, the superior court's reading of AS 12.72.020(a)(8)(A) would, as a practical matter, defeat one of the primary goals of the post-conviction relief statutes: reducing frivolous post-conviction relief litigation." Normally, given the current length of time it takes to litigate a criminal appeal, the decision on appeal will not become final within eighteen months of the defendant's conviction. Therefore, under the superior court's interpretation of AS 12.72.020(2)(8)(A), a prudent attorney litigating a sentence appeal would advise his client to file an application for post-conviction relief while the appeal is still pending, even though resolution of the appeal might later render that application moot. Alternatively, an attorney who realizes, after the eighteen-month deadline for filing an application for post-conviction relief has passed, that the defendant's only potentially meritorious claims are sentencing claims might choose to raise a non-meritorious challenge to the defendant's conviction rather than forfeit the defendant's opportunity to pursue an application for post-convietion relief, We think it clear that the legislature did not intend to encourage this type of unnecessary litigation. We also can discern no rational basis for allowing a defendant who challenges a sentence on direct appeal unlimited time to file an application for post-conviction relief raising any challenge authorized by the post-conviction relief statutes, while requiring a defendant who appealed his conviction to file the application within a specific deadline. The more reasonable interpretation of AS 12.72.020(a)(8)(A) is that the legislature used the term "conviction" not to distinguish a conviction from a sentence, but to distinguish a conviction from a probation revocation or administrative decision. The statute sets out different deadlines for filing an application for post-conviction relief challenging a conviction, a revocation of probation, or an administrative decision of the Board of Parole or Department of Corrections. We conclude that the legislature intended the statute of limitations in each instance to encompass a post-conviction relief challenge to both the conviction, revocation, or decision, and to any penalty imposed. Interpreting AS 12.72.020(a)(B)(A) in this manner, a defendant who appeals his conviction or sentence, or both, has one year from the date the decision on appeal is final to file an application for post-conviction relief. Because Geisinger's post-conviction relief application was filed approximately seven months after our decision of his sentence appeal became final, it was timely. Conclusion We REVERSE the superior court's order dismissing Geisinger's challenge to the competence of his trial counsel, and we REMAND the case to the superior court for further proceedings on his application. Because of our resolution of this issue, we do not address Geisinger's claim that the superi- or court's dismissal of his claims violated his right to due process. We do not retain jurisdiction. . Geisinger v. State, 2010 WL 5186081, at *1 (Alaska App. Dec. 22, 2010) (unpublished). . Id. . Id. at *1-3. . See R.App. P. 507, 512. . AS 11.41.120(a)(1). . AS 28.35.060(c). . AS 11.41.200(a)(1). . AS 11.46.505(a)(1). . AS 28.35.030(a)(2). . Geisinger, 2010 WL 5186081, at *1. . Supreme Court Case No. §-14139. . See R.App. P. 507, 512. . The State did not move to dismiss the claims attacking the competence of Geisinger's appellate counsel, and those claims are apparently still pending. . Emphasis in original. . Benner v. Wichman, 874 P.2d 949, 957 (Alaska 1994) (quoting 2A Norman J. Singer, Sutherland's Statutes and Statutory Construction § 46.06 (5th ed.1992)). . Emphasis added. . See Xavier v. State, 278 P.3d 902, 905 (Alaska App.2012) (noting the legislature's interest in providing a time limit for the litigation of post-conviction claims). . See Libby v. City of Dillingham, 612 P.2d 33, 39 (Alaska 1980) (citing 2A C. Sands, Sutherland Statutory Construction § 46.06 (4th ed.1973)) ("It is a basic principle of statutory interpretation that, when possible, effect should be given to all provisions of a statute so that no part of the statute is superfluous."). . See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App.1984) (noting that the term "illegal sentence" has been narrowly construed to apply only to sentences that are not authorized by the judgment of conviction). . Xavier, 278 P.3d at 904 (citing the Governor's Transmittal Letter for House Bill 201, 1995 House Journal 488-89). . AS 12.72.020(a)(3)(A). . AS 12.72.020(a)(3)(B). . AS 12.72.020(a)(4).

11497492

Scott C. McGLOTHLIN, Appellant, v. MUNICIPALITY OF ANCHORAGE and Ogden Facility Management of Alaska, Inc., Appellees

McGlothlin v. Municipality of Anchorage

1999-11-19

No. S-8660

1273

1280

991 P.2d 1273

991

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:46.555109+00:00

CAP

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

Scott C. McGLOTHLIN, Appellant, v. MUNICIPALITY OF ANCHORAGE and Ogden Facility Management of Alaska, Inc., Appellees.

Scott C. McGLOTHLIN, Appellant, v. MUNICIPALITY OF ANCHORAGE and Ogden Facility Management of Alaska, Inc., Appellees. No. S-8660. Supreme Court of Alaska. Nov. 19, 1999. Charles W. Coe, Anchorage, for Appellant. Susan M. West, Guess & Rudd, P.C., Anchorage, for Appellees. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

3371

20967

OPINION CARPENETI, Justice. I. INTRODUCTION Scott McGlothlin injured his back in November 1994 while loading a heavy scoreboard at the Sullivan Sports Arena in Anchorage. The scoreboard belonged to his employer, Carr-Gottstein Foods Co. (Carrs). McGlothlin sued the Municipality of Anchorage (the owner of the arena) and Ogden Facility Management (the operator) under several tort theories. The defendants moved for summary judgment, arguing that they owed McGlothlin no duty. The superior court granted the motion, and awarded the defendants twenty percent of their attorney's fees pursuant to Civil Rule 82. McGlothlin appeals both the summary judgment and the attorney's fees award. Because McGlothlin failed to present any evidence showing that he was owed a duty, and because the trial court did not abuse its discretion in awarding attorney's fees, we affirm. II. FACTS AND PROCEEDINGS A. Factual Background In the early afternoon of November 30, 1994, Scott McGlothlin and his co-worker Mark Lulay were instructed by their supervisors to pick up a scoreboard at the Sullivan Arena. The scoreboard belonged to McGlothlin's employer, Carrs, and McGloth-lin and Lulay were told to deliver it to West Anchorage High School for the Great Alaska Shootout, an event sponsored by Carrs. Together they took a two-wheel dolly and drove to the arena in the company van. At the arena, McGlothlin and Lulay located a service ramp leading up to a closed garage door. McGlothlin pressed a buzzer at the service door, and an unidentified Ogden employee answered. McGlothlin indicated he was there to pick up a -scoreboard for Carrs, but the man had no knowledge of it. However, he located a second unidentified Ogden employee from within the arena who did. The two Ogden employees then left, and a few minutes later the second employee, joined by a third unidentified employee, returned rolling out the scoreboard. They brought the scoreboard out to the service ramp just inside the garage door on a wheeled rack which appeared specifically designed for the scoreboard. The scoreboard itself was approximately six to seven feet long, four feet high, and a few feet wide. The Ogden employees did not warn McGloth-lin or Lulay of the scoreboard's weight, nor did they offer assistance. On their part, neither McGlothlin nor Lulay made any inquiries or asked for help. The Ogden employees then left. McGlothlin backed the van up so that the rear of the van was within a few feet of the scoreboard just inside the garage door. The area was clean, free from debris, and the floor was dry and flat. McGlothlin then went to the rear of the van, "got down in position" and felt how heavy the scoreboard was, ultimately estimating it to weigh approximately 400 pounds. The rack was too long to fit into the van without being turned on its side, so McGlothlin and Lulay removed the scoreboard from the rack onto the floor. Because of its weight, McGlothlin briefly looked around for a fork lift or anyone who might assist them in loading the scoreboard into the van; finding no one nor any equipment, he returned to the van to begin loading. McGlothlin lifted the end closest to the rear of the vehicle with his back to the van, while Lulay faced the van lifting the farther edge of the scoreboard. As they began to lift the scoreboard, McGlothlin gave a "help me" look to the third Ogden employee, who had returned. However, neither McGlothlin nor Lulay verbally requested assistance or asked for any equipment.' The third Ogden employee left without saying anything. McGlothlin and Lulay proceeded to lift the scoreboard, trying to place it diagonally into the back of the van. The floor of the van was approximately three-and-one-half feet above the ground. McGlothlin, moving backwards with his back to the van, kept one foot on the ground and, bending over, put his other leg into the van so that he got his end of the scoreboard onto the van floor. He then felt a sharp, piercing pain in his center, lower back. McGlothlin pulled the scoreboard a bit more into the van and then fell to his knees on the ground. After a few minutes, he got up to assist Lulay, who was trying to finish pushing the scoreboard into the van by himself. At this point, the third Ogden employee returned and McGlothlin verbally requested his help. Lulay and the Ogden employee then finished loading the scoreboard into the van. After the scoreboard was secured in the van, McGlothlin and Lulay delivered it to West High, where Lulay and another man unloaded it. McGlothlin and Lulay then returned to Carrs and McGlothlin reported his injury to his boss. He was sent home early, and he remained off work for several days. After visiting his family physician with complaints of lower back pain, McGlothlin filed the appropriate workers' compensation form documenting the injury. McGlothlin continues to complain of chronic lower back pain. B. Procedural Background McGlothlin sued the Municipality of Anchorage and Ogden Facility Management (collectively, MOA/Ogden) in November 1996 for damages resulting from his injuries. The Municipality of Anchorage owns the George M, Sullivan Sports Arena, and has contracted with Ogden Facility Management of Alaska, Inc. to operate the facility. After deposing McGlothlin and conducting other discovery, MOA/Ogden moved for summary judgment. The court heard oral argument in March 1998 and issued an order that same day granting MOA/Ogden's motion. Subsequently, MOA/Ogden filed a motion for costs and fees pursuant to Rules 79 and 82. The court entered judgment against McGlothlin and awarded attorney's fees of $4,242.50 to MOA/Ogden. This appeal followed. III. STANDARD OF REVIEW We review a summary judgment de novo. Drawing all reasonable inferences in favor of the non-movant, this court determines whether the parties genuinely dispute any facts material to a viable legal theory and, if not, whether the undisputed facts entitle the movant to judgment as a matter of law. The moving party bears the initial burden of proving through admissible evidence (1) the absence of genuine factual disputes, and (2) its entitlement to judgment as a matter of law. Once the moving party has established a prima facie case, "the non-movant is 'required, in order to prevent entry of summary judgment, to set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute or contradict the movant's evidence, and thus demonstrate that a material issue of fact exists."' Where a defendant moves for summary judgment, the plaintiff must produce facts of his own in controversion to the relevant facts and circumstances set forth in the defendant's affidavit. Assertions of fact in unverified pleadings and memoranda are insufficient to defeat a motion for summary judgment. We review a trial court's award of attorney's fees for abuse of discretion. We will reverse a manifestly unreasonable award. However, awards made pursuant to the schedule in Alaska Civil Rule 82(b) are presumptively correct. IV. DISCUSSION A. The Superior Court Did Not Err in Granting Summary Judgment in Favor of MOA/Ogden. The superior court held that MOA/Ogden did not owe McGlothlin any duty of care to assist him, to warn him, or to control the loading operation. The superior court further found that McGlothlin's injury resulted from his own act of loading his employer's scoreboard at his employer's direction. McGlothlin argues that genuine issues of material fact exist as to whether MOA/Ogden owed him a duty under four separate, albeit overlapping, theories of liability: (1) retained control, (2) voluntary assumption of a duty, (3) simple negligence, and (4) negligent en-trustment. We disagree. As discussed below, McGlothlin failed to introduce any evidence raising material factual disputes under any viable legal theory. Therefore, we affirm the superior court. 1. MOA/Ogden owed McGlothlin no duty. This court's decision in Brock v. Weaver Bros., Inc. controls the disposition of this case. In Brock, the plaintiff, an employee of Alaska International Air (AIA), was injured during a pipe-loading operation. Brock alleged that when the injury occurred he was using "equipment 'owned or controlled by one or more of the defendants' and that the negligence of Weaver Brothers or another defendant caused his injury." Weaver Brothers moved for summary judgment, contending that it did not exercise control nor have the right to exercise control over Brock's operations when the accident occurred. In support of its motion, Weaver Brothers submitted uncontroverted affidavits that at the time of the injury Brock was an employee of AIA; that AIA owned all of the equipment used in the loading operation; that all of the employees involved were AIA employees; that no contract between AIA and Weaver Brothers gave the latter any right to control the loading operations of AIA; and that Weaver Brothers neither had the right to control the loading operation, nor had actually exercised control. In his opposition, Brock failed to set forth specific facts demonstrating a material issue of fact which, if resolved in Brock's favor, would result in liability to the Weaver Brothers. We affirmed the superior court's grant of summary judgment. In the present case, MOA/Ogden submitted three affidavits in support of its motion for summary judgment. Richard Watts, a Carrs supervisor involved with promoting the "Carrs Great Aaska Shootout," stated that the scoreboard was the property of Carrs, and that to the best of his knowledge Carrs delivered the scoreboard to the arena for each Shootout tournament and retrieved it afterwards. Kim Digel, MeGlothlin's immediate supervisor, stated that she had instructed McGlothlin to go to the arena with Lulay to pick up the scoreboard, and that she did not expect anyone at the arena to assist or supervise her employees with this task. Finally, Dennis Morris, the operations manager of the arena, stated that (1) MOA/Ogden did not own or lease any portable scoreboards in 1994; (2) he was aware that Carrs occasionally used its own portable scoreboard at the Shootout games; (3) MOA/Ogden had no contract with Carrs for the maintenance, use, operation, transportation, or storage of the scoreboard; and (4) MOA/Ogden neither actually controlled nor had the right to control the loading operation. McGlothlin offered no evidence disputing these factual assertions. Rather, when deposed, McGlothlin stated that after the scoreboard was rolled out to the service ramp, he and his co-worker were left alone to load it, without direction or assistance from any MOA/Ogden employees. Thus, he confirmed that MOA/Ogden retained no actual control over the loading operation. He further admits that MOA/Ogden provided no loading equipment, and that he did not ask for any assistance until after he was injured, with the exception of a "help me" glance he gave one Ogden employee after he began loading the scoreboard. Finally, McGlothlin admits that the loading area was clean, dry, and free from debris. Like Brock, the record here is devoid of any evidence that the defendants owed a duty of care to the plaintiff. The uncontro-verted affidavits MOA/Ogden submitted and McGlothlin's own testimony establish that the scoreboard was the property of McGloth-lin's employer, Carrs; that only employees of Carrs were involved, in loading the scoreboard until McGlothlin was injured and requested assistance from an Ogden employee; that MOA/Ogden employees exercised no ac-' tual control nor had a contractual right to control the loading operation; and that McGlothlin's injury resulted from his own actions in loading the scoreboard. On this record, the only reasonable conclusion is that MOA/Ogden did not owe McGlothlin a duty of care. 2. McGlothlin's tort theories As previously indicated, McGlothlin argues that factual disputes exist as to whether MOA/Ogden owed him a duty under four theories of liability: (1) retained control, (2) voluntary assumption of a duty, (3) simple negligence, and (4) negligent entrustment. His arguments lack merit. McGlothlin's "retained control" argument fails because there was no independent contractor-employer relationship between Carrs and MOA/Ogden. In order for a duty to arise under the doctrine of "retained control," there must be an independent contractor-employer relationship between the parties. Here, MOA/Ogden offered uncontroverted testimony establishing that no independent contractor-employer relationship existed between itself and Carrs, either express or implicit. Therefore, the "retained control" theory is not available to McGlothlin. McGlothlin next contends that MOA/Ogden's failure to assist in or supervise the loading operation, and its failure to warn him of the scoreboard's weight, raise factual disputes which preclude summary judgment. This argument, too, is without basis in the record. There is no evidence that MOA/Od-gen voluntarily assumed any duty to McGlothlin. Rather, the evidence indicates they delivered the scoreboard to him and left him and Lulay alone to load it themselves. Nevertheless, McGlothlin argues that the assistance given him by the third Ogden employee after he was injured indicates that MOA/Ogden had a duty to assist him initially. This argument is circular and lacks merit. While it is true that "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully[,]" it is not true that rendering assistance after an injury occurs implies a duty to do so. MOA/Ogden had no duty to assist McGlothlin. As to warning McGlothlin of the scoreboard's weight, McGlothlin admits he removed the scoreboard from the rack prior to loading it into the truck and was aware of its weight. MOA/Ogden had no duty to warn McGlothlin of an open and obvious condition of which McGlothlin was aware. Finally, McGlothlin's argument that a factual dispute exists as to whether MOA/Ogden negligently entrusted the scoreboard to him fails because the doctrine of negligent entrustment requires that the defendant have a greater right of possession or control of the chattel than the person to whom he or she entrusts it. MOA/Ogden was returning the scoreboard to its rightful owner, Carrs. MOA/Ogden could not lawfully refuse to hand over the scoreboard. Therefore, the doctrine of negligent entrustment is not available to McGlothlin. In sum, the superior court correctly found that there were no genuine issues of material fact under any of the theories of liability propounded by McGlothlin, and that MOA/Ogden was entitled to judgment as a matter of law. B. The Superior Court Did Not Abuse Its Discretion in Awarding Attorney's Fees. Applying Civil Rule 82(b), the superior court awarded MOA/Ogden $4,242.50, or twenty percent of the $21,212.50 in fees that MOA/Ogden showed that it had incurred. McGlothlin contends that the superior abused its discretion in failing to vary the award under Rule 82(b)(3) because the fees MOA/Ogden incurred were excessive and would deter similarly situated plaintiffs from the voluntary use of the courts. Our review of the record indicates that the fees were reasonable, and not so onerous as to deter those who come forward in good faith with a complaint. We therefore affirm the trial court's attorney's fees award. V. CONCLUSION • MOA/Ogden made a prima facie case that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. McGlothlin failed to submit evidence which tended to dispute or contradict this evidence, or to demonstrate that MOA/Ogden was not entitled to judgment as a matter of law. Additionally, the superior court's award of attorney's fees was not an abuse of discretion. We therefore AFFIRM. . Because this case was decided on summary judgment, the description of the facts draws all reasonable inferences in favor of the non-movant, McGlothlin. See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1200 (Alaska 1998) (citations omitted). Prominent among such inferences is that the workers McGlothlin encountered at the Sullivan Arena were Ogden employees, a fact not definitively established in discovery. . McGlothlin had been employed by Carrs for several years, primarily in the mail room, and his duties included picking up, sorting, and delivering interoffice mail. On occasion, he would be assigned various other tasks such as setting up for functions and moving offices. . The deposition testimony of McGlothlin is somewhat contradictory on this particular order of events. It is unclear whether McGlothlin looked around for a forklift before or after he made his "help me" look to the third Ogden employee, or whether he had even started lifting when he gave this look. . See Arctic Tug & Barge, 956 P.2d at 1200 (citations omitted). . See id. . See Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995) (citations omitted). . Jennings v. State, 566 P.2d 1304, 1309 (Alaska 1977) (quoting Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975)) (internal brackets omitted). . Alaska R. Civ. P. 56(e). . See id.; see also State, Dep't of Highways v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978) (citations omitted). . See Byars v. Byars, 945 P.2d 792, 795 (Alaska 1997). . See Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995) (citations omitted). . See Byars, 945 P.2d at 795. . 640 P.2d 833 (Alaska 1982). . See. id. at 834. . Id. . See id. . See id. at 834-35. . See id. at 836. . See id. at 837. . We expressly adopted the Restatement (Second) of Torts § 414 (1965) when we approved of the "retained control" theory of negligence. See Moloso v. State, 644 P.2d 205, 210-11 n. 3 (Alaska 1982) (listing cases). This section provides: Negligence in Exercising Control Retained By Employer. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. . The superior court held that Carrs was an independent contractor of MOA/Ogden for the purpose of providing a scoreboard for use at the Sullivan Arena, and thus the "retained control" theory applied. However, the court also found that the evidence showed that MOA/Ogden retained no control over the loading of the scoreboard, and thus MOA/Ogden did not owe McGlothlin a duty under this theory. We agree with this result, but for the reason expressed here. We may affirm a judgment of the superior court on different grounds than those advanced by the superior court. See Lazy Mtn. Land Club v. Matanuska-Susitna Bor. Bd. of Adjustment and Appeals, 904 P.2d 373, 381 n. 45 (Alaska 1995) (quotation marks and citation omitted). . See Moloso, 644 P.2d at 212 (citations omitted). . Cf. West v. City of St. Paul, 936 P.2d 136, 138-39 (Alaska 1997) (holding wharfinger has no duty to warn of open and obvious conditions that can be reasonably ascertained by vessel crew); Prince v. Parachutes, Inc., 685 P.2d 83, 88 (Alaska 1984) (citation omitted) (holding manufacturer has no duty to warn of hazards or dangers that would be readily recognized by an ordinary user of the product). . Under this theory, "[o]ne who supplies . a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk to himself and others . is subject to liability for physical harm resulting to them." Neary v. McDonald, 956 P.2d 1205, 1208 (Alaska 1998) (citing Restatement (Second) of Torts § 390 (1965)). . See id. at 1209 (citations omitted). . In addition, McGlothlin failed to introduce any evidence to show that the Ogden employees should have known he was incapable of loading the scoreboard. . Rule 82(b)(2) provides, in part, that "[i]n cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party . in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred." . Rule 82(b)(3) allows the trial court to vary an attorney's fees award based upon a number of factors, including the complexity of the litigation, the reasonableness of the attorneys' hourly rates, the number of attorneys, and the hours expended, as well as the potential that a fee award may be so onerous as to deter similarly situated litigants from the voluntary use of the courts.

11488710

Dale ROMANN, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee

Romann v. State, Department of Transportation & Public Facilities

1999-11-12

No. S-8344

186

195

991 P.2d 186

991

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:46.555109+00:00

CAP

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

Dale ROMANN, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee.

Dale ROMANN, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee. No. S-8344. Supreme Court of Alaska. Nov. 12, 1999. Rehearing Denied Dec. 15, 1999. Peter J. Maassen and William H. Ingald-son, Ingaldson Maassen, P.C., Anchorage, for Appellant. Elizabeth J. Hickerson, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4688

29702

OPINION BRYNER, Justice. I. INTRODUCTION Dale Romann appeals a superior court order affirming an administrative decision rejecting his lease renewal application and publicly auctioning a new lease of government-owned airport property. He challenges a decision of the Department of Transportation and Public Facilities (DOT) to deny him a lease renewal, as well as its administration of the auction. We conclude that agency regulations did not entitle Romann to a new lease of the property once his lease had ended. Moreover, we conclude that DOT did not abuse its discretion in failing to favor Romann, its former tenant, in setting the terms of the auction. Accordingly, we affirm. II. FACTS AND PROCEEDINGS Dale Romann's twenty-year lease of state-owned airport property expired on July 1, 1994. About a month before the lease ended, he applied for a renewal. The Lease Application Review Committee for the Anchorage International Airport (Review Committee) reviewed Romann's application and recommended that the lease be extended for ten year's. But before the new lease's thirty-day period for public comment had run, another individual, Greg Remaklus, applied to lease the property. The Review Committee determined that both applications met its approval; it rejected both in favor of a public auction. On March 22, 1995, the airport issued an invitation to bid for the lease. Romann remained on the leased property in holdover status. Romann appealed to DOT, objecting to the fact of the auction and to some of its terms. DOT denied his appeal, as well as his request for reconsideration, because it interpreted its regulations to require a public auction. Ro-mann appealed to the superior court. On March 4, 1996, while Romann's superi- or court appeal was still pending, the airport put the leasehold up for competitive bid. Romann bid on the lease, but lost to a higher bidder. That same day, he filed another appeal with DOT. After DOT denied this appeal Romann appealed again to the superi- or court, which consolidated his appeals and eventually affirmed DOT's decisions. Romann appeals. III. DISCUSSION A. Standard of Review When the superior court acts as an intermediate court of appeal, we independently review its decision. We apply four principal standards of review in administrative appeals: The "substantial evidence" test is used for questions of fact. The "reasonable basis" test is used for questions of law involving agency expertise. The "substitution of judgment" test is used for questions of law where no expertise is involved. The "reasonable and not arbitrary" test is used for review of administrative regulations.[ ] B. DOT Reasonably Interpreted Its Regulations to Require a Public Auction upon the Receipt of "Competing Applications. " Romann first argues that because he applied to renew his lease before DOT received a competing application, he was entitled to an automatic lease renewal under 17 AAC 40.320(c)(1), which provides that certain aviation-related leases "will be granted on a 'first come-first served' basis." This argument requires us to consider the interplay between subsection .320(c)(1) and two other subsections of the same regulation — subsections .320(e)(8)(A) and (c)(8)(C). By its own terms, subsection ,320(c)(l)'s "first come-first served" policy applies only when- no other regulation requires a public auction: A lease or privilege for any activity that is classed as aviation will be granted on a "first come-first served" basis . unless law, regulations, or a determination by the department that the best interests of the public will be served require a particular lease or privilege to be offered at public auction or by competitive proposal.[ ] Another subsection of section .320 — subsection (c)(8)(C) — requires DOT to hold a public auction if it receives competing lease applications that meet the requirements of yet a third subsection: If two or moré applications meeting the requirements in (A) . of this subsection are received for a lease lot of the same class of use ., then the lease will be granted under 17 AAC 40.340(d) [governing public auctions].[ ] That third subsection, subsection (c)(8)(A), provides: If a lease application conforms to the airport master plan, meets all other requirements, and no other objections or conflicting applications are received within the notice period, the lease may be executed.[ ] Applying subsection (c)(8)(A), DOT determined that Romann's and Remaklus's lease applications conformed to the airport's master plan and met all other applicable requirements. And since Remaklus's application had been received before Romann's application was noticed, DOT further determined that both applications fell within the pertinent notice period. But because the applications conflicted by competing for the same lease, subsection (c)(8)(A) did not authorize DOT to execute either. Accordingly, DOT turned to subsection (c)(8)(C). DOT concluded that this subsection required it to conduct a public auction because two individuals who otherwise would have qualified for a lease under subsection (c)(8)(A) had submitted competing, equal-priority applications. Upon concluding that subsection (c)(8)(C) required a public auction, DOT further concluded that subsection (c)(l)'s "first come-first served" policy no longer governed. On appeal, the superior court rejected the conclusion that subsections .320(c)(8)(A) and (C) required a public auction, finding that DOT's interpretation of these provisions conflicted with their plain meaning. According to the court's logic, subsections (c)(8)(A) and (C), when read together, literally define a null set: subsection (c)(8)(C) expressly requires DOT to hold a public auction only if it receives "two or more applications meeting the requirements in [subsection (c)(8) ](A);" yet subsection (c)(8)(A)'s requirements could only be met "[i]f . no other . applications [were] received." According to the superior court's reasoning, since the mere existence of a competing application would preclude an application from complying with subsection (A), there could never be a case under subsection (C) involving "two or more applications meeting the requirements in [subsection] (A)." Concluding, on this basis, that subsections .320(c)(8)(A) and (C) did not require DOT to hold an auction in Romann's case, the superi- or court ruled that these subsections did not override the "first come-first served" policy. The court nevertheless upheld DOT's refusal to apply this policy. Relying on subsection (c)(l)'s language that makes the "first come-first served" policy inapplicable upon "a determination by the department that the best interests of the public will be served" by an auction, the court declared that DOT had validly made a best-interests determination in Romann's case. On appeal, Romann disputes the court's finding of a valid best-interests determination. Although the state defends the superior court's finding of a valid best-interests determination, it primarily argues that the superior court should have upheld DOT's interpretation of its own regulation. Contending that the court too rigidly applied the plain meaning of subsections (c)(8)(A) and (C), the state urges us to hold that DOT properly interpreted subsection (c)(8)(C) as requiring an auction, thereby overriding subsection (e)(l)'s "first come-first served" policy. The state argues that an agency's interpretation of its own regulation deserves deference and that DOT's interpretation of section .320 comports with relevant canons of statutory construction, with the regulation's history, and with its underlying policy. We find this argument persuasive. As the state correctly notes, the superior court's literal interpretation is problematic because it overlooks settled rules of statutory interpretation. "Whenever possible, we construe each part or section of a statute with every other part or section, to produce a harmonious whole." And in so doing we assume that every word and phrase in the statute has meaning and must be given effect. In relying on literal interpretation to conclude that competing applications could never meet the requirements of subsection (c)(8)(A), the superior court read that subsection in isolation. And as a result, the court effectively nullified subsection (c)(8)(C)'s language requiring an auction when competing applications meet the requirements of subsection (c)(8)(A). To adopt the superior court's interpretation, we would have to assume that subsection (c)(8)(C)'s reference to subsection (c)(8)(A) is meaningless. Moreover, although the superior court rigorously enforced the regulati&n's plain meaning, we do not adhere to the plain meaning rule of statutory interpretation. We rely instead on a sliding scale approach even if a statute is plainly worded: [S]ince words are necessarily inexact and ambiguity is a relative concept, we . turn to the legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be.[ ] Section ,320's recent history is instructive, revealing that DOT revised its leasing regulations and adopted 17 AAC 40.320(c)(8)(C) in response to a recommendation by the Alaska Ombudsman. In the late 1970s the Ombudsman conducted an investigation into the fairness of DOT's leasing practices, the adequacy of its public notice procedures, and the propriety of its valuation methods for leases of state lands. The investigation, according to the Ombudsman's report, revealed constitutional notice problems that had been ignored by DOT's Division of Aviation. Accordingly, the Ombudsman recommended that "the Division of Aviation immediately afford public notice for all new land leases at Anchorage International [Airport]." In response to the Ombudsman's recommendations, DOT committed to make certain changes ensuring the legality, fairness, and reasonableness of its leasing practices. Specifically, DOT indicated that it would subject land leases to prior public notice so that "[a]ll [future] agreements will be granted only after prior public notice on an individual basis." Keeping to this commitment, in 1979 DOT adopted 17 AAC 40.320(c)(7), a provision requiring public notice of thirty days before the execution of a lease. It also adopted 17 AAC 40.320(c)(8)(C), the provision at issue here, which mandates a public auction in the event of two or more competing lease applications that meet the requirements of subsection (c)(8)(A). Thus, both subsection (c)(7)'s public notice requirement and subsection (c)(8)(C)'s provision for a competitive lease process appear to have been designed to address the .fairness concerns discussed in the Ombudsman's report. In light of this history — and especially in light of the Ombudsman's finding that "[t]he lack of public notice was unfair to potential competitive lessees as they had no opportunity to bid or negotiate for the lease tracts" —it seems sensible to interpret subsection (c)(8)(C) as DOT did — that is, as a provision requiring a public auction when multiple applicants timely submit competing lease applications, each individually meeting the requirements of subsection (c)(8)(A). Romann nevertheless argues that this interpretation is flawed because it implies a "nonsensical reading" of 17 AAC 40.320(c)(8) — one that effectively nullifies subsection (c)(l)'s "first come-first served" policy. He maintains that if DOT must hold an auction whenever two or more applicants compete for the same lease, the "first come-first served" regulation would never apply and would therefore be meaningless. Ro-mann thus proposes that it would be more reasonable to construe "conflicting application" under subsection (c)(8)(A) to apply to situations in which one application "truly conflicts" with another because the "first come-first served" doctrine would give preference to neither: "If, for example, DOTPF validly determines under subsection (c)(1) that 'first come-first served' should not apply in a particular situation because of law, regulation or 'the best interests of the public' ., then DOTPF can invite applications." Asserting this view, Romann contends that because his renewal application gave him priority under the "first come-first served" policy, it actually never conflicted with Remaklus's application in a way that would trigger subsection (c)(8)(C)'s auction requirement. But Romann's proposed interpretation undermines the regulation's goal of promoting fairness through advance public notice and competitive leasing. As Romann would construe the regulation, any existing tenant would have a right of renewal without competition. In turn, this would render subsection (c)(7)'s notice requirement virtually useless— the notice would rarely do more than inform the public of a leasing decision already made. Romann is also mistaken in asserting that DOT's interpretation renders the "first come-first served" policy meaningless. Under DOT's reading of subsection (c)(8)(C)'s auction provision, the "first come-first served" policy continues to play a potentially meaningful role that comports with the basic regulatory goals of notice and competitive fairness. Applying DOT's interpretation, if DOT receives multiple eligible applications during the thirty-day notice period, then subsection (c)(8)(C)'s auction requirement comes into play and overrides the "first come-first served" provision set out in subsection (c)(1). But subsection (c)(8)(C)'s auction provision would not be triggered by applications received after the notice period. Subsection (e)(8)(A) deals only with situations "when no other objections or conflicting applications are received within the notice 'period." And because DOT reads subsection (e)(8)(C)'s auction provision to be triggered by a conflict created by competition under subsection (c)(8)(A) — i.e., multiple, conforming applications submitted during the notice period— competition arising after the notice period would not require an auction. In the event of post-notice applications, then, the "first come-first served" policy would presumably operate by default to set priority among applications. From the record currently before us, we cannot determine whether, or how often, post-notice competition of this kind actually arises. But the issue is beside the point. For purposes of resolving the issue in this case, the significant point is that DOT has interpreted its own regulation in a way that is reasonable — at least as reasonable as the interpretation adopted by the superior court or the alternative suggested by Romann. Because DOT "is best able to discern its intent in promulgating the regulation at issue," we must defer to its decision by conducting review under the "reasonable basis" standard. Since we are unable to say that DOT's interpretation of 17 AAC 40.320 lacks a reasonable basis, we uphold its decision to conduct a public auction in this case. C. DOT's Administration of the Public Auction Romann also contends that DOT treated him unjustly in its administration of the auction. Alaska law provides DOT with broad discretion to conduct public auctions of airport property. W& thus review DOT's actions under the deferential "reasonable basis" standard. 1. DOT's refusal to continue Romann's lease in holdover status until the effective date ofH.B. 5⅛3 DOT granted Romann's lease holdover status while the renewal decision was pending. In early 1996 members of the Alaska legislature wrote DOT, requesting it to "hold in abeyance any bid auctions effective immediately, until the legislature [could] take final action on House Bill 543." The letter explained that the proposed law "clarifies the rights of existing tenants to extend their lease terms . [and the request was issued] so that any existing leases may benefit from the new law." DOT nevertheless publicly auctioned the leasehold on May 8, 1996 — -while H.B. 543 was still pending. Ro-mann contends that DOT abused its discretion in failing to continue his holdover status until the legislature could enact the new legislation. We find no merit in this contention. DOT had already permitted Romann holdover status for nearly two years and had already postponed the auction pending its review of airport lease policy. Moreover, DOT had granted Romann holdover status not in recognition of some special, legal right to occupy the leasehold, but merely to ensure efficient use of the property pending DOT's determination of its appropriate disposition. Finally, we note that the legislature itself recognized that its letter seeking postponement was merely a request, albeit an "urgent" one. Romann cites no legal authority that would require DOT to forestall its public auction under these circumstances. Accordingly, we conclude that DOT did not abuse its discretion in declining further postponement for legislative action. 2. DOT's refusal to 'postpone the auction until after completing its environmental assessment of the lease lot Likewise, we conclude that DOT did not abuse its discretion in refusing to postpone the auction until it completed its environmental assessment of Romann's former lease lot. We recognize that Romann's inability to precisely determine his liability for the environmental conditions of his leasehold might have affected how he bid for the new lease. But Romann himself assumed responsibility for the contamination of the leasehold when he originally entered into the lease. By statute he was strictly liable for any contamination. DOT's environmental assessment would by no means expose Romann to increased liability; it would merely determine the extent of contamination for which he was already liable. Though Romann might have preferred to know in advance what costs he could expect to pay, the agency could reasonably conclude that it had no obligation to delay the auction for his sole benefit. 3. DOT's bidding system DOT permitted bids on lease terms ranging from ten to twenty-five years, depending on the amounts bidders were willing to invest in permanent improvements, with longer lease terms requiring a greater commitment. Ultimately, however, the lease was to go to the qualified bidder offering the largest advance payment — or "bonus bid" — regardless of the lease length sought. Romann contests this bidding process, arguing that by failing to weight bids according to the length of the lease term sought, DOT violated 17 AAC 40.330(a)'s amortization requirement. Ro-mann also argues that the "bonus bid" format violated AS 02.15.090(a)'s uniform-rate requirement. a. The amortization requirement 17 AAC 40.330(a) requires that a lease term be "of such duration as to allow the lessee . to amortize and recover the cost of investment during the term of the lease...." DOT's bidding system, Ro-mann argues, violates this regulation by treating unfairly those bidders who, like himself, sought shorter lease terms. He observes, "[T]he up-front amount from a bidder seeking a ten-year term was treated the same as the up-front amount from a bidder seeking a 30-year term." But even assuming that the bidding process deliberately favored bidders seeking long-term leases, this form of favoritism would reflect a policy choice within the broad discretion that DOT enjoys under 17 AAC 40.330(a). While favoring longer-term leases might result in a lower effective rate and ultimately generate less money for DOT, longer-term leases could very well improve a lessee's chances of "amortizing] and recovering] the cost of investment" — the specific concern addressed in 17 AAC 40.330(a). b. The uniform-rate requirement Alaska Statute 02.15.090(a) grants DOT discretion to "establish the terms and conditions and fix the charges, rentals, and fees for the privileges or services that are reasonable and uniform for the same class of privilege or service." Romann argues that DOT violated the uniform-rate requirement by mandating that potential lessees pay a "bonus bid" in addition to the uniform rate. But Romann's interpretation of this statute's "reasonable and uniform" language ignores the balance of the provision, which authorizes DOT to charge fees and set rental rates by a "competitively offered contract." Under its "bonus bid" system, DOT offered the lease to the bidder making the largest bonus payment, regardless of the lease term sought. This allowed every bidder to choose a lease length on which to bid and to make a bonus offer accordingly. Moreover, DOT set the annual rental for the leasehold at six cents per square foot — the same rate as that for similarly situated property. We conclude that DOT's competitive bid procedure falls well within its authority under AS 02.15.090(a). 4. DOT's refusal to credit Romann's bid with the value of his existing leasehold improvements Romann also argues that DOT abused its discretion in refusing to credit Romann's auction bid according to the value of his permanent improvements on the leasehold. But he points to no statutory or regulatory authority to support his contention. The parties do not dispute that the existing improvements on the lease lot belonged to Romann. He had already benefitted from their use, and since they had been required under Romann's original lease agreement, these improvements had enabled him to occupy the leasehold for the duration of the original lease. Romann thus had no reasonable ground for demanding that his past improvements be credited again toward the requirements of a new lease. In contrast, DOT could reasonably have decided, as a matter of policy, to disallow credit for prior improvements in order to place all bidders on an equal footing with respect to the new lease. Accordingly DOT did not lack a reasonable basis for disallowing credit. 5. DOT's compliance luith, bidder qualification and public notice requirements Romann further argues that by failing to award the lease to either Remaklus or himself, DOT violated 17 AAC 40.340(d)(3)'s "qualified bidder" requirement. Romann maintains that he and Remaklus were the only "qualified bidders" since only they had been "qualified" through the Review Committee's established review process. But DOT had established the Review Committee to implement 17 AAC 40.320(c)(8)'s provisions governing review of lease applications. Subsection (c)(8) does not speak to qualifications to bid at a public auction, a subject addressed in 17 AAC 40.340(d)(3). The latter regulation gives DOT broad discretion to determine qualifications for bidders in each sale it conducts: The sale shall be conducted by the department and may be either by sealed bids or public outcry, or both, after the manner determined by the department in each instance to be in the public interest. The sale shall be made to the highest qualified bidder as determined by the department.[ ] Here, DOT required all bidders to register before the auction; submit a completed, signed, notarized bidder's affidavit and a bid deposit; and receive a bidder's card. In addition, the sample contract provided nonnegotiable conditions and terms for use of the lease lot that had been pre-approved by DOT. There was thus no need for an independent committee review of the lease applications. Romann's contention that this method of bidder qualification failed to provide adequate public notice of the proposed lease is likewise meritless. DOT complied with statutory notice requirements for airport lease auctions by providing the public with a summary of all relevant terms and conditions of the auctioned lease. DOT also held a pre-bid conference to allow prospective bidders a further opportunity to review both the proposed terms and conditions of the lease and the procedures governing the auction. In sum, we hold that DOT acted well within its discretion in conducting the disputed auction. IV. CONCLUSION Because we conclude that DOT reasonably construed its regulations to require a public auction in this case and conducted the public auction properly, we AFFIRM its order denying Romann's appeals. . See 17 Alaska Administrative Code (AAC) 40.320(c)(7). . See Usibelli Coal Mine, Inc. v. State, Dep't of Natural Resources, 921 P.2d 1134, 1141 (Alaska 1996). . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (citing Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975)). . 17 AAC 40.320(c)(1). . 17 AAC 40.320(c)(8)(C). . 17 AAC 40.320(c)(8)(A). . See 17 AAC 40.320(c)(8)(C). . See 17 AAC 40.320(c)(8)(A). . 17 AAC 40.320(c)(8)(C). . We may affirm the superior court's decision on any basis appearing in the record. See Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997); Far North Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 869 n. 2 (Alaska 1992). . Benner v. Wichman, 874 P.2d 949, 957 (Alaska 1994) (citation omitted). . See O'Callaghan v. State, 826 P.2d 1132, 1135 (Alaska 1992). . State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982) (quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.1973)) (internal quotations omitted). . See Second Rep. of the Ombudsman, 1976 at 96-100(1977). . See id. . See id. . Id. at 98. . See id. . Id. at 98-99. . 17 AAC 40.320(c)(7) provides: Public notice as described in 17 AAC 40.340(d)(1) must be completed before a lease is executed. The contract for a lease or privilege may be executed by the department 30 days after the first appearance of the notice. Permits for the temporary use of land or building space for 120 days or less may be granted by the department without public notice. . Second Rep. of the Ombudsman at 96. . See 17 AAC 40.320(c)(8)(D) (requiring that the department "consider all objections to or comments on a proposed lease which are received within the 30-day notice period"). . Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982) ("[W]here an agency interprets its own regulation . a deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the regulation_"). . Because we uphold DOT's decision to deny Romann's application in favor of a public auction of the lease, we need not address the parties' dispute as to whether DOT made a "best interests" determination that would have independently justified DOT's decision. Romann argues that DOT's interpretation of its regulations to require a public auction in his case is arbitrary because it contradicts DOT's prior policy of automatically renewing leases for similarly situated applicants, which it consistently applied. But the record does not support Ro-mann's claim. While Romann submitted evidence indicating that DOT has renewed aviation-related leases for numerous other leaseholders, Romann's evidence does not establish that other applicants had filed competing applications within the applicable notice periods. . See 17 AAC 40.340(d)(3). . See Paul Wholesale v. State, Dep't of Transp. & Pub. Facilities, 908 P.2d 994, 997-98 (Alaska 1995). . See AS 46.03.822. . We also reject Romann's related argument that he was entitled to a hearing before DOT terminated his lease. As the superior court observed, DOT never terminated his lease; the lease itself expired. Thus, Romann had no cognizable interest requiring a pre-auction hearing under 17 AAC 40.382. . 17 AAC 40.330(a) provides: The initial term of lease or permit may be for any period allowed by law and will be determined by the purposes for which the lease or permit is to be granted, its conformance with the master plan for the airport, the amount of investment to be made by the lessee or permit-tee, and the method and terms of financing the investment. It should be of such duration as to allow the lessee or permittee to amortize and recover the cost of investment during the term of the lease or permit. . See AS 02.15.090(a), which provides in part: In operating an airport or air navigation facility owned or controlled by the state, the department may enter into contracts, leases, and other arrangements covering periods not exceeding 55 years . granting the privilege of using or improving an airport or air navigation facility or a portion of it or space in it for commercial, governmental, or other public purposes, including private plane tie down.... The department may establish the terms and conditions and fix the charges, rentals, and fees for the privileges or services that are reasonable and uniform for the same class of privilege or service. Charges, rentals, or fees authorized by this subsection may be fixed for the international airports by order of the commissioner or by negotiated or competitively offered contract.... The terms, conditions, charges, rentals, and fees shall be established with due regard to the property and improvements used and the expense of operation to the state. . Romann also asserts that DOT, by making various alleged public policy determinations regarding Romann's right to renew his airport lease, violated the Open Meetings Act, AS 44.62.310. But because Romann fails to brief this issue at all, we need not consider it. See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). . 17 AAC 40.340(d)(3) (emphasis added). . See 17 AAC 40.340(d)(1).

6884906

Ronald A. BROOKS, individually, and on behalf of W.B.H. Corp., a domestic corporation, Appellant, v. Joann E. HORNER, individually, as officer and director of W.B.H. Corp., and as trustee and beneficiary of the George Horner Trust; the George Horner Trust; Helen H. Warner, individually and as officer and director of W.B.H. Corp.; and John Does 1-3, Appellees

Brooks v. Horner

2015-03-13

No. S-15341

294

302

344 P.3d 294

344

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:41:52.344059+00:00

CAP

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

Ronald A. BROOKS, individually, and on behalf of W.B.H. Corp., a domestic corporation, Appellant, v. Joann E. HORNER, individually, as officer and director of W.B.H. Corp., and as trustee and beneficiary of the George Horner Trust; the George Horner Trust; Helen H. Warner, individually and as officer and director of W.B.H. Corp.; and John Does 1-3, Appellees.

Ronald A. BROOKS, individually, and on behalf of W.B.H. Corp., a domestic corporation, Appellant, v. Joann E. HORNER, individually, as officer and director of W.B.H. Corp., and as trustee and beneficiary of the George Horner Trust; the George Horner Trust; Helen H. Warner, individually and as officer and director of W.B.H. Corp.; and John Does 1-3, Appellees. No. S-15341. Supreme Court of Alaska. March 13, 2015. James M. Hackett, Law Office of James M. Hackett, Fairbanks, for Appellant. James D. DeWitt and Gary A. Zipkin, Guess & Rudd, P.C., Fairbanks, for Appel-lees. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices. |

5076

31432

OPINION MAASSEN, Justice. I. INTRODUCTION This case arises from a dispute over the sale of a corporate asset during the winding up of a closely held corporation. Two of the shareholders successfully bid to purchase the asset; the other shareholder claims they failed to overcome their conflict of interest and prove that the transaction was just and reasonable as to the corporation. Following trial, the superior court found in favor of the interested shareholders, in large part because the disinterested shareholder had voted to approve the transaction with full knowl edge of the material facts. The disinterested shareholder appeals. We affirm, concluding that the superior court did not clearly err in its findings of fact or err in its application of Alaska law and the corporation's bylaws. II. FACTS AND PROCEEDINGS Ronald Brooks was a director and one-third shareholder of W.B.H. Corp., a closely held Alaska corporation formed in 1991. The other two shareholder-directors were Joann Horner and Helen Warner. At the times relevant to this lawsuit, the corporation's sole asset was a group of contiguous mining claims north of Fairbanks called Bittner Lode. Despite the parties' agreement to share costs equally, Horner and Warner for a number of years paid Brooks's share of the annual payments necessary to maintain the mineral leases. By 2009 W.B.H. had no revenue, cash reserves of only $485, and accounts payable in exeess of $85,000. At the annual shareholders' meeting in December 2009, the three shareholders agreed that their best course was to dissolve the corporation and liquidate its sole asset. They discussed the corporation's debts and the anticipated costs of winding up, and they agreed that they would accept a minimum bid price of $100,000 for Bittner Lode. Hor-ner and Warner proposed to set the bid deadline for March 31, 2010, but Brooks pushed for a June date instead, arguing that bidders would need time in good weather conditions to inspect the claims. Horner responded that a later sale would mean another year of upkeep costs for the cash-strapped corporation, and Brooks's motion failed to get a second. Brooks then voted with Hor-ner and Warner to dissolve the corporation and appoint Horner "to supervise and direct the winding up process," on the condition, unanimously accepted, that Horner have discretion to extend the bid opening by 45 days. Brooks told Warner he was too busy to be involved in the dissolution. After the meeting Horner and Warner approached Donald Keill, a mining engineer, about undertaking an advertising campaign to market Bittner Lode. On Keill's advice Horner decided to use the corporation's remaining cash reserves to develop a sales brochure and a compact dise containing the most recent geological data on the area around Bittner Lode. Rather than advertise in mining periodicals, which they thought would be too costly for the likely return in exposure, Horner and Warner attended a series of mining conventions between January and March 2010, where they distributed copies of their brochure. Meanwhile, John Burns, the corporation's attorney, drafted a confidentiality agreement and criteria for the submission of bids; these included a requirement that bidders show proof of financial pre-qualification by March 20, 2010, and a disclaimer of corporate liability for inaccuracies in the data on the compact disc. In February 2010 Horner and Warner reviewed and approved these terms and conditions. By early March the marketing campaign had drawn interest from only one prospective bidder, Johannes Halbertsma, who ultimately decided not to bid. In late March Horner and Warner, fearing there would be no bids and anxious to complete the winding up process before enduring another year of upkeep costs, decided to submit their own bid. Their bid was $105,000 made in the name of the George Horner Trust/Helen Warner Joint Venture (JV), a joint venture they had created in the mid-1980s. Horner testified that she and Warner reached the $105,000 figure on the belief that it would satisfy all the corporation's liabilities, and they submitted a financial pre-qualification letter after the March 20 deadline but before the bid opening. Horner called a meeting on April 2 at Burns's office for the bid opening. All three directors attended. Warner briefly described the efforts to market Bittner Lode; Horner then turned the meeting over to Burns, who opened the box where sealed bids were kept and revealed that there was only one bid, the JV's. Brooks moved that the bid be accepted. He raised no objection to the sale, despite Burns's caveat that it represented an apparent conflict of interest, and the directors voted unanimously to approve it. Horner and Warner presented a cashier's check for the full bid price immediately after the meeting, and within three days Warner prepared and signed draft minutes of the meeting. Two months later, Brooks sent a letter to Horner and Warner in which he formally objected to the sale of Bittner Lode and demanded that they call a corporate meeting to reopen bidding; they did not do so. He brought suit individually and on behalf of W.B.H. to void the sale and re-convey Bitt-ner Lode to the corporation. Brooks alleged that Horner and Warner breached their fidu-ciliary duty to W.B.H. in the marketing and sale of the mining claims, concealed and misrepresented facts material to the sale, and usurped a corporate opportunity. Following a six-day bench trial, the superi- or court made extensive factual findings. It concluded that the sale of Bittner Lode was a conflict of interest but that Horner and Warner overcame it. It also found that Horner and Warner neither misrepresented the sale process nor breached their fiduciary duty to the corporation; the evidence failed to support Brooks's claims that they undervalued Bittner Lode, withheld information from him, or marketed the claims in a manner that would discourage bidding. | Brooks appeals. He argues that the sale is void under both AS 10.06.450(b) and AS 10.06.478(a) because (1) Horner and Warner did not disclose all the facts material to the sale; (2) Brooks lacked authority and adequate notice when he voted to approve it; and (8) the transaction, overall, was not just and reasonable. III. STANDARDS OF REVIEW "We apply our independent judgment to any questions of law, adopting the rule of law that is most persuasive in light of precedent, reason, and policy. Questions of interpretation of the meaning of written documents are questions of law unless there is conflicting evidence as to the parties' intent. "We employ the clearly erroneous standard to review a lower court's factual findings."5 We reverse factual findings "only if we are left with a definite and firm conviction that a mistake has been made after considering the record as a whole." IV. DISCUSSION Horner and Warner were shareholders and directors when they bid on the corporation's single asset, Bittner Lode, and because of their fiduciary duty to the corporation and the other shareholder-director, they had the burden of proving that the transaction was fair. For ordinary transactions, directors have the protection of the business judgment rule as long as they meet the standard of care set out in AS 10.06.450(b)-"the care . that an ordinarily prudent person in, a like position would use under similar But as Brooks correctly points out, the law requires a higher standard when a transaction involves director self-interest. This higher standard is codified in AS 10.06.478(a), which requires a court to find that (1) "the material facts as to the transaction and as to the director's interest are fully disclosed or known to" the other directors; (2) the board nonetheless approves the transaction "in good faith," not counting the votes of the interested directors; and (8) "the person asserting the validity of the contract or transaction sustains the burden of proving that the contract or transaction was just and reasonable as to the corporation at the time it was authorized, approved, or ratified." We agree with the superior court's conclusion that this standard was met in this case. A. The Superior Court Did Not Clearly Err In Finding That Brooks Had Knowledge Of All Facts Material To The Sale. The superior court found that Brooks "had knowledge of the material facts of the transaction before he moved to approve it and voted yes on his motion." The court found specifically that Brooks "was made aware of the bidding requirements" and the minimum bid price, which he in fact had voted to approve in December 2009; knew of the corporation's marketing efforts; "was aware of the general market climate"; and was "charged with knowledge that as the only disinterested director, the law vested him with sole authority to approve or disapprove the sale of the lode by casting his vote." Brooks argues on appeal that one other material fact was concealed from him: that the JV had not met the deadline for proving its financial pre-qualification. The bid submission criteria required that "[alll bidders must be prequalified by submitting verification of financial ability not later than March 20, 2010," but the JV submitted its pre-qualification letter on March 25, five days late. + Although Brooks addressed this issue in the superior court through his cross-examination of Burns, the corporation's attorney, he does not appear to have argued that it represented an omission of material fact. The superior court understandably did not include the JV's failure to meet the financial pre-qualification deadline among the allegations it analyzed. But even considering the issue, we see no error in the superior court's conclusion that Brooks "had knowledge of the material facts" before voting to approve the transaction. Burns testified that he selected March 20 as the deadline for financial pre-qualification arbitrarily, counting back from the bid deadline of March 31; that on March 25 he received the JV's financial pre-qualification letter from a bank confirming that it had funds available in the amount of its potential bid; and that as corporate counsel he independently confirmed that the letter satisfied the bid criteria and should be accepted. It is undisputed that the corporation had the letter in hand at the time the JV filed its bid (on the March 31 deadline) and before the bid opening, in time to satisfy the deadline's apparent purpose of assuring the directors that any bid under consideration was financially supported. The JV in fact was financially qualified to make the bid, as was conclusively demonstrated by its immediate payment by cashier's check following the bid opening. And Brooks was plainly not relying on the pre-qualification deadline; it is his position on appeal, in fact, that he did not know the deadline existed until after the sale process was over, and that in his view it was unrealistically early. Brooks does not explicitly argue that he would have voted against the sale of Bittner Lode had he only known that the JV was late in filing its financial pre-qualification letter. He argues, however, that Burns's assurance to the directors that the JV met the bid criteria was nonetheless a material misrepresentation; that because of it Brooks was unaware of all the "material facts as to the transaction"; that his vote in favor of the transaction was not a fully informed one; and that Horner and Warner therefore failed to carry their burden of satisfying the first element of the test of AS 10.06.478(a). But the missed deadline was material only if a reasonable director would have considered it important in deciding how to vote. It is undisputed that the JV filed its financial pre-qualification letter before its bid, before the bid deadline, in time for Burns to verify it, and in time for the information to be useful to the board. It is undisputed that the JV was, in fact, financially qualified. And it is undisputed that the JV's bid exceeded the minimum bid and was, ultimately, the only bid the board could consider. Brooks has no convincing explanation as to why, under these cireumstances, a reasonable director would have found it important that the JV had filed its financial pre-qualification letter five days after the deadline. We therefore reject his contention that, as of the time he voted, he did not know "the material facts as to the transaction and as to the [other directors'] interest," as required by AS 10.06.478(a). B. The Superior Court Did Not Clearly Err In Finding That The Board Approved The Sale In Good Faith By A Sufficient Vote. Brooks does not dispute that he made the motion to accept the JV's bid at the April 2010 meeting and that he then, along with Horner and Warner, voted in favor of his motion. For purposes of determining the transaction's validity, his is the only vote that counted. He argues, however, that his vote was void because notice of the meeting was defective and because he lacked the authority to take actions in pursuance of the corporation's dissolution. We reject both these arguments. 1. Brooks waived notice by attending the directors' meeting. Alaska Statute 10.06.470(b) provides that a "special meeting of the board . shall be held as provided in the bylaws or, in the absence of a bylaw provision, after either notice in writing sent 10 days before the meeting or notice by electronic means, personal messenger, or comparable person-to-person communication given at least 72 hours before the meeting." The W.B.H. bylaws provide that "[alttendance of a director at a meeting shall constitute waiver of notice of that meeting unless he attends for the express purpose of objecting to the transaction of business because the meeting has not been lawfully called or convened." Brooks contends that this provision is void because it conflicts with the notice requirement of AS 10.06.470(b). The statute, however, expressly allows corporations to adopt different procedures in their bylaws; besides, the bylaws' waiver provision closely follows a waiver provision in a later section of the statute. Alaska Statute 10.06.470(c) provides that "[njotice of a meeting need not be given to a director . who attends the meeting without protesting before the meeting or at its commencement the lack of notice." Brooks argues in the alternative that because the first sentence of the relevant W.B.H. bylaw allows directors to waive notice of special board meetings in writing, the second sentence-addressing waiver by attendance-must apply only to the regular annual meeting, not to a special meeting like the one called in April to review bids. But under the bylaws, regular annual meetings do not require notice at all. The waiver provision can logically apply only to other meetings for which notice is ordinarily required. And allowing a director to waive notice of special meetings by attendance reflects the reality that such meetings-unlike the regular annual meeting-may need to be called on shortened time to address corporate issues as they arise. In short, the W.B.H. bylaws allow waiver by attendance, the relevant statutes do not require something else, and the superior court did not clearly err when it found that Brooks waived notice of the April meeting by attending it without protest. 2. Brooks had authority to vote to approve the sale. Brooks also argues that he lacked authority to approve the sale at the April 2010 meeting because it was a directors' meeting, and the board of directors lacks authority to "dissolve [the corporation] on its own initiative." The superior court agreed that the April 2010 meeting was a directors' meeting, noting that Warner prepared and signed draft minutes of the meeting and labeled them as minutes of a special directors' meeting, and that opening and accepting bids-the stated purpose of the meeting-was part of the directors' oversight of the dissolution process. But it was at the December 2009 shareholders' meeting that Brooks, Horner, and Warner had voted unanimously to dissolve the corporation and liquidate Bittner Lode. Alaska Statute 10.06.615(b) provides that "[i}f a voluntary proceeding for winding up has commenced, the board shall continue to act as a board and has powers . to wind up and settle its affairs." Consistent with these facts in this legal framework, the superior court concluded that the board of directors was acting within its power "to wind up and settle its affairs" when Brooks, as a disinterested director, voted to approve the JV's bid at the April 2010 meeting. We see no error in the superior court's decision of this issue. C. The Superior Court Did Not Clearly Err In Deciding That The Sale Was Just And Reasonable. Finally, Brooks challenges the superi- or court's conclusion that Horner and Warner met their burden of proving the final element of the test under AS 10.06.478(a)(2): that "the transaction was just and reasonable as to the corporation at the time it was authorized." Brooks contends that Horner and Warner made unreasonable or bad faith decisions in their marketing campaign and that the superior court erred when it reviewed the reasonableness of the minimum bid price under the common law business Judgment rule rather than the "entire fairness test" applicable to situations where a director's loyalty is in question. We are unpersuaded by these arguments. We have never had occasion to explain what makes a self-interested transaction "just and reasonable" in a context like this one. Most courts model their standard in such cases after Delaware's, which requires "the [self-interested] directors to prove that the bargain [was] at least as favorable to the corporation as they would have required if the deal had been made with strangers." This exacting standard has come to be known as the "entire fairness" test, and it "requires judicial serutiny regarding both fair dealing and fair price. Assuming without deciding that "just and reasonable" for purposes of AS 10.06.478(a)(2) requires the same level of proof as the "entire fairness" test, as Brooks contends it does, we see no error in the superior court's conclusion that the transaction at issue here satisfied the statutory standard. First, with regard to the JV's bid price of $105,000, the superior court pointed out that it is in excess of the minimum bid unanimously approved by the shareholders, including Brooks, in their December 2009 meeting, and that if the same bid had come from an otherwise-qualified third party instead of interested directors, the corporation "would have been legally obligated to sell for that price." Since the bid price is no less favorable to the corporation than would have been required "if the deal had been made with strangers, the price was necessarily fair. Nor do we fault the superior court for reviewing the shareholders' approval of a minimum bid price under the business judgment rule, by which "courts are reluctant to substitute their judgment for that of the board of directors unless the board's decisions are unreasonable. Although the law does apply a different standard to director decisions involving a conflict of interest, the parties here decided on the minimum bid price at their December shareholders' meeting, well before Horner and Warner created the conflict by deciding to submit a self-interested bid. To support his argument that the minimum bid price was unreasonable, Brooks points to trial testimony by the defendants' expert in evaluating mining claims, who concluded that "[the price of $100,000 would be considered a really good buy." But it was undisputed that the corporation lacked the resources in 2010 for a reliable valuation of the claim and needed to sell the asset soon in order to wind up the corporation and pay off its debts. Under these cireumstances, and in the absence of any evidence of an earlier conflict of interest, the superior court properly deferred to the judgment of the parties when together they decided, "as shareholders and directors," that $100,000 was the minimum bid their corporation would accept. Brooks also challenges as unfair and unreasonable a number of steps in the marketing and bid process. He argues that Horner and Warner failed to market the property as agreed, preparing a "flawed sales brochure" instead of advertising in mining magazines. But as the superior court found, Brooks had agreed to delegate winding-up activities to Horner, informing Warner that he was too busy to be involved in them himself. It was undisputed that the corporation lacked the resources to do much more than it did. And more importantly, Brooks was fully aware of the marketing strategy pursued-and the limits of the market-when he voted to approve the sale of Bittner Lode to the JV. Brooks also contends that the financial pre-qualification requirement, the corporation's disclaimer of liability for inaccuracies in the geological data, and the March 31, 2010 bid deadline were unreasonable because they discouraged potential bidders. Burns testified that the pre-qualification requirement and the disclaimer were intended to avert "phantom numbers that never would materialize" and the expenses that accompany buyer's remorse, thus limiting the field to serious bidders. While it is true that potential bidders might have wanted more time to inspect Bittner Lode, a later sale could have meant another year of upkeep costs which W.B.H. was in no condition to bear. And nothing in the testimony of Halbertsma, the single prospective bidder, suggested that any of the disputed bid conditions dissuaded him from submitting a bid, and there was no other evidence that the disputed conditions discouraged potential bidders. Having care- ' fully weighed the marketing efforts and bid conditions against the corporation's need to liquidate its sole asset at minimal cost, the superior court did not clearly err in finding that the transaction was just and reasonable. Vv. CONCLUSION We AFFIRM the judgment of the superior court. . Under AS 38.05.210-212, W.B.H. was required to perform labor, pay rent, and pay royalties on all minerals mined from land subject to its claims. . Brooks denied saying this, but the superior court believed Warner's testimony that he did. We defer to the superior court's credibility finding. See Riggs v. Coonradt, 335 P.3d 1103, 1107 (Alaska 2014) (noting that "the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence" (internal quotation marks and citations omitted)). . Holmes v. Wolf, 243 P.3d 584, 588 (Alaska 2010) (quoting McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011-12 (Alaska 2002)). . Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp., 33 P.3d 1156, 1161 (Alaska 2001). . Harris v. AHTNA, Inc., 193 P.3d 300, 305 (Alaska 2008). . Id. . See Alaska Plastics, Inc. v. Coppock, 621 P.2d 270, 276 (Alaska 1980) ("The existence of a fidu-clary duty between shareholders would justify careful scrutiny and shifting the burden onto the defendants to show that the transaction was fair." (citing 13 W. Wiuiston on Contracts § 1626A at 806-08 (3d ed.1970))). . AS 10.06.450(b) requires a director to "perform the duties of a director . in good faith, in a manner the director reasonably believes to be in the best interests of the corporation, and with the care, including reasonable inquiry, that an ordinarily prudent person in a like position would use under similar circumstances." See also Henrichs v. Chugach Alaska Corp., 250 P.3d 531, 537 (Alaska 2011) ('The essence of [the business judgment] doctrine is that courts are reluctant to substitute their judgment for that of the board of directors unless the board's decisions are unreasonable." (quoting Alaska Plastics, 621 P.2d at 278)). . See, eg., Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255, 265 (2d Cir.1984) (holding that "the business judgment rule governs only where the directors are not shown to have a self-interest in the transaction at issue," and that self-dealing . is demonstrated, the duty of loyalty supersedes the duty of care, and the burden shifts to the directors to prove that the transaction was fair and reasonable to .the corporation" (internal quotation marks and citation omitted)). . AS 10.06.478(a)(2). . As a preliminary matter, we reject Brooks's apparent contention that the superior court clearly erred in deciding that the April meeting was a directors' meeting rather than a shareholders' meeting (though Brooks contends that the meeting was not valid however characterized). AS 10.06.478(a)(1) and (2) apply somewhat different standards for determining the propriety of self-interested transactions depending on whether it is shareholders or directors who approve them. Though there was evidence to the contrary, the superior court's decision that the April meeting was a directors' meeting was supported by Warner's contemporaneous characterization of it as such in the draft minutes and by the nature of the business conducted, which fell within the scope of the directors' dissolution activities. We see no clear error in this finding. . Horner and Warner do not argue on appeal that Brooks has waived this point. Because it is fully briefed without objection, we exercise our discretion to address it. See In re B.L.J., 717 P.2d 376, 381 n. 5 (Alaska 1986) (considering issue not listed in points on appeal where "the issue has been briefed and the appellee and court are sufficiently informed of the matters in issue"). . See Brown v. Ward, 593 P.2d 247, 250 & n. 6 (Alaska 1979) ("Federal authorities have established that a misrepresentation is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.... Common law concepts of materiality are not in essence different." (citing TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); Re. sTaTEMENT (SEconp) or Torts § 538(2) (1977))). . Emphasis added. . Brooks does not argue that Horner and Warner should have abstained from voting. We have held that "it is unworkable to require participants in closely-held businesses to disqualify their votes on matters involving self-interest." Stevens ex rel. Park View Corp. v. Richardson, 755 P.2d 389, 394 (Alaska 1988). "Decisions made in a small corporation often have a direct and immediate financial impact on many or all of the participants. Yet, it seems to us that that is not a sufficient ground for disqualifying their votes." Id. (footnote omitted). . AS 10.06.478(a)(2) requires approval of the transaction at issue "by a sufficient vote without counting the vote of the interested director or directors." . The provision provides, in full: , Section 5. Waiver of Notice. A director may waive in writing notice of a special meeting of the board either before or after the meeting; and his waiver shall be deemed the equivalent of giving notice. Attendance of a director at a meeting shall constitute waiver of notice of that meeting unless he attends for the express purpose of objecting to the transaction of business because the meeting has not been lawfully called or convened. - . AS 10.06.605(b) lists only three exceptions in which the board of directors, rather than the shareholders, has authority to wind up and dis- * solve a corporation: "if the corporation has (1) been adjudicated bankrupt; (2) disposed of all of its assets and has not conducted any business for a period of five years immediately preceding the adoption of the resolution to dissolve the corporation; or (3) issued no shares." This case falls under none of these exceptions. . . AS 10.06.605(a) ("A corporation may elect voluntarily to wind up and dissolve by . the vote of shareholders taken at a special or annual meeting."). . See AS 10.06.615(a) ("Voluntary proceedings for winding up the corporation commence upon the resolution of shareholders or directors of the corporation electing to wind up and dissolve, or upon the filing with the corporation of a written consent of the shareholders."). . See, eg., Nixon v. Blackwell, 626 A.2d 1366, 1375-76 (Del.1993) (distinguishing the "entire fairness test" when a director's loyalty is in question from the business judgment rule, which protects decisions made under a director's duty of care). . Gottlieb v. Heyden Chem. Corp., 90 A.2d 660, 663 (Del.1952); see, eg., Kim v. Grover C. Coors Trust, 179 P.3d 86, 91 (Colo.App.2007); Feldheim v. Sims, 344 Ill.App.3d 135, 279 Ill.Dec. 342, 800 N.E.2d 410, 421-22 (2003); Cookies Food Prods., Inc. v. Lakes Warehouse Distributing, Inc., 430 N.W.2d 447, 454 (Iowa 1988); Becker v. Knoll, 291 Kan. 204, 239 P.3d 830, 835 (2010); Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 677 N.E.2d 159, 180-81 (1997); Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 483 N.Y.S.2d 667, 473 N.E.2d 19, 26-27 (1984) Rock v. Rangos, 61 A.3d 239, 255 (2013); Willard ex rel. Moneta Bldg. Supply, Inc. v. Moneta Bldg. Supply, Inc., 258 Va. 140, 515 S.E.2d 277, 287 (1999). . See, e.g., Kahn v. Tremont Corp., 694 A.2d 422, 428 (Del.1997) ("Regardless of where the burden lies, when a controlling shareholder stands on both sides of the transaction the conduct of the parties will be viewed under the more exacting standard of entire fairness...."); Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 77 P.3d 130, 149 (2003) (''The entire faimess standard is exacting and requires judicial scrutiny regarding both fair dealing and fair price." (internal quotation marks and citation omitted)). . Brooks mistakenly contends that the superior court applied the business judgment rule to "the overall transaction" rather than a heightened standard implicated by Horner's and Warner's conflict of interest. The superior court applied the business judgment rule only to the shareholders' decision of the minimum bid price, addressed below. It properly analyzed the "overall transaction" in the context of the applicable conflict-of-interest statute, AS 10.06.478(a). . Gottlieb, 90 A.2d at 663. . Henrichs v. Chugach Alaska Corp., 250 P.3d 531, 537 (Alaska 2011) (quoting Alaska Plastics, Inc. v. Coppock, 621 P.2d 270, 278 (Alaska 1980); see also Betz v. Chena Hot Springs Grp., 657 P.2d 831, 835 (Alaska 1982) (noting that "[albsent bad faith, breach of a fiduciary duty, or acts contrary to public policy, we will not interfere with . management decisions"). . The superior court found credible Warner's testimony that she and Horner decided on March 30 that they would submit their bid. . Brooks's own expert, on the other hand, testified that no reasonable bidder would offer $100,000 for Bittner Lode without significantly more time for due diligence than the corporation was willing to provide.

9131655

Edward M. CORBIN, Appellant, v. Winona L. CORBIN, Appellee

Corbin v. Corbin

2003-05-02

No. S-10281

1269

1274

68 P.3d 1269

68

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:04:35.292887+00:00

CAP

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

Edward M. CORBIN, Appellant, v. Winona L. CORBIN, Appellee.

Edward M. CORBIN, Appellant, v. Winona L. CORBIN, Appellee. No. S-10281. Supreme Court of Alaska. May 2, 2003. Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellant. Winona L. Corbin, pro se, Vancouver, Washington. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2793

16666

OPINION MATTHEWS, Justice. The issues raised in this case all pertain to the calculation of child support. The parties have three children: Justin, born in March 1984; Jarrod, born in May 1988; and Jame-son ("Jamie"), born in September 1993. This action was brought in July 1999 and the parties separated in January 2000. The parties reached a child custody agreement on November 6, 2000, and it was incorporated by reference in the decree of divorce that was entered on March 1, 2001. The decree, however, did not resolve child support issues. Instead, the findings accompanying the decree provided that "child support shall be pursuant to Civil Rule 90.8 under the divided custody formula. The parties are to exchange updated Child Support Guidelines Affidavits within ten days of the date of this court order." After the parties made a number of submittals, the court entered an order governing the payment of child support on May 29, 2001. The court used the parties' year 2000 incomes for child support purposes. Edward's adjusted annual income for 2000, and his projected income for 2001, was $39,708.54. Winona's adjusted annual income was $22,007 for 2000 and $21,787 for 2001. The court also recognized that the parents had an obligation to pay support to third parties during periods third parties had cared for the children. Facts particular to specific points on appeal are stated below. Child Support-January-May 2000 The most factually complicated issue concerns the award of child support for five months in the year 2000. The superior court ordered Edward to pay Winona monthly support for January and February of $846.35. For March through May Winona was ordered to pay Edward monthly support of $86.82. For the reasons that follow we conclude that Edward owes Winona $121.70 for January and February, and Winona owes Edward $80.03 for March and April, and $403.46 for May. When the parties separated in January 2000 the two older boys, Justin and Jarrod, were living with their maternal grandparents in Washington. From January through April physical custody of Jamie was split equally between the parties. In early May Winona moved to Washington and Jamie stayed with Edward in Alaska. From March through May Justin stayed with Edward. A. January and February For January and February the court ruled: [The parties have a duty to support all three minor children, not just Jamie. Neither parent had custody of Justin or Jarrod during this time period. A parent is obligated to provide support for his or her children. If neither party had custody of Justin or [Jarrod], they may owe support to a third party who provided support to the children. Because neither party had physical custody of Justin and Jarrod, this court will calculate support for this period based on a 50/50 shared custody agreement for all three children. Edward's support obligation for all three children is $365.10 less $18.75 health credit, for a total support obligation of $346.35. [Footnotes omitted.] Edward argues that basing support on a 50/50 shared custody arrangement for all three boys is in contravention of Civil Rule 90.3(i)(2) which provides: If, in addition to a support obligation to a third party, one or both parents retain primary or shared physical custody of at least one of their children, the support obligation between the parents is calculated pursuant to the other paragraphs of this rule, without consideration of the third party custodian or any children in the custody of the third party custodian, except that the percentage in 90.8(a)(2) must be adjusted pro rata for the number of children in the primary custody of a parent, or shared custody of the parents, compared to the total number of children. After that calculation is completed, any support owed may be offset with support owed to a third party custodian under the preceding sub-paragraph in order to minimize transactions. The Commentary to Rule 90.8 Section XLB reiterates the above language and gives guidance as to how to calculate support as between the parents in cases where a child is in the custody of a third party. The superior court's assumptions and thus its calculations are not consistent with Rule 90.3(i)(2). The rule directs the court to caleulate the support obligation "without consideration of the third party custodian or any children in the custody of the third party custodian." Here the court calculated support based on shared custody of all three children. Instead, the court should have used the shared custody method set out in Rule 90.3(b) for one child as modified by Rule 90.3(0)(2). The adjusted pro rata percentage called for in Rule 90.8(i)(2) would be 11%, 33% for three children under (a)(2)(C) multiplied by one representing the child in shared custody divided by three representing the total number of children. The result is that for these two months Edward owes Wi-nona $121.70 per month for the support of Jamie, minus the health insurance deduction of $18.75 per Rule 90.3(d)(1). The maternal grandparents are entitled to support for the older boys for these months from both Edward and Winona. B. March, April, and May The trial court calculated child support for the months of March, April and May "as if the parents had shared custody of both Jarrod and Jameson and Edward [had] primary custody of Justin." Edward argues that court's calculation was erroneous for each of the following three reasons: 1. For all three months Jarrod was in the custody of his grandparents and thus should not have been involved in the calculation of support owed between the parents. 2. With regard to March and April, rather than considering Justin and Jamie separately, the former under primary custody guidelines (Rule 90.3(2)), the latter under shared custody guidelines (Rule 90.3(b)), the court should have considered them as one unit and averaged the amount of time they spent with each parent to determine which custody guideline to use. Because Justin was with Edward 100% of the time and Jamie was with Edward 50% of the time, this would result in Edward having both children 75% of the time and would, so Edward argues, require the use of Rule 90.3(a). 3. With regard to May, Jamie was in the primary physical custody of Edward, and the court erred in using the shared physical custody formula. Edward's first point is correct for the reasons described above. The grandparents are entitled to support for Jarrod from each parent. Edward's second point is not correct. The trial court correctly decided that Jamie and Justin presented a hybrid custody situation-Jamie in shared custody and Justin in sole custody-that should be governed by the formula we used in Turinsky v. Long. Under that formula, primary and shared custody support amounts are offset using percentages that are prorated for the total number of children. Winona's primary support obligation for Justin would be $201.78 per month ($22,007 x .38 x 1/8 x 1/12) while Edward's support obligation for Jamie as calculated above is $121.70. Offsetting these figures, Winona owes Edward monthly support of $80.08 for March and April. Edward's third point is clearly correct, Jamie was in the sole physical custody of Edward for May. For May, Edward was the primary custodian of Justin and Jamie. Winona owes him $403.46 for this month (22,007 x .38 x 2/3 x 1/12). Child Support in 2001 and Prospectively Initially in 2001 child custody arrangements were to be governed by a child custody agreement that the parties entered into in November 2000. Under this agreement Edward had primary physical custody of Justin and Jamie and Winona had primary physical custody of Jarrod. But Justin did not live with Edward during 2001; instead, he resided with third parties. The decree of divorce entered on March 1, 2001, incorporated the child custody agreement without mentioning that Justin was no longer residing with Edward. Though the order determining child support of May 2001 recognized that Justin was residing with third parties, it nevertheless calculated child support as if he was residing half the time with each parent. For 2001 and prospectively Edward was ordered to pay Winona $5386.25 per month for child support. For the reasons that follow we conclude that under Civil Rule 90.3 he should have been ordered to pay a monthly sum of $164.28. Edward makes three challenges to the 2001 child support. 1. He contends that the trial court should have used his projected 2001 income rather than his actual 2000 income. 2. He contends that the court erred in using the divided custody formula set out in Civil Rule 90.3(b)(6) prior to April 15, 2001, which was the effective date of that subsection. 3. He contends that the court erred in calculating support for Justin as if custody for Justin was a 50/50 shared arrangement. Edward's first argument lacks merit. Determination of adjusted annual income for child support purposes is a question of fact reviewed under a clearly erroneous standard. On numerous occasions we have upheld determinations based on past income in preference to more speculative evidence. The trial court did not err in this case in adopting this approach. Edward's second point is likewise without merit. Even though the divided custody rule reflected in Civil Rule 90.3(b)(6) had an effective date of April 15, 2001, the formula on which the rule is based was earlier approved in Bunn v. House. It was not error to use the Bunn v. House formula prior to the effective date of its codification. Edward's third point has two parts. First he argues that because under the November 2000 agreement he was the primary physical custodian of Justin, Winona should have been paying him child support for Justin even though Justin was not actually living with him in 2001. We reject this argument under the authority of Bennett v. Bennett. Edward in this case is positioned like the father in Bennett who had de jure but not de facto custody of the parties' child. Here, as in Bennett, there was no pre-existing child support award. We held in Bennett that the father under these cireumstances was not entitled to child support from the mother, stating: "Awarding child support to a parent who has relinquished de facto custody and no longer provides any financial support to the child does not further the purposes of the child support rule." The second aspect of Edward's third point is that the trial court ignored Civil Rule 90.3(N)(2) when it calculated child support as if Justin was in a shared custody status. This is well taken. The court should have calculated child support considering Justin to be in third-party custody under Civil Rule 90.3(N0)(2). As we have already noted, this subsection directs the court to calculate the support obligation between the parents without considering the children in the custody of third parties, adjusting applicable percentages "pro rata for the number of children in the primary custody of a parent . compared to the total number of children ." Following Civil Rule 90.38(i)(2) and adopting the divided custody formula of Bunn v. House used by the trial court and now reflected in Civil Rule 90.8(b)(6) yields monthly support of $164.28 that Edward owes Wi-nona. Other Points on Appeal Edward makes an argument relating to the penultimate paragraph of the May 29, 2001 child support order, which states: "Third parties supporting the minor children during any of the above periods have a cause of action in debt against the obligor parent for the care of the minor child." Edward takes issue with the word "obligor," contending that both parties should have a support obligation to the third-party custodians. Implicit in this argument is that in Civil Rule 90.3 "obligor" refers to the parent who must pay the other parent child support. If this was the sense in which the court intended "obligor" to be understood in the paragraph under review this would be error. Under Rule 90.3(i) both parents have a duty to pay support to third-party custodians. Edward's final argument is that the trial court should have granted an evidentia-ry hearing on the question of child support. Under the cireumstances of this case this argument lacks merit because neither Edward nor Winona requested an evidentiary hearing. Both parties were represented by counsel and nothing indicates that they were misled in any respect concerning how the court would proceed. Therefore Edward waived his right to an evidentiary hearing on disputed material questions of fact by his failure to request one before the court ruled. Conclusion For the above reasons the order setting child support is REVERSED IN PART and this case is REMANDED for entry of an order consistent with this opinion. . Commentary to Civil Rule 90.3, Section XLB provides: There will be instances when a third party is entitled to support for some of the parent's children, but one or both parents retain primary or shared custody of their remaining children. In this case, child support between the parents should be calculated using Rule 90.3 based on the pro rata support percentages for the children not in third party custody. After that calculation, any support owed may be offset with amounts owed under 90.3(i)(1) to minimize transactions. For example, a father might have custody of two children and the mother's sister might have custody of, and be entitled to support for, the parents' third child. Both parents in this example have a $45,000 adjusted annual income. Under Rule 90.3(i)(1), the sister is entitled to $4,950 per year from the father [$45,-000 (annual income) x 33% (percentage for three children) x 1/3 (custodian has one of three children)]. The sister also is entitled to the same amount from the mother. (The parents' incomes are the same and the mother supports the children living with the father.) The pro rata percentage for each child under 90.3(a)(2) would be 33% (three children) / 3 or 11% per child. Under 90.3(i)(2), the mother owes the father $9,900 per year in support ($45,000 x 22%). If the support amounts are offset, the mother will owe her sister $9,900 per year and the father $4,950 per year. The court could decide, however, that it was preferable not to offset the support amounts because one of the parents might not pay the third party. . The proper method of calculating child support 2. is reviewed de novo. See Charlesworth v. State, Child Support Enforcement Div., 779 P.2d 792, 793 (Alaska 1989). . Alaska R. Civ. P. 90.3(N(2) (emphasis added). . The calculations are: For Edward = 39,708.54 x .33 x 1/3 x 1/12 x .50 = 182.00 For Winona = 22,007 x .33 x 1/3 x 1/12 x .50 = 100.87 Subtracting 100.87 from 182.00 = $1.13 Applying the multiplier of 1.5 x 81.13 = $121.70 . 910 P.2d 590, 596-97, & n. 13 (Alaska 1996). . Id. . Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997). . See, eg., Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999) (holding court need not credit speculative evidence provided by employer as to future income); Coghill v. Coghill, 836 P.2d 921, 925-26 (Alaska 1992) (favoring twelve-month period of prior year over first quarter figures from present year); Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991) (upholding a determination of income based on average of past income where parent worked in industry where employment and income were erratic). . Of course, appellant may petition for modification if his income does in fact decrease sometime in the future. Virgin, 990 P.2d at 1049. . Alaska R. Civ. P. 90.3(b)(6); Commentary to Civil Rule 90.3, Section V.D. . 934 P.2d 753, 755-58 (Alaska 1997). See also Commentary to Civil Rule 90.3, Section V.D. . 6 P.3d 724, 727-28 (Alaska 2000). . Id. at 725-26. . Id. at 728 n. 19. . Id. at 727-28. . Alaska R. Civ. P. 90.30)(2). . Determined by calculating Edward's pro rata support obligation for one child ($39,708.54 x .33 x 1/3 x 1/12) = $363.99; Winona's pro rata obligation for one child ($21,787 x .33 x 1/3 x 1/12) = $199.71; and subtracting the smaller from the larger figure ($363.99-$199.71 = $164.28), resulting in $164.28 that Edward must pay Winona. . See Alaska R. Civ. P. 90.3(a)(3) and (b)(3). . See Commentary to Civil Rule 90.3 XLB (second paragraph). . See, e.g., John's Heating Serv. v. Lamb, 46 P.3d 1024, 1036 (Alaska 2002) (failure to request evi-dentiary hearing waives right to one).

6991605

Wenona DIAZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Jennifer Christensen; James Bowers; McHenry Detective Agency; William Parlier; Probation Officer Brown; Probation Officer III McCarron; and Probation Officer L. Williamson, Appellees

Diaz v. State, Department of Corrections

2010-10-01

No. S-13151

723

732

239 P.3d 723

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:10.583506+00:00

CAP

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

Wenona DIAZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Jennifer Christensen; James Bowers; - McHenry Detective Agency; William Parlier; Probation Officer Brown; Probation Officer III McCarron; and Probation Officer L. Williamson, Appellees.

Wenona DIAZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Jennifer Christensen; James Bowers; - McHenry Detective Agency; William Parlier; Probation Officer Brown; Probation Officer III McCarron; and Probation Officer L. Williamson, Appellees. No. S-13151. Supreme Court of Alaska. Oct. 1, 2010. Kenneth W. Legacki, Anchorage, for Appellant. Ruth Botstein, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellees Officers Conrad Brown, Terry MeCarron, and Loyd Williamson. Timothy M. Lynch, Lynch & Associates, P.C., Anchorage, for Appellees McHenry Detective Agency and William Parlier. Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

5428

34742

OPINION WINFREE, Justice. I. INTRODUCTION While serving a sentence in the Alaska Department of Corrections's (DOC) electron-ie monitoring program, Wenona Diaz worked for a time at a travel agency. Shortly after Diaz stopped working at the travel agency, DOC probation officers brought Diaz to her former employer's office. There the former employer and the former employer's private detective questioned Diaz about alleged criminal conduct. The DOC officers then returned Diaz to a correctional center for the remaining four weeks of her sentence, where she was briefly segregated from the general population and had her telephone privileges restricted for a few days. After Diaz's former employer was convicted of defrauding her own customers and the accusations against Diaz were abandoned, Diaz sued those involved in her interrogation and return to jail. The superior court granted summary judgment in favor of the DOC officers and the private detective and his agency. Diaz appeals only the superior court's ruling that these defendants did not violate her rights under the Fourth or Fourteenth Amendments to the United States Constitution. We affirm the superior court's decision because: (1) Diaz's officer-escorted trip to and interrogation at the travel agency did not implicate her Fourth Amendment rights as she was already in DOC custody when the DOC officers "seized" her; (2) the DOC officers' actions, although disturbing, did not "shock the conscience" as required for a violation of the Fourteenth Amendment; (8) Diaz's return to prison, her day of segregation from the general population, and the two days of telephone restrictions did not deprive her of a liberty interest in violation of the Fourteenth Amendment because her freedom was not restrained in excess of her sentence and she did not experience an atypical or significant hardship in comparison to ordinary prison life, and (4) the private detective and his agency are not liable for conspiring with state officials to violate Diaz's constitutional rights because no such violation occurred. II. FACTS AND PROCEEDINGS A. Facts In late May 2003 Diaz had about one month of a felony sentence left to serve in DOC's electronic monitoring program. On May 21 private detective William Parlier called DOC to report that his client Jennifer Christensen had that day fired Diaz as an employee of her travel agency. Parlier reported that when Diaz was hired she had not told Christensen she was on felony supervision and that Diaz had since been taking files home, diverting clients' emails to outside accounts, charging items to clients' eredit cards, and interrogating other employees for "dirt." The DOC officer who took Parlier's call provided the telephone number of the electronic monitoring department, which was supervised at that time by DOC Officer Terry McCarron. On May 22 Christensen called Officer McCarron and alleged that Diaz stole from her while employed at her travel agency. Officer McCarron later testified at his deposition that Christensen's allegation on its own was sufficient to transfer Diaz from the electronic monitoring program to jail. Parlier went to Officer McCarron's office to coordinate an opportunity to ask Diaz questions, and Parlier there met DOC Officers Loyd Williamson and Conrad Brown. Officer McCarron directed the two DOC officers to investigate. Officers Williamson and Brown contacted Diaz by telephone at her new place of employment and requested she meet them at her house as soon as possible, but did not explain why. Diaz complied by leaving work and taking a cab home. The DOC officers met her in her driveway and walked inside with her, where they informed her she had to go to Christensen's travel agency because there was a "concern about missing files." The DOC officers escorted Diaz to their van and put her in the caged-in back seat. Officers Williamson and Brown took Diaz to the travel agency and escorted her inside. She waited in an office, guarded by one of the DOC officers, for somewhere between one and one-and-one-half hours. The DOC officer was between her and the door at all times, such that Diaz inferred she "was not to leave the room or be away from him." Diaz then was taken into another office in which Parlier's videocamera and several chairs were arranged. At some point that morning, Parlier, Christensen, and Officers Williamson and Brown had consulted and decided to videotape the questioning. Present in the office with Diaz were Christensen; her husband, James Bowers; Parlier; and Officers Williamson and Brown. Parlier directed the interrogation and asked prepared questions regarding embezzlement and theft of money and documents. Christensen and Bowers also asked Diaz questions in accusatory tones. Parlier videotaped the interrogation, but later lost the videotape. During the approximately 30-minute interrogation, Diaz denied all of the allegations against her and accused Christensen of being responsible for the embezzlement. After the interrogation at the travel agency, Officers Williamson and Brown escorted Diaz back to her house. They searched her house and computer, but found no incriminating evidence. Immediately following the search, the DOC officers took Diaz to the Anchorage jail. Within an hour of Diaz's transfer to jail, Christensen called Officer McCarron and alleged that Diaz was calling Christensen's clients from jail. Diaz's telephone access was then restricted so she could call only her lawyer. At the same time Diaz's cellmate was removed, and Diaz was segregated from the rest of the jail population. Prison records show Diaz was placed in segregation on May 22 at 5:00 pm. and removed from segregation the following morning at 9:85 a.m.-almost 17 hours. Diaz remained at the Anchorage jail for two days before being transported to Hiland Mountain Correctional Facility, where she was able to place calls to her family. Diaz served the time remaining on her sentence, about three weeks, in an institutional prison. Christensen was indicted in April 2004 for defrauding her travel agency's clients and a credit card processing company of nearly $250,000, and later pled guilty to 20 counts of wire fraud and one count of credit card fraud. B. Proceedings In May 2005 Diaz filed suit against DOC, Christensen, Bowers, Parlier and his detective agency, and DOC Officers McCar-ron, Williamson, and Brown, asserting 42 U.S.C. § 1983 claims under the United States Constitution, among other claims. Summary judgment was granted in November 2006 as to Bivens claims against Parlier and his agency under the United States and Alaska Constitutions and $ 1983 claims against Parlier's agency premised on respon-deat superior. At the same time, the § 1983 claim against DOC was dismissed, and Diaz conceded she was not suing the DOC officers in their official capacities. The superior court later granted summary judgment as to the remaining § 1983 claims against the DOC officers in their individual capacities and against Parlier and his detective agency for lack of constitutional violation upon which to base conspiracy. Final judgment dismissing all claims against DOC, the DOC officers, and Parlier and his detective agency was entered in May 2008. Diaz appeals the dismissal of her § 1983 claims against the DOC officers in their individual capacities and her § 1983 claims against Parlier and his detective agency, premised on conspiracy, all based on alleged violations of her rights under the Fourth and Fourteenth Amendments to the United States Constitution. HI. STANDARD OF REVIEW We review the grant of summary judgment de novo. "Drawing all reasonable inferences in favor of the nonmoving party, we will uphold summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. We apply de novo review and our independent judgment to constructions of the United States Constitution. IV. DISCUSSION An essential element to a § 1988 action is "conduct [that] deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Diaz argues that the DOC officers and Parlier and his detective agency violated her rights under the Fourth and Fourteenth Amendments to the United States Constitution. A. The Officer-Escorted Trip To And Interrogation At The Travel Agency Did Not Violate Diaz's Federal Constitutional Rights. Diaz asserts that her Fourth and Fourteenth Amendment rights were violated when the DOC officers, without giving her appropriate Miranda warnings, escorted her to and held her at her former place of employment for a custodial interrogation conducted by private citizens. The Fourth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees against unreasonable searches and seizures. But the constitutionality of Diaz's officer-escorted trip to and interrogation at the travel agency is evaluated under the Fourth Amendment's protection against unreasonable seizures only if Diaz was not already in DOC custody. If Diaz was al ready in DOC custody when the DOC officers escorted her to the travel agency, the incident is instead evaluated under either the Fourteenth Amendment's substantive due process guarantee or the Eighth Amendment's protection against cruel and unusual punishment. Diaz never asserted a violation of her Eighth Amendment rights. 1. Fourth Amendment analysis Under Alaska law a prisoner must be in DOC custody to earn good time credit-the statutory one-third reduction of a prisoner's term of imprisonment earned by "follow[ing] the rules of the correctional facility in which the prisoner is confined." A correctional facility is defined as "a prison, jail, camp, farm, half-way house, group home, or other placement designated by the commissioner for the custody, care, and discipline of prisoners." Diaz was designated to serve her sentence at home in the electronic monitoring program, and she received good time credit for the time she spent in the program. Diaz therefore was in DOC custody while serving her sentence in the electronic monitoring program. Diaz also was in DOC custody in the sense that she could have been prosecuted for escape had she removed the monitoring device or traveled outside permitted locations. In holding that a sentenced prisoner had committed escape when he removed his electron-ie monitoring device and visited a tavern outside the area permitted by the conditions of his release, an Ohio appellate court stated that electronically monitored house arrest "constitutes confinement in a facility for custody of persons convicted of a crime. In Lock v. State we similarly reasoned that the fact that a probationer had committed escape when he left a court-ordered residential rehabilitation program indicated that he had been "subjected to severe restraints on his freedom of movement" and therefore was in custody for purposes of entitlement to day-for-day credit. Because Diaz earned good time eredit and was subject to prosecution for escape while in the electronic monitoring program, she was already in DOC custody when she was "seized" by the DOC officers. Therefore her officer-escorted trip to and interrogation at the travel agency cannot have violated her Fourth Amendment guarantee against unreasonable seizures. 2. Fourteenth Amendment analysis Diaz asserts she was "subjected to interrogation without any due process, and without any advisement of her constitutional rights." She clarifies her argument is not that she was forced to testify against herself in violation of the Fifth Amendment, but rather that she was unlawfully seized and interrogated in violation of the Fourteenth Amendment. Fourteenth Amendment substantive due process rights are violated when police misconduct in pursuit of incriminating statements "shocks the conscience." Conscience-shocking interrogations typically involve physical or psychological abuse. An illustration of potentially conscience-shocking interrogation conduct occurred in Chaves v. Martinez, where a police officer "made no effort to dispel [a man's] perception that medical treatment [for his facial gunshot wound would be] withheld until [he] answered the questions put to him." Taking the evidence in the light most favorable to Diaz, the DOC officers subjected her to a custodial interrogation by civilians at her former place of employment without giv ing her an appropriate Mirando warning. But Diaz has not alleged or provided evidence suggesting she was mentally or physically coerced or abused during the interrogation. Although we certainly do not condone the DOC officers' decision to make Diaz available for interrogation in this manner by her civilian accusers-in other cireumstances such a decision could lead to unfortunate acts of vigilantism-the DOC officers conduct bothers the conscience but does not shock it as required for a Fourteenth Amendment violation. B. The Transfer To Prison, Day Of Segregation From The General Population, And Two Days Of Telephone Restrictions Did Not Violate Diaz's Federal Constitutional Rights. Diaz asserts that she was deprived of a liberty interest without due process when "she was remanded to the institutional jail, put in solitary confinement," and "denied access to a telephone to call her family. The Fourteenth Amendment protects against the deprivation of "life, liberty, or property" without adequate process of law. It applies to "the deprivation of an individual interest of sufficient importance to warrant constitutional protection." The point at which restraints on a convieted prisoner's freedom implicate a federal-constitution-based liberty interest requiring due process of law is when her freedom is restrained in excess of her sentence in an unexpected manner. For example, due process requirements apply to parole revocations if a parolee returned to prison does not receive credit against her sentence for time spent subject to the conditions of parole. In contrast, the time Diaz spent in the DOC's electronic monitoring program counted against her sentence. Therefore her transfer to the Anchorage jail, her segregation from the general population, and her telephone restrictions did not implicate a liberty interest based in the Fourteenth Amendment because they did not prolong her sentence. A liberty interest that is protected by the United States Constitution may also be created by state law. In Sandin v. Conner, a civil rights suit brought by a prisoner, the United States Supreme Court held that generally the only state-created liberty interests protected by the Fourteenth Amendment are those in freedom from restraints which "impos[e] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. DOC's policies and procedures manual de-seribes the electronic monitoring program as "[a] form of incarceration for offenders" that provides "a cost effective alternative to the use of hard correctional facility beds for appropriate prisoners." To participate in the electronic monitoring program a prisoner must meet certain criteria, including being within two years of a projected release date and being assigned to either the minimum or medium custody level. The DOC manual provides that if a participant does not comply with program requirements, she will be returned to a correctional center or community regidential center and reassigned to a new custody level through a designation process. Although Diaz argues her removal from the electronic monitoring program deprived her of her liberty interest in rehabilitation as created by article I, section 12 of the Alaska Constitution, transferring Diaz back to an institutional prison did not create an atypical or significant hardship in comparison to ordinary prison life because it was simply a return to ordinary prison life. Nor did segregating Diaz from the general prison population for less than a day or restricting her telephone privileges for two days create an atypical or significant hardship. Therefore Diaz did not have a state-law-based liberty interest protected by the federal constitution in continued participation in an electronic monitoring program, in not being placed in segregated confinement, or in enjoying full telephone privileges. C. Parliee And His Detective Agency Are Not Liable Under § 1983 For Conspiring - To Violate Diaz's Fourth And Fourteenth Amendment Rights Because Those Rights Were Not Violated. Diaz asserts that private parties "are liable under 42 U.S.C. § 1983 . if they willfully participate in a joint action with State officials to deprive another of . constitutional rights." Parlier responds that "[ainy claim for damages under § 1988 requires a violation of a constitutionally protected right." We agree that Parlier and his detective agency were entitled to summary judgment because they could not have conspired with state actors to deprive Diaz of her constitutional rights, given that the officer-escorted trip to and interrogation at the travel agency, the transfer back to jail, the temporary segregated confinement, and the telephone restrictions did not deprive her of those rights. v. CONCLUSION For the reasons stated above, we AFFIRM the summary dismissal of Diaz's claims. EASTAUGH, Justice, not participating. . We accept the facts as alleged by Diaz and make all reasonable inferences in her favor because this case was resolved against her on summary judgment. See Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916, 918 n. 1 (Alaska 2000). . As a participant in DOC's electronic monitoring program, Diaz had consented to searches of her residence for the presence of contraband or to verify compliance with the program's terms and conditions. . 42 U.S.C. § 1983 allows for a direct action against persons who have violated federal constitutional or statutory rights while acting under color of law. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388, 392 (Alaska 2006) (citing Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). . A "Bivens claim," named for Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), is a direct cause of action for compensatory damages against an individual federal official who violates federal constitutional rights. Id. (concerning action for violation of Fourth Amendment); Bush v. Lucas, 462 U.S. 367, 376-18, 103 S.Ct. 2404, 76 LEd.2d 648 (1983) (discussing Bivens actions for violation of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Eighth Amendment). The superior court determined that a federal Bivens claim cannot be brought without the involvement of a federal officer, and that a state Bivens claim will not be recognized when alternative statutory or common law remedies exist. We have stated "we will not [allow] a private cause of action for damages under the Alaska Constitution 'except in cases of flagrant constitutional violations where little or no alternative remedies are available.'" Hertz v. Beach, 211 P.3d 668, 677 n. 12 (Alaska 2009) (quoting Lowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005)). Diaz does not pursue an appeal of this ruling. . The superior court concluded the respondeat superior doctrine does not apply in § 1983 cases, citing to Prentzel v. State, Dep't of Pub. Safety, 53 P.3d 587, 595 n. 46 (Alaska 2002). Diaz does not pursue an appeal of this ruling. . See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("[NJeither a State nor its officials acting in their official capacities are 'persons' under § 1983."). Diaz does not pursue an appeal of this ruling. . The final judgment did not address Diaz's claims against Christensen and Bowers except to note that defamation claims were dismissed by stipulation. . Sowinski v. Walker, 198 P.3d 1134, 1143 (Alaska 2008). . Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 2000) (citing Shade v. CO & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995)). . - State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001) (citing Waiste v. State, 10 P.3d 1141, 1144 (Alaska 2000)). . Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 LEd.2d 662 (1986). The other essential element is that "the conduct complained of was committed by a person acting under color of state law." Id. at 535, 101 S.Ct. 1908. . Under Miranda v. Arizona, law enforcement officers are required prior to interrogating a suspect in custody to give a warning about the right to remain silent, the right to the presence of a retained or appointed attorney, and the possibility that any statements made may be used as evidence. 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); accord State v. Salit, 613 P.2d 245, 257 (Alaska 1980). . U.S. Const. amend. IV; Lemon v. State, 514 P.2d 1151, 1157 n. 13 (Alaska 1973) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). . See generally U.S. v. Childs, 277 F.3d 947, 950 (7th Cir.2002) ("[Aln officer may interrogate a person in prison on one offense about the possibility that the inmate committed another. This is normal and, as far as we can tell, of unquestioned propriety as far as the fourth amendment is concerned, whether or not the officer has probable cause to believe that the inmate committed any other crime . [tlhe idea that the police could violate a prisoner's [F Jourth amendment rights by asking questions in search of information about other offenses has no basis in the language of that amendment or the Supreme Court's cases."); Johnson v. City of Cincinnati, 310 F.3d 484, 491 (6th Cir.2002) (remarking that "[the Fourth Amendment does not apply post-conviction" and that, whatever the duration of the Amendment's protections, the relevant analytical period exists "along the pretrial continuum" after which eventually "the Fourth Amendment's protection gives way to the protection of another Amendment"); Riley v. Dorton, 115 F.3d 1159, 1163-64 (4th Cir.1997) (holding that analysis of seizures under the Fourth Amendment applies only to an initial seizure, and subsequent conditions of detention are properly examined under the Fourteenth Amendment), abrogated by Wilkins v. Gaddy, - U.S. -, 130 S.Ct. 1175, 1177, - L.Ed.2d - (2010) (overruling Riley on Eighth Amendment grounds); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.1996) ("Claims involving the mistreatment of arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment's Due Process Clause instead of the Eighth Amendment's Cruel and Unusual Punishment Clause, which applies to such claims by convicted prisoners."); Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir.1989) (noting that, upon conviction, the "the fact, manner, or duration of" a prisoner's "continued confinement is unconstitutional passes over from Fourth Amendment to . the Eighth Amendment"); Williams v. Boles, 841 F.2d 181, 183 (7th Cir.1988) (holding that, against Fourth Amendment challenge, a "judgment convicting [a criminal] extinguish[es], for the duration of his sentence, his interest in privacy and personal mobility . the applicable provision is the Cruel and Unusual Punishments Clause of the [Elighth [Almendment"); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985) (dismissing a prisoner's objection to transfer within a prison system as against the Fourth Amendment as having "no basis in law"). . See Chavez v. Martinez, 538 U.S. 760, 779-80, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (remanding for a determination whether officer's misconduct in pursuit of a confession was so egregious that it violated the Fourteenth Amendment's substantive due process guarantee); see also id. at 773, 123 S.Ct. 1994 (Thomas, J., plurality) (noting that police torture or other abuse resulting in a confession is evaluated under the Fourteenth Amendment's Due Process Clause). . The Eighth Amendment, through the Due Process Clause of the Fourteenth Amendment, forbids state prison officials from imposing "cruel and unusual punishments." U.S. Const. amend. VIII; Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[T}he less protective Eighth Amendment standard applies 'only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.'" Graham, 490 U.S. at 398-99, 109 S.Ct. 1865 (quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). . AS 33.20.010(a); State v. Bourdon, 193 P.3d 1209, 1210 (Alaska App.2008). . AS 33.30.901(4); Bourdon, 193 P.3d at 1210. . Diaz's March 11, 2003, sentencing preceded the effective date of ch. 24, § 31, SLA 2007 (codified at AS 33.20.010(c)), which provides that prisoners cannot receive good time credit for time spent under electronic monitoring. . See Matthew v. State, 152 P.3d 469, 473 (Alaska App.2007) (citing AS 33.30.065) (referring to sentenced prisoners assigned to serve part of their terms of imprisonment in electronic monitoring as "already in the custody of the Department of Corrections"). . AS 11.56.310(a)(3) (providing that a person serving a felony sentence in an electronic monitoring program commits the crime of escape in the second degree if, without lawful authority, that person "removes, tampers with, or disables the electronic monitoring equipment" or leaves the places designated for service of that sentence). . State v. Long, 82 Ohio App.3d 168, 611 N.E.2d 504, 505-06 (1992) (emphasis added). . 609 P.2d 539, 545-47 (Alaska 1980). . We express no opinion whether we would reach the same conclusion had Diaz been sentenced after the effective date of AS 33.20.010(c). See note 19, above. Our conclusion does not suggest that a prisoner in Diaz's situation would not have Fourth Amendment protection against seizures by law enforcement officers other than DOC officers. . During the interrogation Diaz did not give any statement that was used against her in any proceeding. . Crowe v. Cnty. of San Diego, 608 F.3d 406, 431 (9th Cir.2010) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)); accord Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999) ("A [substantive] due process claim will only stand if the state's actions 'are so irrational or arbitrary, or so lacking in fairness, as to shock the universal sense of justice.' ") (quoting Application of Obermeyer, 717 P.2d 382, 386-87 (Alaska 1986)). . See Crowe, 608 F.3d at 431-32; see also McConkie v. Nichols, 446 F.3d 258, 261 (1st Cir.2006) ("Conscience-shocking conduct usually entails physical or psychological abuse, or significant interference with a protected relationship, such as the parent-child relationship."); Cooper v. Dupnik, 963 F.2d 1220, 1223, 1248-50 (9th Cir.1992) (noting "brutality by police or prison guards is one paradigmatic example of a substantive due process violation, [but] does not exhaust the possibilities" and holding it was conscience-shocking when police tried to extract a confession through "sophisticated psychological torture" with the "purpose of making it difficult, if not impossible, for [a charged] suspect to take the stand in his own defense" and of "curtailing [his] right to present an insanity defense"), overruled on other grounds by Chavez, 538 U.S. at 773, 123 S.Ct. 1994 (Thomas, J., plurality). . 538 U.S. at 779-80, 123 S.Ct. 1994. . Id. at 798, 123 S.Ct. 1994 (Kennedy, J., concurring in part and dissenting in part). . Diaz also argues that she had a property interest in the right to participate in the electronic monitoring program. Because she raised this issue for the first time in her reply brief, we deem it waived. See Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 326 (Alaska 2007) (citing Crittell v. Bingo, 83 P.3d 532, 536 n. 19 (Alaska 2004)). . Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). . Larson v. Cooper, 90 P.3d 125, 135 (Alaska 2004) (quoting Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200, 1206 (Alaska 1990)). . See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (noting the Due Process Clause of its own force protects an interest in freedom from restraint exceeding the sentence in an unexpected manner); see also Larson, 90 P.3d at 134 ("[UJnder the federal constitution's Fourteenth Amendment, '[als long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.'") (quoting Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). . See Morrissey v. Brewer, 408 U.S. 471, 480-82, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This is the case in Alaska, where "the time [a] parolee was at liberty on parole does not alter the time the parolee was sentenced to serve." AS 33.16.240(8). In Young v. Harper, the United States Supreme Court held convicts in Oklahoma's pre-parole program had the same liberty interest as those in its parole program because the two programs were distinct in name only. 520 U.S. 143, 144-45, 117 S.Ct 1148, 137 L.Ed.2d 270 (1997). In that program both parolees and pre-parolees were eligible for deductions against their sentences for time spent on parole. Id. at 149, 117 S.Ct. 1148. . See Sandin, 515 U.S. at 476, 484, 487, 115 S.Ct. 2293 (rejecting argument that prisoner had a liberty interest under the Due Process Clause in remaining free from disciplinary segregation because the underlying record of misconduct would not inevitably affect sentence duration); Larson, 90 P.3d at 134 (citing Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)) ("[The guarantee of due process does not provide . a right to avoid segregation from the general prison population."). . Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293 ("States may under certain circumstances create liberty interests which are protected by the Due Process Clause."). . Id. at 484, 115 S.Ct. 2293; accord Larson, 90 P.3d at 135. . State of Alaska Department of Corrections Policies and Procedures (P & P) Definition 818.14(B). . P & P Purpose 818.14. . P & P Procedure 818.14(8A)(4). . P & P Procedure 818.14(G). We also note that AS 33.30.065(c) provides: A decision by the commissioner to designate a prisoner to serve a term of imprisonment or a period of temporary confinement, or a part of the term or period, by electronic monitoring does not create a liberty interest in that status for the prisoner. The prisoner may be returned to a correctional facility at the discretion of the commissioner. This statutory provision, although not determinative in our independent review, indicates that the legislature did not intend to create a liberty interest in participation in the electronic monitoring program. . - Article I, section 12 of the Alaska Constitution identifies the principle of reformation as one basis of criminal administration. See, e.g., Ferguson v. State, Dep't of Corr., 816 P.2d 134, 139-40 (Alaska 1991) (holding prisoners have protected liberty interest in continued participation in rehabilitation programs based on the reformation clause); Rathke v. Corr. Corp. of Am., Inc., 153 P.3d 303, 306-09 (Alaska 2007) (deeming color-able an inmate's claim that he was entitled to due process before he could be placed in punitive segregation for 30 days because of his state-constitutional interest in rehabilitation}. . See, e.g., Dominique v. Weld, 73 F.3d 1156, 1159-61 (1st Cir.1996) (holding removal of convicted prisoner from community work release program did not implicate a state-created liberty interest because "his transfer to a more secure facility subjected him to conditions no different from those ordinarily experienced by large numbers of other inmates serving their sentences in customary fashion"). . Sandin, 515 U.S. at 484, 486, 115 S.Ct. 2293 (holding 30 days in administrative segregation "did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest" protected by the federal constitution}. Because Diaz confined her arguments on appeal to her § 1983 claims under the United States Constitution, whether a prisoner's freedom from punitive segregation is a liberty interest protected by the due process clause of the Alaska Constitution has no bearing on this appeal. See Brandon v. State, Dep't of Corr., 73 P.3d 1230, 1234 (Alaska 2003) (noting that due process guarantee of Alaska Constitution applies more broadly than identical provision of the United States Constitution and that "under the Alaska Constitution punitive segregation of a prison inmate following a major disciplinary infraction is a deprivation of liberty sufficient to trigger the right to due process.") (citing McGinnis v. Stevens, 543 P.2d 1221, 1236-37 (Alaska 1975)). . Tanney v. Boles, 400 F.Supp.2d 1027, 1040 (E.D.Mich.2005) (holding telephone restriction for disciplinary reasons is not an "atypical and significant hardship" and therefore did not implicate liberty interest protected by the Fourteenth Amendment). . See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (noting § 1983 recovery against a private entity for conspiracy requires proof of a deprivation of a right secured by the Constitution or laws of the United States). . Having determined that Diaz's Fourth and Fourteenth Amendment rights were not violated, we do not reach her argument that the defendants were strictly liable under § 1983 or the DOC officers' argument that they were entitled to qualified immunity.

6991481

James R. PARTRIDGE, Appellant, v. Erlinda PARTRIDGE, Appellee

Partridge v. Partridge

2010-05-21

No. S-13256

680

692

239 P.3d 680

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:10.583506+00:00

CAP

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

James R. PARTRIDGE, Appellant, v. Erlinda PARTRIDGE, Appellee.

James R. PARTRIDGE, Appellant, v. Erlinda PARTRIDGE, Appellee. No. S-13256. Supreme Court of Alaska. May 21, 2010. Rehearing Denied Oct. 4, 2010. Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, for Appellant. Herman G. Walker, Jr., and Linda A. Li-mon, Limén & Walker, Anchorage, for Ap-pellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

6507

40581

OPINION CHRISTEN, Justice. I. INTRODUCTION James and Erlinda Partridge obtained a final decree of divorce in June 2008. James appeals the trial court's property division which allocated cash and income-expending assets to him and the marriage's most significant cash-producing asset to Erlinda. He argues that the trial court's allocation violates AS 25.24.160(a)(4), which requires that property divisions "fairly allocate the economic effect of divorce." James also claims the trial court erred by mischaracterizing assets, failing to value each party's pension, and failing to consider his contributions of separate property to the marriage. Because the trial court's property division was not an abuse of discretion, we affirm it. But we remand for further proceedings because the trial court did not credit James for some of the marital debts he paid during the separation period, and because the trial court credited both parties with the full value of marital pension payments they received during the separation period without determining whether they spent these funds on normal living expenses. II. PROCEEDINGS James and Erlinda Partridge were married in 1987. Erlinda filed a complaint for legal separation in February 2006 and con verted it into a complaint for divorce in May of that year. The case was tried in December 2007 and April 2008. The trial court determined that the legal date of separation was June 30, 2006, that a fifty/fifty property division was appropriate, and that the total value of the marital estate was $7,666,445. The court awarded James assets valued at $3,667,251 and Erlinda assets totaling $4,018,130 and ordered Erlinda to make an equalizing payment of $172,940 to James by December 31, 2009. If Erlinda made the equalizing payment after December 31, 2009, it was to be subject to 7.75% interest retroactive to April 28, 2008. Both parties filed motions for reconsideration which the trial court denied. James appeals. III. FACTS The Partridges accumulated a substantial estate during their marriage. James retired from his job as a pilot for Northwest Airlines in 1996 with a monthly pension of $6,784. Erlinda retired in 2001 after working for thirty-three years as a flight attendant. She receives an annuity payment of $789 per month attributable to pre-marital employment. This annuity will continue indefinitely. She also receives a monthly pension payment of $1,812 that will cease when she turns sixty-five and becomes eligible for social security. - At trial, Erlinda was sixty-one years old and James was sixty-nine. No children were born during their marriage, and the superior court observed that both parties were in "basically good health." A. Kent Corporate Park The Partridges owe much of their prosperity to an investment in four warehouses located in Kent, Washington known as "Kent Corporate Park" (KCP). The four buildings sit on two separate parcels. Lot three contains buildings "A" and "B" with approximately 65,601 square feet of rentable space and a monthly base rent of $28,168. Lot four contains buildings "C" and "D" with 72,553 square feet of rentable space and a monthly base rent of $32,837. The two lots were separately owned until 1998 when the Partridges' predecessor-in-interest purchased them. If the two parcels had been owned separately at the time of trial, the owner of lot four would have needed an easement across lot three to access the only available road. The Partridges acquired KCP in 2001. The acquisition was the culmination of two tax-exempt exchanges spanning the previous decade, with each exchange resulting in ownership of an investment property of successively greater value. The trial court adopted Erlinda's $9,027,288 valuation of KCP. At this value, KCP had a total divisible equity of $3,541,875. James never actively disputed KCP's status as marital property at trial; he referred to it as "held jointly" and as a "marital asset" on several occasions. Although KCP's equity comprises half of the marital estate, it produced nearly two-thirds of the Partridges' monthly income at the time of trial. A manager handled the day-to-day operation of the warehouses and performed "[nlinety-eight percent" of the business management for KCP during the marriage. Notably, six-figure maintenance burdens such as a roof replacement and flooding repairs created negative cash flow for KCP in some recent years. James had exclusive access and control over income from KCP during the separation period. This included his unilateral settlement of a lawsuit arising from a tenant's environmental contamination of part of KCP for $400,000. - James did not inform Erlinda of the settlement amount until compelled to do so by the court. He spent much of the approximately $259,000 in net settlement proceeds to purchase property in Wasilla. James also took twenty-two monthly draws of $8,000 each and $120,000 of additional draws from KCP during the separation period. Erlinda received no income from KCP during this time and testified that she borrowed funds from family members to pay her living expenses. The trial court awarded KCP entirely to Erlinda. B. Wasilla Property In the summer of 2006, James purchased a home and several residential lots on Lake Lucille in Wasilla. James used income from KCP to make a down payment on the home and to purchase two adjoining lots. Erlinda co-signed on the note for the purchase of the house, but not on the adjacent lots. She testified that she signed for the house because "[James] couldn't buy the Lake Lucille house without my signature.... I agreed to sign so he could have a place to heal." James testified that the house and lots were marital property because he had hoped at the time of purchase that he and Erlinda would reconcile and live together in a new home built on one of the lots. While living on the Lake Lucille property prior to and during trial, James spent nearly $70,000 on mortgage payments and insurance for the Lake Lucille home. He also used approximately $67,000 to renovate it and improve the adjoining lots. These improvements were made without consulting Erlinda and using funds over which she had no control, but James characterized them as marital expenses. In his closing argument, James again characterized the Lake Lucille home and adjacent lots as marital property, but he asked that the court award them to him so he could continue living there. The trial court determined that the house and adjacent lots were James's separate property. The court explained: Although Ms. Partridge's name is on the house, she's not on the adjoining lots. And it's clear to me from the testimony that the Wasilla home was not intended to be a joint investment by the parties. Mr. Partridge has made a number of improvement[s] on the property where he seeks to reside, but those were not improvements that were made as joint decision[s], to cut down trees and put in doors and other things. Those were decisions that he made for property that he alone has resided in. So I don't see that the Wasilla property and adjacent lots should be considered to be a marital estate-marital assets. And that's consistent with the June '06 separation date. The trial court found "there has been depletion of the marital estate by Mr. Partridge in the purchase of the Wasilla home and the considerable funds that he spent there." The court recaptured those funds by treating them as a prior cash distribution to James in its accounting. C. - Yamhill Investment Property The couple's third significant asset is approximately sixty-five acres of undeveloped land in Yamhill County, Oregon with a stipulated value of $1,459,557. James and Erlinda owned the Yamhill property "free and clear" at the time of trial. In June 2005 James contracted with Al Nordgren to develop the Yamhill property. The agreement provided that Nordgren would submit a zoning change application to allow for subdivision and development of the property. If the rezoning application is successful, Nordgren will receive fifty percent of the net profit realized from the investment. Nordgren will receive nothing if the rezoning application is not approved within two years of its submission. At trial, James argued that Yambill should be equitably divided between the parties with the goal of "fairly allocat[ing] both the risk and the benefit of ownership of [Yambhill]." The trial court awarded Yamhill solely to James, finding that he had a far better demonstrated ability to develop it. IV. STANDARD OF REVIEW We review the trial court's judgment in property division cases for abuse of discretion as provided by AS 25.24.160(a)(4). Property division involves a three step process in which the trial court "determin[es] what property is available for distribution, assess[es] its value, and allocat[es] it equitably." We review step one, characterizing the property as separate or marital, "under the abuse of discretion standard, although it may involve legal determinations to which this court applies its independent judgment. An abuse of discretion occurs where the court "considers improper factors, fails to consider relevant statutory factors, or assigns disproportionate weight to some factors while ignoring others." All assets acquired during the marriage become marital property "excepting only inherited property and property acquired with separate property which is kept as separate property. We review step two, placing a value on the property, as a factual determination that we will upset only upon a showing of clear error. Reversal for clear error requires that we find ourselves "left with a definite and firm conviction on the entire record that a mistake has been made." We review step three, allocating the property equitably, under the abuse of discretion standard. We will not disturb the trial court's allocation unless it is clearly unjust. v. DISCUSSION A. -The Court's Characterization of the Partridges' Assets Was Not An Abuse of Discretion. 1. James waived the argument that KCP is his separate property by failing to raise it in the trial court. James argues on appeal that KCP is his separate property, but this argument bears little resemblance to his trial court presentation. James expressly waived this argument by affirmatively characterizing KCP as a marital asset both in open court and in several filings, including his Supplemental Trial Brief and his written closing argument. - "We will not consider arguments that parties fail to raise in the lower court, let alone arguments they have conceded below, unless the trial court committed plain error." Because we find that no plain error was committed-error "so prejudicial that failure to correct it will perpetuate a manifest injustice" -we affirm the lower court's classification of KCP as a marital asset. 2. The trial court's classification of the Lake Lucille home and lots as James's separate property was not an abuse of discretion. Following separation, James moved out of the marital home in Anchorage and into the home he purchased on Lake Lucille in Wasil- la. James spent hundreds of thousands of dollars on this home, the adjacent lot, and on improvements in violation of a standing injunction prohibiting the parties from "dis-posling] of, encumberfing], transfer[ing], or dissipating] any marital property without written consent of the other party or an order from the court." The trial court found that James had engaged in a "depletion of the marital estate" by using income from KCP to purchase the Lake Lucille properties and other lots in the Wasilla area. The court characterized these properties as James's separate property, and charged James with receiving a $776,836 advance of marital funds he had spent on them. James argues that if the KCP income is deemed marital, the trial court committed plain error by characterizing the Wasilla properties as his separate property. The real property James purchased can be divided into two groups: property acquired before June 30, 2006-the court-determined date of separation-and property acquired after that date. The Lake Lucille home and an adjoining lot were purchased in June 2006. James argues that these properties fit the definition of marital property-property acquired during marriage -because they were acquired before the separation date using marital funds drawn from KCP. We have held that the relevant factors for "determining whether property should be characterized as marital are . (1) the use of property as the parties' personal residence ., (2) the ongoing maintenance and managing of the property by both parties, (3) place-ing the title of the property in joint ownership and (4) using the credit of the non-titled owner to improve the property." Applying the facts to this legal framework, we find that the trial court did not abuse its discretion by finding the Lake Lucille home and lot were James's separate property. Erlinda presented evidence regarding the first and second factors. James testified that Erlinda never intended to live at the Lake Lucille home, never owned a key to the home, and never spent a night there. As to the third factor, Erlinda explained that the Lake Lucille home was titled jointly because "[James] couldn't buy [it] without my signature" and "[I] agreed to sign so he could have a place to heal." We also believe it is significant that James's expenditures violated the February 22, 2006 pre-trial order, which prohibited both parties from using "marital funds or assets except for . immediate, personal, and necessary living expenses." A party may not disregard an injunction prohibiting the use of marital funds, then strategically characterize the assets acquired in violation of the court order to their advantage. James's argument that the other Wasilla properties-those purchased after the date of separation-are marital relies on the rule that assets acquired after separation can be deemed marital property if they are acquired with marital property. The totality of the evidence, including Erlinda's testimony, supports the court's characterization of this asset. Erlinda never intended to live on or near the properties, her name was not on the titles, and James decided to purchase them unilaterally. His purchase of the other Was-illa properties amounted to conversion of marital assets into a non-marital form. The trial court did not err by recapturing the KCP cash distributions James used to buy the Wasilla properties We have held that "[where there is evidence that a marital asset was dissipated, wasted, or converted to a non-marital form, the court can 'recapture' the asset by giving it an earlier valuation date and crediting all or part of it to the account of the party who controlled the asset. The trial court recaptured the funds James spent purchasing and improving the Wasilla properties by crediting him with receipt of the KCP income he invested in this real estate. Finally, James contends that the trial court erred by charging him with all of the marital funds he spent purchasing and improving the Wasilla properties. He argues that his expenditures were made for a valid marital purpose and therefore no dissipation, waste, or conversion of marital assets occurred. But the same evidence that supports the trial court's conclusion that the Lake Lucille properties were James's separate property supports the conclusion that the funds were not spent for a marital purpose. With the exceptions identified in Part C of this decision, the trial court credited James for expenditures he made on marital expenses during the separation period. It was not an abuse of discretion for the court to characterize the Wasilla properties as James's separate property, and to recapture the funds James invested in them as a prior cash distribution. B. The Trial Court's Valuation of the Marital Estate Was Not Clearly Erroneous. 1. It was not clear error to divide the Partridges' pensions by QDRO. James contends that the trial court erred by failing to direct the parties to value their pensions. This argument is without merit because the court accounted for the parties' pensions by issuing a qualified domestic relations order (QDRO). Moreover, James's closing argument suggested dividing the parties' pensions by QDRO and did not pursue the valuation issue. The trial court stated in its findings: "[tlhere was inadequate valuation evidence to determine a present value [of the pensions] and so the QDRO solution, as our Supreme Court said[,] seemed to me the only feasible way to approach that." The trial court accurately interpreted our precedent and did not commit clear error by using a QDRO to divide the pensions. 2. The trial court considered and properly valued the KCP reserve accounts. James argues that the trial court erred by finding KCP reserve accounts totaling over $209,000 to be "inconsequential" and awarding them to Erlinda without crediting them to her in the court's property division spreadsheet. But James mischaracterizes the court's finding. The trial court found that the estimated balance in KCP's reserve accounts roughly equaled its liabilities. The court added $47,712 from the "environmental reserve account," $80,898 from the "cash in operations account," and $48,693 from the "cash in reserve account," then subtracted the $120,000 allowanee for a roof repair and $47,712 from the "future environmental expense account." The net of these account balances totaled $4,586, which prompted the court to comment, "I do not see that there was sufficient evidence to warrant their inclusion [in the property division]." The court noted that the property taxes were not addressed by the evidence introduced at trial and that the evidence regarding the cost of the roof repair was inconclusive. The trial court's decision to net KCP's approximate cash balance against its estimated outstanding liabilities was not clear error. C. - The Trial Court's Allocation of Marital Assets Was Not an Abuse of Discretion. James argues on appeal that the trial court erroneously concluded that the parties could not jointly own KCP post-divorce and inadequately considered the possibility of dividing KCP between them. He also challenges the trial court's application of the "Merrill factors" enumerated in AS 25.24.160. Specifically, he challenges the trial court's consideration of the cireumstances and necessities of each party and the income-producing capacity of the property at the time of the division. Finally, he alleges the trial court failed to adequately consider the separate property he brought into the marriage. The trial court has broad discretion to divide property in divorce cases. We review the trial court's property division "purely under the abuse of discretion standard." Alaska Statute 25.24.160(a)(4) requires trial courts to "fairly allocate the economic effect of divorce" and codifies several factors for courts to consider to achieve this goal. We have held that these statutory factors are not exhaustive and that "the trial court need not make findings pertaining to each factor, but it must make sufficient findings to "indicate the factual basis for the conclusion reached. We view the trial court's factual findings in the light most favorable to the prevailing party below, and will not reverse a trial court's factual determinations accompanying equitable distribution except upon a finding of clear error. We will not overturn a property division "unless it is clearly unjust. 1. The trial court's decision to award Yamhill solely to James was not an abuse of discretion. James challenges the trial court's decision to award the Yamhill County investment property entirely to him. He argues that it would have been simple to divide Yamhill fifty/fifty and that the trial court failed to account for James's contingent liability to Nordgren. We find these arguments unpersuasive. The trial court awarded Yamhill to James for two reasons. First, the court concluded that the parties could not successfully co-own the property due to James's "lack of candor" regarding his business dealings, including his dealings with Nordgren. Yambhill is undeveloped real estate and jointly developing it would necessarily entail considerable cooperation and communication between the parties. The court's concern with James's candor and conduct supports awarding Yamhill to one party or the other. Because the court found that James's relationship with Nord-gren put him in "a far better position to be able to develop [Yamhill] and turn it into a[n] income producing property within a reasonable time frame" the court awarded it to James rather than Erlinda. The court considered James's history of success developing properties and commented, "I see Mr. Partridge as having a far better demonstrated ability to develop [Yamhill], [and] create it into an income producing property than Ms. Partridge." James also contends that the trial court failed to account for the obligation owed to Nordgren for his help developing Yamhill. But this argument overlooks the parties' stipulation regarding Yambhill's value, and the trial court's adoption of their stipulation. Stipulations are generally "controlling in the absence of fraud, duress, concealment of assets or other facts showing that the agreement was not made voluntarily and with full understanding. Because there is no evidence of fraud, duress, or concealment, James waived his argument challenging the Yambill valuation. Finally, James argues that the economic downturn has pummeled Yambhill's value, its prospects for development, and that he is left "bearing all of the risk of a bad economy." The argument that this constitutes error ignores settled law. We do not doubt the serious impact a falling real estate market can have on a party who receives a large allocation of real property. But we have repeatedly held that "the date on which the trial court values marital property generally should be as close as practicable to the date of trial. This case perfectly illustrates the importance of the rule. No one can divine the economy's next move, and we will not reverse the trial court for failing to anticipate market fluctuations that cause asset values to change after they have been reasonably pegged at trial. 2. The trial court did not abuse its discretion by awarding Erlinda the sole income-producing asset. James argues that the trial court abused its discretion by awarding KCP to Erlinda because that allocation resulted in an unequal division of the parties' monthly income. In support of this argument he compares his monthly income and expenses to Erlinda's projected income: - "[James's] monthly expenses, [$9,298] of which are directly related to the property he received, exceed his [monthly] income [of $5,934] by over $3,300. As reflected on the other side of the same ledger, Erlinda enjoys a monthly income of $20,619." Accepting James's claim that the economic effect of the property division has been "devastating" requires that we ignore the assets he received in the property division. The trial court awarded James the vast majority of the marital estate's liquid assets. Nevertheless, James contends that the trial court failed to divide the marital assets in a manner that fairly apportions the overall monthly income stream. He argues that the court ignored "the income-producing capacity of the property." The record convinces us that the trial court did consider the income-producing versus income-consuming nature of the assets it awarded. The court was aware of the ef-feet of allocating KCP to Erlinda and Yambill to James: With regard to income producing capacity . [KCP has] $8.6 [million] thereabouts of value, of equity. I look, however, at Yam-hill, $1.4 [million] undeveloped, but I see Mr. Partridge as having a far better demonstrated ability to develop that, create it into an income producing property than Ms. Partridge.... I looked at that and I gave Mr. Partridge a lot of the cash, every bit I could except for $50,000 for what I assume would go toward any needs of Ms. Partridge, that's the other reason I put all the cash in his corner, is to balance that out. The trial court arrived at this allocation largely because of James's own conduct: his "lack of disclosure, candor and forthrightness with regard to [] finances" during the separation period convinced the court that the parties could not successfully co-own assets such as Yamhill or KCP. The trial court did not believe the parties should even be neighbors: the "type of continued contact of being adjoining property owners requires an ability for each party to treat the other one fairly and openly. That has not been demonstrated here." We are mindful that the four warehouses comprising KCP were previously held by two separate owners and that the only physical barrier to returning to the previous ownership configuration appears to be easily overcome: an easement could be provided to the owner of lot four to cross lot three. James makes a strong argument that it was an abuse of discretion for the trial court to decline to award one lot to each party in light of the income-producing capacity of KCP, the fact that both parties have retired and are no longer earning income, and the absence of any other income-producing assets in the marital estate. This is admittedly a very close call, but we ultimately conclude that the trial court did not abuse its discretion. The reason for this again relates to the court's findings regarding James's conduct during the separation period. Yamhill and KCP are the two largest assets in the Partridge estate. James essentially created a third indivisible subset of the marital estate by spending hundreds of thousands of dollars on the Wasilla properties during the separation period. The court credited James with a prior cash distribution of $776,886 for the reasons explained above. And the court awarded Yamhill to James because it found that the parties should not co-own a large undeveloped tract of real estate and because James's experience and relationship with Nordgren made him the better choice to receive that property. The value of James's pre-trial cash distribution, plus the value of Yamhill, totals $2,236,393. Given these awards, the court could not split KCP, maintain a fifty/fifty property division, and still order a reasonable equalizing payment. James's conduct forced the court's hand. Finally, the trial court considered the value each party "bid" for KCP. Erlinda valued KCP at $676,000 more than James did and was willing to have it awarded to her at that value. The court's decision to adopt Erlin-da's value for KCP benefitted James. Havy-ing considered all of these circumstances, we do not find that the trial court's property division was "clearly unjust." 3. The trial court considered James's separate property contributions. James contends that the trial court's property division fails to account for the separate property he contributed to the marriage. James makes two arguments. The first pertains to a farm he owned in Minnesota at the time the parties married. James argues that the court should have considered whether the substantial appreciation of the farm between 1987 and 1991 was active or passive. Because he believes it was passive, he argues that he should be credited with the appreciation as his separate property. Second, James faults the court for not considering $150,000 of pre-marital equity he had in condominiums. James's arguments are not supported by the evidence or Alaska law. The trial court expressly considered James's Minnesota farm in its order. The evidence established that the farm was exchanged for an apartment building, and the parties later exchanged the equity in the apartment building for KCP. James conceded at trial that KCP was marital property. The court did not fail to account for James's pre-marital ownership interest in the Minnesota farm; the court recognized that this equity was contributed toward the purchase of an asset that was conceded to be marital. Nor did the court overlook James's pre-marital equity in the condominiums. Leaving aside the question of whether the condominium equity was transmuted into marital property over the course of the parties' marriage, the trial court acknowledged that James's separate property contributions were "noteworthy" but concluded that his pre-marital contributions of equity comprised a "relatively small component in the amassment of wealth that has occurred during the course of this 20-year marriage." "We have held that contributions of separate property may be relevant to equitable division [but] we have not held that failure to make an adjustment for such contributions constitutes an abuse of discretion. James "may disagree with the weight accorded to these contributions, but that alone does not support a conclusion that the trial court failed to consider these contributions or otherwise abused its discretion. 4. Failing to credit James for paying over $100,000 of marital debt was error. . . James argues that the trial court erred by failing to credit him for $101,808 in marital loans that he paid during the separation period. 'We agree. A bank statement for June 8 to July 7, 2006 shows that the Partridges owed $101,808 on three debts near the time of their separation: loans for a 2005 Roadtrek motorhome and a 1993 Monaco motorhome, and a line of eredit. Each debt is presumptively marital because each was outstanding as of June 30, 2006, the court-declared date of separation. We have held that, "[albsent any showing that the parties intended a debt to be separate, the trial court must presume that a debt incurred during the marriage is marital and should consider it when dividing the marital estate." James made four payments of $2,705.25 on the motorhome loans in June, July, August, and September 2006. In October 2006 James paid off the loan balances for both motorhomes and the credit line. It does not appear that James received credit in the court's final accounting for paying these marital debts. The court adopted Erlinda's expert's accounting and credited James for paying just $23,454.55 of marital debt during the separation period. Erlinda's expert explicitly classified James's payments on the motorhome loans as his "separate property" without explanation and omitted his satisfaction of the balance on the line of credit entirely. Because the trial court did not credit James for retiring these marital loans, we remand the court's property division for consideration of this credit. 5. It was error to credit the parties with the marital portion of pensions received between their separation and divorce without determining whether they spent their pensions on normal living expenses. James argues that the trial court erred by charging each party with the marital portion of the pension payments received during the separation period. During that period, James received $49,694 and Erlinda received $27,192 from marital pensions. The trial court treated these amounts as pretrial cash distributions made to each party for property division purposes. Assets that no longer exist at the time of trial are normally not available for distribution. Marital assets that are spent after separation for marital purposes or normal living expenses are not typically taken into account in the final property division. Here, no evidence was presented that the pension payments the parties received during the two-year separation period still existed at the time of trial. Erlinda testified that her pension was one of her only sources of income during that time. James did not testify to how he used the marital portion of his pension or whether the funds still existed, but he argues on appeal that it was "perfectly obvious that both parties were using the[ ] [pensions] to fund ordinary living expenses." We remand for the trial court to make findings on whether the pension funds still existed at the time of trial, whether they were spent on normal living or marital expenses, or whether they were disposed of differently before charging each party with the full value of the income received from pensions during the separation period. VI. _ CONCLUSION We REVERSE and REMAND for consideration of the eredit due to James for paying marital debt and for findings on the disposition of the pension payments received during the separation period. We AFFIRM the trial court's judgment in all other respects. EASTAUGH, Justice, not participating. . James's appellate counsel did not represent him at trial. . The Partridges purchased KCP with a mortgage and an Internal Revenue Code § 1031 tax-free exchange of equity from a Seattle apartment complex they owned. . The parties' monthly income also included their pension payments and James's social security payments. . James claims to have submitted the KCP contamination settlement information to his attorney who, he alleges, failed to convey the information to opposing counsel. James's attorney attributed the belated disclosure of the settlement agree ment to Erlinda's counsel's failure to pursue the issue in discovery. . James testified that he "thought [Erlinda] wanted to live out there, we were planning on building a house on one of the lots." . Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007) (citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)). . Forshee v. Forshee, 145 P.3d 492, 497 (Alaska 2006) (quoting Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006)). . Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). . Walker, 151 P.3d at 447 (quoting Moffitt, 749 P.2d at 346). . Hansen v. Hansen, 119 P.3d 1005, 1009 (Alaska 2005) (citing West v. West, 21 P.3d 838, 841 (Alaska 2001)). . Id. (quoting Lewis v. Lewis, 785 P.2d 550, 558 (Alaska 1990)). . Walker, 151 P.3d at 447 (quoting Moffitt, 749 P.2d at 346). . Hansen, 119 P.3d at 1009 (citing Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)). . Id. (quoting Moffitt, 749 P.2d at 346). . Id. . Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (citing Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)). . Forshee v. Forshee, 145 P.3d 492, 500 n. 36 (Alaska 2006) (quoting Hosier v. State, 1 P.3d 107, 112 n. 11 (Alaska App.2000) (citations omitted)). . Hansen, 119 P.3d at 1009 (Alaska 2005). . Beal v. Beal, 88 P.3d 104, 121 (Alaska 2004) (internal citations omitted). . Bousquet v. Bousquet, 731 P.2d 1211, 1217 n. 14 (Alaska 1987) ("[Alssets acquired subsequent to separation are not considered marital property absent evidence that the spouse used marital property to obtain them."); Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986). . We note that the trial court characterized James's purchase of the Wasilla properties as "unreasonable depletion of the marital estate." We do not believe this characterization is technically correct. The term "depletion" is generally reserved for cases where one spouse used marital property for his or her own benefit with the intent to deprive the other spouse of his or her share of the marital property. See Jones v. Jones, 942 P.2d 1133, 1140-41 (Alaska 1997). James's conduct is better described as converting marital assets to a non-marital form. But under either characterization, the result is the same: our cases support recapture where marital assets have been dissipated or converted to a non-marital form. Foster v. Foster, 883 P.2d 397, 400 (Alaska 1994). . Foster, 883 P.2d at 400. . James claims that Mellard v. Mellard, 168 P.3d 483, 486 (Alaska 2007), authorizes the court to direct the parties to "fill an 'evidentiary void' " in situations where a couple neglects to value their pensions. Mellard only suggests this solution in cases where the "trial court did not wish to resolve the matter by using a QDRO." Id. The trial court used a QDRO in this case so Mellard does not control. . James stated: "The marital portions of the pensions can be divided by QDRO or they can be left with the person presently receiving them." . James also mentioned the trial court's failure to order the parties to value their health insurance benefits in his poinis on appeal. Since James failed to brief this issue, it is waived. Carpentino v. State, 42 P.3d 1137, 1139 (Alaska App.2002) ("A party's failure to brief an issue constitutes abandonment of that issue") (quoting Booth v. State, 903 P.2d 1079, 1090 (Alaska App.1995)). . See Ogden v. Ogden, 39 P.3d 513, 520 (Alaska 2001) (holding that the valuation step of division of marital assets involves factual determinations reversed only where the trial court clearly erred in making them) (citing Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998)). . Merrill v. Merrill, 368 P.2d 546, 547 n. 4 (Alaska 1962). . AS 25.24.160(a)(4)(G) and (D. . Abood v. Abood, 119 P.3d 980, 984 (Alaska 2005) (citing Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)). . Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007) (quoting Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)). . AS 25.24.160(a)(4)(A)-(I), otherwise known as the "Merrill {actors." Merrill, 368 P.2d at 547 n. 4. AS 25.24.160 states, in relevant part: The division of property must fairly allocate the economic effect of divorce by being based on consideration of the following factors: (A) the length of the marriage and station in life of the parties during the marriage; (B) the age and health of the parties; (C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage; (D) the financial condition of the parties, including the availability and cost of health insurance; (E) the conduct of the parties, including whether there has been an unreasonable depletion of marital assets; (F) the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of the children; (G) the circumstances and necessities of each party:; (H) the time and manner of acquisition of the property in question; and (I) the income-producing capacity of the property and the value of the property at the time of division. . Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999) (citing Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)). . Id. (citing Merrill, 368 P.2d at 548 n. 10). . Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003) (citing Klosterman v. Hickel Inv. Co., 821 P.2d 118, 121-22 (Alaska 1991)). . McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996) (citing McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992)). . Wanberg v. Wanberg, 664 P.2d 568, 574 n. 20 ("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."). . Forshee v. Forshee, 145 P.3d 492, 502 (Alaska 2006) (citing Jordan v. Jordan, 983 P.2d 1258, 1264 (Alaska 1999). . Id. . The court's division provided James $228,357 in cash, a $62,572 retirement savings account, a $20,307 investment account, and an equalizing payment of $172,940-a total of $484,176 in liquid assets. . AS 25.24.160(a)(4)(T). . The court adopted Erlinda's appraisal of KCP which itself was based on an income approach. . McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996). . Fortson v. Fortson, 131 P.3d 451, 459 (Alaska 2006). . Id. . James argues the court failed to account for marital loans of $101,898.88. But the sum of the debts he cited equals $101,808.88 (38,-902.11 + 14,209.34 + 48,697.43). . - Ginn-Williams v. Williams, 143 P.3d 949, 956 (Alaska 2006) (quoting Hansen v. Hansen, 119 P.3d 1005, 1009 (Alaska 2005)). . We note that while the trial court must consider the payments James made to maintain the marital property, it is for the trial court to decide whether he should receive a dollar-for-dollar credit in the final property division. Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992). . Brandal v. Shangin, 36 P.3d 1188, 1194 (Alaska 2001) (citing Cox v. Cox, 882 P.2d 909, 918 n. 5 (Alaska 1994)). . Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997).

6991508

Charles NASH, Appellant, v. MATANUSKA-SUSITNA BOROUGH, Appellee

Nash v. Matanuska-Susitna Borough

2010-09-03

No. S-13048

692

701

239 P.3d 692

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:10.583506+00:00

CAP

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

Charles NASH, Appellant, v. MATANUSKA-SUSITNA BOROUGH, Appellee.

Charles NASH, Appellant, v. MATANUSKA-SUSITNA BOROUGH, Appellee. No. S-13048. Supreme Court of Alaska. Sept. 3, 2010. Peter R. Ehrhardt, Kenai, for Appellant. John Aschenbrenner, Deputy Borough Attorney, Shannon Bodalay, Assistant Borough Attorney, and Nicholas Spiropoulos, Borough Attorney, Palmer, for Appellee. Before: CARPENETI Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

5244

31826

OPINION CARPENETI, Chief Justice. I. INTRODUCTION After a borough terminated a timber sale contract with a forester, the forester appealed first to the local board of adjustment and appeals and then to the superior court. Both upheld the Borough's termination of the contract. The forester now appeals to this court, claiming that the board hearing violated his right to due process by denying him the ability to call witnesses. The forester also claims the timber sale contract was improperly terminated. Because we find that the board hearing did not provide a full and fair opportunity for the forester to be heard, we agree that the hearing did not comport with due process. Accordingly, the forester was entitled to a trial de novo on his contract claims in the superior court. We therefore remand the case to the superior court. II. FACTS AND PROCEEDINGS A. Facts 1. Timber sale contract between Borough and Nash On September 25, 1998, the Matanuska Susitna Borough (Mat-Su or MSB) Assembly entered a timber sale contract with Charles Nash, under which Nash would harvest timber in the Chijuk Creek Forest. Nash agreed to pay the Borough $20.56/acre harvested and to harvest at least 1,000 acres per year during the contract period, which extended from July 1, 1999 through June 30, 2008. Before Nash began working, the Alaska Department of Fish and Game issued a notice of violation to the Borough on December 2, 1998, charging that the Borough had violated state law in the manner in which it had previously built some stream erossings on Oilwell Road-the access road to the timber Nash was to harvest. The U.S. Army Corps of Engineers also issued a notice of violation regarding the same stream crossings. To resolve the road situation in light of the stream crossing violations, Nash attended a February 18, 1989, meeting between officials of the MSB Department of Public Works, the Upper Susitna Soil and Water Conservation District, and the Corps of Engineers. The parties decided that "work for the violations would be the borough's responsibility and work needed for logging trucks would be the responsibility of Charlie Nash." Although construction and maintenance of roads to the harvest area was Nash's responsibility under the original timber sale contract, Nash claims that the "Road Agreement" added to his responsibilities or at least changed the scope of his contract. Indeed, Nash claims that his construction of 11 miles of all-weather road made up the largest part of his $1.5 million investment in the Chijuk timber project. 2. Events leading to MSB's termination of the contract Shortly after the Oilwell Road Agreement, Nash requested, and was given, permission to reduce the contract's timber harvest requirements so that he could work on the road. In his request, Nash stated: "I need to get going on reconstructing the road for the Chijuk Sale. By way of this agreement, I would correct the problems that are open issues with Fish and Game." He added: "It's a good deal for the Borough. In order to accomplish this work, I'm going to need a roll back in the first year's total harvested acres from 1,000 to 500." Still, Nash did not meet even the reduced goal of 500 acres harvested in the first year-in fact, he did not harvest any timber before June 80, 2000. He had, however, largely completed work on two important bridges and was preparing to do other work on the road. On June 28, 2000, Nash requested a second change to the timber sale contract in the form of an extension of time for harvesting the first 500 acres until September 30, 2000. The Borough manager approved the request. In August 2000 it became apparent that Nash would not meet the new deadline and a third accommodation would be necessary. In recommending approval of an extension, borough staff noted that the road being built was "very good," and that because of the quality of the road construction it was in the Borough's best interest to grant Nash the additional time he requested to complete the construction of Oilwell Road and harvest his timber. On November 16, 2000, the Borough approved the third amendment of the contract, providing that Nash would harvest 500 acres by January 31, 2001, and an additional 1,000 acres by June 30, 2001, and every contract year thereafter. By January 15, 2001, Nash had fully completed the bridges, prepared the access road from the Moose Creek Bridge to the Kroto Creek Bridge, and begun to cut some trees. However, his progress was still not up to the contract's requirements, and on January 31, 2001, the Borough approved a fourth amendment pushing back the date for the harvest of the first 500 acres to February 28, 2001. However, Nash still did not meet his requirements, and on June 25, 2001, the Borough officially notified Nash that he was in breach of the timber sale contract. Eventually, the fifth amendment to the contract and all subsequent ones were issued under a notice of breach-that is, the extensions allowed Nash to continue harvesting timber, but did not relieve him of being in breach of contract. Ultimately the Borough would approve eight amendments under breach, bringing the total contract amendments to 12. Nash claims to have completed work on the road during the summer of 2001. Meanwhile, he subcontracted with RK Custom LLC to help him log and mill the timber. RK actively logged the area, and appears to have been responsible for much of the logging that was completed. However, relations between Nash and RK eventually broke down to the point that RK exercised an option in its contract with Nash, granting RK an assignment of part of the timber sale. Nash had granted the option to RK earlier, as capital to collateralize a loan for sawmill equipment. RK noted that it had no other recourse but to take this assignment because Nash "continues to fail at meeting production levels as outlined in all agreements." On February 11, 2002, the Alaska Division of Forestry sent Nash a letter reminding him that he had failed to submit a required annual operations plan. The division also informed him that he would be in violation of the State Forest Practices Act if he did not remove felled white spruce that was piled along the logging roads by June 1, 2002. The state was concerned that downed logs could facilitate the spread of the spruce bark beetle, but Nash had stopped removing the logs in January pursuant to borough order because he had not submitted certificates of insurance for his contractors. Nash provided a certificate of insurance around February 22, but was ordered to cease all activity on February 28, 2002, because he had not provided the Borough with a notice of operations (as required by the contract when operations resumed after a shutdown). Nash provided the required notice on March 6, 2002. Another factor delaying removal of the felled logs was the closure of Oilwell Road during spring breakup in 2002 due to washouts. Unusual weather, including a heavy April 18 snowstorm, appear to have made road conditions unusually bad that spring. Nash claimed before the board of adjustment and appeals that the delay in reopening the road "caused us great hardship because we missed the normal June and early July markets for spruce sales to local mills." On July 8, 2002, the Alaska Division of Forestry informed the Borough that failure to remove the logs by October 24 would constitute a violation of the Forest Practices Act. By letter dated July 22 the Borough informed Nash that he should take out downed logs. Borough staff estimated there were about 2,000 logs in Nash's portion of the sale area needing removal. Nash told the board of adjustment and appeals that he then "started hauling right away," but he found the "original 6 1/2 miles of road that is fully maintained by the Borough (the portion that extends from Petersville Road to the Moose Creek Bridge) [to be] in awful condition." On July 31, 2002, Nash filed a new operating plan stating that his initial focus would be on hauling downed logs rather than harvesting. The Borough responded that this plan did not meet the contractual requirements because it did not provide sufficient detail of planned operations. Accordingly, the Borough would not approve any activities other than removal of the fallen spruce logs. On September 12, 2002, MSB issued Nash and RK a notice of termination stating that the contract had been breached both with regard to removal of downed logs and failure to meet harvest level requirements. This letter stated that RK and Nash had until October 22, 2002, to cure the breach by paying for and harvesting 400 acres and removing about 2,060 spruce logs. The letter indicated that "MSB is not inclined to grant any further extensions in order to cure the breach of this contract. The MSB has previously granted twelve (12) extensions in order to cure previous breaches." On October 24, 2002, borough staff performed a "final inspection for contract termination." Staff inspected the sale area and noted that no new acres had been harvested since the September 12 notice of termination and that about 1,500 spruce logs remained on the ground. The next day, the Borough sent Nash and RK a notice of termination of the contract. It informed Nash that he was no longer authorized to enter the property for forestry work and must remove his equipment. The Borough subsequently removed some of Nash's equipment and demanded payment of some removal charges before it would release it to him. B. Proceedings 1. Board of Adjustment and Appeals Although the Borough's contract termination did not mention any administrative appeal process, Nash was concerned about meeting exhaustion requirements and therefore filed an appeal with the local board of adjustment and appeals. Both parties submitted briefing to the board on January 24, 20083. Nash had hoped to present witnesses who could attest to the poor state of the Borough's portion of the road and to Nash's compliance with the Borough's downed timber requirements. In addition to those who would attend in person, Nash hoped to have one witness testify telephonically. In an affidavit, Nash states that when he inquired about having witnesses, the borough clerk told him that the board hearing would not provide a general forum for witness testimony, but "interested parties" could be heard at the hearing if they had previously testified before the planning and zoning commission. While the Board of Adjustment and Appeals usually handled appeals from the planning and zoning commission, Nash says that he explained that his "appeal" had had no prior proceedings and that therefore his proposed witnesses had not previously testified. Because the issue was important to Nash, he asked the clerk to ask the board chair if he could call witnesses on his behalf. On January 28 the clerk informed Nash that the chair had confirmed that witnesses could not testify at the hearing. It appears the decision was made by the chairman based on Mat-Su Borough Code 15.39.190, which provides that only "interested parties" may testify. That code allows exceptions, but they are discretionary. Since witnesses were not allowed, Nash filed a motion on January 29 requesting oral argument by interested parties. He requested that he be allowed to call people to speak on his behalf as interested parties and that the board decide the matter before the board hearing so Nash could make arrangements for witnesses to take the day off work and travel to the hearing. Nash requested that the board postpone the hearing if it could not decide his motion before the hearing. Nash argued that the interested party requirement stemmed from the board's normal role of reviewing planning and zoning commission hearings and is misplaced in the contract review setting. Nash also pointed out that it would be unfair to those expecting to testify, and a violation of due process, not to know in advance who could and could not testify. Nash asked for a response by January 31, which was the deadline for interested parties to notify the board that they wish to speak. Nash received no response to his motion, despite repeated calls to the clerk's office. In order to meet the board's advance notice requirement, he nonetheless faxed a list of five people who wished to speak as interested parties. Still he did not hear from the board; thus Nash did not know if the people whose names he had submitted could testify, and thus whether they should take the day off work to attend the hearing. At the February 7, 2008, hearing, the board chair began by addressing the issue of interested parties. The board called the persons on Nash's list of interested parties, but only one person-Nash's father-was present. The board agreed to hear his testimony because Nash's father had invested in the project and was thus an "interested party." When Nash was allowed to address the motion, he summarized his difficulty getting an answer from the board and the hardship imposed by requiring people to take off work and travel great distances to attend the hearing without any assurance they would be able to present testimony. He also stated that he had at least one witness who was not present but who was willing to testify telephonically. The Borough attorney argued that Nash had no standing to assert these hardships on behalf of others. Nash responded that he had never been told that potential witnesses had to apply personally. The board upheld the Borough's objection based on standing. Accordingly, none of the people Nash wished to testify had an opportunity to testify except his father. However, one witness who was not on Nash's list, Billy Schuyler, supervisor for the Susitna Soil and Water Conservation District, was present and requested the opportunity to speak. Schuyler worked with Nash on Oilwell Road and could testify about whether the Borough made it impossible for Nash to perform under the contract. The board debated whether Schuyler should be able to speak, with the chair strictly opposed and the other board members willing to hear additional information. The board ultimately allowed Schuyler to testify as a special exception, in part because he had taken time off from work and driven on icy roads since 2:00 a.m. to attend the meeting. Having thus resolved Nash's motion to allow testimony, the board considered the Borough's motion to present testimony of a borough staff member. Although a board member pointed out that this was essentially what Nash was attempting to do, the board accepted the Borough's evidence. It justified this decision by distinguishing between a witness who could speak as an employee of the Borough (a party to the matter), and the persons on Nash's proposed list, who were merely "interested parties." Nash objected to introduction of the affidavit on the ground that supplementing the record at the last minute denied him an opportunity to reply. In addition, a board member questioned whether it was fair to allow the Borough to offer testimony from an absent person but deny Nash similar opportunity to present testimony from interested persons at a later date. The board allowed the Borough's affidavit nonetheless. At the hearing two borough staff members gave presentations, then Nash briefly stated his side of the case. Nash walked out of the proceedings before the Borough attorney's argument. He was accompanied by his father, who ultimately did not testify. Schuyler was allowed to speak, and testified that Nash's failure to perform under the contract resulted from the hurdles the Borough placed before him. The same day as the hearing, the board released a written, four page decision upholding the Borough's termination of the contract. The decision stated the board's findings and conclusion, but did not discuss the evidence or rationale supporting those findings. 2. Superior Court On March 10, 2003, Nash sued the Borough in superior court for breach of contract, breach of good faith and fair dealing, intentional interference with chattels, and intentional interference with contract. He argued that he deserved a trial de novo because the board deprived him of a fair and full hearing. The Borough moved for judgment on the pleadings and a motion to designate the matter as an appeal and dismiss. After a hearing on September 15, 2008, Superior Court Judge Eric Smith ruled that Nash's contract-based claims for damages were functionally an administrative appeal. But the court ruled that it was "not clear from the pleadings whether the Borough's administrative procedures afforded the [pllaintiff due process." The court therefore requested additional briefing on whether the case required a trial de novo. The superior court eventually found that the board hearing complied with the requirements of due process. In finding that the board provided due process, the court found that borough personnel explained to Nash that only interested parties could speak. The court also found that Nash's motion regarding interested parties could not have been addressed before the hearing because the board could not meet before then. The superior court concluded that there was no due process violation concerning the board's limitations on testimony, because the board allowed all who were present at the meeting (Schuyler and Nash's father) to testify. The superior court concluded that Nash's problems were his "own making," and that the borough code simply did not permit the borough clerk or board chair to give Nash the assurances he wanted. The superior court further concluded: It is true that Mr. Nash was not able to depose witnesses, to serve interrogatories, to request materials, or to cross-examine the witnesses. But there is no requirement in the case law that an administrative appeal must always follow all of the procedures afforded a party in a civil trial. Rather, the focus is on whether Mr. Nash received a fair and full opportunity to make his case in the context of a regulatory rather than a judicial decision. In such a context, there is no requirement that the [board] provide for discovery or cross-examination. Due process thus resolved, the parties addressed the merits of the board's decision. On October 6, 2005, Nash moved to supplement the administrative record to include the Oilwell Road Agreement of March 24, 1999. The court granted this motion. On April 17, 2006, the court ruled that it would "hold an evidentiary hearing to determine the meaning of the road agreement, and will then fold its findings regarding the agreement into its evaluation, as an administrative appeal, of the [board] decision." On February 25, 2008, after the hearing regarding the road agreement, the superior court issued an order upholding the Borough's termination of the contract. The superior court found that the road agreement "was a cooperative agreement delineating certain voluntary undertakings by the signatories" and "did not explicitly or implicitly modify the timber sale contract." It also concluded that the board's decision to uphold the termination of the contract was supported by substantial evidence, "primarily because Mr. Nash's failure to perform on the contract provided an adequate basis for the Borough to terminate the contract." Nash now appeals, arguing that the board violated his due process rights and that the Borough improperly terminated the contract. III. STANDARD OF REVIEW We review for abuse of discretion a superior court's decision to conduct an administrative review instead of a trial de novo. "To find an abuse of discretion, we must be 'left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling.' Where the superior court conducts a partial trial de novo, we review the court's findings and conclusions. Factual findings by the superior court are reviewed under the clearly erroneous standard, while legal issues are reviewed de novo. IV. DISCUSSION Nash argues that, because the board proceedings did not afford him due process, the superior court erred in denying him a full trial de novo. He argues in the alternative that the timber sale contract entitled him to trial de novo. He also asserts that the road agreement modified the timber sale contract and that the contract was improperly terminated. Because we agree with his due process claim and remand for a full trial de novo, we do not decide whether the road agreement modified the timber sale contract, whether the timber sale contract entitled him to trial de novo, or whether the timber sale contract was properly terminated. Nash Did Not Receive Due Process In The Board Proceeding. Nash argues that the board violated his due process rights in several ways: by failing to provide discovery procedures, by restricting his right to present witnesses, and by generally failing to properly handle the hearing. The Borough argues that the procedures were sufficient to satisfy the requirements of due process and that Nash has failed to make a requisite showing of prejudice. It points out that Nash was in fact allowed to call all of the individuals he requested on his witness list, except for those who did not show up to the hearing. The superior court determined that Nash had received adequate procedural opportunities to present his case, and that the problems he experienced at the administrative hearing "were of [his] own making." Accordingly, the court found that the board afforded Nash due process. The court denied Nash full trial de novo on his contract claims. Article I, section 7 of the Alaska Constitution guarantees the right of due process. Due process in the administrative context does not demand that every hearing comport to the standards a court would follow, but rather that the administrative process afford an impartial decision-maker, notice and the opportunity to be heard, procedures consistent with the essentials of a fair trial, and a reviewable record. A violation of due process should be alleged with particularity and a showing of prejudice We stated in Keiner v. City of Anchorage that a party is "entitled to a trial de novo, in whole or in part, if he [has] been denied the opportunity to present to the [Board] relevant and material evidence supporting his claim...." We agree with Nash that his inability to present witness testimony to the board violates these standards of due process. We cannot find due process in a hearing where parties do not know if they will be allowed to call witnesses until the hearing has actually begun. Accordingly, we cannot agree with the conclusion that Nash's problems were of his own making. Rather, the record indicates a series of irregularities that effectively denied Nash notice and the opportunity to be heard, and the board failed to provide procedures consistent with the essentials of a fair trial. The board's procedures for testimony, letting only "interested parties" testify, is not consistent with our requirements for due process. While a hearing need not be identical to a judicial proceeding, the board's exclusion of witnesses who are not "interested parties" narrows the record to something markedly less than a full opportunity to be heard, and prevents a party from presenting relevant, material evidence. The present case was relatively complex, involving contract performance over the span of a decade; investments allegedly of well over one million dollars; and the involvement of private parties, the federal government, state government, and local government. In light of these complex issues, Nash was prepared to present testimony from "witnesses who would knowledgeably address topics from the terrible condition of the MSB maintained portion of [Oilwell] Road . to the absence of any [Florest [P Jractices [Alet violations on the sale." However, by limiting testimony to only interested parties, the board prohibited Nash from presenting this relevant and material evidence. We believe that such a narrow hearing effectively rendered Nash unable to present his case-precisely the due process violation that Keiner contemplated would justify a trial de novo. Moreover, it is inappropriate for a claimant in an administrative hearing not to know in advance if he will be allowed to call witnesses at the hearing. Adequate, fair procedures should provide notice as to who may testify. While it is understandable that uncertainties might arise from time to time, we believe the resolution of the uncertainty in the present case was inadequate. Nash filed a motion asking for special permission to call witnesses, as appears permissible under Mat-Su Borough Code 15.39.190. But the board did not respond. Nash requested, in the alternative, that if a decision could not be made in advance of the board meeting, that the board delay the hearing on the merits until a later date. This would have been a prudent course of action, and the record does not show why the board did not grant Nash's request. In short, we cannot agree with the superior court that Nash's problems resulted from his own doing; rather, we conclude that the board's limitations-effectively denying advance notice as to who may testify-were too restrictive. The Borough unconvineingly contends that there was no denial of witness testimony since those present were all allowed to speak. To the contrary, the paucity of witnesses present was more likely a result of the board's inability to decide in advance who would be able to testify, and was thus indicative of procedures inconsistent with the essentials of a fair trial. Nash repeatedly asked for assurances as to which witnesses would be able to speak, and whom he should ask to travel to the hearing. Yet by the time of the hearing, it was not clear whether the board would allow any witnesses. In addition, Nash claims that the borough clerk had already told him that witnesses would not be allowed to speak. Even if the clerk's answer was more equivocal than Nash understood it to be, it is clear that the Borough had not indicated, with any degree of certainty, who would be allowed to testify. Thus, the Borough's argument that the matter came down to merely who was or was not present is not persuasive. It is true that one witness (Schuyler, with the Susitna Soil and Water Conservation District) appeared at the hearing and the Borough did allow him to testify. But the barrier Schuyler faced in testifying was itself problematic. Throughout the hearing the chair was resistant to Schuyler's testifying, asserting that Schuyler should not be allowed to testify because he was not an interested party. This undermines the Borough's contention that it would, in all likelihood, have allowed witnesses to testify as long as they were present. Further, Schuyler's testimony demonstrates the lack of clarity behind the board's interested party requirement: The fact that a government employee with obviously relevant testimony to offer was relue-tantly granted a special exception-even though not an "interested party"-lends support to Nash's contention that he had no guarantee that any of his desired witnesses would be allowed to speak. An additional procedural flaw is evident in the board's ruling that Nash had no standing to object to the board's refusal to allow a witness to testify. A party cannot be denied standing to argue an issue as fundamental as what testimony may be presented. We find no basis for the board's decision regarding standing, and it is certainly not procedure consistent with the essentials of a fair trial. We are also troubled by the board's acceptance of an affidavit from the Borough soon after denying Nash's requests to allow witnesses to testify. The affidavit was from a city employee, testifying to the merits, and was allowed into the record so that the employee would not have to leave his office during a busy day. In our view, the affidavit was quite similar to Nash's request regarding witness testimony, and the board had no basis to reject Nash's request while allowing the Borough's. Coming on the heels of the chair's utter resistance to Nash's witnesses, the board's asymmetric allowance of the Borough's affidavit appears to fall short of the procedural fairness required for due process. In sum, we find that the board did not afford Nash a full opportunity to be heard nor provide procedures consistent with the essentials of a fair trial. Rather, he was prohibited from presenting relevant, material evidence, and was thereby effectively denied due process. Under these cireumstances, a trial de novo is appropriate in the superior court. v. CONCLUSION In light of the board's restrictions on testimony, we find that its hearing did not comport with due process. Accordingly, we REVERSE the superior court's due process ruling and REMAND for a trial de novo. EASTAUGH, Justice, not participating. . Treacy v. Municipality of Anchorage, 91 P.3d 252, 270 (Alaska 2004). . Id. (quoting Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998)). . City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985). . Id. at 876. . Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . The court did grant a de novo hearing on whether the road agreement modified the contract, since that issue was not addressed before the board. . Keiner v. City of Anchorage, 378 P.2d 406, 409-10 (Alaska 1963) (citing St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73, 56 S.Ct. 720, 80 L.Ed. 1033 (1936) (Brandeis, J., concurring: "The inexorable safeguard which the due process clause assures is, not that a court may examine whether the findings as to [specific facts] are correct, but that the trier of the facts shall be an impartial tribunal; that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial; and that it shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed.")). . Keiner, 378 P.2d at 409. . Id. at 406. . Id. at 409; see also State v. Lundgren Pac. Const. Co., 603 P.2d 889, 895-96 (Alaska 1979) (finding a right to trial de novo where administrative procedure did not afford due process). . See 378 P.2d at 409. . Moreover, that Nash had to rely on oral guarantees from the borough clerk is itself indicative of an inadequate procedural framework. . Indeed, Schuyler only testified over the objection of the chair, and as a special exception, because Schuyler had traveled since 2:00 a.m. over icy roads to attend the hearing-in the words of one board member who argued in favor of allowing Schuyler to speak, "We are still in Alaska." . The board reached this strange ruling on the ground that only a witness could assert a right to testify, not a party. . See Keiner, 378 P.2d at 409 (requiring essentials of fair trial and noting that new trial is remedy where party was not allowed to present relevant and material evidence). . We do not address Nash's argument that the road agreement modified the timber sales agreement because relevant evidence on this issue may emerge during the de novo trial. Accordingly, we vacate the superior court's conclusion that no modifications had occurred and remand this matter for trial.

6992305

LAW PROJECT FOR PSYCHIATRIC RIGHTS, INC., an Alaskan non-profit corporation, Appellant, v. STATE of Alaska, et al., Appellees

Law Project for Psychiatric Rights, Inc. v. State

2010-10-01

No. S-13558

1252

1257

239 P.3d 1252

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:10.583506+00:00

CAP

Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

LAW PROJECT FOR PSYCHIATRIC RIGHTS, INC., an Alaskan non-profit corporation, Appellant, v. STATE of Alaska, et al., Appellees.

LAW PROJECT FOR PSYCHIATRIC RIGHTS, INC., an Alaskan non-profit corporation, Appellant, v. STATE of Alaska, et al., Appellees. No. S-13558. Supreme Court of Alaska. Oct. 1, 2010. James B. Gottstein, Law Project for Psychiatric Rights, Inc., Anchorage, for Appellant. Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellees. Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

2600

16809

OPINION WINFREE, Justice. I. INTRODUCTION A non-profit public interest law firm filed suit in its own name against the State of Alaska seeking to establish constitutional standards that must be met before compelling minors to take psychotropic medications. The superior court granted a stay of discovery pending the State's motion to dismiss for lack of standing. The superior court then dismissed the complaint for lack of standing and later awarded the State nearly $4,000 in attorney's fees under Alaska Rule of Civil Procedure 82(b)(2). Because the superior court did not err in dismissing the lawsuit for lack of standing and did not otherwise abuse its discretion, we affirm its decisions. II. FACTS AND PROCEEDINGS Law Project for Psychiatric Rights, Inc. (LPPR) is a non-profit Alaska corporation operating as a public interest law firm. LPPR's mission is "to mount a strategic litigation campaign against foreed psychiatric drugging and electroshock." In September 2008 LPPR initiated suit against the State and seven State employees in their official capacities (collectively "the State"), seeking declaratory and injunctive relief regarding children's rights in compelled psychotropic drug administration. LPPR claimed administering psychotropic medication to children without their consent constitutes involuntary medicating and "infringes upon [the children's] fundamental constitutional rights." LPPR sought a declaratory judgment that "children . have the right not to be administered psychotropic drugs unless and until" certain standards are met. LPPR also sought to permanently enjoin the State from "authorizing or paying for" psychotropic drug administration that fails to follow the proposed standards. After filing an answer the State moved contemporaneously for judgment on the pleadings and to stay discovery. The State argued that LPPR's complaint should be dismissed for lack of standing and observed that LPPR failed to "identify a single individual who has been harmed by the alleged violations." The State argued a stay of discovery was particularly appropriate pending the dis-positive motion because the "motion raise[d] pure questions of law which discovery [was] not needed to resolve." LPPR opposed both motions. As to standing, LPPR argued it satisfied citizen-taxpayer standing. Although LPPR conceded it did not assert interest-injury standing to sue either on its own behalf or on behalf of any individual member of the class described in its complaint, it argued the complaint could be amended to include a named plaintiff. LPPR explained it was a proper litigant because affected children and parents were unlikely to file suit, due in part to lack of resources. LPPR also claimed that an individual litigant might be unable to obtain in-junctive relief. As to the discovery stay, LPPR argued the motion for judgment on the pleadings was "not likely to dispose of the entire case" and therefore discovery should proceed. LPPR outlined two discovery objectives, neither of which suggested LPPR required discovery to address the State's standing argument. The superior court granted both of the State's motions. First the court stayed discovery pending its decision on the motion for judgment on the pleadings. The court later found LPPR had not asserted interest-injury standing and had failed to establish citizen-taxpayer standing. The court found that, despite raising questions of public significance, LPPR was not an appropriate litigant to bring the action and stated that "the affected children, their parents or guardians[,] or even the state would make a more appropriate plaintiff." The court further concluded that LPPR "failed to establish any parent or guardian with a legitimate grievance on behalf of their juvenile or child has declined to sue" or that "any legitimate claim has gone unpursued." Concluding that LPPR lacked standing to litigate the issues, the court dismissed the complaint. The State then moved for partial attorney's fees under Rule 82(b)(2). LPPR opposed the motion, citing Rule 82(b)(8)(D) and asserting that "[alny award is likely to deter litigants from the voluntary use of the courts." The court granted the State's motion and, adhering to Rule 82(b)(2), awarded the State $3,876 in attorney's fees. LPPR appeals the superior court's decisions to dismiss for lack of standing, stay discovery, and award the State attorney's fees. IIH. STANDARD OF REVIEW We review de novo whether a party has standing to sue, as the issue raises a question of law. We review a superior court's ruling on a motion to stay discovery for abuse of discretion. Abuse of discretion occurs "when we are left with a definite and firm conviction after reviewing the whole ree-ord that the [superior] court erred in its ruling." We also review attorney's fees awards for abuse of discretion. We will reverse an attorney's fees award only if it is "arbitrary, capricious, manifestly unreasonable, or stems from an improper motive." IV. DISCUSSION A. Standing "Standing is a 'rule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions'" The fundamental question raised by an objection to standing is whether the litigant is a proper party to seek adjudication of a particular issue. Although we favor access to judicial forums, a basic requirement of standing is adversity of interests. We recognize two general types of standing sufficient to meet the adversity requirement-interest-injury standing and citizen-taxpayer standing. For interest-injury standing we also recognize third-party standing, which allows a litigant to raise the rights of a third person in special cireumstances. To establish citizen-taxpayer standing, a litigant must show that the issues raised are of public significance and that it is an appropriate litigant to seek adjudication of those issues. At oral argument before us, LPPR conceded that the constitutional right it seeks to establish is an individual right. But LPPR nonetheless maintained that compelled psychotropic medicating is a matter of great social consequence and therefore a matter of public significance for purposes of citizen-taxpayer standing. In Keller v. French the plaintiffs attempted to rely on citizen-taxpayer standing to assert the personal constitutional rights of a small number of third parties involved in a legislative investigation. There, however, "[wle decline[d] to allow the use of citizen-taxpayer standing as a substitute for third-party standing." Keller is indistinguishable from the situation here-LPPR seeks to establish a personal constitutional right on behalf of an unknown number of minors through citizen-taxpayer standing. But LPPR offers no persuasive argument to permit substituting citizen-taxpayer standing for third-party standing in this case. LPPR fails to satisfy the elements of citizen-taxpayer standing in any event. As the State contends, even assuming the issues raised are of public significance for citizen-taxpayer standing, an individual (or group) directly affected by the State's administration of psychotropic drugs to minors would be the appropriate litigant. And despite LPPR's argument to the contrary, the systemic relief LPPR seeks could be obtained by an individual litigant through the application of stare decisis or by a class action seeking broad declaratory and injunctive relief. As we made clear in Keller, "[tlhat individuals who are more directly affected have chosen not to sue despite their ability to do so does not confer citizen-taxpayer standing on an inappropriate plaintiff." LPPR speculates that potential litigants are limited in their ability to sue to establish and protect their individual constitutional rights regarding compelled psychotropic medication. - LPPR suggests, without providing any supporting evidence, that people involved in protective proceedings fear retaliation by the State if they contest compelled psychotropic medication. Yet it is in those very proceedings where protected persons have access to counsel to represent their interests and protect against potential retaliation. LPPR also suggests that individuals are reluctant to be involved in lawsuits out of fear of an adverse attorney's fees award. Yet the legislature has expressly provided protection against adverse attorney's fees awards for those who unsuccessfully assert non-frivolous constitutional claims without an economic incentive. We therefore affirm the superior court's dismissal of LPPR's suit for lack of standing. B. Stay Of Discovery LPPR argues it was an abuse of discretion for the superior court to stay discovery because LPPR required discovery to defend against the State's motion for judgment on the pleadings. But LPPR raises this argument for the first time on appeal. LPPR's opposition to the State's motion to stay discovery did not contain an explicit argument that LPPR required discovery to establish citizen-taxpayer standing. LPPR's only mention of standing in its opposition to stay discovery was an assertion that the issue was "unmeritorious and [could] be addressed by naming additional plaintiffs." And although LPPR's opposition to the State's motion for judgment on the pleadings mentioned that discovery would be used to reveal the State's purported coercion of parents, the motion never explicitly stated discovery was necessary to satisfy citizen-taxpayer standing. The issue is therefore not properly before us and we decline to address it. C. Attorney's Fees Award The State requested and received an attorney's fees award under Rule 82(b)(@Q). LPPR argues that it was an abuse of discretion for the superior court not to give weight to Rule 82(b)(8)(I), which allows the court to vary a Rule 82(b)(@Q) award if the presumptive award "may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts." We first note that LPPR did not explicitly argue in the superior court and does not argue on appeal that it is protected from an adverse attorney's fees award under AS 09.60.010(c)(2), although its lawsuit appears to have "concern[ed] the establishment, protection, or enforcement of a [constitutional] right." We therefore express no opinion on the application of AS 09.60.010(c)(2) to this case. Instead we follow the parties convention in analyzing the superior court's attorney's fees award under Rule 82. The presumptive Rule 82(b)(@Q) award here is less than $4,000. LPPR argues that the adverse award will deter similarly situated litigants from bringing suit, but we have already noted that statutory protection against adverse attorney's fees awards exists for certain non-prevailing parties raising constitutional claims. Based on the record, we conclude that it was not abuse of discretion for the superior court to award the State partial attorney's fees under Rule 82(b)(2). v. CONCLUSION We AFFIRM the superior court's decisions. CARPENETI, Chief Justice, not participating. . Rule 82(b)(2) provides in pertinent part: "In cases in which the prevailing party recovers no money judgment, the court . shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred." . Rule 82(b)(3)(I) provides in pertinent part: The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if . the court determines a variation is warranted [considering] the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts. . Keller v. French, 205 P.3d 299, 302 (Alaska 2009) (citing St. Paul Church, Inc. v. Bd. of Trs. of the Alaska Missionary Conference of the United Methodist Church, Inc., 145 P.3d 541, 549-50 (Alaska 2006)). . Armstrong v. Tanaka, 228 P.3d 79, 82 (Alaska 2010) (citing Stone v. Int'l Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996)). . Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998) (citing Stone, 918 P.2d at 554). . Marsingill v. O'Malley, 128 P.3d 151, 156 (Alaska 2006) (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136, 140 (Alaska 2004)). . Id. (quoting Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 2000)). . Keller, 205 P.3d at 302 (quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1034 (Alaska 2004)). . Trs. for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (quoting Moore v. State, 553 P.2d 8, 23 n. 25 (Alaska 1976)). . Id. (citing Moore, 553 P.2d at 23 & n. 25). . Id. . Foster v. State, 752 P.2d 459, 466 (Alaska 1988) (Moore, J., concurring) ("Under the interest-injury approach, a litigant can have standing either to protect his own rights, or, in rare cases, to protect the rights of third parties by acting in a representative capacity.") (citing Wagstaff v. Super. Ct., Fam. Ct. Div., 535 P.2d 1220, 1225-26 (Alaska 1975)); see also, e.g., State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001) (citing among others Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)) (stating "physicians have standing to challenge abortion laws on behalf of prospective patients"); Bonjour v. Bonjour, 592 P.2d 1233, 1241 n. 15 (Alaska 1979) (citing Abington Sch. Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)) (concluding parent had standing to assert child's constitutional rights under the Establishment Clause). . Keller, 205 P.3d at 302 (citing Trs. for Alaska, 736 P.2d at 329). . See id. at 301-04 (concerning protections during legislative investigations under the fair and just treatment clause of the Alaska Constitution). . Id. at 304. . But cf. id. at 305 (Winfree, J., concurring) (commenting that violation of an individual's personal constitutional rights likely does not constitute "public significance" justifying citizen-taxpayer standing). . See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 373, 376-78 (Alaska 2007) (establishing, upon one patient's challenge, standards for involuntary commitment for a mental disorder); Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 239 (Alaska 2006) (establishing, upon one patient's challenge, standards treatment facilities must follow for administering psychotropic medication to patients in non-emergency situations). . See Smith v. Cleary, 24 P.3d 1245, 1247, 1251-52 (Alaska 2001) (observing class consisting of state prisoners moved to enjoin State from transferring prisoners to out-of-state jails but noting class could have requested a broad declaratory judgment). . Keller, 205 P.3d at 303. Although we conclude those directly affected by the State's administration of psychotropic drugs to minors are appropriate litigants, we express no opinion on the superior court's comment that the State could be an appropriate litigant. . See AS 47.30.725(d) (providing the respondent with a right to be represented by an attorney before involuntary admission for mental health treatment); see also Wetherhorn, 156 P.3d at 383 (stating the Alaska Constitution's Due Process Clause guarantees a person the right to counsel in involuntary commitment and administration of psychotropic medication proceedings). Potential litigants may be indigent or unable to afford representation, as LPPR suggests, but the right to court-appointed counsel disposes of LPPR's suggestion that this prevents them bringing suit. . See AS 09.60.010(c)(2). . See Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 78 P.3d 703, 709 (Alaska 2003) ("We will not address an issue on appeal that was not raised at trial." (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001))). We apply our independent judgment to determine if an issue has been waived. Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (citing Wilkerson v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1021 (Alaska 1999)). . Alaska R. Civ. P. 82(b)(3)(I). . AS 09.60.010(c)(2). . Because the superior court's attorney's fees award "accords with the presumptive percentages in Rule 82(b)(2) . the court need not offer an explanation of its award." Marsingill, 128 P.3d at 163 (citing Nichols, 6 P.3d at 305). . See note 21, above and accompanying text.

10381809

POWER CONSTRUCTORS, INC. and Forward Alaska, Inc., Appellants, v. ACRES AMERICAN, Acres American, Inc., Acres International Corp., Hanscomb Associates, Inc., Acres/Hanscomb, a Joint Venture, and Ebasco Services, Inc., Appellees

Power Constructors, Inc. v. Acres American

1991-05-24

No. S-3821

1052

1057

811 P.2d 1052

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

POWER CONSTRUCTORS, INC. and Forward Alaska, Inc., Appellants, v. ACRES AMERICAN, Acres American, Inc., Acres International Corp., Hanscomb Associates, Inc., Acres/Hanscomb, a Joint Venture, and Ebasco Services, Inc., Appellees.

POWER CONSTRUCTORS, INC. and Forward Alaska, Inc., Appellants, v. ACRES AMERICAN, Acres American, Inc., Acres International Corp., Hanscomb Associates, Inc., Acres/Hanscomb, a Joint Venture, and Ebasco Services, Inc., Appellees. No. S-3821. Supreme Court of Alaska. May 24, 1991. Sema E. Lederman, Hansen & Lederman, Anchorage, for appellants. Paul H. Ashton and Colleen J. Moore, Guess & Rudd, Anchorage, for appellees Acres American, Acres American, Inc., Acres Intern. Corp., Hanscomb Associates, Inc., and Acres/Hanscomb, a Joint Venture. J.W. Sedwick and Frances C. Lindemann, Burr, Pease & Kurtz, Anchorage, for appel-lee Ebasco Services, Inc. Taylor & Hintze, Anchorage, attorneys for appellants in Trial Court. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3250

19665

OPINION MOORE, Justice. Power Constructors appeals the trial court's dismissal of its action with prejudice for failure to prosecute. We affirm the trial court's decision. I. On November 6, 1986, Power Constructors, Inc. (P.C.I.) filed suit against Acres American, Inc., Acres International Corp., Hanscomb Associates, Inc., Acres/Hanscomb and Ebasco Services, Inc. (Acres/Ebasco). Acres/Ebasco answered the complaint in January 1987. The parties engaged in some initial discovery in early 1987. More than a year passed without any party taking further action. On June 13, 1988, the superior court served a notice of dismissal on the parties, ordering P.C.I. to show cause within 30 days why the case should not be dismissed for lack of prosecution. On June 15, P.C.I. filed a motion for withdrawal and substitution of attorney. On June 27, 1988, it filed an opposition to the notice of dismissal. In its opposition, P.C.I. asked for an extension of time to allow its new counsel to become familiar with the case and to conduct discovery. On July 13, 1988, P.C.I.'s motion for withdrawal and substitution of attorney was granted. The trial court took no further action on its order to dismiss. Once again over a year passed without any record activity in the case. On November 9, 1989, the superior court issued a second notice of dismissal for failure to prosecute. On December 4, 1989, P.C.I. filed a memorandum to set the case for trial. On the same day, it filed an opposition to the notice of dismissal claiming that it had been actively working on the case. P.C.I. argued that it had requested a trial setting conference, and it stated that its attorneys had expended over 400 hours reviewing the issues since they took over the case. Ebasco filed a reply to P.C.I.'s opposition on December 12,1989. Ebasco argued that P.C.I. had not shown good cause to prevent dismissal under Civil Rule 41(e) and claimed prejudice due to the lack of prosecution. Alternatively, in the event the court decided not to dismiss the case, Ebas-co requested that it be awarded the costs it would incur in tracking down witnesses who had left the area. On December 29, 1989, the superior court judge dismissed the case with prejudice. On January 8, 1990, P.C.I. filed a motion for reconsideration under Civil Rule 77(m), claiming the superior court erred in dismissing its case without considering alternative sanctions. The court denied the motion on January 19, 1990. This appeal followed. II. Civil Rule 41(e) authorizes the court to dismiss a pending action either on its own motion or on the motion of a party if no proceeding has been undertaken in the case for more than one year. Zeller v. Poor, 577 P.2d 695, 696 (Alaska 1978). P.C.I. contends that the trial court abused its discretion in dismissing its case under Civil Rule 41(e) because (1) its pretrial memorandum qualifies as a "proceeding," and (2) P.C.I. showed good cause for any delay in prosecution. We disagree. We have defined a "proceeding" as "a step, act or measure of record, by the plaintiff, which reflects the serious determination . 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." Shiffman v. K, Inc., 657 P.2d 401, 403 (Alaska 1983) (filing of an answer is a "proceeding" under Civil Rule 41(e)). Such affirmative action will terminate a period of lapse and preclude the trial court from dismissing the action. Id.; Atlas Enterprises v. Consolidated Constr. Co., 572 P.2d 68, 71 (Alaska 1977). A pretrial memorandum filed after the court issues its notice of dismissal does not constitute a "proceeding" under Civil Rule 41(e). Any other finding would severely weaken Civil Rule 41(e). This rule serves several functions. First, as an administrative matter, it allows the court to "clear [its] calendar of cases that are not being prosecuted diligently." First Nat'l Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1032 (Alaska 1971). Second, it forces plaintiffs to keep their cases moving at a reasonable speed. Id. "Under Rule 41(e), the plaintiff bears the burden to diligently pursue the enforcement of his cause of action." Shiffman, 657 P.2d at 403. Finally, Civil 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." Id. The power of Rule 41(e) to achieve these goals would be considerably compromised if plaintiffs knew that, no matter how long they delayed, they could avoid dismissal by filing a pleading of record as soon as the court issued its notice of dismissal or a party filed a motion to dismiss. P.C.I. has also asserted that it showed good cause for the delay in prosecution. In general, a court will not dismiss a case under 41(e) when there is a reasonable excuse for the lack of prosecution. Brown v. State, 526 P.2d 1365 (Alaska 1974). P.C.I. offers several excuses for its inaction. First, it maintains that its substitution of counsel justified the failure to take any record action during the sixteen month period following the court's first notice of dismissal. Second, it argues that the 447 hours spent by substituted counsel analyzing and preparing the case for litigation indicates that it was actively pursuing its claims during this time. We find these arguments unpersuasive. P.C.I. does not explain why it needed sixteen months for this review or why it did not take any action of record during this period. Standing alone, substitution of counsel and the consequent need for more time to review the ease does not constitute good cause for a sixteen month delay in prosecution. The decision whether to dismiss an action under Civil Rule 41(e) lies within the sound discretion of the trial court. Brown, 526 P.2d at 1368. We conclude that, since no action of record was taken prior to the filing of the notice of dismissal and P.C.I. did not show good cause for the delay, dismissal under Civil Rule 41(e) was proper. III. P.C.I. contends that dismissal with prejudice was too harsh a sanction in this case and was therefore an abuse of the trial court's discretion. We disagree. We have held that dismissal with prejudice is a harsh sanction which "should be reserved for gross violations" of Rule 41(e). Zeller, 577 P.2d at 697; accord Mely v. Morris, 409 P.2d 979, 982 (Alaska 1966) (dismissal with prejudice is a drastic remedy which should be applied only in extreme circumstances). Similarly, federal courts have only resorted to dismissal with prejudice when there is a " 'clear record of delay or contumacious conduct by the plaintiff,' and 'lesser sanctions would not serve the best interests of justice.' " John v. Louisiana, 828 F.2d 1129, 1131 (5th Cir.1987) (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986)). These courts have also balanced other factors in determining the appropriate sanction for failure to prosecute. These other factors include the extent to which the plaintiff was personally responsible for the delay and whether the defendant suffered actual prejudice. McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976). P.C.I. failed to make a diligent effort to move its case forward. After filing the case in December 1986 and performing some preliminary discovery, P.C.I. did nothing to pursue its claim for over 15 months. In order to forestall dismissal in June 1988, P.C.I. informed the court that it needed extra time for its new attorneys to study the case. It also stated its plans to locate and depose numerous individuals involved in the case. However, after receiving additional time from the trial court, P.C.I. did not take, or even schedule, a single deposition. The record does not indicate that P.C.I. took any affirmative action to move the case forward until after the court issued its second notice of dismissal in November 1988, three years after the case was filed. Once a plaintiff has filed a lawsuit, it is subject to normal rules of court procedure. If there is some reason the plaintiff can not proceed with its case in a timely fashion, it should file a motion under Civil Rule 77 asking the court for additional time. In this case, however, P.C.I. elected to ignore this alternative and chose to keep both the defendants and the court in the dark as to the status of its case. P.C.I.'s unexcused failure to proceed with its case for three years justifies dismissal with prejudice under Civil Rule 41(e). See Rossi v. Mathers, 749 P.2d 964 (Colo.App.1987) (dismissal with prejudice justified where plaintiff had failed to show that she had been diligently prosecuting her claim for over three years); Salinas v. Sun Oil Co., 819 F.2d 105 (5th Cir.1987) (pattern of delay for over two years in the face of three warnings of dismissal justified dismissal with prejudice). However, we have held that a party should not be barred from his or her day in court where an alternative remedy would suffice to make the adverse party whole. Zeller, 577 P.2d at 697. In this case the court considered and rejected alternative sanctions on two separate occasions. First, it considered Ebasco's request for an award of the costs of locating and deposing out of state witnesses if the court chose not to dismiss the case. Second, as requested by P.C.I. in its motion for reconsideration, it considered imposing a fine on P.C.I. In both instances, the court rejected these suggested alternatives. Although the court did not make explicit findings on this issue, the record discloses that it explored and rejected reasonable alternatives short of dismissal. We do not require the court to make explicit findings concerning alternative sanctions, nor do we require it to examine every single alternate remedy to dismissal. But see Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir.1984) (dismissal with prejudice should be imposed only after full consideration of the likely effectiveness of less stringent measures). We require only that the record clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal. See Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972). Furthermore, we find that Acres/Ebasco were prejudiced by the delay in prosecution. Potential witnesses involved in the project relocated, making it more costly and difficult to interview and depose these individuals. P.C.I.'s continued failure to communicate with the defendants and the court made it impossible for Acres and Ebasco to adequately prepare their defense. Although we are reluctant to punish a client for the actions of his attorney, "[a] party 'cannot . avoid the consequences of the acts or omissions of [his or her] freely selected agent.' " Mely v. Morris, 409 P.2d 979, 983 (Alaska 1966) (quoting Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)). In this case, P.C.I. has failed to differentiate its actions from those of its attorneys or to otherwise show that it shared no responsibility for the delay in prosecution. Other jurisdictions have held that a client is bound by the inaction of counsel which results in dismissal for failure to prosecute. See e.g., Valente v. First Western Savings and Loan Ass'n, 90 Nev. 377, 528 P.2d 699, 700 (1974); Charlie Brown Constr. Co. v. Leisure Sports, Inc., 740 P.2d 1368, 1371 (Utah App.1987) (law office delays or failure are unacceptable excuses for failure to prosecute), cert. denied, 765 P.2d 1277 (Utah 1987). In such cases, a client has recourse to a professional malpractice action against counsel. Valente, 528 P.2d at 700. For the above reasons, we affirm the decision of the trial court. . P.C.I.'s complaint alleged breach of contract, negligence, fraud and misrepresentation and asked for damages in excess of one million dollars. . The order stated in part: Plaintiffs, having failed to take any action to advance their claims . since 1987, and further having failed to present good cause as required by Civil Rule 41(e), why their failure to proceed with their claims should be excused, the court finds that plaintiffs have completely ignored their responsibility to the court and the other parties, to make reasonable progress toward the resolution of their claims, and have done so without any legitimate excuse. Accordingly, [it is ordered] that this case is dismissed with prejudice.... . See Radinsky v. Karras, 511 P.2d 953 (Colo. App.1973) (filing of the notice to set trial after the court issued notice to show cause why action should not be dismissed did not prevent dismissal for failure to prosecute). However, filing a request to set trial before the notice to dismiss is filed will prevent dismissal for failure to prosecute. See Briemeister v. Medina, 76 N.M. 606, 417 P.2d 208, 210 (1966); Govayra v. Straubel, 466 So.2d 1065 (Fla.1985); Churruca v. Miami Jai-Alai, Inc., 454 So.2d 37 (Fla.App.1984). . P.C.I. relies on Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961) (delay in prosecution occasioned in p.art by necessity of obtaining new counsel and familiarizing him with the details of the case held excusable). However, in Cervi, the need for time for the substituted counsel to familiarize himself with the case alone did not excuse the delay. Id., 362 P.2d at 1053. .Dismissal with prejudice for failure to prosecute a claim extinguishes a plaintiff's cause of action without reaching the merits of the claim. Dismissal without prejudice will only have a preclusive effect if the statute of limitations has run while the case was pending. See generally, 27 C.J.S. Dismissal & Nonsuit § 73 (1959). . Under Civil Rule 77(m)(4), a motion for reconsideration on which the court has not ruled within 30 days is deemed denied. In this case, the court affirmatively denied P.C.I.'s motion for reconsideration. Thus, it is clear that the court expressly rejected the alternative sanction proposed by P.C.I. . We emphasize that the defendants need not show prejudice from the delay when, as in this case, the delay is unreasonable. Silverton v. Marler, 389 P.2d 3, 6 (Alaska 1964) (dismissal under 41(b) does not require a showing of actual prejudice to the defendants when the delay in prosecution is unexcused); see also Wong v. Davidian, 206 Cal.App.3d 264, 253 Cal.Rptr. 675 (Cal.App.1988) (lack of prejudice to defendant is a valid consideration where plaintiff has acted diligently from the outset; however no affirmative showing of actual prejudice is necessary when the delay is unreasonable). However, we have held that "[p]rejudice or lack of it is a factor that may be considered by a court in a case of moderate or excusable neglect." Silver-ton, 389 P.2d at 6. We extend this logic to dismissals under Civil Rule 41(e). . P.C.I. attempts to establish that it had been actively pursuing its claims and notes that its extensive review of the case allowed it to eliminate several claims set forth in its complaint. However, P.C.I. failed to communicate the results of this review to the defendants for well over a year. This failure underscores the fact that Acres and Ebasco were kept in the dark as to the status of the case. They were not in a position to prepare their defense because they did not know which claims P.C.I. intended to pursue. .The record is silent as to the actual causes of P.C.I.'s failure to pursue its action in this case. We therefore express no opinion as to whether or not a valid cause of action against counsel exists on these facts.

10347066

Edward A. CLUM, Appellant, v. STATE of Alaska, Appellee

Clum v. State

1995-04-28

No. A-5214

1277

1280

893 P.2d 1277

893

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

Edward A. CLUM, Appellant, v. STATE of Alaska, Appellee.

Edward A. CLUM, Appellant, v. STATE of Alaska, Appellee. No. A-5214. Court of Appeals of Alaska. April 28, 1995. Daniel C. Wayne, Juneau, for appellant. Thomas E. Wagner, Asst. Dist. Atty., Richard Svobodny, Dist. Atty., and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2013

11934

MANNHEIMER, Judge. Edward A. Clum appeals his conviction for driving while intoxicated, AS 28.35.030(a). We reverse Clum's conviction because the prosecutor engaged in improper argument to the jury. Shortly after midnight on the morning of May 5, 1993, Juneau Police Officer Jerry Nankervis saw Clum driving erratically. Clum twice drove his jeep across the fog line at the right-hand edge of the road; Clum also drifted in and out of the center turn lane, braking suddenly when his car entered the center lane. Based on these observations, Nankervis stopped Clum's vehicle. When Clum got out of his jeep, Nankervis observed that Clum appeared intoxicated: he had a strong odor of alcoholic beverages, his eyes were bloodshot, his speech was slurred, and he swayed as he walked. Nankervis asked Clum to perform several field sobriety tests, which Clum either failed or was unable to perform. Nankervis - also testified that, when he initially asked Clum for his name, Clum told the officer that his name was "Joe", only later admitting that his -first name was really "Ed". Nankervis concluded from all these observations that Clum was intoxicated, and he arrested him. Clum did not testify at his trial. However, Clum called Mike Miller, his employer, to testify concerning Clum's level of sobriety when he was arrested. Miller had not witnessed any of the events 'described in the last paragraph, but Miller asserted that he could ascertain Clum's level of sobriety by listening to Clum's voice. Before Miller testified, defense investigator David Hays played an audio tape for him. This recording, according to Hays, was a copy of approximately twenty minutes of the original tape recording that the police made when Clum was brought to the police station for breath testing and other DWI processing. Hays testified that he played about two or three minutes of this copy for Miller. When Miller took the stand, he asserted that, from listening to this segment of the tape, he could .tell that Clum had not been intoxicated at the police station. The prosecutor did not comment on. Miller's testimony or the taped interview in his initial summation to the ¡jury, and Gum's attorney did not mention these topics in his closing argument. However, in his rebuttal summation, the prosecutor told thé jury: I want to talk a little bit about Mr. Miller. Mr. Miller says, "The defendant didn't sound to me like he was under the influence, on [the] two minutes out of the tape that I heard." I don't want to suggest to you that there was a problem with the tape he heard; you heard how it was done. I don't want to suggest to you that it wasn't done on May 5th, that it was done by somebody other than Officer Nankervis. The defense could have tied all' those things up if they wanted to. You see, Officer Nankervis is still sitting here. They could have called him as a witness and said, "Hey, listen. Did you make a tape recording? Did you provide it to the district; attorney's office?" They chose not to do that. You'll have to figure out why they chose not to do that, but maybe it suggests that there was something a little fishy about what went on. At this point, Clum's attorney interposed: "I have to object, Your Honor. He knows why we didn't call Officer Nankervis. And it has nothing to do with being fishy." Judge Froehlich responded: "I'm going to overrule the objection. It's merely a suggestion, and again, it's what the jury makes of the evidence that matters here. The attorneys can make suggestions or submit proposals as to how [the jury] should do that, but it's what the jury thinks of the evidence that counts." After Judge Froehlich overruled the defense attorney's objection, the prosecutor continued: Let me use a different word; then maybe I won't give that connotation. Something odd abóut Mr. Miller's testimony. And what is it? What time did you [the jury] get in here this morning? Nine o'clock. And when you came in here, what did you see? A proposed witness list. Who's on that proposed witness list? Mike Miller. When did Mike Miller hear this tape? Around eleven o'clock today. He knew what he was going to say before he heard the tape. He's on ; [the list], he's a proposed witness before he ever hears the tape. Now, why? Well, you know, I don't know. I suspect none of us will ever know. But Mr. Miller does tell us that his job, his work, will be affected by the outcome of this trial [because Clum was Miller's employee]. And maybe that's why, in listening to two minutes, or four minutes, of a twenty-minute tape, that he came up with the observation he did. You should also ask yourself, "Why did he only lis- . ten to two minutes, or four minutes? Who chose those four minutes that he listened to? Were they amended? Were they at the end of the tape, or the • beginning of the tape?" Officer Nanker-vis told you he was with the defendant for about two hours. Was the [defense investigator's] tape [excerpted from] when [Nankervis] first contacted the de fendant, or was it made at the end of the two hours? Would . the passage of time affect whether somebody was intoxicated, whether they became less so, or that his speech got better, after two hours? They could have called Officer Nankervis and asked those questions. They chose not to do that. Since they knew, at nine in the morning, . Clum's attorney then interrupted: "Your Honor, I object again. The reason we [did not call] Mr. Nankervis has nothing to do with that — [the prosecutor] know[s] that." Judge Froehlieh declared: "I'm going to overrule the objection to the argument here, and again remind the jury [that] it's only argument, not evidence." The problem here is that the prosecutor's argument, although only argument, improperly commented on Clum's failure to call Officer Nankervis — a witness peculiarly associated with the State. The prosecutor asked the jury to infer, from Clum's failure to call Nankervis, that the defense investigator's tape had been doctored — that either Clum or his investigator was perpetrating a fraud on the court. It is true that the prosecutor prefaced his remarks by telling the jury, "I don't want to suggest to you that there was a problem with the tape [Miller] heard[.] I don't want to suggest to you that [the tape] wasn't [from the morning of Clum's arrest, or] that it was [made] by somebody other than Officer Nankervis." However, immediately after making this disclaimer, the prosecutor asked the jury to draw precisely that inference: [But] the defense could have tied all those things up if they wanted to. You see, Officer Nankervis is still sitting here. They could have called him as a witness and said, "Hey, listen. Did you make a tape recording? Did you provide it to the district attorney's office?" They chose not to do that. You'll have to figure out why they chose not to do that, but maybe it suggests that there was something a little fishy about what went on. When Clum's attorney objected, the trial judge overruled the objection; he told the jurors that the prosecutor was engaging in permissible argument, and that they could consider the prosecutor's suggestions for whatever value they might have. Given this invitation, the prosecutor returned to his theme: Let me use a different word; then maybe I won't give that connotation. [There is] something odd about Mr. Miller's testimony. And what is it? . You should also ask yourself, "Why did [Miller] only listen to . four minutes? Who chose those four minutes that he listened to? Were they amended? Were they at the end of the tape, or the beginning of the tape?" . They could have called Officer Nankervis and asked those questions. They chose not to do that. (emphasis added) Again, when Clum's attorney objected, the trial judge told the jury that the prosecutor's argument was proper. Thus, the prosecutor asked the jury to draw the very inference that he disavowed; the inference that the tape was suspect and unreliable. When the prosecutor's disclaimer is evaluated in light of the argument that followed, it proves as misleading as Mare Antony's protestation that he had come to bury Caesar, not to praise him. The prosecutor clearly asked the jury to infer, from the fact that Clum had not called Nankervis to authenticate the tape, that the tape played for Miller had been altered. In Lewis v. State, 862 P.2d 181, 190-91 (Alaska App.1993), this court surveyed the law governing a prosecutor's power to ask the jury to draw an adverse inference from the fact that the defendant has failed to call a particular witness. As the supreme court noted in McCurry v. State, 538 P.2d 100, 104 (Alaska 1975), overruled on other grounds by Howe v. State, 589 P.2d 421 (Alaska 1979), most courts allow such comment when the absent witness was particularly within the control of the defendant. Some courts, responding to commentators' criticism of this traditional rule, allow comment on the defendant's failure to call any witness who was available and whose testimony "would naturally be expected to be favorable to the defendant". People v. Ford, 45 Cal.3d 431, 247 Cal.Rptr. 121, 754 P.2d 168, 178 (Cal.1988), and other cases cited in Lewis, 862 P.2d at 190. However, under either the traditional approach to this subject or the more liberal rule now followed by some courts, the prosecutor's argument in Clum's case was impermissible. Officer Nankervis was the officer who arrested Clum; he clearly was associated with the government, not the defense. He was not under Clum's peculiar control. Nor had the defense made any factual assertion that would lead one to infer that Nank-ervis's testimony could be expected to be favorable to the defense. On appeal, the State argues that the prosecutor could lawfully comment on the fact that the defense had neither offered the tape into evidence nor played the tape in court so that the jury might hear the portion Miller was testifying about. The State further argues that the prosecutor could lawfully comment on the possibility that the four minutes Miller heard might have been carefully selected to mask the intoxication that Clum demonstrated on the rest of the tape. We agree with the State that these arguments were legitimately available to the prosecutor. However, the State's suggested arguments could have been made without asking the jury to draw any inference from the fact that Clum failed to call Nankervis. The problem here is that the prosecutor made a different, impermissible argument. Under the circumstances of this case, the trial judge erred when he failed to sustain Clum's objection to the prosecutor's argument. When Clum made his objection, the judge should have instructed the jury that Clum was under no obligation to call Nanker-vis and that the jurors were to draw no adverse inference from the fact that Clum had failed to call Nankervis. Because we can not say that this error was harmless, Clum is entitled to a new trial. The judgement of the district court is REVERSED.. . In William Shakespeare's Julius Caesar, Act III, Scene 2, the conspirators who have assassinated Caesar and who now rule Rome allow Marc Antony to speak at Caesar's funeral, even though Antony was Caesar's friend and supporter. Antony's funeral oration begins, "Friends, Romans, countrymen — lend me your ears! I come to bury Caesar, not to praise him." Antony then proceeds to recite and extol Caesar's personal, civic, and military virtues — all the while protesting that he means no disrespect to the "honorable men" who assassinated Caesar. Antony's words incite the multitude to revolt against the conspirators.

10381936

James LAJINESS, Appellant, v. H.C. PRICE CONSTRUCTION CO., National Union Fire Insurance, and Alaska Workers' Compensation Board, Appellees

Lajiness v. H.C. Price Construction Co.

1991-05-31

No. S-3853

1068

1070

811 P.2d 1068

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

James LAJINESS, Appellant, v. H.C. PRICE CONSTRUCTION CO., National Union Fire Insurance, and Alaska Workers’ Compensation Board, Appellees.

James LAJINESS, Appellant, v. H.C. PRICE CONSTRUCTION CO., National Union Fire Insurance, and Alaska Workers’ Compensation Board, Appellees. No. S-3853. Supreme Court of Alaska. May 31, 1991. Michael A. Stepovich, Fairbanks, for appellant. Ann Stoloff Brown, Hughes, Thorsness, Gantz, Powell & Brudin, Fairbanks, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1376

8584

OPINION RABINOWITZ, Chief Justice. This case arises on appeal from a superi- or court affirmance of two rulings of the Alaska Workers' Compensation Board ("Board"). FACTS AND PROCEEDINGS On April 5, 1988, Lajiness injured his right knee while working as a welder's helper for H.C. Price Construction Company ("Price"). It was anticipated by Lajiness' physician that Lajiness would be unable to return to work for a period of approximately six months. Shortly after his injury, Lajiness began receiving temporary total disability benefits. On September 12, 1988, Lajiness filed an application for adjustment of claim. Lajiness was thereafter released by his physician to return to regular work on October 1, 1988. On October 12, 1988, Lajiness filed an affidavit of readiness for hearing. Thereafter, four prehearing conferences were held prior to the matter being scheduled for hearing before the Board. At three of the prehearing conferences, the subject of the parties' anticipated witnesses was discussed. In conjunction with two of the conferences, the prehearing conference summaries indicate that only Lajiness and his uncle would testify on behalf of his wage rate application. At the outset of the hearing before the Board, counsel for Price objected to Lajiness' last minute attempt to have a previously unlisted witness, Jerry Saddler, testify for him on the compensation rate issue. After hearing arguments of counsel, the Board sustained Price's objection to Lajiness' attempt to call this witness. I. DID THE BOARD ERR IN ITS REFUSAL TO PERMIT JERRY SADDLER TO TESTIFY? We hold that the Board did not abuse its discretion in rejecting Lajiness' attempt to call Saddler as a witness on his behalf. At the time the prehearing conferences were held, 8 AAC 45.065 provided in relevant part, PREHEARINGS, (a) In any action the board or its chairman will, in their discretion, direct the parties or their representatives to appear for a prehearing conference to consider . (7) other matters that may aid in the disposition of the case.... (c) Following a prehearing the chairman will issue a summary of the actions taken at the prehearing.... Unless modified, the summary controls the subsequent course of the action. As noted above, Lajiness, at the prehear-ing conferences, indicated that only he and his uncle would be witnesses on his behalf at the hearing before the Board. No notice was given to Price that Jerry Saddler was to be called. Furthermore, the relevant summaries of the conference proceedings reflect that only Lajiness and his uncle would be called to testify at the Board hearing. Given the foregoing, we conclude that the Board did not abuse its discretion in rejecting Lajiness' belated hearing day attempt to have a previously undisclosed witness testify in support of his wage rate adjustment claim. II. DID THE BOARD ERR WHEN IT EXCLUDED LAJINESS' TWO WEEK PERIOD OF INCARCERATION FROM ITS ESTIMATE OF HIS FUTURE EARNINGS IN ORDER TO CALCULATE HIS LIKELY EARNINGS DURING THE PERIOD OF DISABILITY? As noted above, Lajiness injured his knee on April 5, 1988, and was thereafter released by his physician to return to work on October 1, 1988. In its Decision and Order, the Board observed that On April .10, 1988 the Alaska State Troopers arrested and charged . [Lajiness] with driving while intoxicated and driving with a suspended license. This triggered the revocation of an earlier probation, and the employee was incarcerated in the KILA halfway house in Fairbanks from April 30, 1988 through May 9, 1988. Conviction on the April 10, 1988 charges resulted in his incarceration from December 15, 1988 through December 23, 1988. After determining that Lajiness could have "worked for eight weeks for Houston Contracting, earning approximately $8,440.00," the Board further found that Lajiness' "two weeks incarceration would have prevented him from working at least two weeks on the North Slope, leaving earnings of $6,330.00." In this appeal, Lajiness contends that the Board erred in excluding the two weeks in its wage rate determination because [t]here is no indication in the record that Lajiness would have served his brief term of incarceration in the spring of 1988 but for the fact that he was disabled and not capable of working.... The records from the criminal court furnished by Price make it clear Lajiness would have been granted work release had he been capable of working. Price argues that the Board necessarily had to consider the nature of Lajiness' work and work history, and that it was not unreasonable for the Board to assume that Lajiness could "get into the same trouble whether or not he was injured. In short, Price contends that in determining a compensation rate adjustment, the Board may take into consideration events which did occur and which would have impaired Lajiness' ability to earn wages if he was not disabled. Our review of the record persuades us that the Board erred when it excluded the two weeks that Lajiness was incarcerated from its estimate of Lajiness' earnings during the period of his disability. The Board's underlying rationale for its exclusion is its belief that it was reasonable to assume that Lajiness would be incarcerated for two weeks in 1988. In our view, the Board's prediction of future criminal behavior on Lajiness' part is unreasonable since it is predicated on too speculative a basis. Whether Lajiness would have violated any laws during 1988, and whether, as a result of any violation, he would have been incarcerated for any period of time during 1988, are both uncertain possibilities which cannot furnish a basis for the Board's exclusion of the two weeks worth of wages in the case at bar. AFFIRMED in part, and REMANDED in part to the superior court with instructions to remand to the Board to recalculate Lajiness' wage rate determination after including the two weeks which were erroneously excluded. . At the initial prehearing conference, Lajiness listed himself and Joseph Arsenault as witnesses. At the hearing before the Board, Arsenault's testimony was received by way of deposition. The subject of witnesses was not discussed at the second prehearing conference. . We further note that on October 12, 1988, Lajiness certified to the Board that he had completed his discovery, obtained necessary evidence, and was prepared for the hearing. Such a certification is a prerequisite under AS 23.30.-110(c) to the scheduling of a hearing. The Board was entitled to rely on this certification to preclude the calling of Saddler. In this regard, AS 23.30.110(c) provides in relevant part, Before a hearing is scheduled, the party seeking a hearing shall file a request for a hearing together with an affidavit stating that the party has completed necessary discovery, obtained necessary evidence, and is prepared for the hearing. An opposing party shall have 10 days after the hearing request is filed to file a response. If a party opposes the hearing request, the board . shall within 30 days of the filing of the opposition conduct a pre-hearing conference and set a hearing date. Under 8 AAC 45.120(f), the Board was entitled to rely on both this certification and the pre-hearing summaries to preclude the calling of Saddler. 8 AAC 45.120(f) provides in relevant part, Any document, including . affidavit of readiness for hearing, . or a prehearing summary, that is served upon the parties, accompanied by proof of service, and that is in the board's possession 20 or more days before hearing, will, in the board's discretion, be relied upon by the board in reaching a decision. . In short, we believe that in this case, the Board had discretion to exercise reasonable control over its proceedings to ensure the orderly administration of justice. See Crawford v. Workers' Comp. App. Bd., 213 Cal.App.3d 156, 259 Cal.Rptr. 414 (1989) (court noted that the Board has inherent power to exercise reasonable control over all proceedings to ensure orderly administration of justice). . More specifically, Price argues that Lajiness' "notoriously unreliable unavailability for work due to chronic alcoholism was and should have been taken into account by the Board."

10381850

Timothy J. CRISSEY and Carol W. Crissey, Appellants, v. ALASKA USA FEDERAL CREDIT UNION, Appellee

Crissey v. Alaska USA Federal Credit Union

1991-05-24

No. S-3835

1057

1062

811 P.2d 1057

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

Timothy J. CRISSEY and Carol W. Crissey, Appellants, v. ALASKA USA FEDERAL CREDIT UNION, Appellee.

Timothy J. CRISSEY and Carol W. Crissey, Appellants, v. ALASKA USA FEDERAL CREDIT UNION, Appellee. No. S-3835. Supreme Court of Alaska. May 24, 1991. Steven J. Shamburek, Farleigh & Sham-burek, Anchorage, for appellants. James M. Gorski, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2895

17629

OPINION BURKE, Justice. This appeal requires us to consider the lawfulness of late fees that a federally chartered credit union assessed on the delinquent installment payments of a loan. We find that federal law governs the permissibility of the late fees at issue and that no claim under any applicable federal law on late fees is before us. We also find that even if we were to consider this case, in the alternative, as one properly pleaded under federal usury laws, there was no genuine issue of material fact before the superior court as to whether the interest charged was usurious. Accordingly, we affirm the superior court's entry of summary judgment. I In November 1981, Timothy and Carol Crissey borrowed $50,000 from Alaska U.S.A. Federal Credit Union (Alaska USA), a federally chartered credit union. The Crisseys executed a promissory note for the loan and secured the note with a deed of trust on their family home. The Cris-seys agreed to repay the $50,000 in monthly installments over a period of twelve years, at an interest rate of seventeen percent (17%). Each monthly installment except the last was to be $815.96. The "Deed of Trust and Assignment of Rents" that the Crisseys signed provided: (C) In the event that any payment or portion thereof shall become due and remain unpaid for a period in excess of six (6) days, Trustor agrees to pay a late charge in the amount [sic] twenty percent (20%) of the interest due so long as default continues, if charged by the Beneficiary, to cover the extra expense of handling delinquent accounts. (Emphasis added.) The disclosure statement Alaska USA prepared for the Cris-seys, pursuant to truth in lending laws, included a slightly different version of the late fee provision: Loans delinquent 7 days or more will be assessed a late charge of 20 per cent of the interest due with a minimum of 5 cents. Additionally, Alaska USA's actual practice of assessing late fees in 1981 was slightly different than either of the formal versions: Alaska USA assessed only a flat fee of $25, instead of "(20%) of the interest due," when a payment was not too far in arrears. The Crisseys were slightly delinquent in payment fairly often from November 1981 to August 1985, and Alaska USA's records show that it charged the Crisseys the flat, $25 late fee some eighteen times during that period. The Crisseys' payment pattern changed in late 1985, however, when they failed to make any payments in September and October. They finally made their next payment on November 29, 1985. The accrued interest due on the missed payments had grown, over the ninety-eight day delinquency period, to $2,004.74. Alaska USA assessed a late fee of twenty percent of that amount ($400.95) against the Crisseys' November 1985 payment. Thus, $400.95 of the Crisseys' $815.96 November payment went to pay the late fee. The remaining $415.01 defrayed the $2,004.74 accrued past due interest. The principal outstanding did not diminish at all. During the next year, the Crisseys generally made regular payments every month. Alaska USA treated each of these payments as late, since the Crisseys still had not made up the payments they missed in September and October 1985. For a full year, then, Alaska USA deducted a large part of the Crisseys' monthly payments to pay a new late fee, and a large part to pay interest due. As a result, during this year the Crisseys' payments reduced their outstanding principal by only $29.39. Finally, in December 1986 the Crisseys made up the two payments they had missed in 1985. After that, the Crisseys paid promptly; occasionally they paid more than the monthly amount due. At various times during 1988, Mr. Cris-sey attempted to renegotiate the loan with Alaska USA. Alaska USA refused to renegotiate. Finally, in September 1988, the Crisseys told Alaska USA that they considered the credit union's charges usurious. The Crisseys then ceased to make payments. Alaska USA instituted nonjudicial foreclosure proceedings on the Crissey home in early 1989. The Crisseys attempted to enjoin the foreclosure; the superior court denied an injunction. The Crisseys sued for damages, alleging that Alaska USA charged them usurious interest under Alaska law. The Crisseys later amended their complaint to include an action for "pain and suffering." Alaska USA moved for summary judgment. The Crisseys opposed the motion, relying mainly upon an affidavit from Mr. Crissey that alleged "[a]s the loan stood at the time of foreclosure, [Alaska USA] had charged $54,725.41 on a $50,000.00 loan over a six year period. This represents a profit in excess of 25% on the original loan, and far in excess of the stated contract rate of 17%." Mr. Crissey's affidavit included no supporting documentation and no arithmetic explanation for its conclusions. With its motion for summary judgment, Alaska USA submitted records showing that the Crisseys paid a total of $67,265.08 on their loan. Of that amount, $51,989.81 was interest; $13,191.38 was principal. Late fees accounted for $2,083.89 of the amount paid; $1,608.89 of the late fee amount had been calculated according to the formula "20% of interest due so long as default continues." On January 24, 1990, the superior court, Judge J. Justin Ripley, heard argument from the parties and entered an order of summary judgment for Alaska USA. The superior court denied the Crisseys' motion to reconsider and this appeal followed. II When reviewing an appeal from summary judgment, we determine whether there was a genuine issue of material fact before the trial court and whether the moving party was entitled to judgment on the law applicable to the established facts. Providence Washington Ins. Co. v. Fireman's Fund Ins. Cos., 778 P.2d 200, 203 (Alaska 1989). In making these determinations, we draw all reasonable inferences of fact from proffered materials against the moving party and in favor of the nonmov-ing party. Id. In this case, the Crisseys present nine points on appeal. In actuality, the only questions before us are: (1) whether Alaska USA's late fees were lawful; and, alternatively, (2) whether Alaska USA's late fees may be a form of interest sufficiently large to make the total interest charged the Crisseys usurious. The National Credit Union Administration (NCUA) regulates federally chartered credit unions. See 12 U.S.C. § 1752a(d) (1988) (rule making powers of NCUA Board). The current version of the NCUA regulation governing loans to credit union members includes a subsection titled "(b) Relation to other laws — (1) Preemption of state laws." 12 C.F.R. § 701.21(b)(1) (1990). That part of the section states, quite clearly, that the NCUA regulation preempts any state law purporting to limit or affect: (i)(A) Rates of interest and amounts of finance charges.... (B) Late charges.... Id. In an attempt to refute the strong preemptive language of this regulation, the Crisseys bring our attention to United States v. Alabama, 434 F.Supp. 64 (M.D. Ala.1977). The court there found that the Federal Credit Union Act did not preempt the Alabama Uniform Disposition of Unclaimed Property Act. Id. at 67. The Cris-seys assert that United States v. Alabama is still good law. It well may be. Whether federal law preempts any state law governing disposition of lost or abandoned property, however, has no bearing on the present case. Plainly, federal law does preempt any state law that might determine the permissibility of a federally chartered credit union's late charges. The Crisseys have not asserted that Alaska USA's late charges, if considered simply as late charges, violate federal laws or regulations. Rather, the Crisseys' argument on this point relies solely upon inap-posite Alaska statutes. Based on the arguments before it, the superior court thus correctly granted Alaska USA's motion for summary judgment on all of the Crisseys' claims that directly challenged the lawfulness of the late charges. The Crisseys also assert, as an alternative argument, that Alaska USA's late charge policy, as implemented against them, caused them to pay far in excess of the maximum allowable interest rate. The Crisseys rather vaguely argue that their claim on this point arises under the "common law" of usury. It is clear that once again the Crisseys have overlooked the preemptive effect of federal law. Congress enacted a usury statute applicable to federally chartered credit unions in 1980. Depository Institutions Deregulation and Monetary Control Act of 1980, Public L. No. 96-221, § 523, 94 Stat. 132, 166. This statute provides in part: If [an impermissible] . rate of interest has been paid, the person who paid it may recover, in a civil action commenced in a court of appropriate jurisdiction not later than two years after the date of such payment, an amount equal to twice the amount of interest paid from the credit union taking or receiving such interest. 12 U.S.C. § 1785(g)(2). This statute also explicitly preempts our own state usury laws as they otherwise might apply to the Crisseys' loan. See id. at (g)(1). The Crisseys could have brought their usury claim in state court and under section 1785(g). See id.; see also Barany v. Buller, 670 F.2d 726, 732 & n. 13 (7th Cir.1982); Harrington v. Philadelphia City Employees Fed. Credit Union, 243 Pa.Super. 33, 364 A.2d 435, 439-40 (1976). They did not do so. Even if we were willing to consider the Crisseys' usury action in this case as one under section 1785(g), however, we would conclude that they had not established a claim of usury. One element of a cause of action for usury is "greater compensation for making the loan or agreeing to forbear" than the applicable usury law allows. Fikes v. First Fed. Savings & Loan Ass'n of Anchorage, 533 P.2d 251, 263 (Alaska 1975). To begin with, we believe, and the Crisseys appear to agree that at all times relevant to this case, the maximum allowable interest or compensation rate for federally chartered credit unions was the rate imposed by the NCUA in its regulations. Those regulations provided that from December 3, 1980 through May 14, 1987, a Federal credit union may extend credit to its members at rates not to exceed 21 percent per year on the unpaid balance inclusive of all finance charges. Loans and line of credit balances existing on or before May 14, 1987, may continue to bear rates of interest of up to 21 percent per year after May 14, 1987. 12 C.F.R. § 701.21(c)(7)(h) (1990). The Cris-seys contracted to pay 17% interest on their loan in November 1981. Thus, on its face Alaska USA's rate was not greater than the permissible maximum of 21%. But the Crisseys contend that Alaska USA's nominal interest rate was only part of the actual compensation charged. The Crisseys argue that Alaska USA's late charges also constituted a form of compensation and that the combination of actual interest and late fees amounted to a total rate of compensation for the loan greater than 21%. As to the first prong of the Crisseys' argument, in Fikes we held that certain charges assessed against a borrower, such as "service fees," might qualify as interest for purposes of a usury analysis. Fikes, 533 P.2d at 265 & n. 27. In Fikes, how ever, we did not consider whether late fees might ever qualify as interest. See id. As a result, the question is one of first impression in Alaska. Because of the factual posture of this case, however, we need not consider that legal question now. The Crisseys did not proffer any material in their opposition to summary judgment to indicate that, at any time, the total amount of interest and late fees Alaska USA charged them could 'possibly amount to a compensation rate greater than 21%. Rather, Mr. Crissey's affidavit, the sole basis for the Crisseys' argument on this point, offers the bare conclusion that Alaska USA charged the equivalent of 25% compensation for the loan, without offering one iota of specific, factual, explanatory foundation for that conclusion. The affidavit thus falls far short of meeting the requirements of Rule 56. See Alaska R.Civ.P. 56(e) (affidavits in opposition to motion for summary judgment "shall set forth such facts as would be admissible in evidence" and these facts must be "specific . showing that there is a genuine issue for trial"). The Crisseys simply did not present the superior court with a genuine issue of material fact on the crucial compensation-rate element of their usury action. Accordingly, the superior court decision entering summary judgment in favor of Alaska USA is AFFIRMED. . Alaska USA's records essentially support its calculation of the interest due. According to those records, in August 1985, the principal outstanding amounted to $43,921.53. Seventeen percent (17%) per year interest equals roughly .0004657% per day (17% divided by 365). From the date of the Crisseys' August 23, 1985 payment to the date of their next payment, November 29, 1985, 98 days passed. Ninety-eight multiplied by .0004657 multiplied by $43,-921.53, yields $2,004.52. Alaska USA's figure is $2,004.74. . Of the Crisseys' nine points on appeal, only one does not fall within the two questions we have determined to be before us. That point involves the Crisseys' claim that Alaska USA violated the covenant of good faith and fair dealing by refusing to renegotiate the terms of the Crisseys' loan. That particular claim is utterly without merit. . Compare 12 C.F.R. § 701.21(b)(1) (1990) (expressly preempting state law affecting interest, finance charges, late charges, etc.) with id. at (b)(2) ("it is not the Board's intent to preempt state laws that do not affect rates, terms of repayment and other conditions described above in (b)(1)"). . Our own research suggests that the NCUA regulates the late charges of federally chartered credit unions through a by-law mechanism. See 12 C.F.R. § 701.3, 701.4 (1990); see also NCUA, Federal Credit Union Bylaws art. XII, § 8 (rev. Dec. 1987); NCUA, Federal Credit Union Standard Bylaw Amendments and Guidelines art. XII, § 8, at 12-13 (rev. May 1987). We also find some indication that one late-fee formula approved by the NCUA at the time the Crisseys borrowed from Alaska USA was "20% of interest due." See Culhane & Kaplinsky, Trends Pertaining to the Usury Laws, 38 Bus.Law. 1329, 1345 & n. 91 (1983). . For example, in their brief to this court the Crisseys cite AS 45.45.010. This statute imposes a legal rate of interest for loans of $25,000 or less and bars lending institutions from requiring or accepting "any percent of ownership for profits above its interest rate." AS 45.45.010(b) & (f). This statute also states that "[i]f the limitations on interest rates provided for in this section are inconsistent with the provisions of any other statute covering maximum interest, service charges or discount rates then the provisions of the other statute prevail." Id. at (h). . In Fikes v. First Fed. Savings & Loan Ass'n of Anchorage, 533 P.2d 251 (Alaska 1975), we explained: The essential elements of usury are: (1) an agreement to lend money or its equivalent or to forbear requiring repayment for a period of time; (2) a borrower's obligation to repay absolutely, not upon some contingency; (3) greater compensation for making the loan or agreeing to forbear than allowed by the applicable state constitution or usury statute; and (4) an intention to violate the usury prohibition. Id. at 263 (emphasis added). Contrary to the Crisseys' assertions, a usury claim appears to require a statutory basis. Notably enough, since legislative amendment in July 1981, our state usury statute has applied only to loans of $25,000 or less (and then only when no other statute preempts the claim). AS 45.45.010 (amended Ch. 94, § 1, SLA 1981 (effective July 27, 1981)). Consequently, in November 1981, when the Crisseys entered into their $50,000 loan agreement with Alaska USA, no state statute governed the interest rate. . See also Boyles v. Smith, 759 P.2d 518, 521 (Alaska 1988) (Alaska usury law preempted by 12 U.S.C. § 86a, federal usury statute governing savings and loans, which was also enacted as part of the Depository Institutions Deregulation and Monetary Control Act of 1980); H.R.Conf. Rep. No. 842, 96th Cong., 2d Sess. 78, reprinted in 1980 U.S.Code Cong. & Admin.News 298, 308 ("State usury ceilings on all loans made by Federally insured depository institutions (except national banks) . will be permanently preempted [by the DIDMC Act of 1980] subject to the right of affected states to override at any time...."). Our legislature has expressly declined to override the federal usury laws of 1980. See AS 45.45.010(h). . Most jurisdictions treat late fees as noninter-est, on the theory that late fees are not payments to secure extension of credit, but rather are penalty payments accruing only because of action solely within the borrower's control. E.g., O'Connor v. Televideo System, Inc., 218 Cal.App.3d 709, 267 Cal.Rptr. 237, 241-42 (1990). A few courts have taken the contrary view. E.g., Wright Ins. Agency v. Scott, 371 So.2d 1207, 1208 (La.App.1979). . Simple arithmetic suggests otherwise. (Twenty percent late fee on 17% interest due equals 3.4% of interest due; combining that late fee and interest due yields 20.4%.)

10378865

Francis CEDERGREEN, Appellant, v. Sharon K. CEDERGREEN, now known as Sharon K. Bushue, Appellee

Cedergreen v. Cedergreen

1991-05-24

No. S-3513

784

789

811 P.2d 784

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

Francis CEDERGREEN, Appellant, v. Sharon K. CEDERGREEN, now known as Sharon K. Bushue, Appellee.

Francis CEDERGREEN, Appellant, v. Sharon K. CEDERGREEN, now known as Sharon K. Bushue, Appellee. No. S-3513. Supreme Court of Alaska. May 24, 1991. William M. Bankston, Bankston & McCollum, Anchorage, for appellant. Vincent Vitale, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2785

17365

OPINION RABINOWITZ, Chief .Justice. Sharon Bushue, formerly Sharon Ceder-green, and Francis Cedergreen were married on November 30, 1963. They had two children, Shannon, born in December 1969, and Renee, born in August 1972. The couple eventually divorced, and their divorce decree was entered on October 24, 1979. The decree incorporated a property settlement and child custody agreement ("Agreement"). The Agreement contained various provisions. This controversy centers around paragraph six of the Agreement, and the amount of money Francis now owes Sharon for his daughters' health care. Paragraph six of the Agreement states, Medical and dental expenses of children. The parties agree that if either party can obtain a medical health policy covering medical and dental expenses for the above-named minor children through their employment then they shall do so. If such medical insurance is not available, however, the parties agree that the husband shall be responsible for purchasing medical and dental insurance. If the policy is purchased by the husband, it shall contain provisions which will enable the wife to make application directly to the insuring company for a direct payment or reimbursement as the case may be of medical and dental expenses incurred by the wife on behalf of the children. If the medical and dental expense of the children exceed the coverage provided by any or all insurance policies, the husband agrees to pay the amount by which medical and dental expense shall exceed the limits of the policies. Shannon and Renee have received dental and medical care both within and outside of Alaska. Sharon has had to pay travel expenses relating to Shannon's counseling and Renee's arthritis treatment. These expenses included airfare, ear rental, and hotel expenses, which Sharon claimed as medical expenses, asserting that all claimed expenses were related to the care the girls received. On March 24,1988, Sharon filed a motion in superior court for entry of judgment against Francis for unpaid health care expenses. The motion requested a principal amount of $14,527.07, plus prejudgment interest and attorney's fees. Thereafter, Francis requested a trial so that testimony could be heard concerning the nature of the care provided. At trial, Francis claimed he owed only $6,213.67. The superior court entered a judgment for Sharon in the amount of $35,479.89. It was composed of a principal amount of $22,781.20, prejudgment interest through April 30, 1989 of $8,478.69, costs of $220, and attorney's fees totalling $4,000. This appeal followed. 1. COULD SHARON INSTITUTE THIS PROCEEDING BY FILING A MOTION FOR ENTRY OF JUDGMENT FOR UNPAID HEALTH CARE EXPENSES? On appeal, Francis characterizes Sharon's motion as a motion for reconsideration. He contends that the superior court could not grant Sharon's motion because it did not meet the requirements of AS 25.24.-170 for a motion for reconsideration of a divorce judgment. He also argues that the award of medical expenses should be classified as property, and that Sharon is required to file a lawsuit, rather than a motion, to enforce a divorce decree. Sharon responds that the contract claim for reimbursement merged into the divorce decree and therefore was enforceable by motion. She emphasizes that the medical and dental expenses are analogous to child support and should be enforced in the same manner as child support. We are persuaded that Francis's contentions lack merit. Contrary to Francis's assertion, Sharon's motion was not for reconsideration pursuant to AS 25.24.170. Rather, she brought the motion to enforce the judgment. The superior court has inherent power, and also the duty, to enforce its divorce decrees. Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975) (citing Goodsell v. Goodsell, 38 Wash.2d 135, 228 P.2d 155 (1951)). Here the superior court was enforcing its final decree since the parties' settlement was explicitly merged into its decree. II.WAS SHARON'S MOTION PROCEDURALLY DEFECTIVE? Francis claims that Sharon's motion was deficient because it failed to state its asserted grounds for relief with particularity, and it lacked a sufficient supporting memorandum pursuant to Civil Rule 77(b)(1), (2). We reject these claims. Sharon's motion did set forth the amount prayed for, as well as the relevant provision in the Agreement entitling her to that amount. Moreover, her memorandum in support of the motion for entry of judgment for unpaid health care expenses, filed the same day as her motion, as well as her affidavit, provided information sufficient to satisfy Civil Rule 77(b)(2). III.WAS SHARON'S CLAIM, EITHER IN WHOLE OR IN PART, BARRED BY THE STATUTE OF LIMITATIONS? Francis asserts that Sharon's action is governed by contract law and therefore the six year contract statute of limitations applies, that this litigation cannot be characterized as an action on a judgment since the meaning of paragraph six of the Agreement is in dispute, and that he was denied the opportunity to show that his interpretation was correct. Francis also argues that AS 09.10.040 mandates that an "action" be instituted if the ten year statute of limitations is to apply. The superior court held that the ten year period of AS 09.10.040 governed. We affirm. AS 09.10.040 explicitly states that an action upon a "decree," as well as a judgment, must be brought within ten years. We have applied this statute when a party seeks to recover child support arrearage. Young v. Williams, 583 P.2d 201, 205 (Alaska 1978). Francis attempts to distinguish Young by contending that while a requirement for child support payments is not open to interpretation, a provision for medical and dental expenses is open to interpretation. Yet even in Young, the superior court had to decide whether certain payments made by Young to his son constituted child support. Id. at 203. We discern no basis for treating the case at bar differently. IV. DID THE SUPERIOR COURT ERR IN INTERPRETING THE PROPERTY SETTLEMENT AND CHILD CUSTODY AGREEMENT? A. The Insurance Requirement Francis argues that $5,231.00 was awarded erroneously for instances when no claim was made to either his or Sharon's insurance company as required by the Agreement, that $660.23 was awarded erroneously for instances where Sharon filed on Francis's insurance but not her own, that $182.28 was awarded erroneously as Sharon failed to file a claim when Francis had insurance, and that another $3,784.46 was due Francis in credit. As to the allegation that Sharon failed to file claims when Francis had insurance, the superior court found, Mr. Cedergreen also asserted that Sharon Bushue should be denied some claims because she failed to submit them when he had insurance in effect on the children. This assertion is rejected. Although Mr. Cedergreen had control of the insurance documents necessary to prove his claim, he failed to produce those documents. Thus, he failed to prove that such insurance was in effect or that there would have been coverage if claims had been submitted. Additionally, in several instances it was demonstrated by Sharon Bushue that Mr. Ced-ergreen did not have coverage on at least one of the minor children. To the extent that his proof depended upon his credibility, his proof failed as I find him not to be a credible witness. The superior court's finding is supported by the record. As to the amounts Francis claims he should have been credited, the superior court said, Mr. Cedergreen asserted that he made certain payments for which he should have received credits. This claim amounted to the affirmative defense of offset and payment. Hence, he bore the burden of proof in establishing his payment of certain expenses. He failed to meet that burden of proof. Again, this finding is amply supported in the record. Overall, as to the specific amounts in dispute, we conclude that the superior court's findings were not clearly erroneous. B. Medical and Dental Expenses The superior court gave the terms "medical and dental expenses" in the Agreement a "broad, inclusive meaning." It concluded that neither the history of the Agreement nor public policy necessitated a restrictive meaning. The superior court determined that "medical and dental" expenses are "inclusive terms for health-related costs," including expenses for counseling, contact lenses, airfare and travel related to treatment. We are not persuaded that the superior court's construction is erroneous. Other courts have adopted a board reading of the term medical expense. For example, the Court of Appeals of Arizona notes the "broad meaning given to the term 'medical expense' when included in property settlement agreements." Kahn v. Kahn, 23 Ariz.App. 269, 532 P.2d 541, 545 (1975). "The expression medical expense has been given a broad, comprehensive meaning by some courts so as to include eye examination and the cost of eyeglasses prescribed and denture work." Beaugureau v. Beaugureau, 11 Ariz.App. 234, 463 P.2d 540, 542 n. 1 (1970) (citing Jones v. Jones, 116 Cal.App.2d 604, 254 P.2d 67 (1953) and Bender v. People, 203 Mise. 627, 115 N.Y.S.2d 810 (Sup.Ct.1952)). 1.Counseling Medical expenses have been held to include expenses for mental as well as physical ailments. The term has been held to include a psychiatric social worker, even if not recommended by a medical doctor. Kahn, 532 P.2d at 545. In Davis v. Davis, 8 Mich.App. 104, 153 N.W.2d 879, 881 (1967), the expenses of a clinical psychologist were included in the term. The court explained, In this day and age, it is becoming a firm belief that concern for a child's mental health is equally as important as the necessities of food, shelter, physical health, and clothing. The proper care and maintenance of the minor daughter of the parties include tending to her emotional and psychological problems as well as to her physical problems. In short, we affirm the superior court's ruling that mental health counseling is included in the meaning of medical expenses. 2. Travel Expenses Francis claims these expenses were not reasonable or necessary. Evidence existed that the travel costs incurred were both necessary and reasonable in connection with the children's treatment. Francis does not deny these expenses were actually incurred. Thus, we hold that the superior court did not err in this aspect of its judgment. 3. Contact Lenses Francis classified the $854.90 for contacts as an "unnecessary luxury," yet, the superior court found that "for the average middle-class teenager it's reasonable medical expenses to secure contact lenses for them." In the context of this record, we cannot say that the superior court erred in concluding that contact lenses were a proper medical expense. 4.Braces We find no error in the superior court's determination that braces were a necessary expense and that braces are included in dental expenses. As the court in Robinson v. Robinson, 134 Misc.2d 664, 512 N.Y.S.2d 315, 320 n. 1 (Sup.Ct.1987), explained, "orthodonture is merely a specialty of dentistry, the same as neurology is a specialty included within the definition of the practice of medicine." Various cases hold that this expense is included in dental care. See Blisset v. Blisset, 123 Ill.2d 161, 121 Ill.Dec. 931, 936, 526 N.E.2d 125, 130 (1988); La Scala v. La Scala, 73 A.D.2d 1068, 422 N.Y.S.2d 229 (1979); Callen v. Callen, 257 Ala. 226, 58 So.2d 462, 464-65 (1952); Kuespert v. Roland, 222 Ark. 153, 257 S.W.2d 562, 563 (1953); Grobleski v. Grobleski, 408 So.2d 693, 694 (Fla. App.1982). AS 08.36.360 defines the practice of dentistry as including one who "diagnoses, treats, operates on, corrects, attempts to correct, or prescribes for . malposition of the human teeth." C. Expenses After Shannon Turned Eighteen Francis claims that $89 was erroneously awarded for expenses for Shannon the day after she turned eighteen. Counsel for Sharon concedes that this award was erroneous. V. DID THE SUPERIOR COURT ERR IN ITS PREJUDGMENT INTEREST CALCULATION? The superior court awarded Sharon prejudgment interest at the rate of 10.5% per annum, which totalled $8,478.69 through April 10, 1989. Francis argues that interest should have been calculated from the end of the first year in which the money was due, not the beginning. Counsel for Sharon does not dispute this specific point. AFFIRMED in part and REMANDED in part for redetermination of prejudgment interest and the striking of $89.00 from the award. . Both Shannon and Renee wear contact lenses. Both have also worn braces. . The parties agree that the clearly erroneous standard of review applies for factual findings. Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978). "In determining if a mistake has been made, the court must take the view of the evidence most favorable to the prevailing party." Id. (citations omitted). The parties also agree that this court should use its independent judgment for questions involving the legal interpretation of the property settlement and child custody agreement. Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980). . Francis also advances the contention that an "action," not a motion, is required to invoke the ten year statute of limitations as opposed to the six year statute of limitations. However, AS 09.10.050, the six year statute of limitations, also requires "an action." As discussed above, a motion is an appropriate action to enforce a judgment or decree. . While Sharon did not submit bills to Francis for about two years, Francis either indicated his disagreement with the expenses or Sharon knew he lacked insurance. In this regard, the superi- or court found, The record discloses that in the first few years after the 1979 divorce, Sharon Bushue submitted bills to Mr. Cedergreen. He was uncooperative and inefficient in responding to her requests. Moreover, at trial he confirmed her testimony that he would not pay bills for medical care if he did not approve of the medical treatment. He specifically told Ms. Bushue that he did not approve of the [sic] Renee's treatment for arthritis and Shannon's treatment for drug and alcohol abuse. He also testified that he thought Ms. Bushue "used counseling too much." Sharon Bushue was justified in her belief that it was futile to submit the bills to Mr. Cedergreen. . Francis emphasizes that the cases, and in particular Kahn, require specific language that "unusual or extraordinary" expenses are covered. Yet, as the provision in Kahn recognizes, "unusual or extraordinary" refers to an amount of money; the key term to be interpreted is "medical or dental expenses." . See also In re Marriage of Morrisroe, 155 Ill. App.3d 765, 108 IU.Dec. 303, 309, 508 N.E.2d 464, 470 (1987) (psychotherapist and orthodontist expenses must be paid by respondent who had agreed to pay for all extraordinary medical expenses); cf. Lopez v. Blue Cross of Louisiana, 386 So.2d 697 (La.App.1980) (four week hospitalization of insured for depressive mental neurosis was medically necessary and therefore covered under the insured's health insurance policy), aff'd in relevant part, 397 So.2d 1343 (La. 1981). But see Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278, 279-80 (1980) (agreement that ex-husband was to pay half of children's medical bills did not include treatment by psychologist although it would include treatment by a psychiatrist); Robinson v. Robinson, 134 Misc.2d 664, 512 N.Y.S.2d 315, 320, 322 (Sup.Ct. 1987) (cost of counseling and private school not reimbursable as "reasonable and necessary" medical expenses, but might be reimbursable as elements of support). In addition, AS 08.64.380(7)(A) defines the "practice of medicine" or the "practice of osteopathy" as for a fee, donation or other consideration, to diagnose, treat, operate on, prescribe for, or administer to, any human ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition; or to attempt to perform or represent that a person is authorized to perform any of the acts set out in this subparagraph.... (Emphasis added). . Francis also argues that prejudgment interest should not have been awarded because he had no notice that he was in breach. He claims that he "was not sent any of the billings nor was any request made to comply with paragraph 6 of the Agreement from the time the expenses were incurred through 1988." The record clearly indicates that Sharon repeatedly tried to obtain compensation from Francis for the expenses incurred, and when she stopped, it was because of Francis's bad faith. Moreover, "the real question" is whether Francis had use of money for a period of time when Sharon was actually entitled to it. Farnsworth v. Steiner, 638 P.2d 181, 185 (Alaska 1981). Simply, "[t]he purpose of awarding prejudgment interest is not to penalize the losing party, but rather to compensate the successful claimant for losing the use of the money between the date he or she was entitled to it and the date of judgment." Bevins v. Peoples Bank & Trust Co., 671 P.2d 875, 881 (Alaska 1983).

10369888

Daniel DENARDO, Appellant, v. Peter MICHALSKI, Marc June, John Does, Appellees

DeNardo v. Michalski

1991-05-24

No. S-3871

315

317

811 P.2d 315

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

Daniel DENARDO, Appellant, v. Peter MICHALSKI, Marc June, John Does, Appellees.

Daniel DENARDO, Appellant, v. Peter MICHALSKI, Marc June, John Does, Appellees. No. S-3871. Supreme Court of Alaska. May 24, 1991. Daniel DeNardo, pro se. William G. Mellow, Asst. Atty. Gen., Juneau, Douglas B. Baily, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1649

9820

OPINION PER CURIAM. The court is asked to determine whether the superior court correctly concluded that Judge Michalski was protected from liability for damages based on the doctrine of judicial immunity and whether summary judgment was properly entered in favor of the state's attorney regarding Daniel De-Nardo's claim of abuse of process. In a prior proceeding, judgment was entered against Daniel DeNardo, and he was ordered to pay attorney's fees to the state. When DeNardo failed to pay, he was summoned to court by attorney Marc June on behalf of the state for a judgment debtor's examination. Judge Peter Michalski presided over the hearing. DeNardo moved to have Michalski recused based on AS 22.20.-020(a)(5) because Michalski had been chief of the state's Office of Special Prosecutions and Appeals and, according to DeNardo, had litigated appeals against DeNardo within two years prior to the judgment debtor hearing. His motion was denied. In response to questioning concerning his financial status at the hearing on the merits, DeNardo asserted his Fifth Amendment privilege and claims to have pled inability to perform. When he was warned that continued refusal to answer would subject him to civil contempt, DeNardo requested a jury trial, which he did not receive. After being found in civil contempt on June 10, 1986, he was incarcerated. On September 15, 1986, DeNardo was given another opportunity to respond to questions regarding his finances. He again requested a jury trial and refused to answer, and was returned to the Sixth Avenue Annex. Judge Michalski ordered his release on December 10, 1986. DeNardo filed this lawsuit seeking $5,000,000 in damages from Michalski and June alleging violations of his constitutional rights. In response to Michalski's and June's motion, Judge Souter dismissed the claims against Michalski, but ruled that DeNardo had alleged a cause of action for abuse of process against June. The state moved for summary judgment as to the claims against June, which was granted. DeNardo appeals. The United States Supreme Court has held that judges are not liable for damages for their "judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Bradley v. Fisher, 80 U.S. (13 Wall) 335, 351, 20 L.Ed. 646 (1871). In Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978), the Court ruled that a judge who ex parte ordered the sterilization of a minor was nonetheless immune because, even though he acted in excess of his jurisdiction, he did not act in the "clear absence of all jurisdiction." Judge Michalski is only liable if his actions were 1) not "judicial," or 2) outside of his subject matter jurisdiction. Michalski's actions were clearly judicial. Cf. Stump v. Sparkman, 435 U.S. at 362, 98 S.Ct. at 1107-08; McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972). DeNardo, however, claims that AS 22.20.020 stripped Mi-chalski of jurisdiction, and consequently of immunity. The application of AS 22.20.020 to an assistant district attorney who was subsequently appointed to the bench was evaluated in Keel v. State, 552 P.2d 155 (Alaska 1976). We held that the judge would only be disqualified from cases in which "he actually participated . by counseling or otherwise." Id. at 157 n. 5. DeNardo does not indicate how Michalski was directly involved in any of his civil cases from his position as head of a criminal division. AS 22.20.020(a)(5), as construed by Keel, only requires the judge to recuse her or himself if she or he participated in some aspect of the case at bar. Furthermore, even if AS 22.20.020 required Michalski to recuse himself, it did not strip his court of all subject matter jurisdiction. Michalski's judicial immunity therefore remained intact. The Court in Stump and Bradley only focused on the court's jurisdiction, and, other than determining that the individual judge's actions were "judicial," did not focus on the propriety of specific actions of the judge. See Bradley, 80 U.S. (13 Wall) at 351-52. Since Michalski had jurisdiction to decide whether to recuse himself, his exercise of that jurisdiction in deciding not to do so, even if improper, did not divest him of immunity. DeNardo also claims that Michalski lost his immunity by proceeding in disregard of DeNardo's constitutional right to a jury trial. This argument has the same flaws as the argument immediately above. Even if denying DeNardo a jury trial violated his constitutional rights, it did not strip Michalski of subject matter jurisdiction and so his immunity is unaffected. See Stump v. Sparkman, 435 U.S. at 359, 98 S.Ct. at 1106 ("A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors."). We now turn to DeNardo's claim that June violated his constitutional rights by engaging in conduct which resulted in DeNardo's civil contempt imprisonment. We have found that abuse of process consists of two essential elements, "first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding." Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988) (quoting Jenkins v. Daniels, 751 P.2d 19, 22 (Alaska 1988)). The second element "contemplates some overt act done in addition to the initiating of the suit.... '[T]he mere filing or maintenance of a lawsuit— even for an improper purpose — is not a proper basis for an abuse of process action.' " 757 P.2d at 1026 (quoting Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 232 Cal.Rptr. 567, 728 P.2d 1202, 1209 (1986)); see also Keen v. Ruddy, 784 P.2d 653, 655 (Alaska 1989) (No recovery for abuse of process because the attorney "had no ulterior purpose. More important [the attorney] used the process for exactly the purpose it was designed to accomplish; namely the collection of a debt_"); W. Keeton, D. Dobbs, R. Keeton & D. Owen, The Law of Torts § 121, at 898 (5th ed. 1984). The claim asserted against June is similar to that raised in Keen. June contends that he initiated the judgment debtor examination to collect an unpaid judgment and he did not intend to entice DeNardo into committing civil contempt. Not only is the requisite "ulterior motive" missing, but De-Nardo has not shown that any acts undertaken by June were not steps required to take the process to its authorized conclusion. To survive a motion for summary judgment an opponent must "set forth specific facts showing that there is a genuine issue for trial." Civil Rule 56(e). Since DeNar-do did not do so, summary judgment was properly entered against him. The judgment below is AFFIRMED. . June is a private attorney but he was retained to defend the state and state officers in actions brought by DeNardo. . At the time DeNardo attempted to disqualify Judge Michalski, AS 22.20.020(a)(5) stated: "A judicial officer may not act as such in a court of which he is a member in an action in which . either party has retained him as their attorney or has been professionally counseled by him in any matter within two years preceding the filing of the action." See Keel v. State, 552 P.2d 155, 156 (Alaska 1976). . In regard to the history of judicial immunity, the Supreme Court of the United States has observed the following: Earlier, in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built. The judge involved in Floyd and Barker was a common-law Judge of Assize who had presided over a murder trial. He was then charged in the Star Chamber with conspiracy. The court concluded that the judges of the common law should not be called to account "before any other Judge at the suit of the King." Id., at 24, 77 Eng.Rep. at 1307. [A]nd it was agreed that insomuch as the Judges of the realm have the administration of justice, under the King, to all his subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a record, or of any judicial proceedings before them, or tending to the slander of the justice of the King, which will trench to the scandal of the King himself, except it be before the King himself; for they are only to make an account to God and the King, and not to answer to any suggestion in the Star-Chamber. Id., at 25, 77 Eng.Rep. at 1307. By 1868, one of the judges of the Court of Exchequer explained judicial immunity in language close to our contemporary understanding of the doctrine: It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences. Scott v. Stans-field, 3 L.R.Ex., at 223, quoted in Bradley v. Fisher, [80 U.S.] 13 Wall. 335, 350, n. (1872). Pulliam v. Allen, 466 U.S. 522, 530-32, 104 S.Ct. 1970, 1975-76, 80 L.Ed.2d 565 (1984).

10347054

Eric "Frank" FEICHTINGER and Jacqueline A. Feichtinger, individually and as natural parents and next best friends of M.F. and K.F., minors, Appellants and Cross-Appellees, v. Eaton CONANT, Appellee and Cross-Appellant, and Municipality of Anchorage, Anchorage Police Department, Kevin O'Leary, Joseph Austin, Thomas Walker, Dwayne McConnell, Anchorage Police Employees Association, and the State of Alaska, Appellees

Feichtinger v. Conant

1995-04-28

Nos. S-5681, S-5791

1266

1268

893 P.2d 1266

893

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

Eric “Frank” FEICHTINGER and Jacqueline A. Feichtinger, individually and as natural parents and next best friends of M.F. and K.F., minors, Appellants and Cross-Appellees, v. Eaton CONANT, Appellee and Cross-Appellant, and Municipality of Anchorage, Anchorage Police Department, Kevin O’Leary, Joseph Austin, Thomas Walker, Dwayne McConnell, Anchorage Police Employees Association, and the State of Alaska, Appellees.

Eric “Frank” FEICHTINGER and Jacqueline A. Feichtinger, individually and as natural parents and next best friends of M.F. and K.F., minors, Appellants and Cross-Appellees, v. Eaton CONANT, Appellee and Cross-Appellant, and Municipality of Anchorage, Anchorage Police Department, Kevin O’Leary, Joseph Austin, Thomas Walker, Dwayne McConnell, Anchorage Police Employees Association, and the State of Alaska, Appellees. Nos. S-5681, S-5791. Supreme Court of Alaska. April 28, 1995. Edgar Paul Boyko, Boyko & Flansberg, Anchorage, for appellants and cross-appel-lees. Julia B. Bockmon, Robertson, Monagle & Eastaugh, Anchorage, for appellees and cross-appellant. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

1135

7528

OPINION MATTHEWS, Justice. Frank Feichtinger was fired by the Anchorage Police Department. Feichtinger filed an administrative grievance, contending that he was terminated without just cause. Pursuant to the contract between the Municipality of Anchorage and the police officers' union, Feichtinger's grievance was heard by an arbitrator. The arbitrator, Eaton Conant, decided against Feichtinger. Feichtinger sued Conant in superior court, alleging that Conant deprived him of his due process rights during the arbitration proceeding in violation of the underlying labor contract. The superior court granted Co-nant summary judgment on the grounds of arbitral immunity. Feichtinger appeals. We affirm. Arbitral immunity gives arbitrators absolute immunity from liability for damages arising out of quasi-judicial actions taken by them. See, e.g., International Union, United Auto., Aerospace, and Agr. Implement Workers of America and its Locals 656 and 985 v. Greyhound Lines, Inc., 701 F.2d 1181, 1185 (6th Cir.1983). Arbitral immunity is the rule in virtually all jurisdictions, and we now adopt it. We recognized the doctrine of judicial immunity, which protects judges from liability for their judicial acts, in Denardo v. Michalski, 811 P.2d 315, 316 (Alaska 1991). In Lythgoe v. Guinn, 884 P.2d 1085, 1087-89 (Alaska 1994), we held that a court-appointed independent custody investigator who performed quasi-judicial functions was protected from suit by the doctrine of quasi-judicial immunity. Like the investigator in Lythgoe, arbitrators perform quasi-judicial functions; our recognition of arbitral immunity flows naturally from our decisions in Lythgoe and Denardo. Feichtinger proposes that arbitral immunity should not apply (1) where the arbitrator did not act in good faith; (2) where a labor-management arbitrator commits gross negligence, fraud, corruption, gross error, or misbehavior; (3) where an arbitrator commits egregious misconduct; and/or (4) where the arbitrator's behavior is extreme and outrageous. We decline to adopt any of Feicht-inger's proposed limits on arbitral immunity, as doing so would undermine the policies served by arbitral immunity. Arbitral immunity encourages the settlement of disputes by arbitrators. It protects the integrity of the arbitration process from reprisals by dissatisfied parties. It enhances the impartiality and independence of arbitrators. It lends finality to decisions of arbitrators. And it makes it easier to recruit arbitrators. See International Union, 701 F.2d at 1186-87; Tamari v. Conrad, 552 F.2d 778, 781 (7th Cir.1977); Dennis R. Nolan & Roger I. Abrams, Arbitral Immunity, 11 Indus.Rel.L.J. 228, 233 (1989). Exposing arbitrators to personal liability would weaken the effectiveness and attractiveness of arbitration as an alternative to litigation. Conant cross-appeals, arguing that the award of attorney's fees to him was too low. Conant requested approximately seventy-five percent of his actual fees; the superi- or court awarded approximately thirty percent. An award of attorney's fees will be overturned only upon a showing of abuse of discretion or a showing that the award is manifestly unreasonable. De Witt v. Liberty Leasing Co. of Alaska, 499 P.2d 599, 601 (Alaska 1972); Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). Conant has not made such a showing. Conant's main argument is that his entitlement to immunity "was clear as a matter of law" and that a large fee award would discourage suits against arbitrators and thereby serve the public policies behind arbitral immunity. However, before this decision, no Alaska ease had addressed the issue of arbitral immunity. If a suit similar to the one in this case were to be filed after the publication of this decision, it could be frivolous and justify an award of actual fees. See State v. University of Alaska, 624 P.2d 807, 817-18 (Alaska 1981). But since this is the first Alaska case dealing with arbitral immunity, the award of attorney's fees was well within the discretion allowed to the superior court. Feichtinger's claims are barred by arbitral immunity. The superior's court's award of attorney's fees was not an abuse of discretion. In all respects, the decision of the superior court is AFFIRMED. EASTAUGH, J., not participating. . Feichtinger alleged that the arbitrator committed misconduct by (1) denying Feichtinger a fair hearing by refusing to grant a continuance; (2) improperly excluding Feichtinger from participating in the hearing; (3) deliberately misleading Feichtinger by promising to hear his evidence and then terminating the hearing without doing so; (4) colluding with the Municipality to deny Feichtinger a fair hearing; (5) being biased in favor of the Municipality, which was concealed from Feichtinger; (6) fraudulently rendering a decision based on evidence submitted only by one side; (7) deliberately trapping Feichtinger into a situation where his proffered evidence could be ruled untimely; and (8) conducting the hearing so unfairly that Feichtinger was deprived of his fundamental due process rights. . See, e.g., Skidmore v. Consolidated Rail Corp., 619 F.2d 157 (2d Cir.1979), cert. denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 488 (1980); Tamari v. Conrad, 552 F.2d 778 (7th Cir.1977); Fong v. American Airlines, Inc., 431 F.Supp. 1340 (N.D.Cal.1977); Merchants Despatch Transp. Corp. v. System Federation No. One Ry. Emp. Dept. AFL-CIO Carmen, 444 F.Supp. 75 (N.D.Ill.1977); Jones v. Brown, 54 Iowa 74, 6 N.W. 140 (1880). . Some courts have held that arbitral immunity does not apply where the arbitrator breaches his contract by failing to issue a timely decision. See Baar v. Tigerman, 140 Cal.App.3d 979, 189 Cal.Rptr. 834, 836-39 (1983); E.C. Ernst, Inc. v. Manhattan Const. Co. of Texas, 551 F.2d 1026, 1033-35 (5th Cir.1977), modified on other grounds, 559 F.2d 268 (5th Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978). We do not need to decide here whether to adopt this exception to arbitral immunity, as Feichtinger does not allege that Conant failed to issue a timely decision. . In support of his argument that arbitral immunity should not apply where the arbitrator acts in bad faith, Feichtinger relies on Lundgren v. Freeman, 307 F.2d 104, 117-18 (9th Cir.1962), and City of Durham v. Reidsville Engineering Co., 255 N.C. 98, 120 S.E.2d 564, 567 (1961). These cases are inapposite because they involved engineers or architects performing quasi-arbitral functions and employed by one of the parties, not true arbitrators. . At the time Conant filed his motion for attorney's fees, Alaska Civil Rule 82(a)(1) provided that attorney's fees could be "fixed by the court in its discretion in a reasonable amount" where the prevailing party did not win a monetary judgment.

10347040

Jack KEANE and Concerned Citizens of Bristol Bay, Appellants, v. LOCAL BOUNDARY COMMISSION and Incorporators of the City of Pilot Point, Intervenors, Appellees

Keane v. Local Boundary Commission

1995-04-14

No. S-5370

1239

1251

893 P.2d 1239

893

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

Jack KEANE and Concerned Citizens of Bristol Bay, Appellants, v. LOCAL BOUNDARY COMMISSION and Incorporators of the City of Pilot Point, Intervenors, Appellees.

Jack KEANE and Concerned Citizens of Bristol Bay, Appellants, v. LOCAL BOUNDARY COMMISSION and Incorporators of the City of Pilot Point, Intervenors, Appellees. No. S-5370. Supreme Court of Alaska. April 14, 1995. Andrew M. Hemenway, Anchorage, for appellants. Marjorie L. Odland, Stephen Slotnick, Asst. Attys. Gen., Juneau, Charles E. Cole, Atty. Gen., Juneau, for appellee Local Boundary Commission. Bruce F. Stanford, Anchorage, for interve-nors and appellees Incorporators of City of Pilot Point. Glen K. Vernon, King Salmon, for amicus curiae Lake and Peninsula Borough. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, JJ„ and BRYNER, J. Pro Tem. Sitting by assignment under article IV, section 16 of the Alaska Constitution. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

8085

50028

ORDER On consideration of the petition for rehearing, filed on November 18, 1994, IT IS ORDERED: 1. The petition for rehearing is GRANTED to the extent that the final sentence of the opinion is deleted and replaced with the following sentence: "Finally, we conclude that Keane is a public interest litigant and therefore REVERSE the superior court's awards of attorney's fees, and REMAND the issue of attorney's fees to the superior court for redetermination." a. Opinion No. 4145, issued on November 18, 1994, is WITHDRAWN. b. Opinion No. 4187 is issued today in its place. 2. The petition for rehearing is DENIED in all other respects. Entered by direction of the Court at Anchorage, Alaska on April 14, 1995. Before MOORE, C.J, RABINOWITZ, MATTHEWS and COMPTON, JJ" and BRYNER, J. Pro Tem. OPINION COMPTON, Justice. This appeal arises from a decision of the Local Boundary Commission (LBC) approving the incorporation of the City of Pilot Point. Jack Keane and Concerned Citizens of Bristol Bay (collectively Keane) argue that the LBC's decision lacks a reasonable basis, that it is based upon an illegal tax, and that it is contrary to Alaska law. In addition, Keane appeals the following discreet superior court decisions: (1) the decision to allow the incorporators of Pilot Point (Incorporators) to intervene, (2) the decision to deny Keane's request for a stay pending appeal, (3) the decision to deny Keane public interest status, and (4) the decision to award attorney's fees to the LBC and the Incorporators. I. FACTUAL AND PROCEDURAL BACKGROUND Pilot Point is located within the Lake and Peninsula Borough (Borough), on the shores of Bristol Bay. Voters from the Pilot Point area prepared a petition seeking incorporation of Pilot Point as a second class city. The petition included a request that incorporation be conditioned on approval of a three percent sales and use tax on the sale of fish in the community. After review and approval by the Department of Community and Regional Affairs (DCRA), the petition was presented to the LBC. Following a public hearing, the LBC approved an amended petition. Both incorporation and the sales and use tax were approved by the voters of Pilot Point. Keane appealed the LBC decision to the superior court, and filed a motion to stay certification of the incorporation election results. The Incorporators filed a motion to intervene in the appeal and an opposition to the motion to stay. The LBC aligned itself with the Incorporators, supporting the motion for intervention and opposing the motion to stay. Keane opposed the Incorporators' motion to intervene. The superior court granted the motion to intervene, denied the motion for a stay and allowed certification of the election results. Keane then sought review of the superior court's order by filing an Emergency Motion for Stay in this court. The motion was denied. (No. S^4922 Order, January 21, 1992). The superior court affirmed the LBC's decision approving the petition for incorporation. The Incorporators and the LBC then filed motions for attorney's fees. Keane opposed both motions, claiming public interest litigant status. The court denied Keane's request and awarded partial attorney's fees to the LBC and the Incorporators in the amount of $1,500 and $11,350, respectively. This appeal followed. II. DISCUSSION A. STANDARDS OF REVIEW When an administrative decision involves expertise regarding either complex subject matter or fundamental policy formulation, we defer to the decision if it has a reasonable basis. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987); Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 98 (Alaska 1974). In contrast, we exercise our independent judgment when interpreting a statute which does not implicate an agency's special expertise or determination of fundamental policies. See City of Valdez v. State, Dep't of Community & Regional Affairs, 793 P.2d 532, 533 n. 6 (Alaska 1990). Constitutional issues present questions of law to which this court applies its independent judgment. They "should be given a reasonable and practical interpretation in accordance with common sense." Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992). B. ALASKA'S CONSTITUTION AND STATUTES REQUIRE AN INQUIRY INTO WHETHER IT IS REASONABLE OR PRACTICABLE FOR A BOROUGH TO PROVIDE SERVICES BEFORE INCORPORATION OF A CITY IS ALLOWED 1. Statutory and constitutional provisions. Article X, section 1 of the Alaska Constitution states that the purpose of article X is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdictions. Article X, section 5 of the Alaska Constitution provides in part: Service areas . may be established . by the assembly, subject to the provisions of law or charter. A new service area shall not be established if, consistent with the purposes of this article, the new service can be provided by . incorporation as a city.... Alaska Statute 29.05.021(b) provides: A community within a borough may not incorporate as a city if the services to be provided by the proposed city can be provided on an areawide or nonareawide basis by the borough in which the proposed city is located.... Alaska Statute 29.35.450(b) provides: A new service area may not be established if, consistent with the purposes of art. X of the state constitution, the new service can be provided by an existing service area . or by incorporation as a city. 2. Arguments presented. Keane contends that AS 29.05.021(b) prohibits the incorporation of a city when formation of a service area is theoretically possible, or at least when formation of a service area is "reasonable" or "practicable." Keane asserts that the Borough could reasonably and practicably provide the services desired by the Incorporators as evidenced by the LBC's statement acknowledging that the Borough "could, on a service area basis, provide other services needed or desired by the residents of Phot Point." The LBC argues that Keane's interpretation of AS 29.05.021(b) is contrary to AS 29.35.450(b), constitutional law and the relevant interpretive regulation, 19 Alaska Administrative Code (AAC) 10.020(a), as well as the LBC's power to base its decision on fundamental policy considerations. The LBC contends that (1) Keane's interpretation would force a borough to provide services regardless of whether the borough "wants" to provide them, and (2) a borough cannot be "required" to establish a service area. The Borough argues that even if AS 29.05.021(b) is construed to require boroughs to create new service areas, it is exempt from its provisions because of its home rule status. The Borough argues that article X, section 5 of the Alaska Constitution allows the creation of service areas only when other options, including incorporation of a city, are not available. Keane responds that article X, section 5 of the Alaska Constitution, when read in conjunction with article X, section 1, allows incorporation of a city only when a service area could not be created to provide the same services, because incorporation of a city will increase the number of local government units and tax-levying jurisdictions. 3. Interpretation of the law. We conclude that AS 29.05.021(b) is not in conflict with either AS 29.35.450(b) or article X, section 5 of the Alaska Constitution. Alaska Statute 29.35.450(b), which follows the language of article X, section 5, is a limitation on the creation of new service areas. . It provides that a new service area may not be established if the new service can be provided by another means such as incorporation of a city. In contrast, AS 29.05.021(b) is a limitation on the incorporation of cities. It disallows incorporation when the desired services can be provided by a borough on an areawide or nonareawide basis. A home rule borough can provide services on an area-wide or nonareawide basis without resort to a service area. It is reasonable to interpret AS 29.35.450(b) and article X, section 5 as preferring incorporation of a city over the creation of new service areas. This interpretation is supported by legislative history and is not inconsistent with article X, section 1 of the Alaska Constitution. Constructing a barrier to approving an excessive number of government units does not prohibit the cre ation of them when they are necessary. Whether a service area or a city is established, another government unit is created. If numerous service areas are set up supplying only one or two services each, there is the potential for an inefficient proliferation of • service areas. In contrast, once a city is established, it can provide many services, and other communities can annex to the city in the future. Although the framers entertained the idea of unified local governments, they realized that the need for cities still existed. Based on the above discussion, we interpret AS 29.05.021(b) as follows: when needed or desired services can be reasonably and practicably provided on an areawide or nonareawide basis by the borough, they should be. As discussed supra, this inquiry is not limited to an evaluation of service areas. When it is established that the services cannot be provided reasonably or practicably, then the LBC is required to consider other available options. We also clarify that there is a statutory and constitutional preference for incorporation of cities over the establishment of new service areas. We believe these to be reasonable and practical interpretations of the Alaska Constitution in accordance with common sense. See Arco Alaska, 824 P.2d at 710. 4. The LBC erred in its incorporation determination by failing to address whether the Borough could reasonably and practicably provide the desired services. Keane argues that even if a requirement of "reasonableness" or "practicability" is read into AS 29.05.021(b), the LBC provides no evidence which supports a conclusion that formation of a service area is not "reasonable" or "practicable." Keane contends that a Borough's support of a petition for incorporation is not equivalent to a refusal to create a new service area. At issue is former 19 AAC 10.020, a regulation which interprets AS 29.05.021(b) and assists the LBC in determining whether the formation of a service area is reasonable or practicable. It provided in part: (a) The commission will not allow the incorporation of a community located within an organized borough unless the petitioners demonstrate to the satisfaction of the commission that the services to be exercised by the proposed city cannot be reasonably or practicably exercised by the borough on an areawide or non-areawide basis. The commission will consider the requirement of this subsection satisfied if: (2) the commission determines that the city is remote from the borough seat and is not connected to the borough seat by the state highway system. Keane asserts that the LBC raises for the first time on appeal to the superior court its finding of remoteness and attendant reliance on 19 AAC 10.020. The LBC asserts that it did not "overlook" the application of 19 AAC 10.020. It notes the applicability of 19 AAC 10.020 in its Findings and Conclusions: AS 29.05.011 sets out four standards for the LBC to apply to all petitions for city incorporation. A fifth standard, set out in AS 29.05.021(b), applies only to communities such as Pilot Point which are in organized boroughs. The Alaska Administrative Code, 19 AAC 10.010 and 10.020, gives the criteria which the LBC, in its discretion, should consider when applying the statutory standards, although the Commission is not limited to the fisted factors. Remoteness was part of the record before the LBC. The fact that Pilot Point is not connected to the borough seat, King Salmon, by any road, and the fact that Pilot Point is eighty-five air miles from King Salmon, were mentioned in the Incorporator's petition as well as the DCRA reports to the LBC. The LBC argues that there was no need to discuss specifically in its decision remoteness or its effect on the criteria of 19 AAC 10.020(a)(2). The LBC is not required to set forth findings of fact in its incorporation decisions. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 97 (Alaska 1974). In Mobil Oil, we stated that "[t]he special function of the [LBC], to undertake a broad inquiry into the desirability of creating a political subdivision of the state, makes us reluctant to impose an independent judicial requirement that findings be prepared." Id. We stated that we were able to determine the basis of the LBC's decision from our own review of the entire record. Id. Keane responds that where a decisional document shows on its face that an important factor was not considered, the court should remand the matter for further consideration. See, e.g., Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 549 (Alaska 1983). We agree. The LBC's decision allowing incorporation provides: Given the lack of any city close to the community of Pilot Point, annexation to an existing city is impractical. While the Lake & Peninsula Borough could, on a service area basis, provide other services needed or desired by the residents of Pilot Point, the Borough Assembly formally supports incorporation of the city. Therefore, service area formation does not appear to be a viable option at this time. The LBC argues the applicability of 19 AAC 10.020, notes its importance in the consideration of the statutory standards for incorporation, and acknowledges the facts that support a finding of remoteness. Nonetheless, we cannot ascertain from the record whether the LBC made a "reasonableness" or "practicability" determination, and if it did, whether it found a lack of the two based on a remoteness theory. The LBC does not refer to the facts concerning a remoteness determination in its conclusions. Its decision appears to be based solely on the fact that the residents of Pilot Point wanted to incorporate and that the Borough Assembly formally supported the incorporation. There is no indication that a determination of the "reasonableness" or "practicability" of a service area was considered. Therefore, we remand to the LBC to make findings consistent with this opinion. C. THE LBC'S DECISION WAS NOT PREDICATED ON AN ILLEGAL TAX Approval of the incorporation petition by local voters was contingent on their simultaneous approval of a proposed three percent tax on the sale of fish within the city. Keane argues that this tax is illegal based on three theories: (1) the tax violates AS 29.45.090(b); (2) the tax denies due process of law to the taxpayers; and (3) the tax violates article IX, section 6 of the Alaska Constitution. Each of these areas is discussed below. 1. Alaska Statute 29.45.090(b)(1) does not apply to sales taxes. Alaska Statute 29.45.090(b)(1) provides that "[A] municipality . may not levy taxes . that will result in tax revenues from all sources exceeding $1,500 a year for each person residing within the municipal boundaries." Keane asserts that the tax limitation of AS 29.45.090(b)(1) applies to sales taxes because the language refers to "all sources" and that the three percent tax exceeds the amount allowed. The LBC responds that Keane's interpretation of AS 29.45.090(b)(1) is inconsistent with municipal taxation practices as well as rules of statutory construction. Alaska Statute 29.45.090 provides in part: (a) A municipality may not, during a year, levy and tax for any purpose in excess of three percent of the assessed value of property in the municipality. All property on which a tax is levied shall be taxed at the same rate during the year. (b) A municipality, or combination of municipalities occupying the same geographical area, in whole or in part, may not levy taxes. (1) that will result in tax revenues from all sources exceeding $1,500 a year for each person residing within the municipal boundaries; or (2) upon value that, when combined with the value of property otherwise taxable by the municipality, exceeds the product of 225 percent of the average per capita assessed full and true value of property in the state multiplied by the number of residents of the taxing municipality. (Emphasis added). When subsection (b)(1) is read in context with subsections (a) and (b)(2), it appears that the entire section is dealing with property taxes. See 2B Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1992) [hereinafter Sutherland ] ("A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other so as to produce a harmonious whole."). The LBC correctly contends that property valuation is a basic principle inherent throughout AS 29.45. We can consider these sections in pari materia as they relate to the method by which municipalities assess, levy and collect property taxes. AS 29.45.010. See 2B Sutherland, supra, § 51.03 ("Statutes are considered to be in pari materia when they . have the same purpose or object."). In addition, the DORA reports that the State Assessor interprets AS 29.45.090(b)(1) as applying only to property taxes. A "contemporaneous and practical interpretation of a statute by the executive offieer[] charged with its administration and enforcement . constitutes an invaluable aid in determining the meaning of a doubtful statute." 2B Sutherland, supra, § 49.03; see also Casperson v. Alaska Teachers' Retirement Bd., 664 P.2d 583, 586-87 (Alaska 1983) (Compton, J., dissenting). Furthermore, AS 29.45.090 assumes that the prohibited tax is of an amount capable of predetermination. This suggests that it applies to property tax only. As a practical matter, the amount of property tax to be levied and collected in an upcoming year is capable of exact calculation based upon the amount of assessed, taxable property in a municipality and the establishment of an annual mill rate. In contrast, the amount to be collected in a fish sales taxes in an upcoming year can only be estimated: revenues are dependent on the strength of the salmon runs and the price paid per pound to the fishermen. After considering the language of the statute, its legislative history and underlying policies, we conclude that AS 29.45.090 is inapplicable to sales taxes. We believe this interpretation to be the most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). 2. The sales tax does not violate due process. Keane argues that the three percent sales and use tax violates due process of law because it confers no benefit upon the taxpayers. The LBC contends that the City of Pilot Point plans to provide shore-based facilities and to offset the effects of the seasonal influx of fishermen to the community. The Incorporators also contend that the taxpayers will benefit from the waste disposal, storage, waterfront and fresh water improvements that the city proposes to provide. Keane responds that the majority of the taxpayers have no shore-based presence. As long as services are available, the issue of usage by the taxpayers is irrelevant. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924, 928 (Alaska 1979). Therefore, we conclude that the three percent sales and use tax does not violate the taxpayers' due process rights. 3. The sales and use tax does have a public purpose. Keane also contends that the proposed tax violates article IX, section 6 of the Alaska Constitution, which provides in part that "[n]o tax shall be levied . except for a public purpose." Keane asserts that the three percent tax violates the public purpose clause because the Incorporators' petition anticipated the generation of fifty percent more revenue than needed to operate the city as well as the establishment of a permanent fund. The LBC responds that (1) the DCRA considered the petitioner's anticipated revenues overly optimistic, and (2) even if a city has excess tax revenues it is not prohibited from establishing a savings account to draw on in less prosperous times. The phrase "public purpose" cannot be precisely defined; each ease must be judged on its own particular facts and circumstances. DeArmond v. Alaska State Dev. Corp., 376 P.2d 717, 721 (Alaska 1962). [I]f the object is beneficial to the inhabitants and directly connected with the local government it will be considered with favor as a . public purpose_ To justify a court in declaring a tax invalid on the ground that it was not imposed for a public purpose, the absence of a public interest must be clear and palpable. 16 Stephen M. Flanagan, McQuillin, Municipal Corporations § 44.35, at 114-15 (3rd ed. 1984). We conclude that establishment of a savings account for future public purposes appears to be a prudent decision with a public purpose. D. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION IN DENYING A STAY Keane argues that Alaska Appellate Rule 603(a)(2) does not require any consideration of the merits of the appeal, the probability of success, a finding of irreparable harm, or adequate protection to the appellee. Keane asserts that the cases relied on by the LBC and the Incorporators that considered these elements are no longer applicable because they have been superseded by Appellate Rule 603. Keane argues that a $750 cash deposit in the amount of a cost bond satisfies the requirements of a supersedeas bond under Alaska Appellate Rule 603(a)(2) by application of Alaska Appellate Rule 602(f). He cites Pipeliners Union 798, United Association v. Alaska State Commission for Human Rights, 681 P.2d 330 (Alaska 1984), to support the proposition that he is entitled to a stay unless it would be contrary to the public interest. The Pipeliners court concluded that "[a] monetary enforcement judgment may be stayed as a matter of right upon the posting of an appropriate superee-deas [sic] bond under Appellate Rule 603(a)(2)." Id. at 336. However, Keane's reliance on Pipeliners is misplaced; Pipeliners involved a monetary judgment. The distinction between monetary and non-monetary judgments is clear in Rule 603(a)(2) which provides in part: When an appeal is taken, the appellant may obtain a stay of proceedings to enforce the judgment by filing a supersedeas bond.... The filing of a supersedeas bond does not prohibit the court from considering the public interest in deciding whether to impose or continue a stay on that portion of an administrative or district court judgment which is not limited to monetary relief. (Emphasis added). Thus stays not involving money judgments are not mandatory upon the mere issuance of a supersedeas bond, and certainly are not mandatory on the issuance of a $750 cost bond. Accordingly, the superior court has discretion to grant a stay concerning a non-monetary judgment. This determination is guided by the "public interest." Keane contends that it was in the public interest to grant a stay because disincorporation of a municipality substantially disrupts the life and livelihood of those associated with the municipality. The LBC and the Intervenors respond that the public interest cannot be protected with a $750 cost bond: this amount does not come close to the amount spent in reviewing the incorporation petition, holding meetings and hearings, holding an election, or the loss of tax revenues if a stay is granted. Moreover, certain public interests would be advanced by denying the stay: the right to petition and vote for incorporation, and the right to vote for a tax measure to insure the financial viability of the city. We find the public interest arguments advanced by the LBC and the Intervenors persuasive. Additionally, we clarify that the test presented in A.J. Industries, Inc. v. Alaska Public Service Commission, 470 P.2d 537 (Alaska 1970), is still applicable: While the rule requiring a clear showing of probable success applies in situations where the party asking for relief does not stand to suffer irreparable harm, or where the party against whom the injunction is sought will suffer injury if the injunction is issued, a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury. Id. (footnotes omitted). Because Keane has made no showing of either irreparable harm or probability of success on the merits, we conclude that the superior court did not abuse its discretion in denying Keane's motion for a stay. E. THE SUPERIOR COURT DID NOT ERR IN ALLOWING THE INCOR-PORATORS TO INTERVENE The Incorporators argue that they were properly allowed to intervene as a matter of right. In the alternative, they argue that they were entitled to permissive intervention pursuant to Alaska Civil Rule 24(b). The LBC supports the intervention of the Incorporators, noting that "[a] newly incorporated entity has a direct interest in any legal challenge to its existence." Keane argues that if intervention was available it was permissive, not as of right. However, Keane asserts that even permissive intervention should have been denied in this case because of the increased complications of tripartite litigation. Assuming, arguendo, that intervention as a matter of right was improper, we conclude that the Incorporators were properly allowed permissive intervention. Permissive intervention is proper "when an applicant's claim or defense and the main action have a question of law or fact in common." Alaska R.Civ.P. 24(b). The Incorporators' claims do share common issues of law and fact with the LBC: they both want to uphold the LBC decision. An additional factor that a court must consider before allowing intervention is "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id. This court has recognized that "additional parties are . the source of additional questions, briefs, objections, arguments and motions;" where no new issues are presented, it is most effective to allow participation by a brief amicus curiae rather than by intervention. State v. Weidner, 684 P.2d 103, 114 (Alaska 1984). The Incorporators have raised additional arguments and interests that are not raised by the LBC, i.e., that the legality of the sales tax is not properly before the court, and that if a stay were issued, a substantial bond would be needed to cover the amount of the city's lost revenues and grants from the State and Federal governments. Furthermore, the intervention does not appear to have unduly delayed or prejudiced the original parties. Keane merely asserts that there are increased complications in tripartite litigation; he fails to persuade us that he is thereby prejudiced. Therefore, we conclude that the superior court did not abuse its discretion in allowing the Incorporators to intervene. See id. at 113. F. THE SUPERIOR COURT ERRED IN ITS AWARDS OF ATTORNEY'S FEES BECAUSE KEANE WAS ENTITLED TO PUBLIC INTEREST STATUS Keane contends that the superior court abused its discretion when it denied him public interest status and awarded attorney's fees to the Incorporators and the LBC. See Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 171 (Alaska 1991) ('We review the trial court's determination of public interest status under the abuse of discretion standard."). We agree. The criteria for identifying a public interest suit are as follows: "(1) whether the case is designed to effectuate strong public policies; (2) whether, if the plaintiff succeeds, numerous people will benefit from the lawsuit; (3) whether only a private party could be expected to bring the suit; and (4) whether the litigant . would lack sufficient economic incentive to bring the lawsuit if it did not involve issues of great public importance." Carney v. State, Board of Fisheries, 785 P.2d 544, 549 (Alaska 1990). All four factors must exist before a party is considered a public interest litigant. Id. We conclude that Keane is a public interest litigant. First, this lawsuit was designed to effectuate public policy. Keane challenged an alleged violation of a policy of the Alaska Constitution that favors limiting tax-levying authorities. Keane also sought a determination that would clarify statutory limitations on municipalities' tax-levying powers. Each of these goals involves important public policies. Second, numerous people will benefit from this lawsuit if Keane succeeds. Although Keane admits that "[t]he hundreds of fishermen of the Ugashik District would be the primary beneficiaries," defining boundaries of constitutional provisions will benefit the public at large. See, e.g., Whitson v. Anchorage, 632 P.2d 232, 234 (Alaska 1981); Thomas v. Bailey, 611 P.2d 536, 540 (Alaska 1980). Likewise, interpreting public laws will benefit the public. See Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1227 (Alaska 1975). Third, it is reasonable to conclude that only a private party would be expected to bring this suit because the LBC's decision is supported by the DCRA. Fourth, Keane lacked sufficient econqmic incentive to bring this suit. This appeal was directed at the formation of a municipality, rather than at the imposition of a tax; economic interests were affected only indirectly. Keane alleges that in this case the affected economic interest of a typical fisherman is quite small, approximately $555.55. See Citizens for the Preservation of the Kenai River, Inc. v. Sheffield, 758 P.2d 624, 627 (Alaska 1988) (holding that whether a party is a public interest litigant depends on the interests of "typical members" rather than the interests of a single member). The economic interest of a typical fisherman in this case is not substantial and does not preclude Keane's public interest status. Keane satisfied all four of the necessary criteria to be considered a public interest litigant. We conclude that the superior court abused its discretion in denying Keane public interest status. Therefore, we reverse the awards of attorney's fees. III. CONCLUSION We conclude that AS 29.05.021(b) requires an inquiry into the reasonableness and practicability of having a borough provide the desired services. Therefore, we REMAND to the LBC to make such an inquiry. We conclude that the three percent sales and use tax is not limited by AS 29.45.090(b)(1), that it does have a public purpose, and that it does not violate taxpayers' due process. We AFFIRM the decisions of the superior court denying Keane's motion to stay proceedings pending appeal and allowing the Incorpo-rators to intervene. Finally, we conclude that Keane is a public interest litigant and therefore REVERSE the superior court's awards of attorney's fees, and REMAND the issue of attorney's fees to the superior court for redetermination. . The validity of the 1989 incorporation of the Borough is currently before this court on a challenge from villages in the Nushagak watershed. See Lake & Peninsula Borough v. Local Boundary Comm'n., Nos. S-5476/5485. . Arguing as amicus curiae, the Borough contends that it "has never provided, nor does it now provide, either on an areawide or a nonar-eawide basis, the services that Pilot Point proposed to provide for itself through incorporation." It further argues that state law does not suggest that, "in the absence of such services already being provided, the Borough was somehow obligated to create a service area in preference to having a local community incorporate in order to provide needed municipal services." In addition, the Borough has established a preference for incorporation over establishment of a new service area when necessary services are not already provided. See Lake & Peninsula Borough, Municipal Code § 10.01.010(C). . A home rule municipality "is a city or a borough that has adopted a home rule charter, or . is a unified municipality. [It] has all legislative powers not prohibited by law or charter." AS 29.04.010; see Alaska Const, art. X, § 11. In contrast, a general law municipality "is an un-chartered borough or city. It has legislative powers conferred by law." AS 29.04.020. General law municipalities are of five classes, two of which are first and second class boroughs. AS 29.04.030. The powers of first and second class boroughs are set forth at AS 29.35.200, .210. The concepts of "general" and "home rule" are not exclusive. A first class city or first class borough may adopt a home rule charter. Alaska Const, art. X, § 9; see generally, Thomas A. Morehouse & Victor Fischer, Institute of Social, Economic & Government Research, Borough Government in Alaska 56-59 (1971). Alaska Statute 29.10.200 provides in part: "Only the following provisions of this title apply to home rule municipalities as prohibitions on acting otherwise than as provided.... " The section continues, listing the applicable sections of the code. Alaska Statute 29.05.021(b) is not listed. When the Alaska Legislature revised the municipal code in 1975, it elaborated on the purpose of AS 29.10.200: Home rule limitations are gathered together and listed in one place in article 2 of the chapter (Sec. 29.13.010) [renumbered to 29.10.200 in 1985]. The listing makes explicit the legislative intent as to which provisions of the code apply to home rule municipalities, as prohibitions on acting otherwise than as provided, and which do not. Additionally, the provisions themselves contain a specific reference making them applicable to home rule municipalities. The listing and specific references in the provisions are intended to coincide. (As additional provisions of law are enacted subsequent to the time the code takes effect, provisions which are intended to apply to home rule as well as to general law municipalities as prohibitions on acting otherwise than as provided should make a specific reference to home rule municipalities within the provision and should, under the form of the new code, also be included in the listing under Sec. 29.13.100, so as to maintain clearly the legislative distinction as to which code provisions apply to home rule municipalities and which do not.) 1972 House Journal 1720. It appears from the legislative history that AS 29.05.021(b) is inapplicable to home rule municipalities. See Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1222 n. 3 (Alaska 1993) (Moore, C.J., dissenting). .A service area "provide[s] specialized services in a borough . [that are] not provided on an areawide or nonareawide basis in the borough, or a higher or different level of service than that provided on an areawide or nonareawide basis." AS 29.35.450(a). . As a home rule borough, the Lake & Peninsula Borough is necessarily a first class borough. Alaska Const, art. X, § 9; see also AS 29.35.200(c) ("[A] first class borough may, on an areawide basis, exercise a power not otherwise prohibited by law if the power has been acquired in accordance with AS 29.35.300."); AS 29.35.200(a) ("A first class borough may exercise by ordinance on a nonareawide basis any power not otherwise prohibited by law."). . See Morehouse & Fischer, supra, at 42 ("The stated purpose of preventing duplication of tax levying jurisdictions and providing for a minimum of local government units was directly responsible for [article X, section 5 of the Alaska Constitution]."); see also 4 Proceedings of the Alaska Constitutional Convention (PACC) 2714-15 (January 20, 1956) (Delegate Rosswog stated that the main intention of section 5 was "to try not to have a lot of separate little districts set up . handling only one problem.") It is noteworthy that an amendment to eliminate the option of "incorporation as a city" from article X, section 5 was defeated by the convention. 4 PACC 2712-17 (January 20, 1956). Indeed, the LBC has recognized that the provisions for service areas in article X, section 5 would be "particularly applicable to conditions in Alaska. Thus many areas which have not yet attained a sufficient tax base or population to incorporate as a city will be assisted." Local Boundary Commission, First Report to the Second Session of the First Alaska State Legislature, at 1-7 to 1-8 (1960). . Victor Fischer, an authority on Alaska government, "advises that the 'minimum of local government units' language . was aimed at avoiding special districts such as health, school, and utilities districts having separate jurisdiction or taxing authority. He notes no policy was stated limiting the number of cities and boroughs." DCRA Report to the Alaska Local Boundary Commission on the Proposed Yakutat Borough Incorporation and Model Borough Boundaries for the Prince William Sound, Yakutat, Cross Sound/Icy Strait Regions 50 (December 1991) [hereinafter Yakutat Report ]. Nonetheless, in City of Douglas v. City and Borough of Juneau, 484 P.2d 1040 (Alaska 1971), we noted that article X, section 1 "expressed] [a] constitutional policy of minimizing the number of local government units." Id. at 1044 (emphasis added). In addition, the DCRA has concluded that "the constitutional language 'minimum of local government units' does admonish the LBC to guard against approving the creation of an excessive number of local governments." Yakutat Report, supra at 52. We note that neither view supports the addition of unnecessary government units. . Delegate Doogan referred to a city as a "combination of service areas within a borough." 4 PACC 2652 (January 19, 1956). . "In an attempt to simplify local government and prevent the overlapping of governmental functions," consistent with the purpose of article X, section 1, "the framers of the constitution . considered establishing a single unit of local government with the abolition of cities altogether." City of Homer v. Gangl, 650 P.2d 396, 400 (Alaska 1982). Although advantageous, the framers considered it a "concept whose time had not yet come." Id. "Section 2 of Article X presents the compromise solution: 'All local government powers shall be vested in boroughs and cities. The state may delegate taxing powers to organized boroughs and cities only.' " Id. (quoting Alaska Const. art. X, § 2). . We reject Keane's interpretation that incorporation of a city is allowed only when it is theoretically impossible for a borough to provide services. To accept such an interpretation would render the LBC powerless to approve the incorporation of any new city that is located within an organized borough because all organized boroughs have the power to provide services. See Alaska Const, art. X, § 5; AS 29.35.450. . Former 19 AAC 10.020(a) was revised and renumbered in 1992. AAC Register 123. The new regulation does not mention remoteness. It reads: In accordance with AS 29.05.021(b), a city may not incorporate as a city if essential city services can be provided more efficiently or more effectively by annexation to an existing city, or can be provided more efficiently or more effectively by an existing organized borough. 19 AAC 10.010(b). Keane argues that regardless of whether the LBC relied on former 19 AAC 10.020(a), it does not govern this appeal. Keane asserts that the court needs to follow the law in effect at the time it renders its decision, not the law in effect at the time of the administrative decision. However, AS 44.62.240 provides: If a regulation adopted by an agency under [the Administrative Procedure Act (APA)] is primarily legislative, the regulation has prospective effect only. A regulation adopted under [the APA] that is primarily an "interpretative regulation" has retroactive effect only if the agency adopting it has. adopted no earlier inconsistent regulation and has followed no earlier course of conduct inconsistent with the regulation. Silence or failure to follow any course of conduct is considered earlier inconsistent conduct. The earlier regulation included a remoteness factor; the new regulation does not include this factor and is inconsistent with the prior regulation. Thus, regardless of whether this court interprets 19 AAC 10.020(a) as a legislative or interpretative regulation, its application is prospective only. . The Borough has formulated and adopted a "Philosophy and Mission Statement" favoring community self-determination and limiting the size and scope of Borough government and services. Minutes of Joint Borough Assembly/Planning Committee Meeting, March 16, 1992. . Keane contends that, historically, the limitation on municipal taxes applied to all taxes. Section 16-4-1 Alaska Compiled Laws Annotated (ACLA) (1949) provided: No incorporated town or municipality shall levy any tax for any purpose in excess of 3 per centum of the assessed valuation of property within the town in any one year. (Emphasis added). This language was amended in 1960 by a proviso that the three percent limitation did not apply to taxes levied for bond payments. Ch. 94, § 1, SLA 1960, codified as AS 29.30.020. The general tax limitation was codified in 1962 as AS 29.30.010. It provided: No incorporated town or municipality may levy and tax for any purpose in excess of three per cent of the assessed valuation of property within the town in any one year. (Emphasis added). Keane claims that the change of "any" to "and" is a typographical error. There is no legislative history available on this change. A staff member of the Legislative Reference Library opines that in 1962 there was a conscious effort to eliminate as many "any's" as possible from the code. Keane contends that AS 29.30.010 was and remained a generic limitation on all forms of municipal taxation. AS 29.30.010 was recodified without substantial change as AS 29.53.050 (1972). Ch. 118, § 2, SLA 1972. AS 29.53.050 was amended by adding subsection (b) in 1973. Ch. 1, § 4> FSSLA 1973. AS 29.53.050(b) expanded on the three percent limitation by providing two alternative per capita tax limitations. Keane contends that the valuation formula used in subsection (b)(2) was, for the first time, a limit specifically restricted to property taxes, but that (b)(1) refers to "any" taxes. AS 29.45.090 is the recodification of AS 29.53.050 as amended in 1973. Ch. 74, § 12, SLA 1985. . Keane contends the Incorporators' proposal will produce revenues that will range from $6,679.25 per capita to $10,613.21 per capita. These figures are derived from the DCRA's estimate of the revenues that will be produced from the proposed tax. The DCRA estimates that the three percent tax will bring in approximately $354,000 to $562,500 annually. Keane divides this amount by 53 (the number of residents according to the 1990 census). . The Incorporators contend that the legality of the tax is outside the scope of this review and that a challenge to the allegedly illegal tax will not affect the incorporation process. AS 29.45.710 allows incorporation of a second class city to be dependent on the passage of a tax proposition. . Keane asserts that the language of AS 29.45.090(b)(1) is clear and, therefore we should not look at extrinsic evidence. However, this court has rejected such a mechanical application of the plain meaning rule. Alaska Pub. Employees Ass'n v. City of Fairbanks, 753 P.2d 725, 727 & n. 5 (Alaska 1988). When AS 29.45.090(b)(1) is read in context, it appears that it applies to property, not sales, taxes. The LBC correctly points out that the statutes addressing municipal property taxation are separate from those addressing sales taxes. However, the titles of chapters and articles are not part of the general and permanent law of the state. AS 01.05.005; see Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d 434, 438 (1979), modified, 615 P.2d 1391 (Alaska 1980). Nevertheless, it seems logical that the legislature would include a limitation on sales taxes in the article specifically discussing them rather than in the municipal property article. . -We are not persuaded otherwise by Keane's argument that the per capita limit could be administered by exempting transactions after the taxpayer has paid $1,500 in other local sales taxes. It would be the taxpayer's responsibility to claim the exemption and to establish the amount of taxes already paid. Keane contends that administrative difficulties are not grounds for departing from the clear language of a statute. See Alaska Pub. Employees Ass'n, 753 P.2d at 728 n. 6 (holding that arguments that a statute " 'leads to too many problems,' is a matter for the legislature, not this court."). . Keane also argues that because the former six percent limitation on sales taxes has been repealed, AS 29.45.650(g); Ch. 159, § 1, 2, SLA 1990, there will be no barrier to excessive taxation through the device of a sales tax unless this court construes AS 29.45.090(b)(1) as a limitation on sales taxes. The LBC and Incorporators respond that (1) if AS 29.45.090(b)(1) is interpreted to include sales taxes, then the lifting of the six percent limitation would be meaningless, and (2) if AS 29.45.090(b)(1) and its predecessors applied to "all" taxes, then they were in irreconcilable conflict with the prior six-percent sales tax limitation. We agree with the LBC. The absence of a limitation on sales taxes is a matter for legislative resolution. See, e.g., Commonwealth Edison Co. v. Montana, 453 U.S. 609, 610, 101 S.Ct. 2946, 2950, 69 L.Ed.2d 884 (1981) ("[T]he appropriate level or rate of taxation is essentially a matter for legislative, and not judicial, resolution."). . Because of the salmon industry, Pilot Point's population explodes from approximately 80 persons in the winter to more than 2,500 during the summer. . Originally the Incorporators had desired to use some of the tax revenues for a permanent fund with dividends to be paid to the citizens of Pilot Point. However, the city's representative later suggested that the purpose of the permanent fund would be to generate revenues for the city, not for its residents. After much debate, the city council has passed an "Investment Fund Reserve Account" that provides that 25% of any sales and use taxes collected will be placed in a conservative investment portfolio to provide revenue during poor fishing seasons. There is also a provision for an "Educational Endowment Fund." The ordinances passed by Pilot Point provide for other funds that may be created as needed by resolution. The Attorney General has opined that the Alaska Constitution does not appear to prohibit municipalities from dedicating public funds to such an account. 1988 Informal Op.Att'y Gen. No. [ XXX-XX-XXXX ] (July 29, 1988). . See, e.g., Keystone Servs., Inc. v. Alaska Transp. Comm'n, 568 P.2d 952 (Alaska 1977). Keystone involved the superior court's denial of a stay from a final order of the Alaska Transportation Commission, pending appeal of the order to the superior court. The Keystone court noted that the issue presented was similar to the issue addressed in A.J. Industries, Inc. v. Alaska Public Service Commission, 470 P.2d 537 (Alaska 1970), namely: "whether the superior court had properly denied a preliminary injunction in connection with an order by another regulatory agency of the state." Id. at 954. The court then utilized the test articulated in A.J. Industries to determine whether the issuance of the stay was proper. Id. at 954. The A.J. Industries test requires consideration of the following factors: (1) whether the plaintiff is faced with irreparable harm, (2) whether the opposing party will be adequately protected, and (3) whether the plaintiff has raised serious and substantial questions going to the merits of the case. Id. . If the latter part of this standard comes into play, the court is to use a "balance of hardships" approach. The court will weigh "the harm that will be suffered by the plaintiff if an injunction is not granted, against the harm that will be imposed upon the defendant" if the injunction is granted. A.J. Industries, 470 P.2d at 540. . Because we conclude that the superior court did not abuse its discretion in denying the stay for the stated reasons, we do not need to reach the issue of whether the Incorporators would have been entitled to the equitable defense of laches had a stay been issued. . Approximately 700 fishing vessels and 200 setnetters participate in the Ugashik District fishery, and anticipated tax revenues are $500,000 annually. Dividing the $500,000 annual tax revenue by the 900 taxpayers yields an average tax burden of $555.55. . Although we have never set a dollar amount that either precludes or establishes public interest status, we opined in Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988), that it might appear that a party lacked sufficient economic incentive to bring a lawsuit when the damages are "in the low four figures." Id. at 233. Nonetheless, we found substantial economic incentive precluding public interest status because Murphy could have recovered up to $25,000 plus punitive damages. Id. .Because we reverse the awards of attorney's fees, it is unnecessary to discuss Keane's contention that the awards were excessive.

10370098

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. KANDIK CONSTRUCTION, INC. AND ASSOCIATES, Kandik Construction, Inc., and Roen Design Associates, Inc., Appellees

Fairbanks North Star Borough v. Kandik Construction, Inc. & Associates

1991-12-27

No. S-2772

632

641

823 P.2d 632

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. KANDIK CONSTRUCTION, INC. AND ASSOCIATES, Kandik Construction, Inc., and Roen Design Associates, Inc., Appellees.

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. KANDIK CONSTRUCTION, INC. AND ASSOCIATES, Kandik Construction, Inc., and Roen Design Associates, Inc., Appellees. No. S-2772. Supreme Court of Alaska. Dec. 27, 1991. Ronald E. Noel, Joseph S. Slusser, Hughes, Thorsness, Gantz, Powell & Brun-din, Fairbanks, for appellee Roen Design Associates. R. Everett Harris, Kevin M. Morford, Jensen, Harris & Roth, Anchorage, and Mark Andrews, Asst. Borough Atty., Fairbanks, for appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5473

33675

OPINION ON REHEARING BURKE, Justice. We rendered our decision in the predecessor to this appeal on March 2, 1990. Fairbanks North Star Borough v. Kandik Construction, Inc., 795 P.2d 793 (Alaska 1990). Following the announcement of our decision, Roen Design Associates, one of the appellees, filed a petition for rehearing. We now vacate part IV of our earlier opinion. We also remand for a new trial on the question of Roen's liability for indemnity to its cross-defendant in the case. I Roen contracted to prepare plans for the roads of a subdivision for the Fairbanks North Star Borough. Id. at 796. The Borough awarded Kandik Construction Inc. & Associates the contract for construction of the roads. Id. After essentially completing the road work, Kandik sued both Roen and the Borough. Id. at 796 & n. 1. Against the Borough, Kandik initially asserted three causes of action, all sounding in contract: breach of express warranty, breach of implied warranty, and breach of the covenant of good faith and fair dealing. Id. at 796 & n. 2. Kandik later amended its complaint to assert against the Borough a cause of action for "business destruction" damages. Id. at 796, 801-03. The latter claim apparently sounded in tort. Id. at 801-03. Kandik also asserted against Roen a tort claim for professional malpractice. Id. at 796. In response, the Borough asserted claims against Kandik and a cross-claim against its co-defendant Roen. In its initial cross-claim, filed on July 18, 1985, the Borough purported to assert three claims against Roen: a claim of negligence, a claim of breach of contract, and a claim for indemnity. This pleading, however, was soon withdrawn. In a letter dated July 29, 1985, the Borough's attorney requested that the superior court clerk remove from the court file the "erroneously filed" initial cross-claim complaint, and on August 19, 1985, the Borough was permitted to file a new cross-claim against Roen. The new complaint contained only one rather ambiguous claim for either express contractual or, in the alternative, for "common-law" indemnity. Before trial, Kandik's tort claim against Roen was settled. Id. at 796. Roen next obtained summary judgment in its favor on the Borough's cross-claim for indemnity. Id. at 796 n. 3. The Borough appealed, and in Fairbanks North Star Borough v. Roen Design Assocs., 727 P.2d 758, 760 (Alaska 1986), we agreed with the superior court that the express indemnity provision in the Borough-Roen contract did not cover the sort of economic damages at issue in the dispute. We also concluded, however, that the Borough had asserted a claim for "common-law indemnity" against Roen, which the superior court had not addressed. Id. We thus reversed the court's grant of summary judgment and remanded the case for trial on the common-law indemnity claim. Id. at 761-62. The Borough's common-law indemnity cross-claim against Roen was one issue in a complicated jury trial that mainly featured Kandik's claims against the Borough. Ultimately, the jury awarded $402,440 to Kan-dik for the Borough's breach of the construction contract. Kandik, 795 P.2d at 797 n. 4. The jury also awarded $165,000 for business destruction losses. Id. And, finally, the jury found that Roen was not required to indemnify the Borough under principles of common-law indemnity. Id. at 797. The Borough appealed and, in the decision now on rehearing, we reversed and remanded for a new trial on several issues. Id. at 804. As to the jury verdict denying indemnity to the Borough, we found the claim redundant in light of what we perceived to be the Borough's alternative cross-claims against Roen for tort and breach of contract. Id. We thus declined to address the validity of the jury's indemnity verdict. Id. We also concluded that the trial court had not properly instructed the jury on all three of the claims we perceived the Borough to have tried against Roen. Id. Consequently, we ordered a new trial for the Borough "on the question whether Roen is liable to the Borough under a theory of tort or contract." Id. According to Roen, we erred by not directly addressing the jury's indemnity verdict and by ordering a new trial on Roen's tort and contract liability to the Borough. We granted Roen's petition for rehearing to determine whether we did so err. II We did not address the indemnity verdict in this case specifically, because we found the indemnity claim redundant in light of the tort and contract claims we believed were brought by the Borough against Roen. Consequently, the threshold question is whether any tort and contract claims by the Borough against Roen properly should have gone to the jury. If so, then our original decision may stand. If not, then we must consider the jury's original verdict on the Borough's indemnity claim against Roen. Roen first argues that a new trial on tort and contract claims would be improper because the Borough never pled cross-claims against it for tort or breach of contract. Rather, the only claim that the Borough pled against Roen was an indemnity claim. After close review of the record, we agree that the Borough did not plead actions in tort or contract against Roen. The only effective complaint the Borough filed contained the cross-claim against Roen for indemnity. We also note that the Borough does not actually contend that it ever effectively pled any action against Roen except one for indemnity. The Borough, however, argues that we need not alter our original decision on its entitlement to a new trial on tort and contract claims against Roen because such claims actually were tried in the court below. The Borough asserts two partially overlapping rationales for reaching such a conclusion. The Borough offers the theoretical argument that a trial on "common-law indemnity" in this case perforce included a trial on underlying claims of Roen's negligence and breach of contract. The Borough also offers the practical argument that it presented evidence of Roen's negligence and breach of contract to the jury, that Roen consented to trial on those issues, and that we now may treat the Borough's, pleadings as amended to conform to the evidence presented at trial. The Borough's theoretical argument ignores the very nature of the action for implied (or "common-law") indemnity. Under modern rules of pleading, a defendant may — and often does — join an action for implied indemnity with the action that threatens to inflict the very loss for which the defendant seeks indemnity. See, e.g., Alaska R.Civ.P. 13 & 14. Traditionally, however, courts did not permit such joinder of claims and parties, because implied indemnity is a distinct cause of action, which technically does not accrue until the indem-nitee actually pays the money judgment for which it seeks indemnity. Larson Mach., Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1, 13 (1980); Rieger v. Frankstram Real-ties, Inc., 68 N.Y.S.2d 243, 245-46 (N.Y.Sup.1946). Modern courts relax the requirement of actual payment of judgment and permit joinder of implied indemnity claims with the actions that may give rise to a right of indemnity, but those courts clearly treat the indemnity claim as sui generis. E.g., Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, 294 (1972); Rieger, 68 N.Y.S.2d at 246; see also Holzhauser v. Container Corp. of America, 93 F.R.D. 837, 838-39 (W.D.Ark.1982) (offering reconciliation of traditional accrual of action rule for indemnity with modern rule permitting impleader). Modern rules of pleading thus aim to reduce the multiplicity of actions, but not by conflating causes of action. The Borough's indemnity claim was not some legal marsupial whose hidden tort and contract offspring suddenly came of age during trial. Rather, it was a discrete, independent claim in its own right. As a result, only if the Borough has shown that it tried equally discrete tort and contract claims entirely independent of the indemnity claim would it be entitled to a new trial on such claims. The Borough has not made such a showing. Admittedly, the issue of Roen's professional negligence was an element of the Borough's implied indemnity claim. In particular, the indemnity claim — both as formulated in the Borough's own proposed but rejected jury instruction and as formulated in the instruction actually given to the jury — required a finding that Roen had failed to exercise reasonable care in its preparation of the plans. As a result, the first element of the indemnity action and the first element of a negligence action are identical. The subsequent elements of the two actions, however, do not coincide. The Borough's indemnity action was one for implied, contractual indemnity, which rests on the principle that a contract to perform a service contains a three-part implied promise: 1) the indemnitor will perform the service in a proper manner, or 2) the indemnitor will discharge foreseeable damages resulting from improper performance, unless 3) the indemnitee's own participation in causing the damages precludes recovery. See, e.g., Great Western Furniture Co. v. Porter Corp., 238 CaI.App.2d 502, 48 Cal.Rptr. 76, 86 (1965). Thus, if Roen negligently prepared plans, and those plans themselves caused the Borough to incur liability to Kandik, then the Borough rightly sought indemnity from Roen. Accord Zontelli & Sons v. City of Nash-wauk, 373 N.W.2d 744, 755 (Minn.1985); Miller v. Melaney, 172 Mont. 74, 560 P.2d 902, 905 (1977). Such indemnification recovery, however, if obtained, would flow from a completely different source than would the damages recoverable in a negligence action against Roen, because the focus of causation is completely different for each of the two actions. In an implied contractual indemnity action by the Borough against Roen, the causation element of the action requires the jury to determine whether Roen's negligence caused harm to Kandik. E.g., Zon-telli, 373 N.W.2d at 755. In a professional negligence action by the Borough against Roen, the causation element of the action requires the jury to determine whether Roen's negligence caused harm to the Borough. See Thomas v. Cleary, 768 P.2d 1090, 1092 (Alaska 1989); see also Restatement (Second) of Torts § 281(a) & 430 (1965); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on The Law of Torts § 30, at 164-65 (5th ed. 1984). Facts constituting the two types of legal cause are not necessarily identical; neither are the damages that would flow from the two types of legal cause. The Borough had the burden of proving every element of the negligence cause of action that it now argues actually was tried before the jury. See Restatement (Second) of Torts § 328A & 433B (1965). The Borough, however, does not even attempt to show that it ever litigated the elements of causation and damages for a negligence action against Roen. Additionally, we find no hint in the record that the Borough litigated those issues. In sum, the Borough neither pled nor tried a negligence cause of action against Roen. We thus vacate our original decision as to the Borough's entitlement upon remand to a new trial on a negligence claim against Roen. The Borough's argument that it somehow, in the course of trying its indemnity claim, tried a breach of contract action independent of the indemnity claim similarly fails. Prior to trial the Borough attempted to amend its cross-claim against Roen to include a claim of breach of "express and implied warranties of specifications/design adequacy." The superior court denied the motion to amend the cross-claim, holding that Alaska law recognizes no warranty for professional services. The Borough has not appealed that denial, and the Borough has not offered any other basis for finding a breach of any contractual promise other than the implied promise for indemnity. As explained, that promise for indemnity can give rise only to a claim for indemnity. Accord Bay Development Ltd. v. Superior Court, 50 Cal.3d 1012, 269 Cal.Rptr. 720, 733 n. 13, 791 P.2d 290, 303 n. 13 (1990); see also Dole, 331 N.Y.S.2d at 390-91, 282 N.E.2d at 294. The Borough neither pled a discreet action in contract nor litigated issues of breach of contract independent of those inherent in its indemnity claim. We thus vacate our original decision as to the Borough's entitlement upon remand to a new trial on a nonindemnity breach of contract claim against Roen. Ill In our original decision, we did not reach the merits of the Borough's appeal of the verdict that denied it recovery against Roen. Kandik, 795 P.2d at 803-04. Because we now have vacated our original decision on the Borough's cross-claim against Roen, we turn to the merits of the original appeal of the jury's indemnity verdict. A In the present case, after trial of all issues, the court instructed the jury on the law of indemnity, and the jury returned a special verdict holding that the Borough was not entitled to recover from Roen, under an indemnity theory, any of the damages the Borough owed to Kandik. The question before us here is whether the trial court's instruction regarding indemnity was a proper statement of the law, or, if not, whether the improper instruction prejudiced the Borough's substantial rights. Alaska R.Civ.P. 61; Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982). We reach the question of error in the instructions on indemnity in this case despite the possibility that the Borough did not properly object to the faults in the instructions. See Alaska R.Civ.P. 51(a). As we explained in City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977), "[jjury instructions which set forth an entirely erroneous standard of liability" may be considered to create "a high likelihood that the jury followed an erroneous theory resulting in a miscarriage of justice." We have concluded that the central instruction on indemnity in this case did set forth an entirely erroneous standard of liability for implied contractual indemnity and that the error in the instruction almost certainly resulted in a miscarriage of justice. Such a miscarriage of justice warrants review of a plainly erroneous jury instruction, even if the party asserting error has not properly objected to the error in the trial court. Id. B In the broadest sense, the obligation of indemnity is the obligation resting on one party to make good a loss or damage another has incurred. Bay Development, 269 CaLRptr. at 729, 791 P.2d at 299. A traditional rule of indemnity, however, is that an indemnitee is not entitled to recover if the indemnitee has actively participated in the wrongful acts that caused the damage. Great Western Furniture, 48 Cal.Rptr. at 86; Chirco Constr. Co. v. Stewart Title & Trust of Tucson, 129 Ariz. 187, 629 P.2d 1023, 1024-25 (App.1981); Coca-Cola Bottling Co.-Goshen v. Vendo Co., 455 N.E.2d 370, 373 (Ind.App.1983). A few jurisdictions have abrogated the traditional rule in favor of a partial or comparative fault system of indemnity. See, e.g., Bay Development, 269 Cal.Rptr. at 730 n. 10, 791 P.2d at 300 n. 10 (California); Dole, 331 N.Y.S.2d at 387-88, 282 N.E.2d at 292 (New York). Alaska has not. In Alaska, a version of the traditional rule still applies to indemnity actions. In particular, we repeatedly have held that an indemnitee jointly liable in tort with the indemnitor may recover implied noncontractual indemnity only if the indemnitee is not in any degree also jointly at fault. Koehring Mfg. v. Earthmovers of Fairbanks, 763 P.2d 499, 503-04 (Alaska 1988); D.G. Shelter Prod-nets v. Moduline Industries, 684 P.2d 839, 841-42 (Alaska 1984); Verteos Corp. v. Reichhold Chemicals, Inc., 661 P.2d 619, 621-26 (Alaska 1983). We previously have not had occasion to state that a version of this rule also applies to actions for implied contractual indemnity. It does. Consequently, the rules of implied contractual indemnity, as applicable in this case, may be summarized as follows: The Borough may recover from Roen in indemnity insofar as Roen's negligence caused the Borough to pay breach of contract damages or tort damages to Kandik, unless the Borough also was itself at fault in causing the particular damages for which it sought to be indemnified. A jury instruction enunciating these principles would accurately explain the way in which an indemnitee's own fault may affect the availability of recovery in an action for implied contractual indemnity. The central instruction that the trial court gave to the jury on the law of indemnity not only failed to enunciate these principles, it actually misstated them in a way that inevitably prejudiced the Borough. First, the instruction repeatedly told the jury that the Borough sought indemnity from Roen for all of the damages that the Borough must pay to Kandik. Second, the instruction told the jury that if any part of Kandik's damage was caused by the Borough's negligence or breach of its contract with Kan-dik, then the Borough could not recover indemnity from Roen. One must recall that Kandik asserted four claims against the Borough. The court in effect instructed the jury that if it found the Borough liable for any of the four claims, then the Borough could not recover in indemnity the damages that flowed from any of the other claims. This instruction was a deleterious misinterpretation of the requirement that an indemnitee be fault free. As explained, if the jury could determine that Roen's negligence alone caused the Borough to incur liability for damages on any individual claim that Kandik brought against it, then the jury could have awarded the Borough indemnity for that amount. The Borough's tort or contract liability to Kandik for damages that flowed from other claims, if plainly divisible, would not be relevant to an equally divisible and meritorious indemnity claim. We VACATE part IV of our opinion in Fairbanks North Star Borough v. Kandik Construction, Inc., 795 P.2d 793 (Alaska 1990) and REMAND for a new trial, consistent with this opinion, on the question whether Roen is liable to the Borough under a theory of implied contractual indemnity. . Alaska Rule of Appellate Procedure 506(b) requires filing of a petition for rehearing within 10 days of date of notice of an opinion in a case. . In Kandik, we ordered the trial court upon remand to clarify its instruction to the jury on the business destruction claim. Kandik, 795 P.2d at 802-03. . The new cross-claim did not amend the initial claim. Rather, the new cross-claim displaced the initial claim. The initial, inoperative cross-claim, however, remained in the case file and became part of the record on appeal, while the letter that withdrew the initial claim did not enter the case file, nor did it become part of the record on appeal. .In addition to the indemnity-related remand, this court held that the trial court had improperly instructed the jury on the measurement of contract damages. Kandik, 795 P.2d at 799-800. This court also held that the trial court had failed to explain to the jury the nature of the "business destruction" theory of liability. Id. at 801-03. . The specific type of implied indemnity at issue in this case is implied contractual indemnity: the Borough's right to indemnity rises, if at all, as a result of its contractual relationship with Roen. Some courts have found that implied contractual indemnity rises under principles of restitution or quasi-contract. E.g., Owings v. Rosé, 262 Or. 247, 497 P.2d 1183, 1190 (1972). Other courts hold that the implied promise must inhere in the contract between the parties, and that, therefore, implied contractual indemnity actually constitutes an action for breach of contract. E.g., Great American Insurance Co. v. Evans, 269 F.Supp. 151, 154-56 (N.D.Cal.1967) (citing an influential line of cases that began with Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956)). Other courts find the source of implied contractual indemnity in principles of equity. E.g., Zontelli & Sons v. City of Nashwauk, 373 N.W.2d 744, 755 (Minn.1985). Still other courts, faced with the question of whether indemnity actions require trial by jury, have found implied contractual indemnity a peculiar hybrid of legal and equitable principles. See, e.g., Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 465 F.Supp. 790, 794 (S.D.N.Y. 1978) (indemnity is essentially equitable question but right to indemnity is a jury question); Midwest Fertilizer Co. v. Ag-Chem Equip. Co., 510 N.E.2d 232, 233-35 (Ind.App.1987) (indemnity may be equitable in nature for other purposes and yet not for determining right to jury trial). We do not find it necessary to examine these distinctions in detail in the present case. First, the availability of indemnity as a result of the parties' contractual relationship is not in dispute. Rather, the main legal dispute here is over what effect the Borough's own actions or inactions should have on its right to recover from Roen in indemnity. Second, the subsidiary legal dispute here over whether trial of an indemnity claim per force includes full trial of other claims in tort or contract would reach the same resolution no matter which of the various theories we deemed the source of an action for implied contractual indemnity. . The Borough's own proposed jury instruction on its claims against Roen required the jury to determine that Roen's negligence caused Kan-dik's damages. See Kandik, 795 P.2d at 803. . The Borough's own citations to the record further undercut its argument that Roen consented to trial of breach of contract issues independent of the indemnity claim. For example, the Borough's counsel began his opening statement to the jury with a general assertion that the Borough intended to prove that "Roen breached its contract with the Borough." Roen objected to that argument, and the court then carefully instructed the jury on the particular type of breach of contract inherent in the indemnity claim. As the Borough itself points out, from that moment, on its counsel kept all argument on the question of Roen's negligence and breach of promise confined to the theoretical limits of the indemnity claim. . At least one jurisdiction did not modify its law . of indemnity to accommodate principles of comparative negligence or contribution, but rather abolished implied noncontractual indemnity as between co-tortfeasors as no longer a viable doctrine in light of the availability of other cost-shifting doctrines. See Allison v. Shell Oil Co., 113 IH.2d 26, 99 Ill.Dec. 115, 120, 495 N.E.2d 496, 501 (1986). The Illinois courts, however, have continued to recognize implied contractual indemnity. E.g., Carrillo v. Jam Products, Ltd., 173 Ill.App.3d 693, 123 Ill.Dec. 326, 329, 527 N.E.2d 964, 967 (1988). . Common settings in which tortfeasors are jointly liable but not jointly at fault are where one is only liable by operation of vicarious or strict liability. E.g., D.G. Shelter Products v. Moduline Industries, 684 P.2d 839, 841 (Alaska 1984) ("an innocent party in the chain of commerce, having only passed on an already defective product, . would be entitled to indemnity"); Austin v. Fulton Insurance Co., 498 P.2d 702, 705 (Alaska 1972). . Accord Zontelli, 373 N.W.2d at 755; Chirco Constr., 629 P.2d at 1025; Considine Co. v. Sha-dle, Hunt & Hagar, 187 Cal.App.3d 760, 232 Cal.Rptr. 250, 256 (1986); Carrillo, 123 Ill.Dec. at 329, 527 N.E.2d at 967. . Accord San Francisco Unified School Dist. v. California Bldg. Co., 162 Cal.App.2d 434, 328 P.2d 785, 789-94 (1958); Owings v. Rosé, 262 Or. 247, 497 P.2d 1183, 1185-88 (1972). . Accord Great Western Furniture, 48 Cal.Rptr. at 86; Chirco Constr., 629 P.2d at 1025; United of Omaha Life Ins. Co. v. Nob Hill Assocs., 450 So.2d 536, 539 (Fla.App.1984); see also Coca-Cola Bottling Co.-Goshen, 455 N.E.2d at 373. . Instruction No. 31 stated: If by following the preceding instructions, you have determined that the Borough is liable to Kandik for damages, you must determine whether Roen Design is liable to the Borough. The Borough claims that Roen design is liable to the Borough for any damages which you have found that the Borough must pay to Kandik. In order to find that the Borough is entitled to recover from Roen Design the damages which the Borough must pay to Kandik, you must decide that it is more likely than not that all of the following three things are true: 1) That Roen Design was professionally negligent in any failure by Roen to communicate to the Borough and Kandik its use of approximations in development of its cross sections and mass diagrams; or any failure by Roen to compute volumes of waste disposal area; or any failure by Roen to communicate to the Borough engineer its position as to the use of additional disposal area; and 2) That all of the damages suffered by Kan-dik were legally caused by Roen's professional negligence; and 3) That for all of the damages suffered by Kandik which the Borough seeks to recover from Roen, it is more likely than not that the following two things are both true: a) that the damage to Kandik was not legally caused by an affirmative act of negligence by the Borough; and b) that the damage to Kandik was not legally caused by the Borough's failure to perform its duties in connection with the contract between the Borough and Kandik. . We note that Kandik's claim that the Borough breached the covenant of good faith and fair dealing necessarily implied that the Borough participated in causing any harm by that breach. In other words, breach by bad faith or unfair dealing always implicates the contracting party's actions or inactions, which may be unfair or in bad faith because they are dishonest, evasive, interfering, willfully insufficient, or otherwise wrongful. Restatement (Second) of Contracts § 205, comments a-e (1981). It would not be possible for a party to breach the covenant of good faith and fair dealing and also be fault free for purposes of an indemnity action on the specific damages that flow from that breach.

10381151

ANCHORAGE, an Alaskan municipal corporation, Appellant, v. Dorothy BABINEC, as Executrix of the Estate of Edward M. Babinec, Richard Ireland, Randy Kirkeby, Steve Pearson, d/b/a Dairy Queen, Appellees

Anchorage v. Babinec

1992-02-07

No. S-4404

1248

1249

823 P.2d 1248

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ANCHORAGE, an Alaskan municipal corporation, Appellant, v. Dorothy BABINEC, as Executrix of the Estate of Edward M. Babinec, Richard Ireland, Randy Kirkeby, Steve Pearson, d/b/a Dairy Queen, Appellees.

ANCHORAGE, an Alaskan municipal corporation, Appellant, v. Dorothy BABINEC, as Executrix of the Estate of Edward M. Babinec, Richard Ireland, Randy Kirkeby, Steve Pearson, d/b/a Dairy Queen, Appellees. No. S-4404. Supreme Court of Alaska. Feb. 7, 1992. Ronald L. Baird, Bradbury, Bliss & Rior-dan, Anchorage, for appellant. Neil T. O’Donnell, Atkinson, Conway & Gagnon, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

363

2249

OPINION PER CURIAM. I The award for attorneys' fees incurred by the appellees prior to the formal commencement of the present action was not an abuse of the court's discretion. II The record does not support the allocation of 69% of the attorneys' fees incurred prior to July 1, 1988, for work done by attorneys Vandiver and Guetschow, to the condemnation proceeding. The methodology used to make the allocation was speculative and wholly arbitrary. The allocation must, therefore, be set aside. III Although Anchorage argues that the fees awarded for the months of July, 1988, through May, 1990, were excessive, it does not complain that any particular charges were for work that was unnecessary, unreasonable, or unrelated to the condemnation proceeding. Since full attorneys' fees are the norm under Alaska Civil Rule 72(k), Triangle, Inc. v. State, 632 P.2d 965, 970 (Alaska 1981), we are unable to say that the court abused its discretion in awarding the full amount of the attorneys' fees incurred during this time period. IV The superior court erred in basing part of its award for attorneys' fees upon the contingent fee agreement between the property owners and their lawyer. Attorneys' fees awarded under Civil Rule 72(k) "shall be commensurate with the time committed by the attorney to the case." Rule 72(k), Alaska R.Civ.P. (emphasis added). We remand on this issue with instructions: after determining the actual amount of time spent on the case, the court is to adjust its award using the attorney's standard hourly rate, provided that the amount of the award, thus calculated, does not exceed that which is reasonable in light of the work done. V Each party will bear its own costs and attorney's fees in this appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

11945042

Herbert JOSEPH, Appellant, v. STATE of Alaska, Appellee

Joseph v. State

1989-06-09

No. A-2753

519

520

775 P.2d 519

775

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:38:36.549877+00:00

CAP

Before BRYNER, C.J., SINGLETON and STEMP, District Court Judges.

Herbert JOSEPH, Appellant, v. STATE of Alaska, Appellee.

Herbert JOSEPH, Appellant, v. STATE of Alaska, Appellee. No. A-2753. Court of Appeals of Alaska. June 9, 1989. Barbara K. Brink, Asst. Public Defender, and John Salemi, Public Defender, Anchorage, for appellant. James E. Torgerson, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Douglas B. Bailey, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., SINGLETON and STEMP, District Court Judges. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

592

3829

OPINION BRYNER, Chief Judge. A jury convicted Herbert Joseph of reckless endangerment, AS 11.41.250, and driving while his license was suspended (DWLS), AS 28.15.291(a). District Court Judge Natalie K. Finn sentenced Joseph to nine months with six months suspended for reckless endangerment and to a consecutive one-year sentence for DWLS. The court also placed Joseph on probation for five years and revoked his license for one year. Joseph appeals his sentence as excessive. We affirm. The evidence at trial indicated that on August 1, 1988, Anchorage Police Sergeant Coffey observed Joseph sitting in the driver's seat of a parked car. Aware that Joseph's license had been suspended, Coffey warned Joseph not to drive. On August 2,1988, Coffey saw Joseph driving the same car. When Coffey attempted to follow Joseph, Joseph sped away, and a chase ensued. Joseph drove through several stop signs and a red light. He also sped through the parking lot and the loading zone at the Sheraton Hotel. At one point, Joseph narrowly missed hitting a pedestrian, who had to jump out of the way to avoid a collision. At sentencing, the district attorney pointed out that Joseph had a lengthy misdemeanor record, including eleven prior convictions for DWLS, a conviction for driving while intoxicated (DWI), and convictions for resisting arrest, escape, eluding an officer, disorderly conduct, larceny, shoplifting, and failure to appear. Based on the eleven DWLS convictions, the court concluded that Joseph was a worst offender and that the maximum one-year sentence was necessary in order to deter Joseph, protect society, and reaffirm societal norms. In sentencing Joseph for the reckless endangerment, Judge Finn noted that Joseph ran several stop signs and would have hit the pedestrian but for the pedestrian's evasive action. The court concluded that this behavior coupled with Joseph's lengthy misdemeanor record, which revealed his poor rehabilitative potential, justified the imposition of some jail time. Joseph contends that the court erred when it imposed the maximum one-year sentence for DWLS. Joseph argues that the maximum sentence should be imposed only where DWLS occurs in combination with an alcohol-related offense such as DWI. In Joseph's view, the simultaneous occurrence of an alcohol-related offense with a DWLS makes the DWLS a more serious violation because of the increased potential danger to the public caused by the presence of alcohol. According to Joseph, it follows that where a DWLS occurs in the absence of an alcohol-related offense, a sentence less than the maximum term is appropriate. Joseph also argues that a lesser sentence than the maximum term would have been sufficient to deter him from future infractions. We reject Joseph's arguments. Joseph's lengthy misdemeanor record and the circumstances of the reckless endangerment conviction, particularly the near miss of the pedestrian, justify the imposition of a maximum term for DWLS and a consecutive three-month unsuspended term for reckless endangerment. See, e.g., State v. Graybill, 695 P.2d 725 (Alaska 1985). Having independently reviewed the sentencing record, we conclude that the sentence is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. COATS, J., not participating.

11958162

Kenneth W. JONES, Appellant, v. STATE of Alaska, Appellee

Jones v. State

1991-05-31

No. A-3574

613

619

812 P.2d 613

812

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:40:22.055872+00:00

CAP

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

Kenneth W. JONES, Appellant, v. STATE of Alaska, Appellee.

Kenneth W. JONES, Appellant, v. STATE of Alaska, Appellee. No. A-3574. Court of Appeals of Alaska. May 31, 1991. James H. McComas, Schleuss & McCo-mas, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3220

19800

OPINION COATS, Judge. Kenneth W. Jones was convicted, following a jury trial, of manslaughter and two counts of assault in the second degree. AS 11.41.120(a)(1); AS 11.41.210(a)(2). Superi- or Court Judge Charles K. Cranston sentenced Jones to a composite sentence of ten years with three- years suspended. Jones appeals his conviction. We affirm. On July 4, 1985, Jones' five-year-old son Wesley died, and two other children were seriously injured, as a result of a fire in a pick-up truck. In addition to Jones and Wesley, there were four other people riding in the truck that day: Jones' girlfriend, Linda Jones; a friend, Michael Corcoran; Jones' other son, Louis Jones; and Linda's daughter, Camille Castillo. The three adults were sitting in the front seat of the cab, while the three children were sitting in a bench seat behind the seat used by the adults. Jones is alleged to have started the fire by lighting firecrackers inside the truck. Linda Jones testified at trial that Jones intentionally lit two different sets of firecrackers and threw them toward the driver, Corcoran, in order to scare him. She testified that the second set of fireworks which Jones threw wound up in the back seat area where the children were located, and started a fire. Camille and Louis suffered serious burns in the fire. Wesley died in the hospital from his injuries. Jones was convicted based upon this incident. Jones first contends that the trial court erred by denying his motion to continue his trial due to his medical condition. It is necessary to set out some background information in order to discuss this issue. On August 14, 1985, the grand jury indicted Jones for one count of manslaughter and two counts of second-degree assault. The court set trial for March 5, 1986. The court released Jones pending trial. During this time, he was suffering from a work-related injury to his back; the injury had occurred in 1984 before the fire incident. After a telephonic hearing with three physicians involved in the treatment of his back, the court ordered Jones not to have surgery prior to trial. On July 14, 1986, the prosecutor informed defense counsel that she was going to dismiss the case. Two days later, she informed counsel that her office had overruled her decision and had decided to pro ceed with prosecution. On October 3,1986, Judge Cranston dismissed the indictment because of the prosecutor's initial promise. After granting the state's petition for review, this court reversed the trial court's order dismissing the indictment and remanded for trial. State v. Jones, 751 P.2d 1379 (Alaska App.1988). On September 27, 1988, Jones had back surgery to treat a lumbosacral disc protrusion. Dr. Jeffrey Bert performed the surgery in Oregon. Trial was originally scheduled for January 4, 1989, but the court granted Jones' unopposed motion for continuance due to his medical condition. The court set a new trial date for May 1, 1989. On April 10, 1989, defense counsel filed another motion to continue, citing Jones' medical condition and lack of funds to travel from Oregon to Alaska. The state opposed the continuance. The court held a hearing at which Jones and Dr. Bert, his treating surgeon, testified telephonically. In essence, Jones and Dr. Bert testified that Jones' recovery from the back surgery was slow and painful, and his ability to concentrate was impaired by heavy pain medications. The court conditionally granted the continuance, but provided that the state could conduct an independent medical examination. The court set a new trial date for August 14, 1989. In June, 1989, Jones had another back operation to correct a second rupture that had occurred in the same area as the first operation. On July 5, 1989, defense counsel submitted a motion to continue trial, which was supported by Jones' medical records. On July 24, the court denied the motion. On July 31, Jones filed a motion for reconsideration, claiming that his medications would "significantly hamper the defendant's ability to concentrate and participate in his own defense." The court held a hearing on August 2, 1989. Dr. Bert testified that he felt, from a medical point of view, that it was not in Jones' best interest to travel. He testified that Jones could not sit for more than thirty to forty minutes safely. He stated that Jones would probably be able to sit and travel in about two months. However, Bert also testified that some of the problems would be alleviated if Jones traveled semi-reclined, and reclined in the courtroom while being able to move around every thirty minutes. He testified that it was acceptable to transport Jones lying down as in a medical transport. Bert also testified that Jones was taking three Tylox pills, a "very strong narcotic pain killer," and fifteen milligrams of valium a day. He stated that these are "powerful drugs [which] certainly would slow one's thought process." The court denied the motion for continuance emphasizing the amount of time the case already had been delayed. Judge Cranston indicated that he had no assurance that Jones would improve in two months. On August 7, 1989, after Jones had traveled to Alaska, Judge Cranston, sua sponte, ordered an independent medical examination to be performed by Dr. Edward Voke, an orthopedic surgeon. The court's order is entitled: "Order for Independent Psychological Examination." The court specifically ordered the examination to address Jones' ability to physically participate in trial, and to participate meaningfully in his defense despite the medications. On August 11, Judge Cranston heard testimony from Voke that Jones was physically capable of standing trial and wanted to stand trial, as long as the court provided Jones with a bed or reclining chair in the court room. Voke also testified that he did not think that Jones' medications would affect his mental ability during trial, and that Jones was mentally alert during the examination. Voke stated that his opinion was from an orthopedic surgeon's point of view, but that it was "hard for me to answer the issue about the mental part . if it has anything to do with his medication . but I have no trouble with it." Trial began on August 22, 1989. During the course of trial, Jones' condition deteriorated so that by September 1, he required immediate hospitalization. Jones' deteriorating condition included loss of bladder function, sexual function, and feeling in his right leg. Jones was hospitalized in Kenai from September 1 through September 5. The court heard testimony from the hospital's treating surgeon, Dr. George Garnett, on September 5. He testified that Jones should be transported to Anchorage to avoid further loss of nerve function and permanent neurological damage. At that time, Jones was receiving intravenous morphine injections for the pain. Judge Cran-ston suspended the trial due to Jones' emergency medical condition. From September 5 through September 8, Jones was hospitalized in Anchorage. The treating physician in Anchorage recommended that Jones return to Oregon, as he would probably need more surgery. On September 11, 1989, defense counsel expressed concern that Jones would not be able to testify coherently because of the effects of the pain medications. At that time, Jones was taking several prescription narcotics. On September 12, 1989, another hearing was held at which both Dr. Voke and Dr. Garnett testified. Voke testified that during his examination of Jones one month earlier, Jones "was very coherent, very lucid, and so there was no way I could tell, at least by interview, whether he had taken any medication or not." He indicated Jones would be capable of testifying. Garnett testified that the medications could cause Jones to hallucinate, to be disoriented and easily confused. The court continued the trial until September 18, 1989. Judge Cranston gave Jones a choice: he could either withdraw from the medications and testify, or the court would make a determination whether he was competent and if necessary, declare a mistrial. Jones had expressed a desire on several occasions to have the trial continue. Before trial resumed on September 18, he was hospitalized for one week to withdraw from the pain medications under medical supervision. On September 18, he was only taking Motrin for the pain. Before he testified, the court inquired as to Jones' state of mind and defense counsel stated that "he seemed to be pretty clear headed." In response to a later inquiry of the court, defense counsel stated: "[H]e is much clearer today than he has been during most of the trial." Following his testimony, Jones then waived his presence for any remaining proceedings and returned to Oregon. Jones contends that Judge Cranston erred in denying his motion to continue his trial due to his medical condition. In deciding this issue, we find the analysis in United States v. Brown, 821 F.2d 986 (4th Cir.1987), and United States v. Zannino, 895 F.2d 1 (1st Cir.1990), to be persuasive. In Brown, the court stated: Whether a defendant's physical condition requires a continuance can be difficult for a trial judge to determine. Medical forecasts are uncertain, and the evidence before the judge will rarely point in just one direction. The judge must assess the degree to which a defendant's health might impair his participation in his defense, especially his right to be present at trial, to testify on his own behalf, and to confront adverse witnesses. If the judge determines that the proceeding is likely to worsen the defendant's condition, that too is relevant. Among the factors that the trial judge may properly consider are the medical evidence, the defendant's activities in the courtroom and outside of it, the steps the court can take to reduce the medical risks, and the steps that defendant himself is or is not taking to improve his condition. A trial, however, will often produce anxiety on the part of those involved, not least on the defendant himself. For a denial of a continuance to constitute an abuse of discretion, the medical repercussions must be serious and out of the ordinary; the impending trial must pose a substantial danger to a defendant's life or health. Brown, 821 F.2d at 988 (citations omitted). The Brown court stated that the appellate court should defer to the trial court's superior ability to determine facts. The court stated: It was entirely proper, of course, for the court to consider its observations of the defendant's activity and alertness in ascertaining his physical and mental capabilities. The facts of this case illustrate perfectly the basis of appellate deference to trial judges in determining whether to grant a continuance on grounds of physical or emotional distress. Conflicting medical evidence, including live testimony, was presented for the trial judge to resolve. The trial judge listened to the doctors and considered his perceptions of the defendant in the courtroom. He monitored defendant's medical condition on a regular basis until the time of trial. He possessed the critical first-hand impressions that we lack. Id. at 989 (citations omitted). In Zannino, 895 F.2d at 13, the court stated: [WJhere a continuance request is predicated on medical dangerousness, the judge must be given a relatively wide berth. He has first-hand knowledge of the defendant and his situation, gained over time; he knows the courtroom conditions and the circumstances of trial intimately, and possesses great familiarity with the scope and complexity of the litigable issues; he has the ability to question health care providers and solicit additional opinions; he can best sift overstatement from understatement, eyeing the defendant's and doctors' credibility, and tempering the prosecutors' zeal; and he will usually have developed a "feel" for factors like intensity and stressfulness. In the instant case, we believe that we must defer to the trial judge's superior opportunity for fact finding. Taking the testimony in the light most favorable to the state, Dr. Bert stated that, from a medical point of view, he did not feel it was in Jones' best interest to travel. However, he did concede that Jones would be able to travel to Alaska if he were lying down, as in a medical transport. There is no question that Jones' case had been delayed a significant period of time, and there was certainly no guarantee that it would be safer for Jones to travel at a later time. We conclude that Judge Cranston did not abuse his discretion in requiring Jones to travel to Alaska to stand trial based upon this testimony. The charges against Jones were serious and had been long delayed. Judge Cranston emphasized these factors in denying the motion for a continuance. When Jones returned to Alaska, Judge Cranston had him examined by Dr. Yoke, an orthopedic surgeon. Yoke was familiar with the type of operation that Jones had undergone, was familiar with the sort of pain that Jones would be experiencing, and was familiar with the types of medication that Jones was taking for pain. Again, taking Voke's testimony in the light most favorable to the state, he examined Jones and felt Jones could participate in a trial. He testified that he did not feel that the medication was hindering Jones. Later, Voke amplified on this testimony. He stated that Jones "was very coherent, very lucid, and so there was no way I could tell, at least by interview, whether he had taken any medication or not." In addition, Judge Cranston was able to make his own observations of Jones' ability to function. Later, when Jones' medical condition worsened, Judge Cranston continued the trial. Jones himself concluded that he did not want a mistrial. Again, Judge Cran-ston weighed medical testimony before continuing with the trial, and determined that Jones was able to proceed. It appears that Jones and his counsel concurred in this conclusion. We conclude that, based upon this evidence, Judge Cranston did not abuse his discretion in denying a continuance at any point in the proceeding. In a related point, Jones argues that Judge Cranston erred in failing to order, sua sponte, a psychiatric examination of Jones under AS 12.47.100. Alaska Statute 12.47.100(a) provides: Incompetency to Proceed, (a) A defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against the defendant or to assist in the defendant's own defense may not be tried, convicted, or sentenced for the commission of a crime so long as the incapacity exists. In addition, the statute provides the procedure to determine competency at any time the question arises. The statute establishes the court's sua sponte duty to order a psychiatric examination when there is a reasonable cause to believe the defendant may be incompetent. (b) When, after arrest and before the imposition of sentence or before the expiration of any period of probation, the attorney general, the prosecuting attorney, or the attorney for the accused has reasonable cause to believe that a person charged with a crime may be presently suffering from a mental disease or defect or is otherwise so mentally incompetent that the accused is unable to understand the proceedings or to properly assist in the accused's own defense, the attorney general, the prosecuting attorney or the attorney for the accused may file a motion for a judicial determination of the mental competency of the accused. Upon that motion or upon a similar motion on behalf of the accused, or upon its own motion, the court shall have the accused, whether or not previously admitted to bail, examined by at least one qualified psychiatrist, who shall report to the court concerning the mental condition of the accused. AS 12.47.100(b) (emphasis added). Jones argues that the trial court violated the constitutional and statutory requirements by failing to order an examination by at least one qualified psychiatrist. It seems reasonable to us that, given Jones' condition, Judge Cranston had Jones observed by an orthopedic surgeon. Voke was familiar with the type of injury that Jones had, the operation that he had, and the types of medication that he was taking. Voke concluded that Jones was capable of standing trial. Judge Cranston also had information from other physicians who treated Jones, Jones' counsel, and Judge Cranston's personal observations of Jones. Under these circumstances, we do not believe that Judge Cranston was required to order further examinations. We find no error. Jones next argues that Judge Cran-ston erred in limiting his impeachment of his girlfriend, Linda Jones. Linda Jones testified on behalf of the state. She testified that Jones threw the fireworks intentionally to scare the driver, and that he first announced his intention to her. She specifically denied that he had set the fireworks off accidentally. On cross-examination, counsel tried to elicit an admission from Linda that she had failed to state in her deposition testimony that Jones had told her that he wanted to scare the driver. She responded that she could not remember whether or not she had made the statement. Counsel attempted to refresh Linda's recollection by having her examine the transcript of her deposition testimony. The court refused to take the time it would require for the witness to read the 172-page transcript. Judge Cranston also refused to admit the transcript into evidence. Judge Cranston suggested that Jones refresh Linda's recollection with selected portions of the transcript where it would seem likely she would have made the statements. The state was unwilling to stipulate that Linda's deposition testimony did not contain the statement about Jones' intention. Jones argues that the court's denial of his ability to impeach this material witness on a crucial matter violated his constitutional rights to due process, compulsory process, and confrontation. Therefore, he argues that the state must establish that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Alternatively, Jones argues that the court's ruling violated A.R.E. 613, and influenced the jury's verdict because he was unable to impeach the witness' credibility. See Love v. State, 457 P.2d 622 (Alaska 1969). The state argues that, under A.R.E. 403, the court acted within its discretion in refusing to allow Linda to read the entire transcript. The state also contends that Jones' right of confrontation was not abridged because alternative methods were available. The state suggests that Jones could have recalled the witness later, after she had an opportunity to read the transcript, or a third party could have testified that the statement could not be found in the deposition. We conclude that the trial court could properly determine that reading through the entire transcript would have caused undue delay in the trial, and would have been an inefficient use of the court's time. There were time-saving alternatives available to Jones, such as those suggested by the court during trial or by the state in its brief on appeal. See A.R.E. 403. Therefore, Jones was not precluded from impeaching Linda Jones with her prior inconsistent statement. We find no error. The conviction is AFFIRMED. MANNHEIMER, J., not participating.

11955781

Nathaniel POINTER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Pointer v. Municipality of Anchorage

1991-06-07

No. A-3834

232

234

812 P.2d 232

812

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:40:22.055872+00:00

CAP

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

Nathaniel POINTER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Nathaniel POINTER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-3834. Court of Appeals of Alaska. June 7, 1991. Stuart G. Ross, Gorton & Oberly, Anchorage, for appellant. Cesar 0. Velasquez, Asst. Mun. Prosecutor, and Richard L. McVeigh, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., MANNHEIMER, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

863

5508

OPINION BRYNER, Chief Judge. A jury convicted Nathaniel Pointer of assault for striking his wife three times in the face with his fist. Anchorage Municipal Code (AMC) § 08.05.030. Superior Court Judge J. Justin Ripley, acting as a district court judge, sentenced Pointer to one year with no time suspended. Pointer appeals his sentence as excessive. We affirm. At sentencing, the prosecutor informed the court that Pointer had a lengthy misdemeanor record, consisting of fourteen prior convictions: larceny in 1978; eluding a police officer in 1980; leaving the scene of an accident, driving while intoxicated (DWI), and driving with license suspended (DWLS) in 1982; DWI, DWLS, and eluding a police officer in 1983; reckless driving and DWLS in 1985; assault in 1987; DWLS and failure to appear in 1989; and malicious destruction of property in 1989. The prosecutor noted that Pointer had been assigned to the Male Awareness Program and given a suspended imposition of sentence for the 1987 assault. The prosecutor further noted that while Pointer was out on bail for his current offense, he attacked his wife with a knife, resulting in a felony assault conviction. In sentencing Pointer to a year to serve, the court relied heavily on Pointer's prior record, which, in the court's view, indicated that Pointer has a substance abuse problem "of significant magnitude," a "propensity for violence," and a "suggestion" of a personality disorder. The court also concluded that Pointer's conduct was "among the worst assault fours that we could have." The court pointed out that the offense was an unprovoked attack against a family member which resulted in some degree of bruising and cuts to the victim's mouth. The court further noted that Pointer had not benefitted from the Male Awareness Program, either because he did not attend or he did not learn. Under the circumstances, the court found that Pointer qualified as a worst offender. On appeal, Pointer challenges the imposition of the maximum sentence on a number of grounds. Pointer notes that his misdemeanor record consists largely of driving-related rather than assault-type offenses. Pointer further contends the court's imposition of a suspended imposition of sentence for the 1987 assault, and the municipality's offer of a suspended sentence prior to trial in this case, establish that neither offense was particularly serious. In Pointer's view, because he has not yet served any jail time for this type of conduct, his deterrence capabilities have not yet been tested. Pointer also analogizes his misdemeanor assault convictions to a DWI conviction and points out that the legislature does not require a DWI offender to serve 365 days as a minimum sentence until he has been convicted of DWI six times. Pointer also contends that the court sentenced him to the maximum term only because he committed a felony assault against his wife shortly after he committed this offense. Finally, Pointer claims that, because Judge Ripley ordinarily sits as a superior court judge, he is accustomed to felony, rather than misdemeanor, sentences. Maximum sentences are generally disfavored "without some foundation for charac terizing a defendant as the worst type of offender." State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975). Some of the factors relevant to a worst-offender finding are: [Pjrior criminal convictions, age, military records, employment history, drug or alcohol addiction, presentence report evaluations and recommendations, and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public. Id. In light of Pointer's extensive misdemeanor record, the sentencing court did not err in classifying him as a worst offender. The court did not place undue emphasis on the subsequent felony assault conviction but instead appeared to focus primarily on Pointer's prior criminal history. The record on appeal provides no support for Pointer's contention that his sentence was influenced because Judge Ripley ordinarily presides over superior court, rather than district court cases. Judge Ripley's sentencing remarks indicate that he carefully considered each of the Chaney criteria. The court was under no obligation to impose the sentence offered as part of a plea agreement by the prosecutor prior to trial. We find no merit in Pointer's suggestion that the sentencing court must wait until a defendant commits his sixth assault before imposing a maximum sentence. Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. . AMC 08.05.030 provides in part: . Assault. A. It is unlawful for any person to commit an assault. B. An assault is: 1. an intentional or reckless use of force or violence upon the person of another; or 2. an intentional or reckless use of force, which creates a reasonable apprehension of immediate physical injury to the person of another.

11958059

HOUSTON CONTRACTING, INC., (Employer) and Aetna Casualty and Surety Company (Insurer), Appellants, v. Richard L. PHILLIPS, Appellee

Houston Contracting, Inc. v. Phillips

1991-05-31

No. S-3522

598

604

812 P.2d 598

812

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:40:22.055872+00:00

CAP

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

HOUSTON CONTRACTING, INC., (Employer) and Aetna Casualty and Surety Company (Insurer), Appellants, v. Richard L. PHILLIPS, Appellee.

HOUSTON CONTRACTING, INC., (Employer) and Aetna Casualty and Surety Company (Insurer), Appellants, v. Richard L. PHILLIPS, Appellee. No. S-3522. Supreme Court of Alaska. May 31, 1991. Patricia L. Zobel and Deirdre D. Ford, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, for appellants. Michael J. Schneider, Mestas & Schneider, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3563

23074

OPINION MOORE, Justice. Houston Contracting, Inc.'s appeal is the most recent of a long succession of legal and administrative actions pertaining to the amount of workers' compensation benefits to which Richard L. Phillips, a heavy duty mechanic who was injured while working for Houston, is entitled. The issues in this case fall into two categories: those requiring interpretation of benefit computation statutes; and those pertaining to the authority of the Alaska Workers' Compensation Board to condition workers' compensation benefits upon the beneficiary's cooperation with rehabilitation orders. I. Factual and Procedural Background On August 13, 1976, while working on the trans-Alaska pipeline as a union certified heavy duty mechanic for Houston Contracting, Inc. (Houston), Richard L. Phillips fell, injuring his back. Following the accident, Phillips underwent three spinal fusions between 1976 and 1979. The last fusion involved the use of a graft. The removal of a segment of his left fibula for the graft lead to problems with his left ankle for which additional surgery was required in June 1980. Phillips also attended two pain clinics and visited three occupational counselors. Houston's insurance carrier initially "accepted responsibility for the injury." Phillips' medical expenses were paid, and throughout the course of his treatment and recovery, he continually received either total or partial disability benefits. Phillips' benefits were originally computed pursuant to AS 23.30.220(2) On July 24, 1984, Phillips applied to the Alaska Workers' Compensation Board (Board) for an adjustment of his compensation rate pursuant to either AS 23.30.220(1) or (3). He also requested penalties and interest based on Houston's failure to make the adjustments. The Board denied Phillips' petition on October 24, 1984. He appealed to the superior court, and ultimately to this court. We remanded the matter to the Board for a determination of the proper subsection of AS 23.30.220 to be used in Phillips' benefit calculation. Phillips v. Houston Contracting, Inc., 732 P.2d 544 (Alaska 1987). On July 30, 1987, the Board issued its decision on remand. It recalculated Phillips' average weekly wages pursuant to AS 23.30.220(3). Interest was awarded from July 27, 1984, the earliest date on which Houston could have had knowledge of Phillips' application for adjustment of his compensation rate. His request for penalties was denied. Phillips appealed the Board's method of calculating his average wage under subsection (3), as well as its rejection of his claims for penalties and interest pri- or to 1984 to the state superior court. The dispute pertaining to rehabilitation stems from a November 6, 1985 Board decision. At that time, the Board labelled Phillips "permanently partially disabled." However, it concluded that vocational rehabilitation was necessary to enable Phillips to capitalize on his remaining marketable skills. Houston was ordered to arrange for Phillips' rehabilitation. Noting that Phillips was currently receiving Total Temporary Disability (TTD) benefits, the Board ordered Houston to continue paying benefits at the TTD level for the duration of Phillips' rehabilitation. Houston arranged for Phillips to be evaluated by a counselor it selected, Anthony J. Choppa; however, upon learning that Choppa worked almost exclusively for insurance companies, Phillips refused to be examined by him. On December 3, 1985, Houston petitioned the Board for permission to suspend payment of TTD benefits. In addition, it requested the Board to set off the amount of TTD benefits Houston paid during the period of Phillips' noncooperation against the Permanent Partial Disability (PPD) benefits which Houston would owe Phillips in the future. In its Decision and Order issued on November 10, 1986, the Board agreed with Houston that Phillips had failed to cooperate with the Board's rehabilitation order. It suspended Phillips' benefits retroactively. Phillips appealed, contesting the Board's authority to retroactively suspend his benefits. The superior court consolidated Phillips' appeals of the Board's November 10, 1986 and July 30, 1987 decisions. On July 17, 1989, the court concluded that the Board had improperly construed AS 23.30.220(3). In addition, it assessed penalties against Houston and ordered it to pay interest on the total amount of benefits due. The superior court also held that the Board did not have authority to sanction an injured worker for refusing to participate in a rehabilitation evaluation. Alternatively, it found that even if the Board had authority to order rehabilitation, there was not substantial evidence of Phillips' noncooperation. Houston appeals. II. Computation of Average Weekly Wage In Phillips' 1984 petition, he asserted that the Board had improperly selected the subsection (2) of AS 23.30.220 for computation of his benefits and requested that his benefits be recomputed in one of the two alternative methods set forth in AS 23.30.220. We addressed his argument in Phillips v. Houston Contracting, Inc., 732 P.2d 544 (Alaska 1987), and remanded the case to the Board for reevaluation of the subsection applicable to Phillips. The Board recalculated Phillips' benefits under subsection (3) of AS 23.30.220 which provided: [I]f the board determines that the wage at the time of the injury 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[.] Because neither Phillips nor Houston had presented evidence of the "wages and circumstances" of union mechanics in Alaska, the Board based its computations on the evidence it had before it, Phillips' work and salary history. Phillips again appealed, arguing that the Board's method of performing the computations did not comply with the statutory requirement that the basis for the wage determination be the usual wage for similar service. The superior court reversed on the grounds asserted by Phillips. Houston maintains that the Board's computation accurately estimated Phillips' probable future earning capacity, and should be affirmed. In Brunke v. Rogers & Babler, 714 P.2d 795, 800 n. 8 (Alaska 1986), we stated that the Board "may consider in its calculations the amount earned by other carpenters working on the same site during the period [the employee] was disabled." We recognized that the average wages earned at the time of injury may not accurately reflect the employee's future earning potential. Id. at 799; see also Deuser v. State, 697 P.2d 647 (Alaska 1985); State Dept, of Transp. v. Gronroos, 697 P.2d 1047 (Alaska 1985). In light of Brunke, the Board expressed concern over the difficulty of determining Phillips' probable future wages. Phillips was working on the trans-Alaska pipeline at the time of his injury. His income was higher during his year on the pipeline than in any previous year. The Board speculated that the earning capacity of mechanics dropped following the pipeline's completion less than a year after Phillips was injured. In an effort to determine likely earnings of mechanics following the termination of that project the Board considered Phillips' extended work history. We are persuaded that there was eviden-tiary support for the Board's computations and that use of a longer wage history was appropriate given the episodic nature of work in the construction industry in Alaska. The objective of the workers' compensation system is to provide compensation to injured employees for the loss of future earnings resulting from injuries incurred on the job. The Board's method satisfied this goal. Based upon the information made available by the parties, its estimation of Phillips' average weekly wage at the time of his injury reflects his actual lost earnings as accurately as possible. We therefore reverse the superior court and reinstate the Board's computation of Phillips' average weekly wage. III. Penalty Former AS 23.30.155 provides for penalties against employers who dispute an employee's right to compensation, but fail to follow certain procedures for notifying the employee and the Board of the grounds upon which the right to compensation is controverted. Following his application for adjustment of his benefits, Phillips asserted that Houston should be penalized under AS 23.30.-155(e) on the additional amounts awarded because it failed to pay the requested amount or to file a notice of controversion required by AS 23.30.155(d). The Board rejected this claim, but the superior court concluded that Houston was required to follow the controversion procedure. Houston appeals, asserting that it cannot be required to anticipate changes in the law. While AS 23.30.155 seeks to protect workers' compensation recipients by imposing a penalty on employers who fail to timely pay compensation, it does not require employers to pay or controvert requests for increases in compensation unless the increase is "payable without an award." Phillips v. Nabors Alaska Drilling, Inc., 740 P.2d 457, 460 (Alaska 1987). The introductory phrase of AS 23.-30.220(3) states, "if the board determines . " Thus, a Board determination is required before benefits are payable under this subsection. The adjustment of compensation requested by Phillips was clearly not "payable without an award." We reverse the superior court's determination that Houston was required to follow the controversion procedure and hold that penalties are not applicable in this case. IV. Interest Houston also appeals the superior court's holding that interest on unpaid workers' compensation benefits accrues "at the time the claims should have been paid." It argues that the Board's determination that interest accrued only from July 1984, the date Houston received notice of Phillips' claim for increased benefits, should be reinstated. We reject this assertion. In Land & Marine Rental Co. v. Rawls, 686 P.2d 1187 (Alaska 1984), we held that a workers' compensation award "shall accrue lawful interest . on money after it is due, from the date it should have been paid." Id. at 1192. Thus, interest accrued from the date additional compensation became due to Phillips. The Board determined that increased benefits were payable from January 1, 1977, and this determination has not been appealed. Since compensation became due in January 1977, under Land & Marine Rental, interest must also be awarded from January 1977. Accordingly, we affirm the superior court's holding that interest accrued from January 1, 1977 and order that interest be paid at the rate prescribed by the version of AS 45.45.010 applicable at the time the interest accrued. See Drickersen v. Drickersen, 604 P.2d 1082, 1087 (Alaska 1979) (award of prejudgment interest was excessive when interest accruing prior to amendment of AS 45.45.010 was awarded at percentage rate applicable only after the statute was amended). V. Retroactive Forfeiture of Benefits The Board ordered Phillips to participate in a vocational rehabilitation evaluation and Houston to pay TTD benefits during the course of that evaluation. On December 3, 1985, Houston petitioned for suspension of Phillips' TTD benefits, arguing that Phillips had failed to cooperate with the Board's order. The hearing was delayed and the Board did not issue a decision until November 12, 1986. At that time, the Board determined that Phillips had failed to cooperate with its order. It estimated that under ordinary circumstances, a decision would have been issued within 90 days. It then found that Phillips' TTD benefits should be forfeited for 90 days and authorized Houston to treat the forfeited benefits as an advance on future PPD benefits owed. The superior court reversed the Board's determination on the bases that there was not substantial evidence of Phillips' noncooperation and that retroactive suspension of his benefits was improper. It is undisputed that the Board had authority to direct rehabilitation pursuant to former AS 23.30.040(e). However, the Board's actions were proper only if Phillips did fail to cooperate and the Board had authority to penalize him for noncooperation. The superior court concluded that "evidence of any willful failure to cooperate is not substantial." Phillips maintains that he intended to cooperate with the Board's order but that Houston unreasonably insisted that he be examined by a counselor he did not trust. He points out that he did indicate his willingness to be evaluated by a rehabilitation expert he considered unbiased but that the parties were unable to find a mutually agreeable counselor. However, Phillips had alternatives to participating in the evaluation arranged by Houston. He could have obtained an evaluation by the Department of Vocational Rehabilitation at no cost to himself. He also could have arranged for a private evaluation, and he may have been eligible to tax the cost to the Second Injury Fund. See former AS 23.30.040(e). Either of these actions would have complied with the Board's order. Although the evidence of Phillips' failure to cooperate is not unequivocal, there is substantial evidence to support the Board's determination that Phillips' outright refusal to be evaluated violated its order. Therefore we must address the question of whether the Board could properly penalize Phillips by forfeiting his TTD benefits. In Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1167 (Alaska 1982), this court expanded the Board's discretion under former AS 23.30.040(e) by authorizing it to award TTD benefits during the period in which the employee participated in vocational rehabilitation, even if his or her condition had medically stabilized at a level of partial disability. Implicit in the Bignell rationale is the expectation that payment of TTD benefits to an employee such as Phillips is contingent upon that worker's cooperation with rehabilitation. Thus, the Board clearly had authority to terminate Phillips' TTD benefits for failure to cooperate with its rehabilitation order. However, the Board did not merely terminate Phillips' TTD benefits, but allowed Houston to recover benefits it had paid prior to the Board's decision. The superior court labelled this suspension a "penalty" and reversed the Board's order. We have previously considered retroactive forfeiture of benefits under AS 23.30.095(d), which authorizes penalties against claimants who unreasonably refuse to submit to medical or surgical treatment. Metcalf v. Felec Services, 784 P.2d 1386, 1388-89 (Alaska 1990). We concluded that the Board may not retroactively ratify a unilateral suspension of benefits. Although we are not afforded clear guidance of the punitive measures available to the Board under the applicable version of AS 23.30.040(e), the employee's position is analogous to his or her position under AS 23.30.095(d). Board review provides an important procedural protection to employees who may not otherwise be aware that their entitlement to certain benefits is at risk. Therefore, we hold that the Board's retroactive forfeiture of benefits was improper. In reaching this conclusion, we reject Houston's argument that employees will take advantage of the preclusion on retroactive suspension to prolong their disability, thus failing to mitigate their damages. Upon discovery of noncooperation, employers may immediately petition the Board to terminate payment of TTD benefits. Unreasonable delays will be prevented by the time limits imposed on Board action by the Alaska Administrative Code, see 8 AAC 45.070 (1991), and by the Board's policy of not granting continuances, postponements, or cancellations without good cause, 8 AAC 45.074 (1991). The superior court's determination that there was not substantial evidence in the record to support the Board's conclusion that Phillips had unreasonably failed to cooperate with its order is reversed. The court's determination that the Board's retroactive suspension of benefits was improper is affirmed on the grounds discussed above. AFFIRMED in part, REVERSED in part and REMANDED. .' AS 23.30.220 has been amended several times since Phillips' 1976 injury. This opinion will cite to the version in effect in 1976. Pertinent portions are quoted and former AS 23.30.220 can be found in its entirety at Ch. 75, § 1, SLA 1965. . To assess the employee's probable future earnings, the Board determines the employee's average weekly wage at the time of his or her injury by selecting and applying one of the three computation methods set forth in AS 23.30.220. See Johnson v. RCA-OMS, Inc., 681 P.2d 905, 907 (Alaska 1984). Workers' compensation benefits are then based on this computation of the employee's average weekly wages. . During the years prior to his 1976 injury, Phillips worked fewer hours than he did while working on the pipeline. Thus, by considering a longer period of Phillips' work history, the Board reduced his average weekly wage. It explained that this reduction was necessary because there was no evidence in the record about Phillips' intentions after the termination of the pipeline project. The Board's use of Phillips' hourly wage in its calculations is of little import. As Phillips concedes, all employees of a given classification working on the same union contracts receive the same wages. . In affirming the Board's decision we wish to clarify that, although the Board did not follow precisely the same method we approved in Brunke, that decision merely established one permissible method of computing average weekly wages under AS 23.30.220(3). It did not create a requirement that the wages of other employees in the period following the claimant's injury be incorporated into the Board's computation, particularly when such information is not provided by the parties. Computations of benefits pursuant to AS 23.30.220 are clearly within the Board's area of expertise, and in cases where there is evidence to support its determination, we must defer to the Board. .In August 1976, AS 23.30.155 stated in pertinent part: (a) Compensation under this chapter shall be paid periodically, promptly and directly to the person entitled to it, without an award, except where liability to pay compensation is controverted by the employer. * (d) If the employer controverts the right to compensation, he shall file with the board on or before the 14th day after he has knowledge of the alleged injury or death, a notice, in accordance with the form prescribed by the board, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted. (e) If any installment of compensation payable without an award is not paid within 14 days after it becomes due . there shall be added to the unpaid installment an amount equal to 20 percent of it, which 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 he had no control the installment could not be paid within the period prescribed for the payment. (Emphasis added). . The Board determined that "compensation is 'due' for the purposes of computing interest every two weeks after the employer knows about the disability or particular benefit claimed." Therefore, although the parties agreed that-Phillips' compensation rate should have been increased in January 1977, the Board awarded interest on the difference between the appropriate compensation and the amount paid only from July 27, 1984, the date Houston received notice of Phillips' claim for increased benefits. . The Board also found that Phillips had failed to cooperate with Houston's vocational rehabilitation efforts. However, the determining issue is whether Phillips failed to follow an order of the Board. Consequently, our analysis is limited to the narrow question of whether substantial evidence in the record supports the Board's determination that Phillips did not follow its order. . Former AS 23.30.040(e) stated: The board may direct and provide the vocational retraining and rehabilitation of a permanently disabled person whose condition is a result of an injury compensable under this chapter by making cooperative arrangements with insurance carriers, private organizations and institutions or state or federal agen-cies_ The person being retrained or rehabilitated shall receive compensation from the second injury fund for maintenance, in the sum which the board considers necessary, during the period of retraining and rehabilitation, not exceeding $100 a month. The total expenditures for maintenance, training, rehabilitation and necessary transportation may not exceed $5,000 for one person. This subsection was repealed in 1982. Ch. 93, § 27, SLA 1982. . We apply the substantial evidence standard of review to the Board's factual findings. Under this test, our inquiry is limited to 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) (citing Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978)) (footnote omitted). In applying this test, we will not independently reweigh the evidence. Id. . A determining factor in the outcome of Big-nell was our recognition that our workers' compensation statutes define disability as a function of the injured employee's capacity to earn wages rather than as the level of medical impairment suffered by the employee. See AS 23.30.265(10). Therefore, payment of TTD benefits during the rehabilitation period is expected to provide an incentive for the injured employee to pursue vocational rehabilitation, thereby mitigating his or her damages. Bignell, 651 P.2d at 1167-68. . The pertinent provision states that the "board may by order suspend the payment of further compensation while the refusal continues.... " AS 23.30.095(d) (emphasis added). . The standard of review for decisions which rest on an agency's construction of a statute which is not technical and does not require agency expertise is the substitution of judgment test. Kjarstad v. State, 703 P.2d 1167, 1170 (Alaska 1985). Therefore, we will apply our independent judgment in determining whether the Board had authority to forfeit Phillips' TTD benefits.

10347057

Thomas M. MOORE, Appellant, v. Patricia M. MOORE, Appellee

Moore v. Moore

1995-04-28

No. S-5175

1268

1270

893 P.2d 1268

893

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

Thomas M. MOORE, Appellant, v. Patricia M. MOORE, Appellee.

Thomas M. MOORE, Appellant, v. Patricia M. MOORE, Appellee. No. S-5175. Supreme Court of Alaska. April 28, 1995. William T. Ford, Anchorage, for appellant. Karla F. Huntington, Mendel & Huntington, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1339

8011

OPINION MATTHEWS, Justice. Thomas Moore appeals a child support award to Patricia Moore, his ex-wife. Patricia and Thomas were married in August 1977. They have two children, Thomas, Jr., born in February 1980, and Rachel, born in February 1984. Patricia sued for divorce in April 1991. The parties settled all property division issues prior to trial. Thomas is a businessman. Between 1987 and 1990, his adjusted gross income fluctuated between $177,000 and $423,000 per year. Patricia did not work during the last ten years of the marriage, but was attending college at the time of trial, and expected to earn $22,000 per year once she graduated. Patricia requested $2150 in child support. Under Alaska Civil Rule 90.3, a non-custodial parent with two children should pay twenty-seven percent of his adjusted gross income up to $60,000 as child support. Twenty-seven percent of $60,000 is $1350. However, "to the extent that the parent has an adjusted annual income of over $60,000 . the court may make an additional award only if it is just and proper, taking into account the needs of the children, the standard of living of the children and the extent to which that standard should be reflective of the supporting parent's ability to pay." Alaska R.Civ.P. 90.3(c)(2). The superior court admitted into evidence a financial statement showing Patricia's monthly expenses for herself and the two children to be $3849. The superior court awarded $1750 in child support. The superi- or court judge stated: As far as income and child support, Mr. Moore's income is substantial and has every indication of continuing to be so. Ms. Moore will be making 20 to $25,000 a year, her capital could probably earn her an equal amount. So we have fairly substantial assets available, income available, for the maintenance of these children. People do spend their income on them children. 'Til you get up to about 50 or $60,000 people spend 27% if they've got two kids, that's where those numbers came from. When you get above $60,000 people don't spend such a high percentage, but of course you do spend more money. People in your position in life have your kids in gymnastics and have your kids in soccer and have — have tutors for your kids and you do take trips and you do this and you do that and you go skiing. There are a lot of families that don't have that. It does cost more than what it costs families who have less resources than you do. The evidence as to the needs of the children, or the excess needs, or the unusual needs is fairly scant, it was really Exhibit B — B—8, indicating about $160 a month for sports and camps and then there's some child care and large mortgage and utility expenses, which are also a reflection of standard of living. I don't have evidence that will support an $800 a month addition to the 1350; however, it's pretty clear that there is quite a bit of money beyond that that would seem to be an appropriate part of the additional care for the children that should be borne by Mr. Moore. So I'll make the finding that the children's needs exceed $1350 by $400 per month, so it'll be 17 — 1750 per month would be the child support amount, that Mr. Moore does have the ability to pay that amount, and that that would be in the best interests of the children for the children's expenses to be divided between them in that manner. Thomas appealed the child support award to this court. We noted that "[cjhild support awards are reviewed for an abuse of discretion and will not be set aside by this court unless a review of the record as a whole leaves us with a definite and firm conviction that a mistake has been made." Moore v. Moore, Mem. Op. & J. No. 0678 at 4 (Alaska, September 8, 1993) (citing Farrell v. Farrell, 819 P.2d 896, 900-01 (Alaska 1991)). We found that the trial court's findings were so cursory that we could not "determine if a mistake ha[d] been made." Id. We remanded the case for "specific findings detailing those additional needs of the children which justify the waiver." Id. On remand, the trial judge made detailed written findings of fact and conclusions of law. The trial judge's findings can be summarized as follows: Testimony by the children's parents and guardian ad litem shows that the children enjoyed a somewhat affluent standard of living when their parents were married. Patricia expects to earn an annual salary of $22,-000 after graduating from college. Patricia's 1992 income tax return shows that Patricia earned $5,662 in interest in 1992. Patricia's total expected annual income is $27,662. The average monthly expenses for Patricia and the children are $3,849, including a monthly mortgage payment of $1,802. Dividing these expenses per capita, the average monthly expenses for support of the children are $2,540.39. In accordance with the principles of Rule 90.3, Patricia should use twenty-seven percent of her expected income, or $622.39 per month, to support her children. The difference between $2540.39 and $622.39 is $1918. It is just and proper for Thomas to make up this difference; therefore, an award of $1750 is justified. Thomas again appeals to this court. He argues that the superior court erred by including Patricia's mortgage payments within the family expenses used to calculate child support. Thomas relies on Money v. Money, 852 P.2d 1158 (Alaska 1993). In Money, we rejected the ex-wife's argument that her child support award was too low. Id. at 1165. We noted that the ex-wife included monthly mortgage payments on her residence in the monthly budget she submitted in support of a higher award, even though the property division provided that the ex-husband was required to make the payments. Id. at 1164. Since the property division in this case does not require Thomas to make Patricia's mortgage payments, Money is in-apposite. A recent Missouri decision is much more on point. In In re Marriage of Cohen, 884 S.W.2d 35, 37 (Mo.App.1994), the father challenged the trial court's child support award. The appellate court held that the trial court could properly calculate child support by allocating two-thirds of the mother's monthly mortgage expenses to her two children, id. at 40, a procedure identical to that used by the superior court in this case. The appellate court's ruling allowed the trial court to consider the mortgage payments in its determination of the children's needs and of the amount needed to maintain their previous standard of living. Id. In this case, the superior court specifically found that "Remaining in [Patricia's current] home is beneficial to the children and consistent with their lifestyle." Thomas does not argue that this finding is clearly erroneous, and there is no evidence in the record contradicting the finding. Thus, the superior court properly treated Patricia's monthly mortgage expenses as a constituent part of "the standard of living of the children" under Rule 90.3(c)(2). The superior court's findings as a whole cogently take into account the three Rule 90.3(c)(2) factors — "the needs of the children, the standard of living of the children and the extent to which that standard should be reflective of the supporting parent's ability to pay." The findings are sufficiently specific. They justify the additional award of child support under Rule 90.3(c)(2). The decision of the superior court is AFFIRMED. . Thomas does not contend that this is an inappropriate determination of Patricia's reasonable investment income, even though it is inconsistent with the court's statement before remand that Patricia's capital probably could earn approximately $20,000 to $25,000 a year. . Two-thirds of $3,849 is actually $2,566, which is a little more than $2,540.39.

10357368

William S. BARRON, Jr., Appellant, v. STATE of Alaska, Appellee

Barron v. State

1992-01-03

No. 1192

17

21

823 P.2d 17

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

William S. BARRON, Jr., Appellant, v. STATE of Alaska, Appellee.

William S. BARRON, Jr., Appellant, v. STATE of Alaska, Appellee. No. 1192. Court of Appeals of Alaska. Jan. 3, 1992. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1894

11471

OPINION COATS, Judge. William S. Barron, Jr., was convicted, following a jury trial, of two counts of misconduct involving a controlled substance in the'third degree, a class B felony. AS 11.71.030(a)(1). Barron appeals, arguing that Superior Court Judge Richard D. Saveli erred in denying his motion to suppress. We affirm. Barron first raised his motion to suppress after the jury was selected for his trial. Judge Saveli declined to rule on the issue during trial, but permitted Barron to file his motion to suppress after the jury reached its verdict. In response to Barron's motion to suppress, the state filed an affidavit of Daniel Hoffman, the Fairbanks police officer who initially contacted and arrested Barron. It appears that Judge Saveli decided the suppression issue based upon the testimony which was presented at trial and Hoffman's affidavit. According to Hoffman's testimony and his affidavit, on October 23, 1989, he was making a routine check at a bar in Fairbanks known as the Sunset Inn. As part of his check, Hoffman went into a public restroom. When he entered the restroom, he could see the feet of two men in the same stall. The stall was enclosed, but he could see the feet under the space between the bottom of the stall and the floor. Officer Hoffman could see that the restroom was not crowded and concluded that there was no reason for two people to use the same stall. He also noticed, from the position of the feet, that the men were well away from the commode and that they were talking to each other in low voices. Officer Hoffman stated that from experience he knew that illegal drug transactions frequently took place in restrooms of bars. Officer Hoffman concluded that a drug offense might be taking place and approached the stall to take a closer look. He stepped closer to the stall. While still in the common area of the restroom, through a sizeable gap between the hinged door of the stall and the partition separating it from another stall, he could see Barron and another man, Robert Pailing. From this position he could see that neither man was using the stall for its intended purpose, and that both men had their clothes on. Hoffman stated: I felt that I was reasonable in suspecting that some type of drug activity might be involved. I was aware that if such activity within the stall was the case, the activity could readily terminate and any evidence quickly disappear. I believed that a prompt investigation was required as a matter of practical necessity. Hoffman told Barron and Pailing to keep their hands in view and to come out of the stall. Barron and Pailing came out and stood outside the stall. At this time, Hoffman saw a plastic bag floating in clear water in the commode. Within the clear bag, Hoffman could see other small clear plastic bags which contained a white powdery substance. From his experience, Hoffman concluded that the substance in the bag was cocaine and he had interrupted a drug transaction. Hoffman arrested both Barron and Pailing and seized the plastic bag. The bag was later found to contain packets of cocaine. Barron was convicted of delivering cocaine to Pailing and possessing cocaine for purposes of delivery based upon this evidence. Barron contends that Officer Hoffman's actions in contacting him constituted an illegal seizure under the fourth amendment of the United States Constitution and article I, section 14 of the Alaska Constitution. In deciding the suppression motion, Judge Saveli ruled, "Officer Hoffman was lawfully in the rest room and lawfully observed activities which gave rise to reasonable suspicion and justified further investigation under Coleman v. State, 553 P.2d 40 (Alaska 1976)." Under Coleman, a police officer can temporarily detain a person "where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred." Coleman, 553 P.2d at 46. The question before us for review is whether Judge Saveli erred in concluding that Officer Hoffman's actions were justified under this standard. The fourth amendment of the United States Constitution provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. See also Alaska Const, art. I, § 14. In his concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), Justice Harlan explained that the rule protecting citizens against unreasonable searches applies when two requirements are met: first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." In interpreting the meaning of article 1, section 14 of the Alaska Constitution and the privacy clause of the Alaska Constitution, article 1, section 22, the Alaska Supreme Court in State v. Glass, 583 P.2d 872, 875 (Alaska 1978), adopted the dual requirements set forth in Justice Harlan's concurrence. Barron argues that because the Alaska Constitution provides broader protection than the federal constitution, this court should recognize that, under the two-pronged test approved in Glass, he had a reasonable expectation of privacy in a closed restroom stall. Further, Barron cites the decisions of other jurisdictions which have ruled that an individual has a right to privacy in a public bathroom stall. See People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973); Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (1962); Brown v. State, 3 Md.App. 90, 238 A.2d 147 (1968); People v. Dezek, 107 Mich.App. 78, 308 N.W.2d 652 (1981); Buchanan v. State, 471 S.W.2d 401 (Tex.Crim.App.1971). The state distinguishes all the cases cited by Barron and argues that Barron's reliance on these decisions is mistaken. With regard to Bielicki and Triggs, the state correctly points out that under a more recent decision by the California Supreme Court, the Triggs holding was expressly limited to the proposition that "a public restroom gives rise to a reasonable expectation of freedom from observation by a law enforcement officer who has assumed a clandestine, unexpected vantage point to spy indiscriminately on all who enter." In Re Deborah C., 30 Cal.3d 125, 177 Cal.Rptr. 852, 858, 635 P.2d 446, 452 (1981). In his treatise on search and seizure, Professor LaFave analyzes the cases in this area as follows: Katz, properly viewed, extends the limitations of the Fourth Amendment to those forms of police surveillance which cannot be "permitted to go unregulated by constitutional restraints." Clandestine peeping into rest rooms is surely one type of surveillance which cannot be left to the whim of the police, whether there are doors on the stalls or not.... [However,] if the police merely enter a rest room and see conduct occurring within a stall which is "readily visible and accessible" to any member of the public who so enters, there is . no intrusion into a justified expectation of privacy. Under certain circumstances, even an entry into a locked rest room will not amount to a search. 1 LaFave, Search and Seizure, § 2.4(c) at 440-41 (1987) (footnotes omitted). We believe that the cases suggest that when one is' in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one's behavior is subject to the observation of others who are in the public area. When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate. For instance, in People v. Mercado, 68 N.Y.2d 874, 508 N.Y.S.2d 419, 420, 501 N.E.2d 27, 28 (1986), an officer entered a restroom in an airport after receiving a tip that two men were occupying one of the stalls. The officer saw only one stall with a closed door, noted that only one pair of legs was visible, but heard two low male voices conversing in the stall. Id. He then attempted to peer through the crack in the door and saw two individuals inside — the second with his feet on the toilet. Id. 508 N.Y.S.2d at 420, 501 N.E.2d at 29. The officer next entered the adjoining stall, stood on the toilet, peered over the stall wall, and saw that both occupants of the other stall possessed drugs. Id. Mercado was arrested, and, before trial, filed a motion to suppress the evidence. The motion was denied. On appeal Mercado claimed he had a reasonable expectation of privacy in the toilet stall. The New York Court of Appeals agreed that Mercado had a reasonable expectation of privacy in a public restroom stall. Despite this determination, the court found that the officer could reasonably conclude that a drug crime was occurring in the stall based upon the tip and his observations. Id. 508 N.Y.S.2d at 421, 501 N.E.2d at 30. The court held the officer's actions were justified under the fourth amendment. In the instant case, Officer Hoffman entered a public restroom and, from a public place, saw that two men were engaging in some sort of transaction in the lavatory stall. He suspected criminal activity, most probably a drug transaction. He therefore took a closer look, again observing from a public area. From his observations, he concluded that he was probably observing an illegal drug transaction. He therefore told the men to come out of the stall. When they did, he was able to observe evidence which led to Barron's conviction on the drug offenses. We conclude that Judge Saveli could properly find that Officer Hoffman's actions were justified under Coleman. Officer Hoffman had reasonable suspicion that he had stumbled into an illegal drug transaction. It was necessary for Hoffman to conduct "a prompt investigation . as a matter of practical necessity." Coleman, 553 P.2d at 46 (quoting Goss v. State, 390 P.2d 220, 224 (Alaska 1964)). Judge Saveli could properly find that Officer Hoffman's response was minimally intrusive and was a reasonable response to the situation which he observed. See State v. G.B., 769 P.2d 452, 456 (Alaska App.1989) (in applying the Coleman rule, the court must balance the seriousness of the offense, the recency of the crime, the strength of the officer's reasonable suspicion, and the actual intrusiveness of the investigative stop). The conviction is AFFIRMED. . Hoffman testified at trial. Hoffman's post-trial affidavit focused more specifically on his reasons for contacting Barron than did his trial testimony.

10381198

Joseph W. CAPWELL, Appellant, v. STATE of Alaska, Appellee

Capwell v. State

1991-12-20

No. A-3489

1250

1258

823 P.2d 1250

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Joseph W. CAPWELL, Appellant, v. STATE of Alaska, Appellee.

Joseph W. CAPWELL, Appellant, v. STATE of Alaska, Appellee. No. A-3489. Court of Appeals of Alaska. Dec. 20, 1991. Rich Curtner, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

4401

27327

OPINION Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. MANNHEIMER, Judge. Joseph W. Capwell was convicted of criminally negligent homicide, AS 11.41.-130(a), for striking and killing a pedestrian with his car. He appeals both his conviction and his sentence. We affirm Cap- well's conviction but remand for resentenc-ing. On July 11, 1989, around 4 o'clock in the afternoon, Capwell was driving on Seward Meridian Road in Wasilla. Shelley Cleveland was walking along the side of the road, accompanied by her young niece. Capwell's car, traveling between 35 and 45 miles per hour, struck Cleveland; she was killed almost instantly. The weather was clear and sunny. Cap-well's vehicle drifted over the right-hand fog line of the road for no apparent reason. Capwell did not apply his brakes either before or for several seconds after he struck Cleveland. He stopped his car 50 or 60 yards down the road, sat there for several seconds, and then backed up toward the site of the collision. But instead of coming to check on Cleveland's condition, Capwell climbed out of his car, walked around to the front, and inspected his bumper. He then leaned against the side of his car and lit a cigarette. Capwell did not attempt to help Cleveland, nor did he even look toward her. Capwell's defense was that, suffering chest pains, he had been driving to Valley Hospital when the pain distracted him and reduced his control of the vehicle, thus causing the collision. When the State Troopers arrived at the scene, Capwell told one trooper that he was suffering from chest pains. He also told this to the emergency medical technicians who responded to the collision and transported Capwell to Valley Hospital. About an hour and a half after the accident, Capwell spoke with a physician at Valley Hospital and elaborated on these statements: Capwell told the doctor that he had been driving to the hospital at the time of the collision so that he could be examined for chest pains. Evidence was presented that Capwell in fact suffers from a medical condition that causes him chest pain: costochondritis, an inflammation of the ribs where they join the breastbone. In an effort to rebut Capwell's assertion that he had been going to the hospital to be examined for severe chest pains, the prosecution introduced the testimony of two emergency room physicians, Dr. Janet Smalley and Dr. Donald Hudson. Both of these physicians, one working in Palmer and the other in Anchorage, testified that Capwell had come to their emergency medical facilities numerous times. During the year preceding the collision, Capwell made 17 appearances in the Palmer emergency room. Capwell also made 26 visits to the Anchorage emergency room. Each time, Capwell complained of pain — often, pain in his chest, but also dental pain, headaches, and backaches. Each time, Capwell wanted medication, generally morphine, to ease the pain. Both Dr. Smalley and Dr. Hudson testified that, when a patient accumulates a history like Capwell's, physicians suspect that the patient is employing the emergency room as a source for narcotics, with pain being the excuse rather than the real reason for the numerous visits. Dr. Smalley sat down with Capwell on two occasions and discussed her concern that he was becoming narcotic dependent and was misusing the emergency room. Dr. Smalley testified that, following these conversations, there were two occasions on which Capwell arrived at the emergency room and peeked into the nurses' station to see who was the on-duty physician; when he saw that Dr. Smalley was the on-duty physician, Capwell left the hospital without signing in as a patient. Capwell asserts that the trial court should not have allowed the State to introduce the testimony of the two doctors. Capwell argues that the jury became unfairly prejudiced against him when it heard him referred to as a "drug seeker", and he asserts that, since there was no testimony that he was using drugs at the time of the collision, the doctors' testimony could not have been relevant to any issue at the trial. We conclude that Judge Cutler acted within her proper discretion when she admitted the doctors' testimony. Capwell's defense was premised on the argument that he was suffering chest pain at the time of the collision, pain so severe that it distracted him from the road and prevented him from exercising normal control over his vehicle. The testimony of Dr. Smalley and Dr. Hudson tended to show that, even if Capwell had been driving to the hospital as he asserted, his motivation was to obtain narcotics, not to have a doctor alleviate unexpectedly intense pain. The testimony thus had substantial relevance to a major issue at trial: whether, as Capwell claimed, there was a medical explanation for his failure to notice Cleveland walking along the roadway. Moreover, Judge Cutler could reasonably find that the probative force of this evidence outweighed whatever potential for unfair prejudice it might have. Capwell contests one other eviden-tiary ruling of the trial court. Judge Cutler allowed the prosecution to introduce evidence that, at the time of the collision, Capwell's driver's license was suspended; Capwell's license had been suspended when he failed to satisfy a judgement entered against him from an earlier traffic accident. The prosecution contended, and Judge Cutler agreed, that, because Cap-well's license was suspended, it was reasonable to conclude that Capwell's assertions of chest pain had been fabricated in order to offer the authorities some plausible reason why Capwell was driving. In the trial court and now on appeal, Capwell asserts that whatever motivation he might have had to explain his act of driving while his license was suspended pales beside his motivation to explain how he had run over and killed a pedestrian. Capwell argues that, if his assertion of chest pain was suspect, it was because of the homicide charge he faced, not the driving with suspended license charge. Moreover, Capwell asserts that this evidence carried great potential for unfair prejudice: the jury could conclude, from the fact that a civil judgement had been entered against him, that Capwell had been at fault in the prior motor vehicle accident. We agree with Capwell. The State was entitled to introduce evidence of Capwell's possible motives to lie about experiencing severe chest pain. However, under the circumstances of this case, the motivation provided by the imminent homicide charge far outweighed whatever additional motivation was provided by the suspended status of Capwell's license. The possibility that evidence of Capwell's license suspension might unfairly prejudice the jury's deliberations — that the jury, hearing evidence indicating that Capwell had been at fault in a prior traffic accident, might assume from this that he had probably been negligent in this case — outweighed the minimal incremental probative value of the evidence. Nevertheless, we are convinced that the admission of this evidence did not have an appreciable effect on the jury's verdict. Fields v. State, 629 P.2d 46, 51 (Alaska 1981); Love v. State, 457 P.2d 622, 629-631 (Alaska 1969). The evidence at trial provided no reasonable explanation for the collision absent negligence on the part of Cap-well. The fact that Capwell suffers from costo-chondritis was undisputed at trial. However, the medical testimony showed that Capwell's condition does not normally cause the kind of pain that would prevent him from driving or impair his ability to handle a car. In this same vein, the testimony of Drs. Smalley and Hudson revealed good reason to believe that, even though Capwell has costochondritis, Capwell's journey to the hospital was not motivated by incapacitating chest pain. Indeed, while Capwell complained of chest pain when he spoke to the trooper at the scene of the collision and attributed the collision, in part, to the fact that he had been distracted by this pain, Capwell did not attribute the collision to chest pain when he spoke an hour later with his treating physician at Valley Hospital. Capwell explained the collision to the physician by asserting that he had leaned over to flick his cigarette into the car's ashtray and that, while his eyes were off the road, he heard a thump. Capwell never asserted to the doctor that he had been distracted by any pain he was suffering; his only explanation for the collision was his attention to the cigarette and the ashtray. An additional factor in our harmless error analysis is that the improper testimony did not play a major part in the trial. Mention of Capwell's license suspension was confined to a short opening portion of Cap-well's interview with the state trooper who arrived at the scene of the collision. While the prosecuting attorney mentioned the license suspension in his closing argument to the jury, this was done only once and in passing. Finally, Judge Cutler gave the jury a lengthy instruction that explained the reason for Capwell's license suspension; Judge Cutler took pains to tell the jury that Capwell's suspension did not stem from a violation of any criminal statute or traffic regulation, but rather from his failure to pay a civil judgement stemming from an accident. She also emphasized that this judgement had been issued by default— that no judge or jury had ever found Cap-well to have been at fault in the prior accident. Judge Cutler explicitly told the jury that they were "to judge [Capwell's] negligence without regard to whether or not he did have a license at the time [of the collision]", and that the evidence of the license suspension was to be used only to the extent that Capwell's knowledge that his license was suspended might be relevant to some other determination the jury would have to make. Given the strength of the government's evidence against Capwell, the small part that the license suspension evidence played at Capwell's trial, and the detailed limiting instruction fashioned by the trial court, we conclude that the error in admitting evidence of Capwell's license suspension was harmless. Sevier v. State, 614 P.2d 791, 794 (Alaska 1980); Stevens v. State, 748 P.2d 771, 775-76 (Alaska App.1988). We turn now to Capwell's sentencing arguments. Judge Cutler found that the State had proved three aggravating factors: AS 12.55.155(c)(7) (commission of a prior felony of a more serious class than the present one), (c)(4) (use of a dangerous instrument during the offense), and (c)(10) (most serious type of conduct encompassed by the statutory definition). Capwell contests each of these aggravating factors. In 1977, when Alaska's prior criminal code was still in force, Capwell was convicted of assault with intent to commit rape, former AS 11.15.160. This felony offense carried a penalty of from one to fifteen years' imprisonment. Judge Cutler concluded that this prior offense was of a more serious class than Capwell's present offense and that aggravating factor (c)(7) therefore applied to Capwell's case. Capwell disputes this ruling. He points out that, until the legislature enacted the current criminal code, felony offenses were not given classifications. Therefore, he argues, it is impossible to declare that a felony offense under the old criminal code is of a more serious "class" than a felony offense defined by the current code. Cap-well also argues that it is impossible to find an exact analogy to the former offense of "assault with intent to commit rape" in the current criminal code. Capwell is correct that there is no exact analogy to "assault with intent to commit rape" in the present criminal code. However, when applying aggravator (c)(7) to felonies committed under prior law, this court has looked to the offense defined by current law that is the nearest equivalent to the defendant's prior felony. See Hayes v. State, 785 P.2d 33, 37-38 (Alaska App.1990); Gibson v. State, 719 P.2d 687, 691 (Alaska App.1986). The nearest equivalent to Capwell's prior offense under current law is "attempted sexual assault in the first degree" or, because Capwell's offense involved a twelve-year-old child, "attempted sexual abuse of a minor in the first degree". Both of these offenses are class A felonies. AS 11.41.410, AS 11.41.434, and AS 11.31.-100(d)(2). The maximum penalty for class A felonies is twenty years' imprisonment. AS 12.55.125(c). This maximum penalty more closely approximates the fifteen-year maximum term for "assault with intent to commit rape" than does the five-year maximum term for class C felonies like negligent homicide. Moreover, under current Title 11, offenses involving the deliberate use of violence against another person are at least class B felonies. For these reasons, we conclude that Judge Cutler properly treated Capwell's prior conviction for assault with intent to commit rape as a felony of a more serious class than his present negligent homicide conviction. Capwell also argues that Judge Cutler should not have found aggravator (c)(7) because there is no apparent connection between Capwell's sexual attack on a minor in 1977 and his negligent homicide in this case. The answer to this contention is that none is needed. While a complete lack of relationship between a defendant's prior, more serious felony and his current felony might be a reason for the sentencing judge not to rely heavily on this aggravating factor, the factor is still proved. CapwelPs next argument is that Judge Cutler committed error when she ruled that the State had proved aggravating factor (c)(4), the use of a dangerous instrument. Capwell points out that AS 12.55.155(e) precludes a sentencing court from enhancing a sentence based on an aggravating factor listed in AS 12.55.155(c) if that factor "is a necessary element of the present offense". He argues that this rule precluded Judge Cutler from finding ag-gravator (c)(4). Capwell notes that the definition of "dangerous instrument" contained in AS 11.81.900(b)(ll) and made applicable to presumptive sentencing by AS 12.55.185(2) is quite expansive: "dangerous instrument" means any deadly weapon or anything that, under the circumstances in which it is used . is capable of causing death or serious physical injury[.] Based on this definition, Capwell argues that it is all but impossible to commit a homicide without using a dangerous instrument, and thus the use of a dangerous instrument is a necessary element of his crime, negligent homicide. Capwell's argument has already been considered and rejected in Krasovich v. State, 731 P.2d 598 (Alaska App.1987). In Krasovich, this court pointed out that there are (concededly rare) instances in which a defendant could be held criminally liable for a homicide even though the defendant had not used a dangerous instrument. Id. at 600. Thus, use of a dangerous instrument is not a necessary element of negligent homicide. However, the Krasovich opinion also pointed out that proof of an aggravating factor does not automatically lead to enhancement of a presumptive term. The importance of an aggravating factor must be evaluated in light of the specific crime involved in the defendant's case; when the presence of a particular aggravating factor is characteristic of the crime for which the defendant has been convicted, then mere proof of that aggravating factor will not, of itself, justify an enhancement of the presumptive term. Id. at 600-01. With regard to the specific issue Capwell raises, this court stated: [U]se of dangerous instruments is characteristic of [negligent homicide] and the automobile is . characteristically used in committing the offense[;] it would be unrealistic to conclude that the use of an automobile is, in and of itself, a sufficient basis for increasing the presumptive term. Our inquiry must therefore shift to the particular circumstances of the case before us; we must determine whether there was anything uncharacteristically serious about the manner or circumstances in which [the defendant] used his automobile. Krasovich, 731 P.2d at 602. Thus, while Judge Cutler properly concluded that aggravating factor (c)(4) had been proved, proof of this factor would not ordinarily justify an increase in Capwell's presumptive term. Nevertheless, Judge Cutler's sentencing remarks point to various circumstances showing Capwell's use of an automobile to be atypically serious. Capwell had been convicted of five moving violations; these included speeding, speeding in a school zone, failure to stop (two separate convictions), and failure to yield. Capwell's license had been suspended because he had failed to pay for property damage he had caused in a previous collision. Capwell knew he was not supposed to be driving at all. He had been convicted once before of driving with a suspended license. This conviction represented the second time that Capwell had driven a car after his license had been suspended; in the previous incident, the potential charge of driving with a suspended license had been reduced to the lesser offense of driving without a license. To justify his act of driving in the present case, Capwell contended that he had had a need for emergency medical attention. Judge Cutler found that this proffered justification was false. Judge Cutler also found that Capwell's conduct was so negligent that his offense approached the seriousness of the next higher degree of criminal homicide, manslaughter. Capwell struck a plainly visible woman walking along the side of the road. He neither hit his brakes nor took evasive action to avoid the collision. No explanation for the collision can be found in the lighting or the weather or the condition of the road or the condition of Capwell's vehicle. Judge Cutler concluded that Capwell "just totally failed to perceive what was in [his] line of travel". These factors provide support for Judge Cutler's decision to enhance Cap-well's sentence based on aggravating factor (c)(4). They also underlie and support Judge Cutler's ruling that Capwell's crime was among the most serious encompassed by the definition of the offense, aggravating factor (c)(10). We turn now to Capwell's argument that Judge Cutler committed error when she sentenced Capwell to five years' imprisonment, the maximum term for negligent homicide. The first problem to be discussed is whether Capwell received a "maximum sentence". Judge Cutler believed that, because she was not exercising her discretion under AS 12.55.115 to restrict Capwell's eligibility for parole, she was not sentencing Capwell to the maximum term. The State's brief neither endorses Judge Cutler's view of this issue nor formally concedes error. If the State's failure to support Judge Cutler's ruling indicates disagreement with it, this court would still be required to independently assess the correctness of the trial court's ruling. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). The Alaska Supreme Court has held that a sentencing court does not impose a "maximum sentence" if the judge sentences a defendant to the maximum term of imprisonment but then suspends a portion of that term. Wertz v. State, 611 P.2d 8, 10 (Alaska 1980). However, Supreme Court cases have never drawn a distinction between imposing the maximum term of years (none suspended) and imposing the maximum term of years while additionally restricting or denying parole eligibility. Instead, the court has treated maximum terms of imprisonment without parole restriction as "maximum sentences". See, for example, Ferguson v. State, 606 P.2d 882 (Alaska 1980); Tommy v. State, 551 P.2d 179 (Alaska 1976); and State v. Wortham, 537 P.2d 1117 (Alaska 1975). But see Hansen v. State, 582 P.2d 1041 (Alaska 1978), where two members of the Supreme Court stated that parole eligibility should not make a difference when deciding whether a sentence is excessive, Id. at 1047 n. 12, and two other members of the court disagreed, Id. at 1048. We conclude that the purposes of sentence review are better served by the interpretation that a defendant receives a "maximum sentence" if he or she is sentenced to the maximum term of imprisonment, whether or not the sentencing judge restricts or denies parole eligibility. Thus, Capwell's sentence of five years' imprisonment with none suspended constitutes a "maximum sentence". In order to justify imposition of a maximum sentence, the sentencing judge must find, either explicitly or implicitly, that the defendant is a "worst offender". Jacinth v. State, 593 P.2d 263, 267 (Alaska 1979); Tommy v. State, 551 P.2d at 180 n. 2; Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). This determination can be based on the defendant's criminal record, upon the circumstances of the present crime, or both. Moore v. State, 597 P.2d 975, 976 n. 4 (Alaska 1979). The pre-sentence report shows that Capwell was convicted of assault with intent to commit rape in 1977. Capwell, who was thirty years old at the time, approached his twelve-year-old stepdaughter with a knife in his hand; he put the blade to her throat and ordered her to take off her clothes. The girl escaped by jumping through a second-story window when Cap-well momentarily relaxed his guard. In her subsequent interview with the police, the girl related how Capwell had raped her at knife point when she was ten years old. Capwell was sentenced to serve five years in jail for this sexual assault. He was released on probation in May 1980. In March 1982, Capwell was convicted of misdemeanor theft and was given a suspended sentence. Between May 1983 and November 1987, Capwell was convicted of the seven motor vehicle offenses mentioned above. Psychological evaluations done of Cap-well in 1976 (while Capwell was awaiting trial and later awaiting sentencing for sexually assaulting his stepdaughter) indicated that Capwell had little insight into his behavior. Capwell could provide no explanation for his attack on his stepdaughter. The examiner concluded that Capwell's prognosis was "not the best", noting that Capwell had had psychiatric problems for many years. Two years later, in 1978, Capwell was evaluated again at the request of prison officials. Capwell expressed displeasure with the Parole Board for refusing to parole him until he had received psychiatric treatment. Although Capwell had pleaded guilty to the sexual assault of his stepdaughter and had provided the pre-sen-tence investigator with a written statement in which he again confessed this crime, by 1978 Capwell had changed his mind about the offense. He now told the psychiatrist that he was not guilty and that he had pleaded guilty "because of questioning by the police [and because] he did not want his wife to go through the hassle of a lengthy hearing." He asserted that the witnesses who had testified at the grand jury were lying. The psychologist who administered the Minnesota Multiphasic Personality Inventory to Capwell in September 1978 concluded: [Capwell] appears to be a person who tries to deal with his problems by pretending that they do not exist. In times of emotional stress, he may express his difficulties in functional complaints such as headaches and stomach disorders. He appears to be a rigid person who is prone to fears, compulsive behavior and obsessions. Despite worry and tension, he is likely to be resistant about obtaining help for his problems. The test results . are strongly suggestive of a major emotional disorder. The test pattern resembles those of psychiatric out-patients who later require inpatient care. In May 1979, Capwell was evaluated again because he had applied for parole. Capwell continued to protest that he was not guilty of the sexual assault for which he had been sent to prison. During the sentencing hearing in the present case, Judge Cutler confided that, as she began to prepare for Capwell's sentencing, she believed she would impose no more than three years to serve even if the State proved all of its aggravators. However, as she read the pre-sentence report and became acquainted with Capwell's past offenses and the psychological evaluations of Capwell, Judge Cutler concluded that Capwell's "cold and callous behavior" at the scene of the collision was characteristic "of the way he functions.... He just didn't really [understand] how serious the situation was, and in a sense maybe [he] still doesn't. That sort of person is very dangerous because . they have no self-controls when it comes to doing those things that hurt other people, and they haven't really learned anything significant about controlling their behavior...." Judge Cutler pointed out that Capwell was a mature adult who had already served a lengthy term of imprisonment and who had been "offered about everything the system has for rehabilitation". The judge added, "One person has been viciously raped, somebody else has been killed, and what we seem to know about Mr. Capwell from what's in the [pre-sentence] report is that there really isn't much hope for improvement." Judge Cutler continued, [W]hen you read Mr. Capwell's pre-sentence report in its entirety, including the old pre-sentence report [from the assault with intent to rape conviction], the attachments to it, the numerous psychiatric and psychological evaluations and opinions ., his background from a small child until today, the things he's done with his life ., and you couple that with the circumstances of this offense and [his conduct following] this offense .[,] it's really incumbent on the court to protect the public from Mr. Cap-well. Judge Cutler found that the chances for Capwell's rehabilitation were "minimal" and that "isolation [of the offender] is probably the most important goal here[,] in order to protect other people." Judge Cutler announced that she was "not prepared to say that Mr. Capwell is the worst type of offender[.] But he is certainly very close to the worst offender, and this is very close to a worst offense[.]" For that reason, Judge Cutler imposed a sentence that she viewed as "just slightly under the maximum" — five years' imprisonment to serve, with normal eligibility for parole. Judge Cutler's view of the seriousness of Capwell's offense, her view of the danger he poses to the public, and her conclusion that there is little chance for his rehabilitation are all supported by the record. A significant sentence of imprisonment, exceeding even the three-year presumptive term for a third offender, would not be clearly mistaken. However, as discussed above, we conclude that Judge Cutler's sentencing decision is premised on a misapprehension of the definition of "maximum sentence". She in fact gave Capwell a maximum sentence when she sentenced him to serve five years with none suspended. For this reason, we reverse the superior court's sentence and remand for imposition of a sentence consistent with this opinion. Capwell's conviction for negligent homicide is AFFIRMED. His sentence is REVERSED. This case is REMANDED for resentencing.

10347063

STATE of Alaska, Appellant, v. Marie ARNARIAK, Appellee; STATE of Alaska, Appellant, v. Adam ARNARIAK, Appellee

State v. Arnariak

1995-04-21

Nos. A-5397, A-5398

1273

1277

893 P.2d 1273

893

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

STATE of Alaska, Appellant, v. Marie ARNARIAK, Appellee. STATE of Alaska, Appellant, v. Adam ARNARIAK, Appellee.

STATE of Alaska, Appellant, v. Marie ARNARIAK, Appellee. STATE of Alaska, Appellant, v. Adam ARNARIAK, Appellee. Nos. A-5397, A-5398. Court of Appeals of Alaska. April 21, 1995. Hearing Granted June 15, 1995. Kevin M. Saxby, Asst. Atty. Gen., Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellant. Frederick Torrisi, Dillingham, for appellee Marie Anariak. David B. Snyder, Asst. Public Defender, Dillingham, and John B. Salemi, Public Defender, Anchorage, for appellee Adam Anar-iak. Bruce Baltar, Dillingham, for Bristol Bay Native As’n and Togiak Traditional Council as amici curiae. Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

2315

14267

OPINION COATS, Judge. Round Island is one of a group of islands in Bristol Bay that have collectively been established by Alaska Statute as the Walrus Islands State Game Sanctuary. See AS 16.20.092. A state regulation restricts access to Round Island to those who hold a state-issued permit. 5 Alaska Administrative Code 92.066. Permit holders visiting Round Island must abide by several rules, one of which is that the "discharge of firearms, disturbance or harassment of wildlife, removal of wildlife or parts of wildlife . are all prohibited on Round Island." 5 AAC 92.066(2)(D). According to the complaints filed against them, Adam and Marie Arnariak entered Round Island without the required permits on June 21, 1993, and Adam fired a rifle at a walrus on the island. Initially, both Arnar-iaks were charged with entering the island without a permit, and Adam was also charged with hunting walrus in a closed area in violation of 5 AAC 92.510(a)(13)(A). The state subsequently filed an information replacing the original hunting complaint against Adam with a charge that Adam had violated 5 AAC 92.066(2)(D) by discharging a firearm on Round Island. The Arnariaks moved to dismiss the charges on the ground that the state regulations were preempted by the federal Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361-1421h. Judge Milton Souter granted the motion to dismiss. The state now appeals the order dismissing the charges against the Arnariaks. In addition to the usual briefing, the Bristol Bay Native Association and the Togiak Traditional 'Council have filed an amicus brief urging this court to uphold Judge Souter's decision. Section 101 of the MMPA imposes "a moratorium on the taking and importation of marine mammals and marine mammal products." 16 U.S.C. § 1371(a). Subsection (b) of that statute provides in relevant part: (b) Exemptions for Alaskan natives. Except as provided in section 109 [16 U.S.C. § 1379], the provisions of this Act shall not apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking— (1) is for subsistence purposes; or (2) is done for purposes of creating and selling authentic native articles of handicrafts and clothing .; and (3) in each case, is not accomplished in a wasteful manner. Section 109 of the MMPA contains an express preemption clause, with a provision specifically addressed to the State of Alaska: (a) State enforcement of State laws or regulations prohibited without transfer to State of management authority by Secretary. No State may enforce, or attempt to enforce, any State law or regulation relating to the taking of any species (which term for purposes of this section includes any population stock) of marine mammal within the State unless the Secretary has transferred authority for the conservation and management of that species (hereinafter referred to in this section as "management authority") to the State under subsection (b)(1). (f) Transfer of management authority to State of Alaska. (1) The Secretary may not transfer management authority to the State of Alaska under subsection (b)(1) for any species of marine mammal unless— (A) the State has adopted and will implement a statute and regulations that insure that the taking of the species for subsistence uses— (i) is accomplished in a nonwasteful manner, (ü) will be the priority consumptive use of the species, and . (iii) if required to be restricted, such restriction will be based upon— (I) the customary and direct dependence upon the species as the mainstay of livelihood, (II) local residency, and (III) the availability of alternative resources. 16 U.S.C. § 1379. The State of Alaska has not maintained regulations containing a preference for rural subsistence hunting of marine mammals, and the federal government has not transferred management authority for marine mammals to the State of Alaska. The United States Constitution and the laws of the United States are the supreme law of the land. U.S. Const, art. VI. "Where a state [law] conflicts with or frustrates federal law, the former must give way." CSX Transp., Inc. v. Easterwood, — U.S. -, -, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). Federal preemption of state laws "may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990) (internal quotation marks omitted). If a federal statute contains an express preemption clause, the task of statutory construction will first focus on the plain wording of the clause. CSX Transp., — U.S. at -, 113 S.Ct. at 1737. And "[w]here . Congress has expressly*included a broadly worded preemption provision in a comprehensive statute . [the] task of discerning congressional intent is considerably simplified." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). The Arnariaks argue that 5 AAC 92.066 is expressly preempted under 16 U.S.C. § 1379. We agree that federal law expressly preempts state regulation relating to the taking of walrus on Round Island. The state argues, however, that the MMPA's prohibition against the enforcement of "State law[s] or regulations] relating to the taking of any species . of marine mammal within the State" does not preclude the state from enforcing 5 AAC 92.066 because that provision is not a hunting regulation, but rather a "land use regulation." However, the U.S. Supreme Court has repeatedly held that Congress' use of the phrase "relating to" in an express preemption clause connotes an intent to preempt state law on a broad scale. In Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Court held that state guidelines for advertising of fares by airlines were preempted by the provision of the federal Airline Deregulation Act (ADA) prohibiting states from enacting or enforcing any law "relating to rates, routes, or services of any air carrier." The Court interpreted the ADA preemption clause as preempting all "[s]tate enforcement actions having a connection with or reference to airline 'rates, routes, or services.' " 504 U.S. at 384, 112 S.Ct. at 2037. Just as the state in this case argues that the MMPA precludes only state enactments directly regulating hunting, the state in Morales argued that the ADA only prevented the states from "actually prescribing rates, routes, or services." Id. The Court rejected this claim in no uncertain terms: "This simply reads the words 'relating to' out of the statute. Had the statute been designed to pre-empt state law in such a limited fashion, it would have forbidden the States to 'regulate rates, routes, and services.' " Id. at 385, 112 S.Ct. at 2037-38 (emphasis in original). The Court also rejected the notion that "only State laws specifically addressed to the airline industry are pre-empted, whereas the ADA imposes no constraints on laws of general applicability." Id. In the Court's view, "[b]esides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion similarly ignores the sweep of the 'relating to' language." Id. at 386, 112 S.Ct. at 2038. See American Airlines, Inc. v. Wolens, — U.S. -, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (holding that the preemption clause of the ADA precludes the state from enforcing the Illinois Consumer Fraud Act for allegedly fraudulent advertising of the terms of an airline's frequent flyer program). In a number of eases the Supreme Court has given an expansive reading to the preemption clause (§ 514(a)) of the Employee Retirement Income Security Act (ERISA), which provides: "Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and sub-chapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a). The Court has called this preemption clause "conspicuous for its breadth." FMC Corp., 498 U.S. at 58, 111 S.Ct. at 407. In another case, the Court held that "[t]he breadth of § 514(a)'s preemptive reach is apparent from that section's language. A law 'relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 468 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983) (footnote omitted). In a case holding that state common law tort and contract actions against insurance companies asserting improper processing of claims for benefits under an insured employee benefit plan were preempted by ERISA, the Court called ERISA's preemption provision "deliberately expansive," and noted again "the expansive sweep of [ERISA's] pre-emption clause." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46-47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987). A similarly broad reading is found in Ingersoll-Rand, 498 U.S. 133, 111 S.Ct. 478, in which the Court held that ERISA preempted a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA. See Andrews v. Alaska Operating Eng'rs-Employers Training Trust Fund, 871 P.2d 1142 (Alaska), cert. denied, — U.S. -, 115 S.Ct. 201, 130 L.Ed.2d 132 (1994) (holding that ERISA preempts an action under state law in which a former fiduciary of an employee benefit plan governed by ERISA claimed that he had been wrongfully terminated in order to prevent him from reporting possible misuse of trust funds by another fiduciary). These authorities make it clear that the MMPA provision preempting state laws "relating to the taking of any species . of marine mammal" is to be read broadly. The history of the Walrus Islands regulations under which the state charged the Arnariaks makes it clear that those regulations "relate to" the taking of walrus. 5 AAC 92.066 is part of a comprehensive scheme of state statutes and regulations with the primary purpose of protecting and preserving walrus on the Walrus Islands. The specific enabling statutes for 5 AAC 92.066 are those creating the Walrus Islands State Game Sanctuary (AS 16.20.090-.094). These statutes include legislative findings that "the Walrus Islands are the sole remaining place in the state where walruses annually haul out on land," that the islands "have great importance as a retreat for the Pacific walrus," and that "[t]he purpose of AS 16.20.090-16.20.098 is to protect the walruses and other game on the Walrus Islands." AS 16.20.090. The statutes authorize the Boards of Fisheries and Game to adopt regulations governing entry, hunting and fishing, and other uses or activities on the islands "for the purpose of preserving the natural habitat and the fish and game of the Walrus Islands State Game Sanctuary." AS 16.20.094. Both the specific prohibition against discharging a weapon on Round Island, under which Adam Arnariak was charged, and the general requirement upon which an entry permit is conditioned — that the rule against discharging weapons will be followed — are clearly "related to the taking" of walrus. The MMPA defines "take" as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). 5 AAC 92.066(2)(D) prohibits the "discharge of firearms, disturbance or harassment of wildlife . on Round Island." (Emphasis added). The state's protestation that the regulation is intended to protect other game as well as walruses is unavailing. Preemption of laws "relating to" a subject encompasses not only those laws "specifically addressed to" the subject, but also "laws of general applicability" that relate to the subject. Morales, 504 U.S. at 386, 112 S.Ct. at 2038. It is possible that "[s]ome state actions may affect [the taking of marine mammals] in too tenuous, remote, or peripheral a manner" for the MMPA to have preemptive effect. Morales, 504 U.S. at 390, 112 S.Ct. at 2040 (quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21). The state regulation at issue here, however, "plainly does not present a borderline question." Id. Because 5 AAC 92.066 relates to the taking of a species of marine mammal, it may not be enforced against the Arnariaks. The district court therefore did not err in dismissing the charges against the couple. The district court's order dismissing the charges against Adam and Marie Arnariak is AFFIRMED. . The state argues that interpreting the MMPA to preempt 5 AAC 92.066 would render the MMPA unconstitutional under the fifth and tenth amendments to the United States Constitution. Although the state does not request this court to rule on the constitutionality of the MMPA, it contends that the possibility of rendering the MMPA unconstitutional is a factor that we should consider in deciding the scope of the MMPA's preemption clause. In our view, however, the clarity of the preemption clause's language and the strong body of case law interpreting the term "relating to" preclude our giving any significant weight to the potential unconstitutionality of the MMPA as a factor in determining the scope of the preemption clause. We express no opinion as to the merits of the state's fifth and tenth amendment arguments.

10377811

STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, and Tom Schwantes, Petitioners, v. Robert BROWN, Respondent

State, Department of Public Safety v. Brown

1990-06-22

No. S-2829

108

114

794 P.2d 108

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, and Tom Schwantes, Petitioners, v. Robert BROWN, Respondent.

STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, and Tom Schwantes, Petitioners, v. Robert BROWN, Respondent. No. S-2829. Supreme Court of Alaska. June 22, 1990. Robert L. Eastaugh, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for petitioners. Ron J. Webb, Anchorage, and Eric Dick-man, David S. Teske & Associates, Seattle, Wash., for respondent. Before MATTHEWS, C.J., and RABINO WITZ, BURKE and COMPTON, JJ.

3196

19669

OPINION MATTHEWS, Chief Justice. I. FACTUAL AND PROCEDURAL BACKGROUND Robert Brown was employed by the State of Alaska as First Mate on the Alaska Department of Public Safety patrol vessel VIGILANT, a 100-foot sea-going vessel. On June 18, 1985, while the VIGILANT was on patrol in Bristol Bay, Brown was injured as he boarded a fishing vessel to inspect it for a suspected violation of state fisheries laws. After first accepting workers' compensation benefits under the Alaska Workers' Compensation Act, AS 23.30.005-.270, Brown filed suit against the state, among others, in the superior court. Brown alleged that the state was liable to him under the Jones Act, 46 U.S.C.App. § 688, for negligence of the master of the VIGILANT, and under the admiralty doctrines of unseaworthiness, maintenance, and cure. The state moved for summary judgment on grounds of sovereign immunity and the exclusive remedy provision of the Workers' Compensation Act, AS 23.30.055. The trial court denied the motion. We granted the state's petition for review. II. DISCUSSION The trial court summarized its reasons in an order denying the state's motion for reconsideration as follows: After statehood, the tort claims act was passed. It expanded the waiver of sovereign immunity to cover all tort claims, specifically mentioning admiralty. No limiting language referring to the workers' compensation statute was included in the tort claims act. It is this court's view, thus, that once the tort claims act was passed, there was no intention to retain sovereign immunity vis-a-vis negligence claims against the state. The workers' compensation law is construed as simply a limitation regarding all employee-employer relations. It has nothing to do with limiting the waiver of sovereign immunity. In the case of admiralty law, workers' compensation principles are superseded by federal law for all employees, state workers constituting no exception. The same rationale was expressed in an opinion issued by former Attorney General Hayes more than 25 years ago. 1963 Formal Op. Att'y Gen. 28. In addressing the question of whether workers employed by the state on state ferries could sue the state under the Jones Act, the opinion stated: [T]he only question remaining is whether the State of Alaska has waived its sovereign immunity. If it has, the Jones Act is supreme; if it has not, the State cannot be sued under the Jones Act and the only remedy available to State employees is the State workmen's compensation act. Id. at 11. The opinion next quoted the Claims Against the State Act, AS 09.50.-250, and continued: By this waiver of immunity it must be concluded that the State may be sued for negligent torts which arise under the Jones Act. It is true that under the Alaska Workmen's Compensation Act, employers, including the State (AS 23.-30.265), are excluded from admiralty liability. Id. at 12. The opinion then quoted the exclusive remedy provision of AS 23.30.055, and stated: However, this exclusive liability provision cannot act as a limitation on suits against the State under the Federal Maritime law once the State has unqualifiedly waived its immunity for negligent torts.... A state cannot protect private citizens from suit for a maritime tort by limiting the exclusive Federal admiralty jurisdiction as delegated by Article III, Section 2, of the United States Constitution. By waiving its immunity, the state stands in the position of a private party and cannot limit its tort liability by a general provision in the workmen's compensation act. So much of AS 23.30.055 as limits the liability of employers in admiralty must be considered an invalid infringement on the Federal jurisdiction. If it is the desire of the State to limit its tort liability to the workmen's compensation act, it may do so by legislative enactment of an exception to the waiver of sovereign immunity section contained in AS 09.50.250. Id. at 13. We agree with this reasoning. Our explanation follows. Alaska Statute 09.50.250 provides that "[a] person . having a . tort claim against the state may bring an action against the state in the superior court." This statute waives the sovereign immunity of the state as to claims brought in superi- or court for torts sounding in admiralty, as well as those based on state law. State v. Stanley, 506 P.2d 1284, 1290-1291 and n. 9 (Alaska 1973). Subject to certain explicit exceptions, the intent of this statute was to put the state on an equal footing with private persons or entities who are sued in tort. See State v. Abbott, 498 P.2d 712, 724 (Alaska 1972). The Workers' Compensation Act, to which the state is subject to the same extent as private employers, provides in part that "[t]he liability of an employer [under the Workers' Compensation Act] is exclusive and in place of all other liability of the employer . and anyone otherwise entitled to recover damages . at law or in admiralty on account of the injury or death." AS 23.30.055. This provision would bar any suit by Brown for damages under state law. However, the present case is brought under federal maritime law. The exclusive remedy provision cannot deprive Brown of his federal maritime remedy. In Barber v. New England Fish Co., 510 P.2d 806 (Alaska 1973), a longshoreman was injured while aboard a barge owned by his employer. Although he had already collected benefits under the Alaska Workers' Compensation Act, we held that the exclusive remedy provision of the act did not preclude him from seeking a further recovery against his employer under federal maritime law for unseaworthiness. Similarly, in Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 847 (5th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), the court held that "an exclusive remedy provision in a state workmen's compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law." Accord Purnell v. Norned Shipping B.V., 801 F.2d 152, 156 (3rd Cir.1986). In Thibodaux, the court reversed summary judgment in favor of Atlantic Richfield and remanded the case to allow plaintiffs to pursue their general maritime claims against the latter for wrongful death. 580 F.2d at 847-48. The court noted that it had been presented with an analogous question in Roberts v. City of Plantation, 558 F.2d 750 (5th Cir.1977). Thibodaux, 580 F.2d at 846. In Roberts, the court held that the exclusive remedy provisions of Florida's workmen's compensation act were not a defense to a Jones Act claim. 558 F.2d at 751. The Thibodaux court found support in the Supreme Court's decision in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). There, the court refused to apply a state contributory negligence defense which would have barred recovery for a general maritime cause of action. The court stated that "[wjhile states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court." Id. at 409-10, 74 S.Ct. at 205 (footnote omitted). To hold otherwise would undermine the uniformity of maritime law "which the [Federal] Constitution has placed under national purview to control in 'its substantial as well as procedural features.' " Id. at 409, 74 S.Ct. at 205 (quoting Panama R.R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748 (1924)). These precedents compel the conclusion that the exclusive remedy provisions of the Alaska Workers' Compensation Act cannot deprive Brown of his federal Jones Act claim against the state. The state relies on Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952), in support of its argument that the exclusive remedy provision of the Workers' Compensation Act applies. Jo-hansen involved an injury to a seaman-federal employee who sued the government for damages for negligence under the Public Vessels Act of 1925, 46 U.S.C. § 781-799. The court held that this remedy was barred by the Federal Employees' Compensation Act of 1916, which provided a workers' compensation remedy to federal employees. Id. at 441, 72 S.Ct. at 857. The Johansen case presented a conflict between two federal remedies. It is thus unlike the state-federal problem which is present here. The state also relies on three state cases: Lyons v. Texas A & M University, 545 S.W.2d 56 (Tex.Civ.App.1977); Gross v. Washington State Ferries, 59 Wash.2d 241, 367 P.2d 600 (1961); Maloney v. State, 3 N.Y.2d 356, 165 N.Y.S.2d 465, 144 N.E.2d 364 (1957). In these cases the sovereign immunity waiver was expressly conditioned on preserving the defense in question. Lyons involved an act waiving sovereign immunity which, as an integral part of the waiver, reserved to the state "all of the privileges and immunities granted by the Workmen's Compensation Act . to private persons and corporations." 545 S.W.2d at 58. In Maloney, the act waiving sovereign immunity was "careful to provide that, in waiving immunity, the exclusiveness of the compensation remedy against the State is not impaired." 144 N.E.2d at 367. The sovereign immunity waiver in Gross was expressly conditioned by a 30-day notice of claim proviso. 367 P.2d at 605. By contrast, the waiver of immunity contained in the Alaska Claims Against the State Act is not conditioned on preserving the defense in question here— the exclusive remedy provision. These cases teach that the legislature could make the exclusive remedy defense applicable to federal maritime claims by referring to the defense in the sovereign immunity waiver contained in the Claims Act. However, the legislature has not chosen to do so. Merely because the exclusive remedy defense is not a condition of the waiver of the sovereign immunity of the state does not mean that the Claims Against the State Act has repealed the exclusive remedy defense. The defense is fully applicable to all claims against the state brought under state law. However, the defense does not apply to federal remedies, and thus the decision of the superior court is AFFIRMED. COMPTON, J., dissents. MOORE, J., not participating. . We noted in Barber that double recovery would not be permitted as the amounts paid under the compensation award would be subject to offset should the employee win his federal maritime case. Id. at 813, n. 39. This observation also governs the present case.

10385610

ALASKA PACIFIC ASSURANCE COMPANY, and Insurance Company of North America, Appellants/Cross-Appellees, v. Eldon COLLINS, d/b/a Elco Construction, Appellee/Cross-Appellant

Alaska Pacific Assurance Co. v. Collins

1990-06-22

Nos. S-2978, S-2986

936

949

794 P.2d 936

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA PACIFIC ASSURANCE COMPANY, and Insurance Company of North America, Appellants/Cross-Appellees, v. Eldon COLLINS, d/b/a Elco Construction, Appellee/Cross-Appellant.

ALASKA PACIFIC ASSURANCE COMPANY, and Insurance Company of North America, Appellants/Cross-Appellees, v. Eldon COLLINS, d/b/a Elco Construction, Appellee/Cross-Appellant. Nos. S-2978, S-2986. Supreme Court of Alaska. June 22, 1990. As Amended on Denial of Rehearing Aug. 30, 1990. Mark A. Sandberg, Camarot, Sandberg & Smith, Anchorage, for appellants/cross-ap-pellees. James A. Parrish and Albert G. Parrish, Parrish Law Office, Fairbanks, for appel-lee/ cross-appellant. Before MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.

7975

49624

RABINO WITZ, Justice. INTRODUCTION. Alaska Pacific Assurance Company ("Al-pac"), and Insurance Company of North America (hereinafter collectively referred to as "Alpac"), appeal from a judgment based on special verdicts in which the jury found Alpac liable for: (1) negligently depriving Eldon Collins of the benefits of an insurance agreement; (2) violating the implied covenant of good faith and fair dealing in denying Collins such benefits; and (3) breaching its contractual duty to provide insurance coverage and to defend Collins. Collins' claims against Alpac arose out of his construction and sale of a house to the Boxes. After he sold the house, it sunk into underlying permafrost. The Boxes then brought an action against Collins who, after a non-jury trial, was held liable to the Boxes. Collins then instituted this suit against Alpac. The jury awarded Collins $465,174.23 in compensatory damages, and $465,174.23 in punitive damages against Al-pac. Alpac appeals. Collins cross-appeals, claiming that the damages awarded were inadequate. He also challenges the superi- or court's directed verdict in favor of Alpac on his claim that Alpac was guilty of a fraudulent misrepresentation in not providing insurance coverage for him in regard to the Boxes' damage claims. FACTS AND PROCEEDINGS. In 1983, Collins, d/b/a Elco Construction, agreed to sell a parcel of land in the Fairbanks area to William and Mary Box. Collins also contracted to build a house for the Boxes on the parcel. Several months later the house and property were deeded to the Boxes. On April 4, 1985, an attorney for the Boxes contacted Collins to inform him that severe damage was being caused to the house as it settled into the underlying permafrost. The Boxes demanded that Collins return all payments he had received from them. The parties were unable to settle, and the Boxes thereafter filed suit against Collins. Collins filed a claim with Alpac within a few days of his receipt of the April 4th letter from the Boxes' attorney. His policy with Alpac covered certain types of property damage caused during and upon completion of construction. Specifically, the "Comprehensive General Liability" portion of the policy purported to cover Collins for all liabilities involving property damage and bodily injury, subject to numerous exclusions. "Exclusion N" stated that the policy would not apply "to property damage to the Named Insured's products arising out of such products or any part of such products[.]" (Exclusion N is hereinafter referred to as the "products" exclusion.) "Exclusion 3" denies coverage with respect to "completed operations" for property damage to work performed by the Named Insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith. (Exclusion 3 is hereinafter referred to as the "completed work" exclusion.) Alpac hired an independent adjuster to investigate Collins' coverage claim. After interviewing Collins and conducting an investigation at the house site, the adjuster filed a report with Alpac. Gordon Thomas, an Alpac claims supervisor, then wrote Collins informing him that no coverage for damages to the house would be provided under the Alpac policy. Thomas apparently concluded that the "completed work" and "products" exclusions applied to the claimed damages. Subsequently, Jane Pell, an Alpac claims superintendent at the company's home office in Philadelphia, advised Thomas that the "completed work" exclusion, and not the "products" exclusion, applied in Collins' case. She noted that Collins' case did not involve a "products claim." Two days after the Boxes filed their lawsuit against Collins, Thomas informed Collins that the "completed work" exclusion relieved Alpac of any duty to provide coverage to Cóllins for liability arising out of the damage to the Boxes' house. Thomas further advised that Alpac would not provide Collins with defense services in connection with the Box litigation. Thereafter, Collins' attorney contacted Robert Wainscott, a claims supervisor for Alpac, and informed him that [The Box-Collins] contract allocates the risk of soil conditions to the [Boxes] and did not require Collins to perform soil tests. As such, any damages suffered by the Boxes did not arise out of work which he performed or was even required to perform. In this light, I fail to see how you can maintain your refusal to defend and cover on the basis that you have. Counsel for Collins again requested that Alpac take over the defense of the Box litigation, and informed Alpac that "[i]f Mr. Collins suffers a substantial loss, he will look to your company for compensatory and punitive damages." Wainscott responded that Alpac was giving the "utmost consideration" to Collins' requests for coverage and a litigation de fense. On April 30th Wainscott wrote Collins' attorney to inform him of Alpac's conclusion that a coverage exclusion indeed applied since the house damage arose out of Collins' "work," i.e., his failure to conduct soil testing. Thus, coverage and a defense were again denied Collins pursuant to the "completed work" exclusion. After a non-jury trial, the superior court entered findings of fact and conclusions of law in the Box case. The case against Collins proceeded on three theories: (1) that Collins had breached the implied warranty of workmanlike construction, (2) that Collins had breached the implied warranty of habitability, and (3) that Collins had made an innocent misrepresentation. The superior court held that the Boxes were entitled to recover from Collins on the innocent misrepresentation claim, concluding that "Defendant Collins innocently misrepresented that his construction technique would cure the problem of permafrost." In regard to this holding the superior court found that Collins further assured the Boxes that he would excavate deep enough to clear the permafrost and backfill and that there would be no problem.... The Boxes relied on that representation. The superior court ruled that the Boxes were not entitled to recover on their breach of implied warranty of workmanlike construction claim. Here the superior court found in part that When Collins constructed the residence, he stripped the overburden and sand down to frozen gravel. He then back-filled and constructed the house.... It is standard practice in the residential construction industry to clear frozen materials and backfill.... Collins did not know nor should he reasonably have known that his construction methodology would lead to the defect here. The superior court further ruled that the Boxes could recover from Collins for breach of the implied warranty of habitability. In so ruling the court concluded that There is a defect in the residence sold by Collins to the Boxes_ This defect materially impairs the habitability of the home_ Nothing in the offers to purchase nor in the oral discussions between the parties constitutes a valid disclaimer of the warranty of habitability. The superior court also found Collins liable to Pacific Marine Insurance Co., a third-party plaintiff, for a $5,000 bond issued by Pacific Marine. Interest in the amount of $95,179.70 and costs and attorney's fees amounting to $7,461.54 were also awarded to the Boxes. Final judgment in favor of the Boxes against Collins was entered in the amount of $422,641.24. Collins then brought suit against Alpac. Collins claimed that Alpac was liable for (1) breach of contract, (2) negligent investigation and denial of his claim and request for a litigation defense, and (3) breach of the covenant of good faith and fair dealing in denying coverage and a litigation defense. Collins also sought punitive damages based upon Alpac's denial of coverage, failure to settle with the Boxes, and fraud in representing to Collins that his policy would cover liabilities such as those arising from the damage to the Boxes' house. Finally, Collins claimed that Alpac was liable for costs and attorney's fees expended in both the Box litigation and the litigation with Alpac. The parties subsequently filed cross-motions for partial summary judgment. Al-pac argued that summary judgment should be entered in its favor on the issues of policy coverage and punitive damages. Collins requested rulings that Alpac's policy covered the damage caused to the Boxes' house, and that Alpac should be required to pay Collins the full amount of the damage award and attorney's fees in the Box litigation. The superior court denied Alpac's motions, and granted Collins' motion in part. The court ruled . that Collins' motion is granted and it is established that the damage awards in favor of the Boxes against Collins in Box v. Collins, 4FA-85-1909 Civil, are covered by INA's policy of insurance, that IN A was obligated to defend Collins in Box v. Collins, and that INA is liable to Collins for his expenses incurred in defending that action./[Pre-Oral App. C] However, the court did not grant Collins' motion that contractual damages be set at the full amount awarded against him in the Box litigation ($422,641.24). The superior court based its partial grant of summary judgment on its conclusions that (1) Collins was covered under the "Products Hazard" portion of the policy; (2)that damage caused by permafrost warming was not excluded as damage caused by Collins' "work"; (3) that damage caused by permafrost warming was not excluded as damage caused by work performed by the "Named Insured"; and (4) that damage caused by the work of the "Named Insured" was not excluded where such damage arose out of the Named Insured's warranty breach. The superior court directed a verdict against Collins on his claim that Alpac was liable for fraudulent misrepresentation. The court also entered a directed verdict in favor of Collins, holding him entitled to $20,174.23 on his breach of contract claim for which Alpac had been held liable on summary judgment. This ruling had the effect of denying Collins the opportunity to claim contractual damages for the $422,641.24 judgment entered against him in favor of the Boxes. Collins never paid the Boxes on that judgment, and his liability to the Boxes was extinguished by Alpac's "purchase" of the judgment. The damage figure of $20,-174.23 reflects compensation for the non-extinguished $5,000 judgment entered against Collins in favor of Pacmar, a third-party plaintiff in the Box litigation, as well as attorney's fees incurred by Collins in the Box litigation. The superior court instructed the jury to determine whether Alpac was additionally liable to Collins in tort for failing to provide coverage and for failing to defend Collins, under theories of (1) negligence, and (2) breach of the implied covenant of good faith and fair dealing. The jury found by special verdict that Alpac acted negligently and in violation of the implied covenant of good faith and fair dealing in denying Collins both a defense and coverage. As a result, in addition to the $20,174.23 in contractual damages awarded by the superior court by virtue of its grant of partial summary judgment in favor of Collins, the jury awarded Collins the following damages: (1) $190,000 for "[cjosts and attorney's fees in this ease reasonably necessary to obtain the benefits under the policy;" (2) $150,000 for "[mjental and emotional anxiety, pain and suffering;" (3) $50,000 for "[impairment of credit rating;" (4) $20,000 for "[impairment of reputation as a responsible contractor;" (5) $10,000 for "[impairment of ability to get insurance and bonding;" and (6) $25,000 for "[l]oss of past earnings." These damages totalled $465,174.23. The jury also awarded Collins $465,174.23 in punitive damages. Alpac's subsequent motions for new trial, JNOV, and remittitur were denied. I. DID THE SUPERIOR COURT ERR IN DETERMINING ON SUMMARY JUDGMENT THAT ALPAC BREACHED ITS INSURANCE CONTRACT WITH COLLINS BY NOT PROVIDING COVERAGE FOR COLLINS IN REGARD TO THE BOX CLAIM? The superior court ruled on summary judgment that Alpac breached its contract with Collins by not providing coverage for the Box claim. This court will reverse the superior court's grant of summary judgment only "if the evidence, taken in the light most favorable to [Alpac], poses genuine issues of material fact." Schneider v. Pay'N Save, 723 P.2d 619, 623 (Alaska 1986) (citation omitted). Collins' comprehensive liability policy with Alpac generally provided coverage for damage caused by work completed by him. Alpac admits that "if there were no exclusions, the claims against Collins in the underlying case would have been covered." In relevant part, the "Comprehensive General Liability Insurance Coverage" provided that Alpac would cover Collins for "damages because of (A) bodily harm or (B) property damage to which this insurance applies_" Without further defining the scope of coverage, the policy then details numerous exclusions. The policy also insured Collins for damages arising from "completed operations." While the scope of completed operations insurance is not addressed in the "coverage" portion of Alpac's policy, the term "completed operations hazard" is defined in the "Definitions" section of the policy as follows: "[C]ompleted operations hazard" includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. "Operations" include materials, parts or equipment furnished in connection therewith. (Emphasis added.) Thus, absent any relevant exclusion, Collins would be covered for the Box claim because the damage arose out of both a completed operation and the Boxes' reliance upon an implied warranty of fitness made with respect to the completed operations. Collins also contracted for "Products Hazard" coverage. Though this coverage is also not specifically set forth in the coverage portion of the policy, the term "products hazard" is defined as follows: "[.PJroducts hazard" includes bodily injury and property damage arising out of the Named Insured's products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the Named Insured and after physical possession of such products has been relinquished to others. (Emphases added.) Alpac relies on the "completed work" and "product" exclusions as bases for challenging the superior court's summary judgment ruling that Collins was covered under the policy. A. Is Alpac Estopped From Premising its Denial of Collins' Claim on the "Products" Exclusion? Collins argues that Alpac is precluded from relying on the "products" exclusion. The basis for this argument is that throughout this litigation Alpac has taken the position that only the "completed work" exclusion applied. In its instruction number 27, the superior court told the jury that When an insurance company denies lia- • bility on one basis, it waives all defenses to the claim not asserted in its declination. In this case, on August 29, 1985, INA relied solely on Exclusion 3. It had no right thereafter to rely on any other exclusion. Review of the record demonstrates that Alpac consistently maintained that coverage was being denied on the basis of the "completed work" exclusion. On only one occasion did Alpac suggest that any other exclusion might apply. Pell testified at trial that in her opinion only the "completed work" exclusion applied in this case. Moreover, in Alpac's summary judgment briefing it based its argument that Collins was properly being denied coverage solely on the "completed work" exclusion. Finally, during argument on proposed jury instruction number 27, (which provided that Alpac was estopped from justifying its coverage denial on the basis of exclusions other than the "completed work" exclusion), Alpac objected that the proposed instruction was irrelevant, admitting, "we stated our case on [the completed work exclusion], and we lost." In light of Alpac's failure to rely on the "products" exclusion throughout this litigation, the admission by Pell during trial, and Alpac's attorney's statement during argument on proposed jury instruction number 27, we hold that Alpac is now precluded from relying on the "products" exclusion for purposes of defending against Collins' claim. We regard Alpac's reliance upon the "products" exclusion in this appeal as belated, and thus impermissible. See Lurid Bros. & Co. v. Alliance Assur. Co. Ltd., 780 F.2d 1082, 1090 (2d Cir.1986) (insurer may not rely on belated ground for denying coverage); Armstrong v. Hanover Ins. Co., 130 Vt. 182, 289 A.2d 669, 673 (1972); 16C J. Appleman, Insurance Law and Practice § 9260, 393-4 (1981). B. Did the Superior Court Err in Concluding on Summary Judgment That The "Completed Work" Exclusion Did Not Apply To The Boxs' Claim? An insurance policy will be "construed so as to provide that coverage which a layman would reasonably have expected given his lay interpretation of the policy terms." Starry v. Horace Mann Ins. Co., 649 P.2d 937, 939 (Alaska 1982) (citations omitted). This court will "honor the expectations of the parties as to coverage when those expectations are objectively reasonable." O'Neill Investigations v. Illinois Employers Insurance of Wausau, 636 P.2d 1170, 1177 (Alaska 1981). Ambiguities in the policy must be resolved against the insurer, and exclusions are likewise to be interpreted narrowly against the insurer. Starry, 649 P.2d at 939 (citations omitted). Finally, to the extent that there are no relevant unresolved or controverted facts, "[t]he construction of an insurance contract is a matter for the court." O'Neill, 636 P.2d at 1173. As noted previously, Alpac admits that but for the exclusions section of the policy, the Boxes' claim would be covered. In relevant part, Collins is entitled to coverage for "[P]roperty damage arising out of [completed] operations or reliance upon a representation or warranty made at any time with respect thereto." The Box house was a warranted, completed operation out of which the underlying damages in this litigation arose. The corresponding "completed work" exclusion bars coverage where there has been "property damage to work performed by the Named Insured arising out of such work." Thus, where a house is built by an insured contractor, coverage will exist to the extent that damage is caused by exter nal forces, and not by forces arising out of the insured's own work. The crucial question is whether the permafrost damage to the Box house constituted damage arising out of Collins' (the named insured's) work. If the work which caused the damage was not performed by Collins, or if the damage cannot fairly be attributed to work performed by him, then the "completed work" exclusion does not apply and Collins is covered. Alpac cites U.S. Fire Insurance Co. v. Colver, 600 P.2d 1 (Alaska 1979), in support of its view that if damage is caused to a house by settling or sinking, the damage is, by definition, caused by the builder's "work." In Colver we had occasion to interpret "product" and "completed work" exclusions which were virtually identical to the exclusions here in question. In Colver damage was caused to a house because of, among other things, allegedly "poor" foundation work. Id. at 2. The builder's claim was denied by his insurer on the ground that "completed work" and "product" exclusions applied. The superior court ruled against the insurer on the ground that these exclusions were inconsistent with the warranty coverage afforded by the policy. We held on appeal that there was no fatal inconsistency; the "completed work" and "product" exclusions would apply to damages caused "to the insured's work or work product which arise out of his work or work product," even though the work or work product was warranted. Id. at 3. We did not rule that the settling of the house was necessarily caused by the builder's "work." That point was not in issue. Rather, we held that the exclusions barring coverage for damage caused to the builder's "work" or "work product" would not be deemed inapplicable merely because the builder's work product was warranted. We remanded the Colver case to the superior court to determine whether the complaint against the builder alleged damages which would be covered by the policy. Id. at 4 n. 4. Alpac also relies on Gene & Harvey Builders v. Pennsylvania Manufacturer's Association, 512 Pa. 420, 517 A.2d 910 (1986), where it was held that an exclusion similar to the "products" exclusion in the Alpac policy applied to a settling house. The Pennsylvania court held that the settling of a house was caused by the builder's "product, i.e., a builder's duty to be reasonably prudent in the placement of a house." Id. at 913. In our view Gene & Harvey supports the conclusion that, in order for damage to have been caused by the builder's "product", it must have arisen out of a condition which is attributable to the builder's work. Gene & Harvey does not support the proposition that the mere settling or sinking of a house automatically triggers the exclusions under consideration here. Our study of the relevant authorities leads us to conclude that where damage is caused by factors beyond the scope of the insured builder's work, coverage for such damage is not defeated by a "completed work" exclusion. Accord American Family Mutual Ins. Co. v. Ragsdale Concrete, 725 S.W.2d 623, 624-25 (Mo.App.1987). Even if it is determined that the damage to the Boxes' house was the result of construction work within the scope of Collins' general undertaking, the "completed work" exclusion might nonetheless be inapplicable. By its terms the "completed work" exclusion also requires that the work be performed by the "named insured," Collins, and not merely by one "on his behalf." In view of the foregoing, it must be determined (i) whether the damage to the Box house arose out of the house construction undertaken by Collins and, if so, (ii) whether the work giving rise to damage was performed by the "Named Insured," Collins. Did the Damage to the Box Home Arise Out of the Construction Work Undertaken by Collins? Collins contends that permafrost inspection was the Boxes' contractual duty. However, the purchase agreement between the Boxes and Collins provides only that the "[pjurchaser shall have until the beginning of construction to check the land and soil conditions." We do not read this provision as necessarily relieving Collins of the duty to inspect for and remedy potential permafrost problems or to ensure that the house was not situated on permafrost. Whether such was the intention of the parties is a question of fact which cannot be resolved on this record and at this level. We thus conclude that a question of material fact exists as to whether the damage to the Box house arose out of the work undertaken by Collins. In light of this conclusion, we hold that the superior court erred in granting summary judgment on the ground that the "completed work" exclusion did not apply. (ii) Was the Work Which Gave Rise to Damage Performed by Someone Other Than the "Named Insured," Collins? The superior court's grant of summary judgment can be affirmed if Collins is correct in arguing that the work giving rise to damage, if any, was performed by a subcontractor. If this is the case, then the "completed work" exclusion, which applies only to work performed by the "Named Insured," does not preclude coverage. The record contains conflicting statements as to whether Collins performed the foundation and excavation work, or whether this work was performed by a subcontractor. Collins stated that the work was performed by a subcontractor, while statements by individuals working for Alpac indicate that Collins performed the work himself. Assuming a subcontractor was employed to do the excavation, if the subcontractor did not follow Collins' specifications and instead excavated too shallowly or put in defective fill without Collins' knowledge, then the work giving rise to damage clearly was not performed by the named insured and the exclusion could not apply. If, on the other hand, the excavation was performed to Collins' specifications, but the specifications were inadequate to rid the ground of permafrost, then the work giving rise to damage should be viewed to be that of Collins rather than the subcontractor excavator. Given this material factual dispute, we hold that the superior court erred in resolving the issue whether Collins performed the work in question on summary judgment. We therefore reverse the superior court's grant of summary judgment in favor of Collins on the issue of coverage. II. DID THE SUPERIOR COURT ERR IN RULING ON SUMMARY JUDGMENT THAT ALPAC BREACHED ITS CONTRACTUAL DUTY TO DEFEND COLLINS ON THE BOX CLAIM? The superior court also ruled on summary judgment that since Alpac's policy afforded coverage to Collins for the damage to the Boxes' house, Alpac had a duty to defend Collins in the Box litigation. The policy provides that Alpac will "defend any suit against the insured on account of such bodily injury or property damage, even if any of the allegations are groundless, false, or fraudulent_" In Afcan v. Mutual Fire, Marine and Inland Ins. Co., 595 P.2d 638 (Alaska 1979), we held under a similarly worded policy that, "if the complaint on its face alleges facts which, standing alone, give rise to a possible finding of liability covered by the policy, the insured has the right to a proper defense at the expense of the insurer." Id. at 645. An insurer is additionally obligated to defend against a claim based on allegations not within the policy coverage if "the true facts are within, or potentially within, the policy coverage and are known or reasonably ascertainable by the insurer." Smith v. Great American Ins. Co., 629 P.2d 543, 546 (Alaska 1981) (quoting National Indemnity Co. v. Flesher, 469 P.2d 360, 366 (Alaska 1970)). The Boxes alleged in their complaint that Collins had breached his duty to build their house in a "workmanlike and non-negligent manner." They also alleged that Collins misrepresented to them that there would be no danger of permafrost damage. Thus, the complaint sets forth allegations indicating fault on the part of Collins. Since Alpac would not be liable for damage to the Boxes' home as a result of Collins' work giving rise to damage, the complaint did not contain allegations which would serve to subject Alpac to liability. A reasonable investigation of Collins' claim should have apprised Alpac of facts which would have indicated whether the "completed work" exclusion in fact applied to Collins' claim. That is, Alpac should have conducted an investigation aimed at determining whether the damage to the Box house was caused by Collins' work giving rise to damage. Study of the record fails to disclose the extent or results of any such investigation by Alpac prior to making its final decision not to defend Collins. Whether Alpac violated its duty to defend Collins depends upon whether Alpac made reasonable efforts to discover the operative facts and, if such efforts were undertaken, depends further upon the substance of the facts uncovered. See Smith, 629 P.2d at 546. We thus conclude that the superior court's grant of summary judgment to Collins on the basis that Alpac had a duty to defend Collins in the Box litigation must be reversed. The record is simply inadequate to permit resolution of this issue on summary judgment. III. IS COLLINS ENTITLED TO RECOVER TORT DAMAGES FROM ALPAC? The jury awarded Collins $445,000 in "tort" damages on grounds of "negli gence" and breach of the implied covenant of good faith and fair dealing. The jury was instructed that Alpac breached its contractual duties to provide Collins with coverage and a defense. The jury was further instructed that Alpac's breach of contract was relevant for purposes of determining whether Alpac should be held liable in tort under both of the theories advanced by Collins. Given our holding that the superior court erred in granting summary judgment to Collins on the issue whether Alpac had breached contractual duties it owed to Collins, these jury instructions were erroneous, and the special tort verdicts in this case must be reversed. A. Can Alpac be Held Liable in "Tort" for Negligence in Performing Its Contractural Duties? Alpac argues that even if it breached contractual duties it owed to Collins, Collins' claim in tort for "negligent" breach was improper. Alpac argues that while an insurer may be held liable for torts independent from its contractual duties, such as fraud, an action for negligence in breaching a specific contractual duty sounds in contract. We agree. Promises set forth in a contract must be enforced by an action on that contract. Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 843, 610 P.2d 1330, 1334 (1980). Only where the duty breached is one imposed by law, such as a traditional tort law duty furthering social policy, may an action between contracting parties sound in tort. Id. 164 Cal. Rptr. at 844, 610 P.2d at 1335; see also Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218, 1222 (1987). Collins' claims that coverage was "negligently" denied, and that the denial resulted from a "negligent" investigation by Alpac, sound in contract. In essence, Collins is claiming that he had a contractual right to coverage by Alpac, and that Alpac violated its contractual promise. We decline to hold that where a party breaches a contractual promise "negligently," such conduct may form the basis for a tort action. Accord Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435, 438-39 (1984) (negligent breach of contractual term actionable in contract); Uptegraft v. Home Ins. Co., 662 P.2d 681, 684 (Okl.1983). B. Can Alpac be Held Liable in "Tort" for Breaching the "Implied Covenant of Good Faith and Fair Dealing"? A covenant of good faith and fair dealing is an implied component of all contracts as a matter of law. O.K. Lumber v. Providence Washington Ins. Co., 759 P.2d 523, 525 (Alaska 1988). The basis for this duty is a hybrid of social policy and an effort to further the expectations of the contracting parties that the promises will be executed in good faith. Thus, arguments can be made both that a claim for relief based on this covenant sounds in tort, in furtherance of social policy, or is grounded in contract, in furtherance of the implied intentions of the parties. Due to the unequal bargaining positions which generally exist between insurers and insureds, enforcement of this covenant is particularly important in the insurance context. State Farm Fire & Casualty Co. v. Nicholson, 777 P.2d 1152, 1156-57 (Alaska 1989) (quoting Louderbaek & Jurika, Standards for Limiting the Tort of Bad Faith Breach of Contract, 16 U.S.F.L.Rev. 187, 200-01 (1982)). We have held that because of the "special relationship between the insured and insurer," a claim for relief based on the covenant by an insured sounds in tort. State Farm, 777 P.2d at 1156-57. Characterizing such actions as sounding in tort, and thereby permitting tort damages, "will provide needed incentive to insurers to honor their implied covenant to their insureds." Id. at 1157. Although it was proper for the superior court to permit Collins to sue on the implied covenant of good faith and fair dealing in tort, we must nonetheless reverse the jury's special verdict on this claim. As previously noted, the jury was improperly instructed that Alpac had breached its contractual duties to afford coverage and to defend Collins. "In assessing the effect of an error, 'the members of this court must necessarily put themselves, as nearly as possible, in the position of the jury in order to determine whether, as reasonable [people], the error committed probably affected their verdict.' " Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984) (quoting Love v. State, 457 P.2d 622, 631 n. 15 (Alaska 1969)). The gist of Collins' claim in regard to the implied covenant of good faith and fair dealing is that Alpac improperly denied him coverage and a defense. Collins admits that the jury "had to have focused on the . duty to defend" in concluding that the covenant of good faith and fair dealing had been violated. Thus, we conclude that the erroneous jury instruction which apprised the jury that Alpac had in fact violated its contractual duties to Collins probably affected the jury's verdict regarding Collins' breach of the covenant of good faith and fair dealing claim. IV. DID THE SUPERIOR COURT ERR IN DIRECTING A VERDICT AGAINST COLLINS ON HIS TORT CLAIM FOR FRAUDULENT MISREPRESENTATION? Collins claims that the agent who sold him the policy, Frank Mears, fraudulently misrepresented that there would be coverage for the type of damages involved in this case. He also claims that Alpac's failure to produce missing portions of the policy constitutes a fraudulent misrepresentation, although he presents no evidence to indicate that these missing provisions would alter the effect of either the coverage or any relevant exclusions. The superior court directed a verdict against Collins on these issues, finding no evidence of any misrepresentation on Alpac's part. "To prevail in an action for fraudulent . misrepresentation the plaintiff must prove the existence of either an affirmative misrepresentation or an omission where there is a duty to disclose." Matthews v. Kincaid, 746 P.2d 470, 471 (Alaska 1987) (citations omitted). The only evidence presented by Collins to support his claim of an affirmative fraudulent misrepresentation by Alpac is found in the testimony of Mears. Mears testified that he did not remember what he told Collins before selling him the policy, but that it was probably, in relevant part, something along the lines of the following synopsis of the policy's provisions: Products and completed operations coverage — a product is any product that you manufacture, sell, et cetera. A completed operation is any work that you perform, complete and abandon. The premises and operations coverage is a here and now coverage. It covers today; it covers your ongoing operations. The product or a completed operation is a future event and the products, completed operations liability is there to cover once you have relinquished your product, once you have completed or abandoned your work. Products, completed operations covers any bodily injuries, property damages that your product or completed operation would cause to a third party. (Emphasis added.) Collins testified that this statement is reflective of what Mears told him when selling him the policy, but did not offer his own independent synopsis of Mears' representations during their meeting. While this statement does not clearly inform Collins of the coverage exclusions, it also does not constitute a representation that Collins' work would be covered in a situation similar to the one involved here. In short, this testimony is insufficient to support Collins' contention that "Mears intentionally misrepresented that there was coverage for this type of damage." Thus, we affirm the superior court's grant of a directed verdict against Collins on his affirmative misrepresentation claim. Collins also argues that Mears' statement constituted an implicit fraudulent misrepresentation, as Mears allegedly omitted adequately to point out the relevant exclusions. Although Mears apparently did not explain the exclusion for damages caused by an insured's work, he testified that his talk with Collins normally would have been concluded as follows: It is your duty and responsibility to read the policy so that you understand it. Questions you have can be discussed. Absent any evidence that Collins asked a question of Mears and was mislead, or that Mears had any intention to commit fraud, Collins' claim for fraudulent misrepresentation must fail. V. TO WHAT DAMAGES WILL COLLINS BE ENTITLED IF HE PREVAILS ON REMAND? The parties also dispute various rulings of the superior court regarding damages. While the issue of damages must be relit-igated if liability is found on remand, we will address certain of the parties' claimed errors in order to provide guidance for the retrial. A. Is Collins Entitled To Contractual Damages For The Full Amount Of The Box Judgment Entered Against Him? Collins argues on cross-appeal that the superior court erred in denying him contractual damages for the $422,641.24 stipulated damage award entered against him in the Box litigation. The superior court awarded Collins only $20,174.23 in contractual damages to compensate him both for attorney's fees incurred during that litigation and for a $5,000 judgment entered against him in favor of Pacmar. After summary judgment was entered in favor of Collins on his breach of contract claim against Alpac, Alpac "purchased" the Box judgment against Collins for $150,000, thereby extinguishing it. Collins never paid any money on that judgment to the Boxes. He now argues that Alpac is liable to him for the $422,641.24 judgment. This argument is without merit. Collins cannot claim damages for a loss he will not incur. B. Did The Superior Court Err In Permitting The Jury To Award Collins Attorney's Fees Incurred During His Litigation With Alpac? The superior court permitted the jury to award Collins full attorney's fees in his suit against Alpac if the jury found Alpac liable to Collins in tort. The jury thereafter awarded Collins $190,000 in attorney's fees as damages. In addition, the superior court awarded Collins full Rule 82 attorney's fees. Collins argues that an award of full attorney's fees is appropriate as a measure of tort damages where an insurance company denies coverage in bad faith. See Brandt v. Superior Court, 37 Cal.3d 813, 210 Cal.Rptr. 211, 213-14, 693 P.2d 796, 799 (1985). Alaska Statute 09.60.010 provides that, "The supreme court shall determine by rule or order the costs, if any, that may be allowed a prevailing party in a civil action." Pursuant to this authority, we adopted Alaska Rule of Civil Procedure 82, governing awards of attorney's fees. Our trial courts are precluded from awarding fees other than those allowed by "rule or order." Since no other legal basis for the award of attorney's fees is applicable here, we conclude that the superior court erred in permitting the jury to award Collins fees beyond those authorized under Rule 82. C. Other Damages. In denying Alpac's motion for a directed verdict, the superior court ruled that Collins could, if the evidence warranted, recover damages for (1) mental and emotional anxiety; (2) impairment of credit rating; (3) impairment of reputation; (4) impairment of ability to obtain insurance and bonding; and (5) loss of earnings. In reviewing these rulings we must determine whether the evidence, when viewed in the light most favorable to Alpac, is such that reasonable people could not differ in their judgment as to the facts. Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982). Collins cross-appeals, arguing that the superior court erred in limiting Collins' contractual damages to the Pacmar judgment plus attorney's fees arising out of the Box litigation. As discussed previously, these damages amounted to $20,174.23. Our review of the record indicates that the superi- or court did not err in its rulings on these issues. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings not inconsistent with this opinion. . On July 26, 1985, one of the attorneys for Collins requested that Alpac take over "the defense of this matter," as a lawsuit was being contemplated by the Boxes. . Following the superior court's grant of partial summary judgment, but prior to trial, Alpac contacted the Boxes and "purchased" their outstanding judgment against Collins for $150,000. . We note that policies with similar coverage provisions will in certain cases lead to reasonable and enforceable expectations of coverage by insureds where the insurer may not have in fact intended to afford such coverage. See generally Starry v. Horace Mann Ins. Co., 649 P.2d 937, 939 (Alaska 1982); O'Neill Investigations v. Illinois Employers Ins. of Wausau, 636 P.2d 1170, 1177 (Alaska 1981). . See Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1196 (Alaska 1975) (in "construction contracts whenever someone holds himself out to be specially qualified to do a particular type of work, there is an implied warranty that the . resulting building, product, etc. will be reasonably fit for its intended use") (footnote omitted). .For purposes of clarity, we restate the content of these exclusions here. The "completed work" exclusion denies coverage with respect to the completed operations hazard and with respect to any classification stated in the policy or in the manual as "including completed operations," to property damage to work performed by the Named Insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith. (Emphasis added.) The "products" exclusion serves to deny coverage for property damage to the "Named Insured's products arising out of such products or any part of such products" (emphasis added). . On May 9, 1985 Gordon Thomas, an Alpac claims supervisor, informed Collins that "certain express exclusions . [bar] coverage for damage to work done by the insured ." (an implied reference to the "completed work" exclusion) "... or the insured's product" (an implied reference to the "products" exclusion). (Emphases added.) However, Thomas was later informed by Jane Pell from Alpac's home office that only the "completed work" exclusion applied, and in all of Alpac's subsequent correspondence with Collins only that exclusion was referred to. The only other occasion when Al-pac referred to the "products" exclusion was after Collins gratuitously mentioned it in his cross-motion for summary judgment on the issue of coverage. In response to Collins' cross-motion, Alpac asserted that it was applicable in this case. . The requirement that Collins himself perform the work can be inferred from the "completed work" exclusion, and from the language of a broader exclusion which Alpac and Collins agreed to delete from the policy. The "completed work" exclusion applicable in this case requires that, to be excluded, the damage must arise out of work performed by the "Named Insured." This limited exclusion applies because Collins opted to purchase additional coverage called "Broad Form" coverage. Had the "Broad Form" coverage not been purchased, the policy would have excluded from coverage all damage arising out of "work performed by or on behalf of the Named Insured_" Thus, the parties intended the exclusion to apply only to Collins' work, and not to work performed by others on his behalf. In this connection we observe that two Alpac claims adjusters admitted at trial that this "completed work" exclusion would not apply to work performed by subcontractors. . In Box v. Collins, the superior court found in part: 16. Prior to the time of the first Offer to Purchase, Exhibit 1, the parties did not discuss nor agree on who would be responsible to test for permafrost. . In Box v. Collins, the superior court found in part: 23. When Collins constructed the residence, he stripped the overburden and the sand down to frozen gravel. He then back-filled and constructed the house. .The establishment of Collins' negligence was not a prerequisiste to recovery. Rather, it appears that the Boxes need only have proved that their house was not "habitable" in order to recover, and/or that Collins innocently misrepresented that he would build a habitable house. The Boxes' satisfaction with these two bases of liability is evidenced by their non-opposition to Collins' post-findings, pre-judgment motion to amend the findings to the effect that prudent excavation procedures were employed on the site of the Box house. Collins admits that he conducted the Box litigation with an eye towards seeking indemnification from Alpac. A liability verdict that did not establish negligence on his part would thus serve both his and the Boxes' needs. Collins argues in his cross-appeal that the superior court should have relied on the doctrine of reasonable expectations as an alternative basis for its grant of summary judgment. We need not address this argument. Collins concedes that he did not expect coverage for damages caused by faulty workmanship. As indicated above, if his workmanship was not faulty, then he will be entitled to coverage pursuant to the written terms of the policy, as the "completed work" exclusion will not apply. Alternatively, if the damage was caused by his faulty workmanship, there will not be coverage. The superior court also based its summary judgment on language in the policy granting coverage for damages arising out of warranty work. The policy covers damages arising "out of . reliance upon a representation or warranty made at anytime with respect to [the operation]." The "completed work" exclusion exempts from coverage all damage caused by Collins' faulty workmanship to his own work. This exclusion is not limited in application to only those instances in which damage is caused to "unwarranted" work, as Collins implies. The limitation on this exclusion urged by Collins is nowhere in the policy language, and Collins presents no extrinsic evidence or argument that such was his reasonable expectation. Insofar as the superior court based its grant of summary judgment on an "unwarranted" work rationale, it erred. . The jury was instructed as follows: INSTRUCTION NO. 10 The Court has Ruled that ALPAC and INA have breached the contract by: (1) Refusing to defend Collins in the claims brought by the Boxes and PacMar; and (2) refusing to provide coverage for the judgments against Collins in favor of the Boxes and PacMar. These rulings are the law of this case which you must accept for the purposes of this case. The Court has granted a verdict with respect to the compensatory damages for their breaches in the amount of $20,174.23. This figure includes the PacMar bonding judgment, attorneys fees and costs incurred in the defense of Box v. Collins. . The court's instructions on liability for negligence read in relevant part as follows: Plaintiffs third theory of recovery is based on negligence in the investigation and denial of defense and coverage in this case. In order for Collins to prevail on this theory, the evidence must establish that it is more likely true than not true: (1) That INA or ALPAC was negligent; and (2) that such negligence was a legal cause of damage to Collins. I will explain what negligence and legal cause mean in a moment. If you find both of the above things are more likely than not true, then your verdict on this theory must be in favor of Collins. If you find that either of the above things are not more likely true than not true, then your verdict on this theory must be for INA and ALPAC. By selling the insurance policy involved in this case INA and ALPAC undertook an obligation to defend the claims against Collins and assume control of the investigation and settlement of such claims. As a result of its relationship with Collins, INA and ALPAC had a duty to perform these undertakings in conformance with that degree of skill, knowledge and care which is required of insurers toward their insureds. The relevant instructions on the duty of good faith and fair dealing were as follows: In deciding whether the covenant of good faith has been fulfilled, the focus is on the manner in which the insurer failed to provide coverage or a defense, whether it acted reasonably or with proper cause. Standing alone, the mere fact that an insurer was in error in denying coverage and a defense does not establish a breach of the covenant of good faith. .See infra Section IV.B. . Implicit in our holding is our conclusion that the evidence viewed in a light most favorable to Collins "is such that reasonable persons could not differ in their judgment as to the facts." Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982) (citations omitted). . There are of course exceptions to the general principle that attorney's fees are to be governed by Rule 82. See, e.g., Burrell v. Burrell, 537 P.2d 1, 6-7 (Alaska 1975) (award in divorce action governed by AS 09.55.200); Manson-Osherg Co. v. State, 552 P.2d 654, 660 (Alaska 1976) (full, not partial attorney's fees awarded in certain indemnity cases as matter of public policy). There is no statutory or public policy exception to Civil Rule 82 applicable in this case. . Our resolution of this case moots the remaining issues and arguments presented by the parties.

10382581

ALASKA FEDERAL SAVINGS & LOAN ASSOCIATION OF JUNEAU, Appellant and Cross-Appellee, v. Carl J. BERNHARDT d/b/a Eaglewood Communications, Appellee and Cross-Appellant.*

Alaska Federal Savings & Loan Ass'n v. Bernhardt

1990-02-23

Nos. S-2881, S-2955

579

583

794 P.2d 579

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA FEDERAL SAVINGS & LOAN ASSOCIATION OF JUNEAU, Appellant and Cross-Appellee, v. Carl J. BERNHARDT d/b/a Eaglewood Communications, Appellee and Cross-Appellant.

ALASKA FEDERAL SAVINGS & LOAN ASSOCIATION OF JUNEAU, Appellant and Cross-Appellee, v. Carl J. BERNHARDT d/b/a Eaglewood Communications, Appellee and Cross-Appellant. Nos. S-2881, S-2955. Supreme Court of Alaska. Feb. 23, 1990. Rehearing Denied March 13, 1990. Richard Brown and Timothy A. McKeever, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellant and cross-appel-lee. Carl J. Bernhardt, pro se. Peter Giannini, Anchorage, for appellee and cross-appellant. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ. Editor's Note: This opinion was originally published at 788 P.2d 31. It is published here as corrected.

2630

16221

OPINION COMPTON, Justice. I. FACTUAL BACKGROUND AND PROCEEDINGS On June 17, 1985, Carl J. Bernhardt was sued by Alaska Federal Savings and Loan Association (AFSL). AFSL alleged that Bernhardt was personally operating a cable television system, d/b/a "Eaglewood Communications," in the Eaglewood Subdivision of Eagle River without authority from AFSL, which owned the subdivision. Bernhardt, who is not a lawyer, undertook to defend the suit on his own behalf. Bernhardt filed an answer and motion for summary judgment, the gravamen of which was that AFSL had sued the wrong party, and that the actual operator of the cable system was the Eagle River Development Corporation (ERDC), of which he was only the president. Bernhardt attached his affidavit to this effect and supported it with the subdivision plan for Eaglewood, filings in a connected bankruptcy case listing the cable system as an asset of ERDC, and a copy of a "registration of business name" form, filed with the Department of Commerce and Economic Development pursuant to AS 10.35.050, showing that ERDC (not Bernhardt) had taken the trade name of "Eaglewood Communications" to operate the cable system. Before Bernhardt's summary judgment motion could be ruled on, he and AFSL stipulated to stay the suit "pending a determination as to whether or not the automatic stay" in a bankruptcy case against ERDC would affect the suit against him. The case lay dormant until April 29, 1987, when the superior court sent notice to AFSL threatening to dismiss the suit for want of prosecution. Civil Rule 41(e). AFSL opposed dismissal on the ground that it had been conducting discovery in ERDC's bankruptcy case to determine exactly to whom the cable system belonged, ERDC or Bernhardt. Bernhardt filed a memorandum in support of dismissal, attached to which was the affidavit of Peter W. Giannini, ERDC's attorney in the bankruptcy case. Giannini averred that AFSL had discovered no evidence suggesting that Bernhardt owned or claimed to own the cable system. Bernhardt called for "appropriate" sanctions against AFSL's counsel for their opposition to a Civil Rule 41(e) dismissal. The superior court did not dismiss the case. Six weeks later AFSL reversed its position 180 degrees and moved to dismiss the case against Bernhardt. The ground asserted for dismissal was the same as had been asserted by Bernhardt throughout: that "in all likelihood the cable system is operated by ERDC." AFSL sought to justify its suit against Bernhardt by noting that Bernhardt had entered into transactions as president of "Eaglewood Communications," the d/b/a of the cable system, prior to the filing of the complaint. This allegedly confused AFSL, which believed "Eaglewood Communications" was a mere alias of Bernhardt, not checking to see if the name was a registered trade name or to whom it was registered. However, AFSL admitted that Bernhardt, despite apparently resisting previous discovery efforts, was deposed on October 26, 1986 and testified and produced more supporting documents tending to show that ERDC in fact operated the cable system, apparently to AFSL's satisfaction. There is no suggestion in the record that AFSL learned anything more concerning ownership of the cable system between its receipt of the lack of prosecution notice and its own motion to dismiss. In response to AFSL's motion to dismiss, Bernhardt renewed his motion for summary judgment, and sought costs, attorney fees, and Civil Rule 11 sanctions against AFSL. Bernhardt's Civil Rule 11 arguments focused on the filing of the initial complaint itself, counsel's failure to concede to Bernhardt's summary judgment motion in light of the attached exhibits showing that ERDC owned the cable system, and AFSL's opposition to dismissal for failure to prosecute in light of the information in their possession at that time. The superior court denied the motion for sanctions under Civil Rule 11, concluding that it did not think it could "make adequate findings to support" the sanctions requested, despite noting that counsel's actions in this case were "borderline." It concluded, however, that "there is no authority in Alaska that specifically precludes a court from entering an award of attorney's fees in a case that's litigated by a pro per, defendant or plaintiff, under the same circumstances which it would be litigated by a lawyer on behalf of that person . for whose service the litigant would be compensated." Accordingly, the court ordered an award of costs and attorney fees against AFSL. AFSL appeals the award of costs and attorney fees; Bernhardt cross-appeals the denial of sanctions under Rule 11. II. DISCUSSION A. THE SUPERIOR COURT ERRED BY AWARDING A NON-ATTORNEY PRO SE LITIGANT ATTORNEY FEES. The question of whether prevailing lay pro se litigants may recover attorney fees is a question of first impression in this state. We adopt the rule which is most persuasive in light of precedent, policy and reason. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). The common law did not permit recovery of attorney fees; rather, the basis for such recovery lies in the adoption of Alaska Rule of Civil Procedure 82. McDonough v. Lee, 420 P.2d 459, 460 (Alaska 1966). The plain language of Civil Rule 82 authorizes only partial reimbursement of attorney fees. It says nothing concerning reimbursement of expenditures made by non-attorneys. "Attorney's fees" presupposes attorney representation. E.g., Atherton v. Board of Supervisors of Orange County, 176 Cal.App.3d 433, 222 Cal.Rptr. 56, 57 (1986). Although the plain language of a rule is not the end of interpretive analysis, it is entitled to some weight. See Ward v. State, 758 P.2d 87, 89-90 n. 5 (Alaska 1988). Admittedly, there are policy arguments both for and against allowing a pro se litigant to recover attorney fees. Policy reasons to deny lay pro se litigants attorney fees include: (1) the difficulty in valuing the non-attorney's time spent performing legal services, i.e., the problem of over compensating pro se litigants for "excessive hours [spent] thrashing about on uncomplicated matters," Culebras Enter. Corp. v. Rivera Rios, 660 F.Supp. 540, 546 (D.P.R.1987) vacated on other grounds, 846 F.2d 94 (1st Cir.1988); (2) the danger of encouraging frivolous filings by lay pro se litigants and creating a "cottage industry" for non-lawyers, see Crooker v. United States, Dep't of the Treasury, 634 F.2d 48, 49 (2nd Cir.1980); (3) our view that the express language of Civil Rule 82 specifying "attorney's fees" is not easily susceptible to a construction allowing awards to non-attorneys, see also Hannon v. Security Nat'l Bank, 537 F.2d 327, 328-29 (9th Cir.1976); and (4) the argument that, in cases where a litigant incurs no actual fees, the award amounts to a penalty to the losing party and a windfall to the prevailing one, Crooker v. United States Parole Comm 'n., 632 F.2d 916, 921 (1st Cir.1980), vacated on other grounds, 469 U.S. 926, 105 S.Ct. 317, 83 L.Ed.2d 255 (1984). See also, Note, Pro Se Can You Sue?: Attorney Fees for Pro Se Litigants, 34 Stan.L.Rev. 659, 666 (1982). We find these policy reasons more persuasive than those put forth by the few courts which have allowed fees to lay pro se litigants. E.g., Holly v. Acree, 72 F.R.D. 115, 116 (D.C.1976) (arguing the economic detriment to lay pro se litigants involved in litigation). B. THE SUPERIOR COURT ERRED IN CALCULATING GIANNINI'S FEES AS COSTS. The superior court awarded Bernhardt $1,316.75 in costs. Among those costs was a charge of $687.50 for consulting fees charged by Peter Giannini, an attorney. AFSL objects, contending that such expenditures must be compensated, if at all, not as "costs" under Civil Rule 79, but as "attorney's fees," for which a prevailing party may be only "partially compensated" under Civil Rule 82. We agree. Attorney fees are not recoverable under Civil Rule 79, but only under Civil Rule 82. E.g., State v. University of Alaska, 624 P.2d 807, 817 (Alaska 1981). On remand, the superior court should recalculate under Civil Rule 82 the portion of the cost award attributable to Giannini's services. The remainder of the superior court's cost award was for paralegal services and document production. Such expenses are properly characterized as costs and may be awarded under Civil Rule 79. CTA Architects of Alaska, Inc. v. Active Erectors & Installers, Inc., 781 P.2d 1364, 1367 (Alaska 1989). C. THE SUPERIOR COURT DID NOT ERR BY DENYING BERNHARDT CIVIL RULE 11 SANCTIONS AGAINST AFSL. 1. The Complaint. Bernhardt's first Civil Rule 11 allegation concerns the purportedly bad faith filing of the complaint, which occurred on June 17, 1985, before the 1986 amendment to Civil Rule 11. Prior to December 15, 1987, Civil Rule 11 provided for sanctions only if a pleading was signed "with the intent to defeat the purposes of the rule." Sanuita v. Common Laborer's and Hod Carriers Union of Am., 402 P.2d 199, 200 (Alaska 1965). The purpose of the rule was to insure the good faith of counsel; it was aimed at deterring pleadings made in bad faith, for purposes of delay, or without good grounds to support it. Id. at 200 n. 2. The old version of the rule limited sanctions to cases of willful violations, and did not apply to mere oversights. Id. at 201. The court's refusal to sanction counsel under the old rule for filing the complaint is subject to review under an abuse of discretion standard. Id. We reverse for abuse of discretion only when left with a "definite and firm conviction on the whole record that the trial judge has made a mistake." E.g., Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980) (per curiam ). We are not left with a definite and firm conviction of error. There was some ambiguity at the time the complaint was filed as to who the owner of the cable system was. 2. Failure to act affirmatively and dismiss the complaint. Several of Bernhardt's Civil Rule 11 allegations concern counsel's purportedly improper failure to concede error and affirmatively act to dismiss the case after receiving substantial evidence indicating that Bernhardt had been improperly sued. Neither the past nor the present version of Civil Rule 11, however, reaches omissions. Both concern only the veracity and proprie ty of purpose of affirmative representations (pleadings, motions, or other papers) made by counsel. See Alaska R.Civ.P. 11. This contention lacks merit. 3. Opposing the court's motion to dismiss the complaint for lack of prosecution. Timothy McKeever, one of AFSL's attorneys, signed a document filed with the court on April 24, 1987, opposing dismissal of the case for lack of prosecution. The date of this action brings it within the ambit of the revised version of Civil Rule 11, effective December 15, 1986. The rule then provided, in pertinent part: The signature of an attorney . constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact . and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless expense in the cost of litigation. Alaska R.Civ.P. 11. The "new" rule no longer strictly requires willful conduct or subjective bad faith to impose sanctions; "[t]he key in determining whether sanctions should be imposed is whether there was a reasonable basis for the attorney's signature." 5 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1334 (Supp.1987); Advisory Committee Note, 97 F.R.D. 165, 198 (1983); see also Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986); Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir.1986). "There is no [longer] room for a pure heart, empty head defense under Rule 11." Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 187 (1985). This inquiry is to be made based on what was reasonable for the attorney to believe at the time the paper was submitted. Advisory Committee Note, 97 F.R.D. at 199; Golden Eagle, 801 F.2d at 1537. Under the new Civil Rule 11, a trial court's imposition or non-imposition of sanctions remains subject to review only for abuse of discretion. Keen v. Ruddy, 784 P.2d 653, 658-59 (Alaska 1989). We do not believe that the superior court abused its discretion. On the one hand, the motion opposed dismissal for lack of prosecution. McKeever and other counsel had conducted some minimal relevant discovery, although only in a connected bankruptcy case. On the other hand, McKeever then had in his possession evidence tending to dispel any confusion about who actually owned the cable company. It is possible to reasonably infer from the evidence in his possession and his reversal of position about six weeks later that he knew opposing the trial court's dismissal for lack of prosecution was unnecessary. It is also possible, however, to reasonably infer that no improper purpose was present, given the initial confusion and a limited amount of evidence received after the complaint was filed suggesting that the cable company was run by the "developer," and that two employees believed that "developer" meant Bernhardt. Because there are conflicting reasonable inferences that could be drawn, we will defer to the trial court. III. CONCLUSION The judgment of the superior court is AFFIRMED in part, REVERSED in part, and the case REMANDED for further proceedings consistent with this opinion. BURKE, J., concurs. . The court awarded Bernhardt $5,000 in attorney fees and $1,316.75 in costs. He had requested $6,500 in attorney fees based on an estimated 68.5 hours of legal work. . We have previously allowed prevailing attorney pro se litigants attorney fees for the time spent performing legal tasks, as distinguished from time spent as a client in the matter. Sherry v. Sherry, 622 P.2d 960, 966 (Alaska 1981). Neither party asks us to reconsider Sherry; thus we decline to do so. At least one recent case has called the fairness of differing approaches into question, however. Swanson & Setzke, Chid. v. Henning, 116 Idaho 199, 201-203, 774 P.2d 909, 911-13 (App.1989). .AS 09.60.010 provides that: The supreme court shall determine by rule or order the costs, if any, that may be allowed a prevailing party in a civil action.... .Some commentators have supported the awarding of attorney fees on the ground that it discourages unreasonable suits and settlement positions. E.g., Hicks, Statutory Damage Caps Are an Incomplete Reform: A Proposal for Attorney Fee Shifting in Tort Actions, 49 La.L.Rev. 763, 791 (1989). Civil Rule 11 in part serves, however, to discourage frivolous litigation, while Civil Rule 68 operates to discourage unreasonable settlement positions. . Civil Rule 11 has again been amended, effective January 15, 1990. The most recent amendment deletes the last sentence, mandating sanctions for a violation. . All that AFSL knew at the time the complaint was filed was that Bernhardt had several years previously been president of "Eaglewood Communications, Inc."

10369993

NORKEN CORPORATION, an Alaska Corporation, Appellant/Cross-Appellee, v. Mazie M. McGAHAN d/b/a McGahan Enterprises and Merrill McGahan d/b/a Merrill Enterprises, Appellees/Cross-Appellants

Norken Corp. v. McGahan

1991-11-15

Nos. S-3052, S-3053

622

632

823 P.2d 622

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

NORKEN CORPORATION, an Alaska Corporation, Appellant/Cross-Appellee, v. Mazie M. McGAHAN d/b/a McGahan Enterprises and Merrill McGahan d/b/a Merrill Enterprises, Appellees/Cross-Appellants.

NORKEN CORPORATION, an Alaska Corporation, Appellant/Cross-Appellee, v. Mazie M. McGAHAN d/b/a McGahan Enterprises and Merrill McGahan d/b/a Merrill Enterprises, Appellees/Cross-Appellants. Nos. S-3052, S-3053. Supreme Court of Alaska. Nov. 15, 1991. David P. Gorman, Wade & DeYoung, Anchorage, for appellant/cross-appellee. Peter F. Mysing, Kenai, for appel-lees/cross-appellants. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

6207

37097

OPINION BURKE, Justice. This dispute is between Norken Corporation, the current owner of three parcels of land in North Kenai Borough, and Mazie M. McGahan, the original grantor of those parcels. Although both parties agree that McGahan owns the gravel deposits on the parcels by virtue of deed reservations, they vigorously dispute the scope of that ownership. After protracted legal wrangling and a lengthy bench trial, the superior court held that the intent of the deed reservations was that McGahan retain mining rights to a portion of one parcel, but only royalty rights to the gravel underlying the rest of that parcel and the other two properties. Norken appealed; McGahan cross-appealed. We affirm in part and reverse in part. I Mazie M. McGahan moved to Alaska from Michigan in 1952 and homesteaded 160 acres of land in the North Kenai area. In 1956 he received a patent to the land from the United States. One characteristic of the patented land, apparently important to McGahan in choosing where to settle, was the presence of extensive gravel deposits. Another important characteristic of McGahan's homestead was its bisection by the North Kenai Road. In the early sixties, McGahan subdivided eighty acres of his homestead into a residential area called Aurora Heights. As he sold off the Aurora Heights properties, he routinely reserved the gravel rights. At trial, he testified that his -intention in so doing was to prevent any future grantee from ruining the residential character of the neighborhood by extracting gravel. In contrast to his plans for Aurora Heights, McGahan removed small quantities of gravel from the property involved in this lawsuit as early as 1954, although the superior court found that this operation was embryonic as of 1966. In that year Stan Best, a principal in Peninsula Ready Mix, negotiated with McGahan for Peninsula to extract gravel it needed to fulfill a sizeable concrete supply contract. In 1967 Peninsula bought Tract 1 from McGahan for a purchase price of $10,000. A portion of Tract 1 — an irregularly shaped, three acre parcel — encompassed at least part of the pit from which Peninsula was already extracting gravel. On the remaining portion, which included frontage on North Ke-nai Road, Peninsula erected buildings and established a storage area to support its concrete production operations. The sale contract and the warranty deed to Tract 1 included essentially the same reservation of rights: The Sellers expressly reserve to themselves, their heirs, executors, administrators and assigns all oil, gas, coal, gravel and non-fissionable minerals in, on or under the surface of said land. Peninsula continued to pay McGahan for gravel it extracted from the pit. By June 1973, Kenneth Mearkle, d/b/a Northern Steel, was using an adjoining lot, Tract A, as the location for a gravel screening plant and a small machine parts store. At that time, Northern Steel bought Tract A (a 1.1 acre parcel with more road frontage than Tract 1) from McGahan for $12,-000. The warranty deed for Tract A contained a reservation similar to the Tract 1 deed: Grantors expressly reserve to themselves, their heirs, executors, administrators and assigns all oil, gas, coal and non-fissionable minerals in, on or under the surface of said land. Grantors also reserve all gravel rights. McGahan testified at trial that he and Mearkle had an oral agreement that a specified portion of the property would be free from McGahan's right to mine gravel. Peninsula apparently needed more space for its operations. In October 1973, with McGahan acting as intermediary, Peninsula bought Tract A from Northern Steel for $15,000. In January 1975 Peninsula bought another acre, Tract C, from McGa-han for $4,000. The warranty deed for Tract C contained a reservation clause identical to that in the deed for Tract A. According to the superior court, by 1980 or 1981 the gravel pit, which covered the rear of Tract 1 as well as land still owned by McGahan, had been mined to a depth of thirty or thirty-five feet below the grade level of North Kenai Road. Although some gravel may have been removed from the rest of the subject property, the court found that "[generally, the front portions of Tract 1 and Tracts A and C were maintained at the grade level of the North Ke-nai Road." Peninsula sold the three parcels to David Simonson in 1980. Although the record is unclear as to whether Simonson extracted any gravel between 1980 and 1982, it is clear that they did not extract gravel after 1982. Rather, they established a plant to manufacture ready-mix concrete, to which they brought gravel extracted from a pit several miles away. After shutting down the ready-mix operation, Simonson built a building on the property for use as a shop to paint their heavy equipment. Throughout this period, McGahan and his son extracted gravel from the pit and authorized periodic extractions by third parties. In order to gain access to the pit, one had to first get the permission of Simonson's agent and then cross the level portion of Tract 1. Simonson sold the parcels to Ron Johnson in March 1987 for about $125,000. Johnson eventually conveyed the property to Norken Corporation, formed by him and others to develop the property. As Norken pursued plans to build a shopping mall on the land, McGahan initiated legal action to protect his access to the gravel and define his rights under the reservation clauses. After several court orders intended to preserve the status quo, the case finally came to trial in May 1988. In a Memorandum of Decision and Judgment dated June 22, 1988, the superior court held that Norken owns Tracts A and C free from any right of McGahan to mine any gravel on those tracts. Similarly, Norken owns that portion of Tract 1 north of a certain described line free from any right of McGahan to mine any gravel on Tract 1_ Norken's ownership of the remainder of Tract 1 is subject to McGa-han's right to remove gravel from the tract with no liability of McGahan for breach of the covenant of quiet enjoyment or breach of any obligation to provide for subjacent support. This holding allowed McGahan to continue extraction in the area that had been used for that purpose for the two decades since Peninsula first started mining on McGa-han's property. However, the court forbade any expansion of the pit to land which had been maintained level with North Ke-nai Road. As for McGahan's right of access to the pit, the court found that an ^implied easement existed that ran along the south border of Tract C; the court thus denied McGahan's claimed right of access across the front portion of Tract 1. The crux of the court's decision concerning interpretation of the reservations consisted of reconciling them with warranties of quiet enjoyment that appeared in each deed. To resolve the apparent conflict between the warranties and the reservations, the court looked to the circumstances surrounding the grants and to the conduct of the parties. After considering the oral agreement between Mearkle and McGahan concerning the front part of Tract A, as well as the "actual practice on the remainder of Tract A and Tract C and the front portion of Tract 1," the court concluded that McGahan's ownership of the gravel, though recognized, did not comprehend an unlimited license to remove gravel below grade level in any significant amount on Tracts A and C and the front (north) part of Tract 1. This result is consistent [with] use of that property, namely as an area for the storage of [Peninsula's] equipment and for the production of concrete. It is also consistent with the fact that at least one building on Tract [1] was of a permanent nature and that Mearkle used the building on Tract A for a parts store. The activities of those persons owning or working on Tracts 1, A and C from 1967 on proclaim their understanding of the significance of McGahans' [sic] warranty of quiet enjoyment. The court denied both parties' claims for damages and refused to award attorney's fees on the ground that neither party had prevailed. Norken appealed, and McGahan cross-appealed. II Both parties open their arguments by directing our attention to various "rules of construction," the proper use of which ineluctably leads to a conclusion in favor of the rules' proponent. This initial reliance on rules of construction is misplaced. We have long held that the touchstone of deed interpretation is the intent of the parties. Hendrickson v. Freericks, 620 P.2d 205, 209 (Alaska 1980); Shilts v. Young, 567 P.2d 769, 773 (Alaska 1977); Rizo v. Mac-Beth, 398 P.2d 209, 211 (Alaska 1965). The purpose of rules of construction, by contrast, "is not to ascertain the intent of the parties to the transaction. Rather, it is to resolve a dispute when it is otherwise impossible to ascertain the parties' intent." 6A R. Powell & P. Rohan, Powell on Real Property 11899[3] at 81A-108 (1991); see also Russell v. Geyser-Marion Gold Mining Co., 18 Utah 2d 363, 423 P.2d 487, 490 (1967) ("rule of construction [favoring grantees] should be subordinate and yield to the paramount rule that the intent of the parties is to be given effect if it can be ascertained"). The proper first step in deed construction is to look to the four corners of the document to see if it unambiguously presents the parties' intent, without resort to "rules of construction." E.g., Spurlock v. Santa Fe Pac. R.R., 143 Ariz. 469, 694 P.2d 299, 304 (App.1984) ("[a]ll jurisdictions agree"), cert, denied, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1985); Knadler v. Adams, 661 P.2d 1052, 1053 (Wyo.1983). If the words of the deed taken as a whole are capable of but one reasonable interpretation, a court need go no further. Whether a deed is ambiguous is a question of law. Knadler, 661 P.2d at 1053. Thus, in reviewing the first step of deed interpretation, this court is not bound by the determination of the lower court. Walsh v. Emer-ick, 611 P.2d 28, 30 (Alaska 1980). If the deed is ambiguous, the next step in determining the parties' intent is a consideration of the facts and circumstances surrounding the conveyance. E.g., Wirostek v. Johnson, 266 Or. 72, 511 P.2d 373, 374-75 (1973); Russell, 423 P.2d at 490; cf. Rizo, 398 P.2d at 211-12 (to determine whether instrument is deed or security in absence of writing, look to "all of the facts and' circumstances of the transaction in which the deed was executed, in connection with the conduct of the parties after its execution"). Conclusions about the parties' intent drawn by the trial court after sifting and weighing such extrinsic evidence are conclusions of fact. Rizo, 398 P.2d at 212. This court will not disturb those findings on review unless they are clearly erroneous — that is, unless a review of the entire record engenders "a firm and definite conviction . that a mistake has been made." Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979); Alaska R.Civ.P. 52(a). Only if these two steps do not resolve the controversy should the court resort to rules of construction: "[I]t is essential that a court first attempt to determine and interpret the intention of the parties from the documents and the surrounding circumstances before applying any of the canons of construction. The intent of the parties is the polestar for interpreting a deed_" 6A R. Powell & P. Rohan, Powell on Real Property 11899[3] at 81A-108 (1991). Ill A The superior court spent little time on the question of ambiguity. It merely pointed out that in addition to the gravel reservation, the deeds warranted quiet and peaceable possession of the premises. Given that quiet possession of the premises and removal of the gravel are mutually exclusive, the court proceeded directly to a consideration of the facts and circumstances in order to determine where the grantees' right to quiet possession ended and McGahan's right to remove gravel began. McGahan argues that "[tjhere is absolutely nothing unclear or ambiguous about the gravel reservation clauses," in that the clauses specifically reserve his rights to the gravel. He acknowledges that the reservations do not address access, but argues that it is "universally recognized" that a reservation of mineral rights carries with it "so much of the surface of the estate as is necessary to extract the minerals." He also points to universal recognition that the mineral estate is dominant over the surface estate. Concerning the warranty of quiet enjoyment, McGahan argues that it does not conflict with the reservation of gravel rights. He points out that this warranty is generally considered synonymous with the covenant of warranty, which only guarantees that there is no defect in the title which the grantor purports to convey. McGahan is correct that the superior court's reliance on the warranty of quiet enjoyment is mistaken. That warranty only guarantees the validity of grantee's title to the land deeded away as against claimants with paramount title. 6A R. Powell & P. Rohan, Powell on Real Property 11900[2] at 81A-144 (1991); see 3 id. at If 411[3], 34-102 (1991). ("The function of covenants of warranty . is to give assur- anees concerning the estate conveyed rather than to guide the construction of the conveyance as to the scope of the rights conveyed."). Thus, reliance on the warranty of quiet enjoyment begs the relevant question of what was given (and reserved) in the first place. The superior court's underlying instinct, however, seems correct: A reservation that apparently nullifies the grant is on its face ambiguous. See Farrell v. Sayre, 129 Colo. 368, 270 P.2d 190, 192 (1954). In this case, the entire property consists of gravel deposits which can only be extracted by destruction of the surface. There thus seems to be a conflict between giving Peninsula, for example, the right "TO HAVE AND TO HOLD the said premises . FOREVER," and reserving the right in effect to destroy the premises at will. On the one hand, the parties could have intended that the surface rights be uncertain and subject entirely to McGa-han's discretion in removing gravel. On the other hand, the parties could intend that the reservation merely entitled McGa-han to royalties when and if the deposits are extracted. Theoretically, the parties could even have intended that extraction occur on some parts of the property, but not on others. None of these intentions is clear from the face of the deed, nor does any of them conflict with the face of the deed. In arguing that the deeds are unambiguous as a matter of law, both parties assume that gravel is a mineral. They base their arguments concerning access and extraction rights on doctrines that apply in cases where the "mineral estate" is severed from the "surface estate." Courts, however, are virtually unanimous in holding that gravel is not a "mineral" in the legal sense of that word. E.g., Anchorage Sand & Gravel Co. v. Schubert, 114 F.Supp. 436, 437-38 (D.Alaska 1953); Moser v. United States Steel Corp., 676 S.W.2d 99, 102 (Tex.1984) (sand and gravel belong to surface estate as matter of law, not included in blanket grant of "other minerals"). These cases generally deal with ownership of sand and gravel deposits under a blanket reservation or grant of minerals. Although ownership is not at issue here, it is not at issue because of the specification of gravel rights in the reservation, not because gravel is a mineral. Unless this court were prepared to rule that gravel is a mineral, there seems little reason to apply mineral doctrines as a matter of law. The question of what is a mineral is a vexatious one, generating almost as many reasons why gravel is not a mineral as there are cases that reach that conclusion. See Miller Land & Mineral Co. v. State Highway Comm'n, 757 P.2d 1001, 1003-04 & n. 2 (Wyo.1988) (noting that courts and commentators have relied on "[sjurface doctrine, special value, manner of enjoyment, knowledge of existence, popular meaning, commercial value, and scien- tifie meaning" in resolving definitional problem). A concern that permeates the courts' attempts to deal with gravel rights is that gravel, although commercially valuable as an extractable resource, is also the essence of the surface that is conveyed. See, e.g., Farrell, 270 P.2d at 192; State Land Bd. v. State Dep't of Fish & Game, 17 Utah 2d 237, 408 P.2d 707, 708 (1965). Rather than consider gravel part of the "mineral estate," the tendency has been to include gravel rights as part of the "surface estate." Moser, 676 S.W.2d at 102; see Miller Land & Mineral Co., 757 P.2d at 1004. We join this overwhelming consensus and hold that gravel is not a mineral. Thus, gravel rights — even when granted or reserved in the same clause as mineral rights — are not part of the "mineral estate." The nature of gravel as the essence of the soil illustrates why it would be inappropriate to import mineral doctrines as a matter of law to the circumstances of this case. As McGahan points out, the mineral estate is the dominant estate, carrying with it the right to make such use of the surface as is reasonably necessary to remove the minerals. E.g., Moser, 676 S.W.2d at 103 (dominance of mineral estate "is an imperative rule of mineral law"). This right of reasonable use does not depend on whether the mineral estate arises from a grant or reservation. 58 C.J.S. Mines and Minerals § 159 (1948). The purpose of this doctrine is to effect an "accommodation" between the surface and mineral estates. Spurlock, 694 P.2d at 309. Courts have noted that the rights of the mineral estate "are to be exercised with due regard for the rights of the owner of the servient estate." Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971); see also Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131,135-36 (N.D.1979); Flying Diamond Corp. v. Rust, 551 P.2d 509, 511 (Utah 1976). This accommodation is necessary — for example, in the oil and gas context — because the mineral owner can only reach its minerals by literally going through the surface of the land. Such an accommodation is impossible in a situation such as this case, where removal of the gravel necessarily means destruction rather than mere use of the surface (or where preservation of the surface necessarily means not disturbing the gravel). In the analogous situation of whether a grant of minerals includes the right to surface, mine for coal — and thus to destroy the surface — the rule of mineral dominance has yielded to heroic efforts by courts to determine intent through reference to surrounding facts and circumstances. See generally Annotation, Right to Remove Minerals by Surface Mining, 70 A.L.R.3d 383, 395 (1976) ("[A]s a general proposition, no particular word, phrase, or clause, standing alone, can be said to be decisive as to the permissibility of surface mining_"). Where, as here, the substance concerned is not a mineral in the legal sense and the deed contains no indication on its face that the parties intended the substance to be removed, we find no justification for concluding as a matter of law that a mere reservation of rights entails the right to destroy the surface of the land. B As mentioned at the outset of this discussion, if a deed is not unambiguous as a matter of law, the court must then look at surrounding facts and circumstances to determine the parties' intent. We have suggested that this inquiry can be broad, looking at "all of the facts and circumstances of the transaction in which the deed was executed, in connection with the conduct of the parties after its execution." Rizo, 398 P.2d at 211-12. This factual determination after a bench trial will be overturned on review only if it is clearly erroneous. Alaska R.Civ.P. 52(a). In this case the trial court concluded, based on an oral agreement as to part of the property and on actual practice as to other parts, that the parties' intent was that McGahan should have extraction rights only as to the extant pit at the rear of Tract 1. Although this decision has the effect of perpetuating over two decades of practice, both parties claim on appeal that the court clearly erred in this determination. A review of the entire record, however, does not engender "a firm and definite conviction" that the trial judge made a mistake in arriving at a factual determination that was somewhat short of what either party would have desired. Martens, 591 P.2d at 544. Several aspects of the record support the trial court's conclusion. Foremost is the basic fact that McGahan and Peninsula actively developed the pit on one portion of the property while Peninsula set up a permanent structure on another part of Tract 1 and Mearkle set up a permanent structure on Tract A. This activity belies Norken's assertion that the parties never intended that McGahan should have any extraction rights whatsoever, while simultaneously casting doubt on McGahan's assertion that each party intended that the whole of each parcel should be vulnerable in perpetuity to complete excavation. Next is McGahan's admission that virtually identical reservations in Tracts 1, A, C and the Aurora Heights subdivision meant three different things. While claiming that he had the right to extract every stone from Tract 1 by virtue of the reservations, he admits that he did not have that right with respect to at least the front portion of Tract A and that extraction rights were not the intention of the reservations in the Aurora Heights deeds. These admissions undermine his argument before this court that every gravel reservation clause must intend strip mining of the entire subject property. Indeed, the most difficult aspect of the case, from McGahan's point of view, is explaining exactly what Peninsula received for over $30,000 (for all three parcels), if it did not receive at least some protection from an unfettered right by McGahan to extract gravel. After Norken's attorney established that Peninsula already had access to McGahan's gravel and to water to sort it with before buying Tract 1, the following exchange took place at trial during cross-examination of McGahan: Q: Okay, so that's what I'm trying to find out, sir, is what it was that he [Stanley Best of Peninsula] acquired by buying Tract 1 from you. On direct you said that he got a source of gravel, he got water, he had to pay for the gravel only as needed. A: That's right. Q: And he only had to pay ten cents a yard for it. A: That's right. Q: So what was the difference, what did he have after he bought. A: He had a place to set his shop up, to set his plant up, you know, his concrete plant. Q: Right, but he would have had that anyway, would he not? A: No, he didn't have it anyway prior to the time he bought the land. Q: Oh, you would not have let him set his plant up if he did nbt buy Tract 1? A: Oh, I wouldn't say I wouldn't, but he come and bought the land because that's what he wanted. On the other hand, it is not very difficult to explain why McGahan would retain gravel rights even on a portion for which he did not have extraction rights: McGahan's right to royalties would preclude any future surface owner from competing with his continued extraction from his own property (and from the pit portion of Tract 1). The court also heard valuation testimony that was not inconsistent with the determination that part of the property would be used for gravel extraction and part would not. McGahan's expert testified that the fee simple value of Tract 1 was probably about $7500 or $8000 an acre in 1967. Peninsula paid just over $3300 an acre for the land it received, or close to half the estimated fee simple value. Had the entire tract been free of McGahan's right to extract, the price should have been close to the full value. By the same token, however, if the entire parcel had been subject to McGahan's right to excavate at will, the price should have been closer to zero, insofar as excavation would destroy the surface. This particular valuation seems to be a rough estimate based on the expert's contemporaneous purchase of nearby properties. During a hearing on a preliminary injunction, the trial court had heard testimony from Ron Johnson, the Norken promoter, that a nearby property was sold without a gravel reservation in 1966 for only $1000 an acre. In a subsequent interlocutory order, the judge apparently accorded at least some credibility to that testimony by holding that the consideration for Tract 1 was "in excess of other comparable sales of like property in 1967." Taking these two valuations together, it does not seem clearly erroneous to think that the price paid was less than if McGahan had only royalty rights, but more than if McGahan had complete extraction rights. We therefore conclude that the superior court's factual findings are not clearly erroneous. IV The essence of McGahan's initial complaint, which could only be reached after a determination of his right to extract gravel, centered on a claimed right to cross Norken's property in order to reach the gravel pit. McGahan premised this right of access on a number of easement theories, only one of which is before this court in McGahan's cross-appeal: the existence of an implied easement. "An easement by implication arises where there is (1) a quasi-easement at the time of contract of sale or conveyance, (2) which is apparent, (3) reasonably necessary for the enjoyment of the land retained or the land conveyed, and (4) continuous in nature." Demoski v. New, 737 P.2d 780, 783-84 (Alaska 1987); see also Freightways Terminal Co. v. Industrial & Commercial Constr., Inc., 381 P.2d 977, 983-84 (Alaska 1963). The superior court held that there was no implied easement as to Tract 1, but that there was as to the so-called Norken Road, which traverses a strip of Tract C. The court's reasoning is somewhat opaque: The route across Tract 1 was not necessary to McGahan's enjoyment of Tracts A and C at the time of their severance since he had access to them from the North Kenai Road in 1967. At the time of McGahan's conveyances of Tracts A and C in 1973 and 1975 respectively, the Nurphy Street right-of-way existed along the east boundary of McGahan's remaining pit property. While the use of the access over Tract 1 might be a more convenient access from the pit to the North Kenai Road, it is not reasonably necessary for McGahan's beneficial enjoyment of the pit, Talbot's, Inc. v. Cess-nun Enterprises, Inc., 566 P.2d 1320 ([Alaska 1977]). The Danna-Nurphy right-of-way provides a reasonable mode for McGahan's use of the pit. This reasoning is opaque in that it does not seem to address the important question: At the time of the severance of Tract 1, was a route across Tract 1 reasonably necessary for McGahan's enjoyment of his reserved rights in the Tract 1 pit? The court held as a matter of fact that McGahan consistently used a route across Tract 1 to enter and leave the pit. In determining whether an implied easement exists, the existence of reasonable necessity is determined as of the time of severance, because it is at that time that the implied easement either does or does not arise. Having once arisen, the implied easement is not extinguished merely because the reasonable necessity ceases to exist. Story v. Hefner, 540 P.2d 562, 566 (Okla.1975); Thompson v. Schuh, 286 Or. 201, 593 P.2d 1138, 1145 (1979). The durability of the easement comes from the fact that an implied easement is based on the theory that whenever one conveys property he includes or intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment and to retain whatever is necessary for the use and enjoyment of the land retained. An easement by implication is a true easement having permanence of duration and should be distinguished from a "way of necessity" which lasts only as long as the necessity continues. Story, 540 P.2d at 566. We implicitly adopted this view of implied easements when we first acknowledged their validity: "Necessity" and "necessary" as we have used those words in this opinion when speaking of one of the requirements of an implied easement resulting from a preexisting quasi easement must not be confused with what is known in the law as an easement or way by necessity. Such a way may arise where an owner of land conveys to another an inner portion which is entirely surrounded by lands owned by the conveyor or by the convey- or and another. In such a situation a right of access across the retained land of the conveyor is normally found, based upon public policy which is favorable to full utilization of land and [the] presumption that parties do not intend to render land unfit for occupancy. Such a way ceases when the necessity therefor ceases. Freightways Terminal Co., 381 P.2d at 984 n. 16 (citations omitted). Thus, a determination that no reasonable necessity existed as of 1988, when the superior court handed down its decision, does not resolve the question of whether an implied easement arose in 1967, the date of Tract l's conveyance. The court's apparent reliance on Talbot's, Inc. v. Cessnun Enterprises, Inc., 566 P.2d 1320 (Alaska 1977), is only partially correct. The decision in Talbot's did indeed distinguish between mere convenience, which will not support the finding of an easement by implication, and reasonable necessity, which will support such a finding. Id. at 1323-24. But there, the determination concerned the alleged creation of the easement. Id. at 1322-23. Talbot's therefore does not support the superior court's conclusion that the availability of the Norken Road precludes McGa-han's right to an implied easement across Tract 1. Given the somewhat confusing discussion of the access issue in the superior court's decision and the lack of clarity in the record, we must remand to the superior court for further determinations of fact. The first determination should be whether access to the gravel pit across Tract 1 was "reasonably necessary" in 1967. If so, an implied easement arose at that time and continues in spite of the current availability of the Norken Road. The court need go no further. If the route across Tract 1 was not reasonably necessary in 1967 — for example, because adequate access was available across Tracts A and C — then the court must determine whether current circumstances require the finding of a "way by necessity" along the Norken Road. If McGahan can reasonably gain access to the pit portion of Tract 1 by some other means, then a finding of a "way by necessity" is not appropriate. The superior court's interpretation of the deed reservations is AFFIRMED. The superior court's finding of an implied easement on the Norken Road is REVERSED and the case REMANDED for further proceedings consistent with this opinion. . This route, called the "Norken Road," was constructed by Norken after commencement of the litigation as an attempt to comply with an interlocutory order of the superior court. Before construction of the Norken Road, the only access to the pit was across Tract 1 or Tract A. . The warranty deed for Tract C, for example, provides: And the said Grantors do hereby Warrant and will FOREVER DEFEND the said Grantees, their heirs and assigns, against any and all persons having or claiming any right, title or interest therein adverse to the said Grantees in the quiet and peaceable possession thereof. . Both sides argue that the other's interpretation would render the deed "meaningless." Although the different interpretations would affect the relative values of the parties' rights, it is not accurate to say that any one interpretation would make the remaining rights meaningless. For example, to give someone the ownership of a surface that over time will be destroyed is not meaningless; the right is just worth less than ownership of a surface that will not be destroyed. By the same token, reservation of royalty rights without access rights is not meaningless, merely less valuable than reservation of access rights. The value of a particular right— and whether price paid correlates with value received — obviously depends on the facts and circumstances of the individual case. . See also Farrell, 270 P.2d at 192; Roe v. State ex rel. State Highway Dep't, 103 N.M. 517, 710 P.2d 84, 87 (1985), cert, denied, 476 U.S. 1141, 106 S.Ct. 2247, 90 L.Ed.2d 693 (1986); Holland v. Dolese Co., 540 P.2d 549, 550-51 (Okla.1975); Whittle v. Wolff, 249 Or. 217, 437 P.2d 114, 117 (1968); State Land Bd. v. State Dep't of Fish & Game, 17 Utah 2d 237, 408 P.2d 707, 709 (1965) (gravel not a mineral under usual circumstances); Miller Land & Mineral Co. v. State Highway Comm'n, 757 P.2d 1001, 1004 (Wyo. 1988); 54 Am.Jur.2d Mines and Minerals § 8 (1971); 58 C.J.S. Mines and Minerals § 2 (1948). But see Adams v. Chilcott, 182 Mont. 511, 597 P.2d 1140, 1144 (1979) (whether gravel is a mineral is "inherently ambiguous"). Interestingly, McGahan testified at trial that he specified gravel in the reservations based on his attorney's opinion that a blanket mineral reservation would not include gravel. . Norken's "developing trend of decisions [that] favor the interests of surface owners over mineral interests" is less than overwhelming. In fact, as one of Norken's sources concludes, the cases that tend to balance surface owners' hardships "do not, however, depart from the underlying theory of mineral dominance. Case law tempering the doctrine of mineral dominance is clearly the minority view today...." Hultin, Recent Developments in Statutory and Judicial Accommodation Between Surface and Mineral Owners, 28 Rocky Mtn.Min.L.Inst. 1021, 1066 (1983). The one decision that Norken cites as evidence of this trend actually refutes Norken's argument: "There may be only one manner of use of the surface whereby the minerals can be produced. The lessee [of mineral rights] has the right to pursue this use, regardless of surface damage." Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 136 (N.D.1979) (quoting Getty Oil Co. v. Jones, 470 S.W.2d 618, 622 (Tex.1971)). It seems clear in this case that there is only one means of removing the gravel — strip mining the surface. . McGahan presents no cases which conclude to the contrary. His cases concerning "universal recognition" of the mineral estate's right to use the surface almost all pertain to oil and gas; of the non-oil and gas cases, one concerns coal and the other helium. See Aleut Corp. v. Arctic Slope Regional Corp., 484 F.Supp. 482, 486 (D.Alaska 1980) (oil and gas lease); Spurlock, 694 P.2d at 303, 311 (helium); Jilek v. Chicago, Wilmington & Franklin Coal Co., 382 Ill. 241, 47 N.E.2d 96, 98 (1943) (oil and gas); White v. Bevier Coat Co., 364 Mo. 313, 261 S.W.2d 81, 83 (1953) (coal); Hunt CHI Co., 283 N.W.2d at 135 (oil); Ball v. Dillard, 602 S.W.2d 521, 522 (Tex. 1980) (oil and gas lease). In none of those cases was there any controversy over whether the parties intended that the resource be extracted. . In agreements separate from purchase of the land, Peninsula paid a portion of the cost of developing a new well on McGahan's land and eventually paid for the water that it used in processing gravel. The water arrangements apparently were entirely pursuant to an unwritten understanding between McGahan and Peninsula. . Technically, Talbot's involved interpretation of a statutory easement under a portion of the Alaska Land Act, AS 38.05.320(b). Talbot's, 566 P.2d at 1321 & n. 1. The language and purpose of the statutory easement, however, seem virtually identical to the common law doctrine of implied easements. . The superior court seems already to have found the existence of the other elements of an implied easement in that the route was in use at the time of the conveyance, its use was apparent, and its use was continuous. . Norken's other contentions concerning the court's denial of attorney's fees and costs and failure to dismiss the claims of McGahan's son are without merit.

10381077

MUNICIPALITY OF ANCHORAGE, Petitioner, v. Alan LEIGH, Respondent

Municipality of Anchorage v. Leigh

1992-01-03

No. S-4076

1241

1247

823 P.2d 1241

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

MUNICIPALITY OF ANCHORAGE, Petitioner, v. Alan LEIGH, Respondent.

MUNICIPALITY OF ANCHORAGE, Petitioner, v. Alan LEIGH, Respondent. No. S-4076. Supreme Court of Alaska. Jan. 3, 1992. Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, Anchorage, for petitioner. Chancy Croft, Debra Fitzgerald, Michael J. Jensen, Anchorage, for respondent. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3998

25921

OPINION RABINOWITZ, Chief Justice. INTRODUCTION Alan Leigh's temporary total disability benefits were terminated pursuant to AS 23.30.185 and the definition of "medical stability" in Alaska's Workers' Compensation Act. On appeal, the superior court held that the Act's definition violated substantive due process. Subsequently, we granted a Petition for Review filed by Leigh's employer, the Municipality of Anchorage. FACTS AND PROCEEDINGS The facts are not in dispute. Alan Leigh is a paramedic with the Anchorage Fire Department. He injured his back on October 28, 1988. His employer accepted his claim and paid him temporary total disability ("TTD") compensation until January 25, 1989. Prior to termination of his benefits, the insurance adjuster wrote to Dr. Thomas Vasileff, Leigh's treating physician, asking if Leigh was "medically stable" as defined by AS 23.30.265(21). Dr. Vasileff responded by letter on January 25, 1989, stating "[ajccording to the definition of medical stability posed in your letter, [the employee] falls into your parameters of being medically stable." At a later deposition, Dr. Vasileff testified that he would prefer to use a definition of "medical stability" taken from the AMA Guides to the Evaluation of Permanent Impairment {"Guide "). Under that definition, he thought Leigh would not be stable for a period of six months to a year. He testified that Leigh's condition could reasonably be expected to improve over time, although he did not anticipate objectively measurable improvement. Leigh applied for TTD compensation. The Board, applying the statutory definition of medical stability, decided on October 10, 1989 that Leigh was medically stable as of January 25, 1989 and denied his claim. It stated, The question is what "clear and convincing evidence" must be adduced [to overcome the presumption of medical stability]. We do not believe the presumption may be rebutted by redefining the phrase "medical stability." We believe that AS 23.30.265(21) demands evidence that further objectively measurable improvement resulting from additional medical care or treatment may be reasonably expected despite the 45-day absence of objectively measurable improvement which triggered the presumption. Leigh appealed to the superior court, arguing that the legislature violated substantive due process by changing the definition of medical stability from the AMA definition to its own definition. The superior court, agreeing with Leigh, reasoned as follows: The legislation provides for a presumption of stability if no "objectively measurable improvement" has been made for 45 days. The legislation does not address the situation of no "objectively measurable improvement" for 45 days but deterioration in that time. It appears inconsistent for the injured worker to be removed from temporary total disability compensation when he has not only failed to improve but suffers deterioration. It also appears incongruous for medical concepts to be used in determining worker's compensation except for the termination of temporary total disability, e.g. AS 23.30.095 and 190. In addition, it is incongruous for the burden to be shifted to the injured worker by the presumption in AS 23.30.265(21) and to require that the worker prove by clear and convincing evidence the non-existence of "medical stability" in light of the presumption of compensability contained in AS 23.30.120. The conflicting provisions of AS 23.30 set forth above and the objective purpose of the act as stated by the legislature make it clear that the definition of "medical stability" has no reasonable relationship to the purpose of the Workers' Compensation Act and that the challenged definition rests upon no rational policy. The Municipality thereafter filed a Petition for Review, which was granted. The Municipality contends that AS 23.30.-265(21) does not violate substantive due process. It argues that the legislature's definition is rational, is consistent with the AMA definition, does not conflict with the presumption of compensability, and that it is constitutional to declare a deteriorating employee medically stable. The Municipality also notes that the superior court's decision was essentially advisory in nature and based upon hypothetical facts. Leigh argues that the definition of "medical stability" found in AS 23.30.-265(21) is unconstitutional both on substantive due process and equal protection grounds. He argues that the definition is irrational because the remainder of the Act makes use of the AMA guidelines, it has no legitimate basis, it conflicts with the statutory presumption of continuing compensa-bility, it inappropriately requires the employee to overcome the presumption of medical stability by a clear and convincing standard of proof, and it fails to distinguish between an injured worker who is improving and one who is worsening. Leigh also argues that apart from unconstitutionality, the court should declare the definition invalid as it creates "incongruous" results in light of the other provisions of the Act. Finally, he argues that the Board erred as a matter of fact in determining that Leigh did not furnish clear and convincing evidence that he was not medically stable, and that the Municipality is estopped from asserting that Leigh's argument is "hypothetical." DISCUSSION There is no question that the legislature radically changed the workers' compensation statute. Prior to the 1988 amendments, the Act did not define temporary total disability. Yet, this court had consistently correlated entitlement to TTD benefits with loss of earning capacity. Effec tive July 1, 1988, the legislature amended the Act so that TTD terminates after the date of medical stability. See AS 23.30.-185. Our analysis of Leigh's contentions starts with the presumption that the statute is constitutional. 2A Sutherland Stat. Const. § 45.11 (4th Ed.1984 Rev.). Moreover, "a court is not empowered to substitute its judgment for that of the legislature on matters of policy, nor to strike down a statute which is not manifestly unconstitutional even though the court may consider it unwise." 1 Sutherland Stat. Const. § 2.01 at 15-16 (4th Ed.1985 Rev.). Rather, the specific question raised by this petition is whether the statute's definition of medical stability, its burden of proof, and its presumption of medical stability are constitutional. A. Substantive Due Process and the Statutory Definition of Medical Stability In Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974) we said: Substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representa-fives of the people. The constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy. A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification. The legislature's intent in enacting AS 23.30.265(21) is clear. Section 1 of the 1988 amendments to the Act provides: (a) It is the intent of the legislature that AS 23.30 be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of AS 23.30. Ch. 79, § 1, SLA 1988 (emphasis added). As noted above the legislature defined medical stability as follows: "medical stability" means the date after which further objectively measurable improvement from the effects of the com-pensable injury is not reasonably expect ed to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; AS 23.30.265(21). In our view this definition is rational. First, and most significantly, in its quest to lower costs and facilitate resolution of disputes, the legislature adopted a clear definition as to when medical stability is achieved for purposes of the Act. The AMA Guides to the Evaluation of Permanent Impairment contains no clear definition of medical stability. The definition Dr. Vasileff used from the AMA Guide, equating medical stability with the absence of "medical reason to expect . gain or [loss of] future functional ability," comes from the Guide's preface. Even assuming the Guide contains a definition of medical stability inconsistent with the statute, the legislature chose not to adopt it. The legislature appears to have explicitly rejected TTD benefits for a worker whose condition deteriorates. The statute states that "medical stability" means the date after which further objectively measurable improvement form the effects of the com-pensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time... , AS 23.30.265(21). In addition to this conflict with AMA guidelines, Leigh contends that the principal problem with AS 23.30.265(21) is that its definition of medical stability fails to take account of a claimant with a worsening condition. In response to this contention the superior court said: The legislation provides for a presumption of stability if no "objectively measurable improvement" has been made for 45 days. The legislation does not address the situation of no "objectively measurable improvement" for 45 days but deterioration in that time. It appears inconsistent for the injured worker to be removed from temporary total disability compensation when he has not only failed to improve but suffers deterioration. The Municipality, citing Lien v. City of Ketchikan, 383 P.2d 721, 724-25 (Alaska 1963), argues that a deteriorating claimant is a hypothetical concern which we should not consider. Contrary to Leigh's assertions, the facts in this petition only reveal that Leigh might improve over time, not that he was deteriorating. Since we do not know how the Board will construe AS 23.-30.265(21) in relation to a deteriorating claimant we decide the constitutionality of this statute as it applies to Leigh. Leigh also argues that the Municipality is "quasi estopped" from making this anti- hypothetical argument given its statement in its Petition for Review that an important constitutional question is involved. However, the Municipality never asserted that Leigh's condition was deteriorating. Rather, true to Dr. Vasileff's statements and the Board's decision, it stated that Leigh "was medically stable." In fact, the Municipality specifically argued in its petition that "The Lower Court's Decision was Advisory in Nature in That it was Based Upon Hypothetical Facts." Therefore, Leigh's quasi-estoppel argument lacks merit; the Municipality's position in its brief before this court is consistent with its position in its petition. B. Substantive Due Process, The Statutory Presumption, and The Burden of Rebutting The Presumption Alaska Statute 23.30.265(21) reads in part that: medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence.... (Emphasis added.) The Municipality persuasively argues that it is neither constitutionally impermissible nor inconsistent for the legislature to shift the burden of proving lack of medical stability to the employee upon the happening of a particular event — such as the continued lack of improvement for 45 days. Concerning the alleged difficulty that this burden places on the employee the Municipality again persuasively asserts that: This evidence is easily obtained by examining the treating physician. That is, the treating physician should have no difficulty offering an opinion on whether or not further objectively measurable improvement is expected. The 45 day provision merely signals when that proof is necessary. The alleged difficulty in proving the nonexistence of medical stability, simply fades when viewed in light of the proof actually required. Thus we reject Leigh's contention that the burden of proof provided for in AS 23.30.265(21) violates substantive due process. The effect of this 1988 amendment is to restrict the application of the presumption provided for in AS 23.30.120. Leigh has not provided us with any authority for the proposition that the legislature lacks the authority to narrow a presumption that it previously enacted. We therefore reject Leigh's contention that the presumption of medical stability provided for by AS 23.30.-265(21) violates substantive due process. C. Conclusion We hold that Leigh's substantive due process attack on the definition of medical stability articulated by AS 23.30.265(21), the presumption provided for in this statute, and the burden placed upon the employee to rebut this presumption should be rejected. Leigh has failed to meet his heavy burden of demonstrating that no rational basis exists for these three questioned components of AS 23.30.265(21). Given the legislature's explicit goal of insuring "the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers" who are subject to the Act, we conclude that AS 23.30.265(21) is not arbitrary since it bears a reasonable relationship to a legitimate, rational, governmental policy. REVERSED. . AS 23.30.185 provides, Compensation for temporary total disability. In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability. . AS 23.30.265(21) reads as follows: '[M]edical stability" means the date after which further objectively measurable improvement from the effects of the compensa-ble injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence. . While the AMA Guide does not contain a definition per se of medical stability, the preface to this work states the following: In general, it is not possible for a physician, using medical information alone, to make reliable predictions about the ability of an individual to perform tasks or to meet functional demands. A physician can determine, however, whether or not a particular medical condition has become permanent because it is static or well-stabilized. When it is stable, there is no medical reason to expect that the individual will gain or lose future functional ability. When functional ability is assessed by a standardized nonmedical procedure in a vocational rehabilitation facility or in an occupational setting, the physician may have confidence in the determination. American Medical Association, Guides to the Evaluation of Permanent Impairment, at x (2d ed. 1984). . Article I, Section 7 of the Alaska Constitution states, "No person shall be deprived of life, liberty or property without due process of law." . This court uses its independent judgment on questions of statutory interpretation that do not involve the Board's special expertise. Phillips v. Houston Contracting, Inc., 732 P.2d 544, 546 (Alaska 1987). Constitutional questions are also questions of law to which this court applies its independent judgment. Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990). The court must adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See Wein Air Alaska v. Kramer, 807 P.2d 471, 474 (Alaska 1991) (citing Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 185-86 (Alaska 1978)). In fact, in Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1167 (Alaska 1982), we held that the Board may award TTD benefits to an employee with an unscheduled disability whose condition had stabilized medically, but who was pursuing an approved vocational rehabilitation program. And in Bailey v. Litwin Corp., 713 P.2d 249, 253 (Alaska 1986), this court held that "medical stability" is irrelevant in determining cessation of TTD benefits if the employee has returned to work. Bailey held that the claimant's return to work was "sufficient evidence to rebut the presumption of continuing compensa-bility for temporary total disability." Bailey, 713 P.2d at 254 (footnote omitted). . The legislature also directed that temporary partial disability terminate on medical stability. See AS 23.30.200. By virtue of these amendments the Act was aligned with the workers' compensation statutes of many other states. "Case law from other jurisdictions overwhelmingly reflects the view that medical stabilization, or maximum physical recovery, marks the end of temporary disability." Bignell, 651 P.2d at 1169 (Rabinowitz and Matthews, JJ., dissenting) (footnote omitted). Professor Larson notes that in most states temporary benefits cease when the "healing period" has ended and "stabilization" has occurred. 2 A. Larson, The Law of Workmen's Compensation, § 57.12 at 10-9 (1983) (cited in Bailey v. Litwin Corp., 713 P.2d 249, 253 n. 11 (Alaska 1986)). . The legislature's desire to lower workers' compensation costs was reinforced by a letter of intent from the Senate included in the Senate Journal: 8. With an actuarial analysis concluding that this bill will provide a two percent savings in hard costs and an unquantifiable amount of soft dollar savings, it is the intent of the Alaska State Senate that, upon passage of this bill, the Division of Insurance request a new rate filing reflecting a reduction in workers' compensation premiums. 1988 Senate Journal 2420. A report of the Workers' Compensation Labor-Management Task Force also chronicled the increase in workers' compensation insurance costs. This Task Force was resurrected in 1986, following a rate increase by the Department of Workers' Compensation Insurance "with the purpose of reducing rates paid by employers through legislative changes to the Statute." (Workers' Compensation Labor-Management Task Force, Synopsis of Proposed Legislative Changes to Chapter 30 of Title 23, p. 1) . The term is not specifically defined in the Guide's glossary, nor is there any prolonged discussion of the term. In fact, contrary to the discussion in the preface, the AMA defines "permanent impairment" in the glossary as including deterioration. Permanent impairment is impairment that has become static or well stabilized with or without medical treatment, or that is not likely to remit despite medical treatment of the impairing condition. AMA, Guides to the Evaluation of Permanent Impairment, at 225. Hence, the definition in the Guide appears inconclusive as to whether deterioration is consistent with a permanent impairment determination, although the glossary indicates the two are consistent. . The legislature's awareness of the AMA Guide is evident from AS 23.30.190(b), where it mandates the Guide's use for determining the existence and degree of permanent impairment. Leigh further argues that it is inconsistent to use AMA Guide for the determination of PPI, yet not TTD. Leigh fears a time gap in benefits, but such is a hypothetical concern as Leigh received PPI when his TTD benefits terminated. .The United States Supreme Court summarized the rule well. A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. A limited exception has been recognized for statutes that broadly prohibit speech protect ed by the First Amendment. This exception has been justified by the overriding interest in removing illegal deterrents to the exercise of the right of free speech. That justification, of course, has no application to a statute that enhances the legal risks associated with riding in vehicles containing dangerous weapons. County Court of Ulster v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) (citations omitted). However, the Court did go on to explain that in the case of a mandatory presumption in a criminal case (which is similar to the presumption in the case at bar), the Court examines its constitutional validity divorced from the facts at bar and bases it on the presumption's accuracy in the run of cases. Id. at 159, 99 S.Ct. at 2226. . We note that the Act provides other benefits when TTD benefits cease, e.g. permanent total disability benefits ("PTD"), AS 23.30.180, and permanent partial impairment benefits ("PPI"), AS 23.30.190. Here Leigh received PPI benefits when he was found medically stable and TTD benefits ceased. If the worker's condition deteriorates, the Board can later modify these other awards. AS 23.30.130. See Alaska Indus. Bd. v. Chugach Elec. Ass'n, 17 Alaska 183, 245 F.2d 855 (9th Cir.1957) (provision allows Board to increase compensation to cover adverse changes in physical condition subsequent to an award), rev'd on other grounds, 356 U.S. 320, 78 S.Ct. 735, 2 L.Ed.2d 795 (1958). Moreover, the Act does not limit medical benefits if continued treatment is needed. AS 23.30.095. The Municipality argues that this result is consistent with maintenance and cure under general maritime law. The law has been summarized as follows: The obligation to pay maintenance and cure continues until the seaman is cured or, if there is permanent impairment, until he reaches the point of maximum medical recovery. The test for maximum medical recovery is "when it appears probable that further treatment will result in no betterment of the seaman's condition." In the case of permanent injury, maintenance and cure continues until the seaman's incapacity is diagnosed as being permanent.... The seaman may still institute a new proceeding if there is a later possibility of new curative treatment. Schoenbaum, Admiralty and Maritime Law 161-62 (1987) (footnotes omitted). . Alaska Statute 23.30.120(a)(1) provides: (a) 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; . The Municipality points to AS 23.30.120(c) as an instance where the legislature restricted the scope of the presumption found in AS 23.30.-120(a)(1) for claims involving mental injury. . See Taylor v. Southeast-Harrison Western Corp., 694 P.2d 1160, 1162 (Alaska 1985), where we noted that the legislature was required "to balance a multitude of complex factors, many of which involved competing interests" in enacting the Workers' Compensation Act. Leigh also attacks the definition, presumption, and burden of proof provisions of AS 23.-30.265(21) on the basis that they are violative of equal protection. Essentially, Leigh argues that the statute arbitrarily distinguishes between injured workers who improve every 45 days and those who do not improve or whose condition worsens. Leigh's argument is based on the Alaska Constitution and overlaps substantially with his claim that these provisions violate substantive due process. In Wilson v. Municipality of Anchorage, 669 P.2d 569, 572 (Alaska 1983) we said: In order for a classification to be valid under Alaska's equal protection test, it must be reasonable, not arbitrary, and must bear a fair and substantial relation to a legitimate governmental objective. Depending on the importance of the individual's interest involved, a greater or lesser burden will be placed on the state to show this fair and substantial relationship. For the reasons stated in our discussion of Leigh's substantive due process claims we conclude that the definition of medical stability, the presumption, and the rebuttal burden of proof are not violative of equal protection. Leigh also argues that the Board erred as a matter of fact in determining that Leigh failed to prove by clear and convincing evidence that he was not medically stable on January 25, 1989. This contention lacks merit. Most significantly, Dr. Vasileff himself said Leigh was medically stable using the statutory definition. Our review of the record indicates that the Board's agreement with this was not erroneous.

10369933

Ronald G. CHAMBERS, Appellant, v. STATE of Alaska, Appellee

Chambers v. State

1991-05-24

No. A-3221

318

321

811 P.2d 318

811

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:50:04.014486+00:00

CAP

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

Ronald G. CHAMBERS, Appellant, v. STATE of Alaska, Appellee.

Ronald G. CHAMBERS, Appellant, v. STATE of Alaska, Appellee. No. A-3221. Court of Appeals of Alaska. May 24, 1991. Rex Lamont Butler, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and GREENE, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1917

12560

OPINION BRYNER, Chief Judge. Ronald G. Chambers appeals his conviction for misconduct involving a controlled substance in the third degree. AS 11.71.-030. Chambers argues that Acting Superi- or Court Judge Elaine M. Andrews erred in denying his motion for a judgment of acquittal. We affirm. In the early morning of July 6, 1988, Chambers registered at an Anchorage motel. Later in the day, suspecting that drug activity was taking place in Chambers' room, a hotel clerk notified the police, who obtained a warrant and searched the room. They discovered a quantity of cocaine, some baking soda, and other paraphernalia that led them to believe that Chambers was converting cocaine into "crack" cocaine. Chambers was indicted for misconduct involving a controlled substance in the third degree under two theories: that he possessed cocaine with the intent to deliver it, or, alternatively, that he possessed cocaine with the intent to manufacture crack. At trial, the evidence established that the powdery substance in Chambers' room was cocaine hydrochloride, which is a combination of the natural extract of the coca plant and hydrochloric acid. Cocaine hydrochloride is normally referred to simply as cocaine, and this is the form in which cocaine is most commonly used and distributed. In this form, cocaine is water soluble and can readily be absorbed as a powder by the mucous membrane of the nose. According to the evidence, crack cocaine, in turn, is made by neutralizing cocaine hydrochloride, a process that returns the cocaine to its original form. This is commonly done by adding a base, such as sodium bicarbonate (baking soda) to cocaine hydrochloride and heating the mixture. Crack cocaine is no longer water soluble and thus cannot be absorbed in the nasal passages. However, the substance has a lower melting temperature than cocaine hydrochloride and can be easily heated to the point of vaporization, allowing it to be inhaled directly into the lungs as a gas. Throughout the process of converting organic cocaine to cocaine hydrochloride and back to crack cocaine, the basic cocaine molecule does not change. At the close of the evidence at trial, Chambers moved for a judgment of acquittal as to the allegation that he possessed cocaine with intent to manufacture crack. Chambers argued, among other things, that converting cocaine into crack does not amount to the "manufacture" of a controlled substance under Alaska law. The trial court denied Chambers' motion and submitted the case to the jury with special verdict forms covering the separate theories of prosecution. The jury returned verdicts acquitting Chambers of possessing cocaine with intent to distribute but convicting of possession with intent to manufacture. On appeal, Chambers contends that the trial court erred in denying his motion for a judgment of acquittal. He argues that, since the undisputed evidence at trial established that the cocaine molecule remains unchanged, the process of converting cocaine hydrochloride to crack cocaine does not amount to "manufacture" of a controlled substance. In response to Chambers' argument, the state acknowledges that the cocaine molecule remains intact when cocaine hydrochloride is converted to crack. The state nonetheless contends that cocaine hydrochloride and crack are different chemical compounds and that the process of making crack from cocaine involves a chemical alteration. In the state's view, Alaska's statutory definition of manufacturing is sufficiently broad to cover this process. Alaska Statute 11.71.900(13)(A) states, in relevant part, that "manufacture" means the production, preparation, propagation, compounding, conversion, growing, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; however, the growing of marijuana for personal use is not manufacturing.... Chambers replies that the statutory definition of "manufacture" is not as broad as the state submits. Specifically, Chambers focuses on the portion of AS 11.71.-900(13)(A) that refers to "extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.... " From this language, Chambers concludes that, under AS 11.71.-900(13)(A), "manufacture" can occur only when a process involves "extraction from a substance of natural origin," "chemical synthesis," or a combination of the two. Chambers insists that the process of converting cocaine hydrochloride to crack cocaine does not fit these pigeonholes. He notes that, because cocaine hydrochloride is not a natural substance, making crack from cocaine hydrochloride does not qualify as extraction from a substance of natural origin. Chambers further claims that the process does not involve chemical synthesis. Relying on Webster's Encyclopedia of Dictionaries at 378 (New American Ed.1978), Chambers defines synthesis as the "uniting of elements to form a compound." Chambers points out that no elements of a compound are united in the process of making crack cocaine from cocaine hydrochloride. Finally, Chambers contends that the conversion process cannot amount to a combination of extraction and synthesis, because neither is individually involved. Chambers' analysis lacks merit for several reasons. Initially, we note that Chambers' proposed definition of "synthesis" appears narrower than that contained in some commonly used dictionaries. For example, a different version of Webster's than that relied on by Chambers defines synthesis as, "the production of a chemical compound by the union of elements or simpler compounds or by the degradation of a complex compound_" Webster's Third New International Dictionary of the English Language at 2321 (1966). The same dictionary defines degradation as a "change of a chemical compound to a less complex compound." Id. at 594. Under these definitions, the process of converting cocaine hydrochloride into crack qualifies as synthesis. Even assuming Chambers' definition of synthesis were not unduly narrow, Chambers misreads the statutory definition of manufacturing. While Chambers construes the phrase "by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis" as restricting all of the language in AS 11.71.900(13)(A) that precedes it, the grammatical structure of the section as a whole does not support Chambers' interpretation of this phrase. Moreover, a comparison of Alaska's provision with the statutes from which it derives indicates that the disputed phrase was meant to be read as an independent clause. In relevant part, Alaska's definition of "manufacture" is taken verbatim from former Uniform Controlled Substances Act (U.C.S.A.) § 101(m). See Alas ka State Legislature, Summary of Senate Judiciary Committee Hearing of March 6, 1981, at 1. The U.C.S.A. was intended to "create a coordinated and codified system of drug control, similar to that utilized at the federal level...." Handbook of the National Conference of Commissioners on Uniform State Laws at 224 (1970). In keeping with this intent, both Alaska's definition of "manufacture" and the definition contained in former U.C.S.A. § 101(m) mirror the definition contained in the Federal Controlled Substances Act, 21 U.S.C. § 801(15) (formerly 21 U.S.C. § 801(14)). The federal definition of "manufacture" differs from the relevant portions of the Alaska and former U.C.S.A. versions only in that it includes the word "or" after the word "indirectly," defining "manufacture" as "the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis_" Id. (emphasis added). This use of the disjunctive "or" in the federal definition makes it apparent that the statutory language following the disjunctive — which is the disputed language in this case — was not meant to modify or restrict the language that precedes the disjunctive. There is no indication that the omission of the "or" from former U.C.S.A. § 101(m) or from the virtually identical language of AS 11.71.900(13)(A) was intended to effect any substantive alteration of the federal definition. To the contrary, as we have noted, our legislature appears to have intended to follow the federal law. Notably, the U.C.S.A. definition of "manufacture" was amended in 1990 to restore the originally omitted "or." See U.C.S.A. § 101(13) (1990). We see no basis for construing the pertinent portions of AS 11.71.900(13)(A) differently than the federal statute. It is instructive that, under federal law, the conversion of cocaine hydrochloride to crack appears to be routinely prosecuted as manufacturing. While the precise issue raised by Chambers in this case is apparently one of first impression, convictions for manufacturing crack from cocaine have been upheld on appeal in federal courts. See, e.g., United States v. Thomas, 895 F.2d 1198 (8th Cir.1990); United States v. Houston, 892 F.2d 696 (8th Cir.1989). We conclude that sufficient evidence was presented to allow reasonable jurors to find that the process of converting cocaine hydrochloride into crack cocaine involved the direct "production, preparation, propagation, compounding, conversion, growing, or processing of a controlled sub-stance_" AS 11.71.900(13)(A). For this reason, the jury could properly find that Chambers' possession of cocaine hydrochloride with intent to convert it to crack cocaine amounted to possession with intent to manufacture. The trial court did not err in denying Chambers' motion for a judgment of acquittal. The conviction is AFFIRMED. MANNHEIMER, J., not participating. . In pertinent part, AS 11.71.030 provides: (a) Except as authorized in AS 17.30, a person commits the crime of misconduct involving a controlled substance in the third degree if the person (1) manufactures or delivers any amount of a schedule IIA or IIIA controlled substance or possesses any amount of a schedule IIA or IIIA controlled substance with intent to manufacture or deliver.... . At trial, Chambers also argued for a judgment of acquittal on the theory that the Alaska legislature intended to exempt manufacturing for personal consumption from the statutory definition of "manufacture" of a controlled substance. Chambers abandons this argument on appeal. It appears that the trial court correctly rejected this argument. In adopting the definition of "manufacture" currently contained in AS 11.71.-900(13), the legislature specifically provided a personal use exemption for the growing of marijuana but failed to exempt any other form of manufacture on like grounds. The specific exemption for marijuana is a compelling indication of legislative intent to include manufacture for personal use within the ambit of AS 11.71.-900(13) as to all other controlled substances. We note that Alaska's decision to limit the personal use exemption to the growing of marijuana differs from the Federal Controlled Substances Act, 21 U.S.C. § 802(15) (Supp.1990) (formerly 21 U.S.C. § 802(14)), and the Uniform Controlled Substances Act (U.C.S.A. § 101(13) (Supp.1991) (formerly U.C.S.A. § 101(m)), both of which generally exempt manufacture for personal use from the definition of "manufacture" as to all controlled substances. We recognize that this difference could lead to problems of interpretation under Alaska law that would not arise under the federal and U.C.S.A. counterparts. Specifically, it is conceivable that, in some situations, the actual ingestion of a controlled substance might technically qualify as "manufacture" under Alaska law. The evidence in the current case, however, presents no such problem. According to the undisputed evi dence, the process of converting cocaine into crack was plainly distinct from any act of consumption.

10347059

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

Mix v. State

1995-04-14

No. A-5334

1270

1273

893 P.2d 1270

893

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

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

Michael MIX, Appellant, v. STATE of Alaska, Appellee. No. A-5334. Court of Appeals of Alaska. April 14, 1995. Geoffry B. Wildridge, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Gregory S. Fisher, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1116

6778

ORDER On consideration of appellant's motion for publication, filed on March 23, 1995, IT IS ORDERED: 1. The motion for publication is GRANTED. 2. Memorandum Opinion and Judgment No. 3074, published on February 8, 1995, is WITHDRAWN. 3. Opinion No. 1405 is issued on this date in its place. Entered at the direction of the Court on April 14, 1995, at Anchorage, Alaska. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. OPINION COATS, Judge. Michael Mix pleaded no contest to driving while intoxicated (DWI) and driving while license suspended (DWLS), reserving his right to appeal the denial of his motion to suppress all evidence gathered after the stop of his car. Mix argues that there was no reasonable suspicion to support the stop. Fairbanks Police Officer Daniel Hoffman was the only witness at the evidentiary hearing on Mix's motion to suppress. Hoffman testified that on the day of Mix's arrest, he was on patrol when he heard the Alaska State Trooper (AST) dispatcher broadcast a "locate" for an intoxicated driver. Hoffman recalled the dispatcher saying, 'We have information that a red Datsun hatchback, license [CKM495], is believed to have an intoxicated driver and is presently turning eastbound from Peger [Road] onto Airport [Way]-" When he heard the dispatch, Hoffman was coming up on Airport Way, so he waited at the intersection of Airport and Lathrop. About thirty seconds later, Hoffman saw a red Datsun hatchback coming down Airport Way from the direction of Peg-er Road. The Datsun's license number was that reported by the dispatcher. Hoffman pulled out behind the Datsun and stopped it. Mix was the driver of the Datsun, and Hoffman subsequently arrested him for DWI and DWLS. Hoffman testified that his decision to stop Mix's car was based solely on what he had heard from the AST dispatcher and that at the time of the stop he had no idea who had made the report of an intoxicated driver. Judge Kauvar denied the motion to suppress. The judge found that Hoffman had had a "reasonable basis" for stopping the car. She found that when Hoffman saw a car exactly meeting the dispatcher's description at exactly the place it was reported to be, only a very short time after the report eame in, that was reason enough' for him to stop the car. Mix argues that Hoffman didn't have reasonable suspicion of DWI because he had no information regarding the reliability and basis of knowledge of the caller who reported the intoxicated driver, i.e., because the Aguilar/Spinelli test was not satisfied. Under Alaska law, the Aguilar/Spi-nelli test must .be satisfied if an informant's tip is to be used to establish probable cause for a search or an arrest. A brief investigative stop like the one in this case, however, need not be supported by probable cause, but only by a reasonable suspicion of imminent public danger. See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); Goodlataw v. State, 847 P.2d 589, 591 (Alaska App.1993). A tip need not necessarily satisfy the Aguilar/Spinelli test .in order to contribute to a finding that reasonable suspicion existed to justify an investigative stop. Goodlataw, 847 P.2d at 591. The issue here is simply whether Hoffman had a reasonable suspicion that Mix was an intoxicated driver. Although the Aguilar/Spinelli test need not be met in order to establish reasonable suspicion, the test "provides a useful framework for evaluating the trustworthiness of hearsay reports[.]"' Id. In both Goodlataw and Effenbeck v. State, 700 P.2d 811 (Alaska App.1985), we found reasonable suspicion for a stop where the officer conducting the stop observed no bad driving, but relied solely on an anonymous report of DWI. In each of those cases, however, unlike this one, the officer conducting the stop had some direct indication that the anonymous caller was a citizen informant speaking from personal knowledge of the driver's intoxication. In this case, Hoffman had absolutely no information about the circumstances leading to the "locate" broadcast by the AST dispatcher. He confirmed the presence of the car in its reported location; Standing alone, however, this provided him with no reasonable basis to suspect that the driver of the car was intoxicated. Taken in combination with the additional information, Hoffman had no further insight into the reliability of the information concerning the driver's intoxication. Cf. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (corroboration of innocent facts sufficient to show reasonable suspicion where facts establish anonymous informant's ability to predict suspected further conduct). In fact, it was not even clear whether the "locate" was based on an.anonymous tip at all. The danger inherent in this situation is obvious. As Professor LaFave has pointed out: [W]hen a police bulletin is accepted at face value when it is utilized only for purposes of making a stop, then there is no determination at all Of reliability. Such acceptance is not only wrong, it could lead to ludicrous results; an officer could not make a stop on the basis of assertions from an anonymous informant made to him, but could bring about a lawful stop by the simple expedient of passing those assertions on to another officer. 3 Wayne R. LaFave, Search and Seizure § 9.3(f), at 488 (2nd ed. 1987) (footnotes omitted). Taking this line of reasoning one step further, if a dispatched "locate" could by itself create reasonable suspicion, an officer prompted not by a tip at all, but only by a hunch, could relay a description and license number through the dispatcher and thereby effectuate a lawful stop. In this case, in which the officer making the stop had no indication that the "locate" was based on reliable firsthand information and in which the state presented no evidence that the dispatcher or some other officer had relevant knowledge that could possibly be imputed to Officer Hoffman, we cannot find that the stop was supported by a reasonable suspicion of imminent public danger. The district court erred in denying Mix's motion to suppress. The judgment of the district court is REVERSED. . See Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974). . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct 584, 21 L.Ed.2d 637 (1969).

12002630

Robert E. BUNN, Appellant, v. M. Kay HOUSE, f.k.a. Bunn, Appellee

Bunn v. House

1997-04-11

No. S-7249

753

759

934 P.2d 753

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Robert E. BUNN, Appellant, v. M. Kay HOUSE, f.k.a. Bunn, Appellee.

Robert E. BUNN, Appellant, v. M. Kay HOUSE, f.k.a. Bunn, Appellee. No. S-7249. Supreme Court of Alaska. April 11, 1997. Robert E. Bunn, Salt Lake City, UT, pro se. Patrick W. Conheady, Olmstead & Con-heady, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

3084

18376

OPINION MATTHEWS, Justice. In this divided custody case the trial judge awarded child support using a formula that required the father to pay approximately $154 monthly. No appeal was taken. Four years later the parties' incomes had not significantly changed but a different judge modified the award to $399 per month based on a different formula. The threshold question is whether the modification was appropriate. Because Alaska Rule of Civil Procedure 90.3(h)(1) requires a material change of circumstances before a child support order may be modified and there was no such change, we answer in the negative. I. FACTS AND PROCEEDINGS Robert E. Bunn and M. Kay House were married in 1980 and divorced in 1990. They have three children. On March 1, 1991, Judge Cranston of the superior court in Ke-nai entered findings of fact and conclusions of law and an order pertaining to child support and custody. The court awarded House custody of the two younger children and placed the older child in the custody of Bunn. Bunn was required to pay child support in the sum of $675.90 a month. Bunn timely moved for reconsideration of the child support award. Over opposition, the court on October 29, 1991, modified the award. Based on a formula derived from Civil Rule 90.3(a)(2), Bunn was ordered to pay 27% of his adjusted income to House for child support, and House was ordered to pay 20% of her adjusted income to Bunn. "[T]he difference in the two amounts of child support shall be paid by the party with the greater obligation to the party with the lesser obligation." The result was a net payment of approximately $154 per month from Bunn to House. No appeal was taken. Venue was then changed to Juneau. In 1995, House filed a motion to modify the child support award, proposing a new method for calculating Bunn's child support obligation. Under this method Bunn owed $387 per month in child support. The' motion pointed out that the increase was "151% greater than the current order." Bunn, appearing without counsel, opposed the motion on a number of grounds. He argued, among other things, that the order of October 29,1991, should control. On June 8, 1995, Judge Carpeneti of the superior court in Juneau granted House's motion. Using the method of calculation proposed by House, he found that Bunn owed $399 per month in child support. Because the increase over the amount owed under the method used by Judge Cranston in the October 29, 1991 order "exceeds the 15 percent threshold requirement for the court to presume a material change of circumstances" under Civil Rule 90.3(h)(1), a material change of circumstances was found to have occurred. Judge Carpeneti imputed an annual adjusted income to Bunn of $28,438.46. House's annual adjusted income was $28,-423.46. Judge Cranston in the order of October 29, 1991, found Bunn's annual adjusted income to be $25,032. House's income was found to be "comparable or equal." She filed a financial declaration dated May 17, 1991, showing an adjusted annual income of $24,-482.28. Bunn appeals. He again argues that the court should have adhered to the prior child support award: "[T]he court erred by ignoring the prior orders.... The current court used the same facts and the same rules as had the prior court but reached a conclusion that is completely different from that of the prior court." House argues that the difference between the amounts of child support calculated by Judge Carpeneti and Judge Cranston is in itself a material change of circumstances which authorizes the modification. She contends that the difference came about because of "the error of the Kenai Court's order of October 29, 1991 which misapplied the correct formula for calculating support in this type of case." She does not argue that the incomes of the parties or the custodial arrangements for the children had significantly changed in the interim. II. DISCUSSION Alaska Rule of Civil Procedure 90.3 provides mathematical guidelines for child support awards (1) in eases where one parent has sole or primary physical custody of the parties' children and (2) where the parties share physical custody. The assumption of the formulas for sole or primary custody and shared custody is that children stay together. Sometimes this is not the case. Both parents may have sole or primary physical custody of different children. Or, custody of one or more children may be shared while other children are subject to primary or sole custody. In such cases Rule 90.3 does not provide a governing formula. The commentary to Civil Rule 90.3 suggests a method for divided custody cases which applies, in the first instance, a formula similar to that set forth in Civil Rule 90.3(b) pertaining to shared custody. The commentary formula is as follows: The first step in determining support in such a divided custody arrangement is to apply the usual shared custody formula in 90.3(b) by averaging the time all children will spend with each parent. For example, if one child will live with the father all of the time and two with the mother, support is calculated as if all the children spent one-third of the time with the father. The appropriate percentage figure for all the children (in the example, 3 or 33%) then is applied. Civil Rule 90.3 commentary, § VI.B.3. In this case Judge Carpeneti used the commentary formula. We set forth his calculations in the footnote. As detailed above, Judge Cranston used a method offsetting the parties' obligations, calculated under the formula expressed in Civil Rule 90.3(a)(2). Had Judge Carpeneti applied Judge Cranston's formula to the adjusted annual income of the parties found to exist in 1995, the monthly child support owed by Bunn would be approximately $166. This is an increase of about $12 per month, or slightly less than 8%. If Judge Cranston, in 1991, had applied the commentary formula, Bunn's obligation would have been approximately $359 per month. If this had occurred, the increase in child support in 1995 would have been $40 per month, or 11.1%. Civil Rule 90.3(h)(1) states: A final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order. . The 15% threshold is not satisfied when either the formula used by Judge Cranston or that used by Judge Carpeneti is consistently applied to the parties' 1991 and 1995 incomes. Only by changing formulas is the threshold exceeded, and that result occurs even if the parties' incomes remain constant. Civil Rule 90.3(h)(1), recognizing that courts have a special duty with regard to the support of children whose parents have divorced, provides an exception to the general principle that final judgments should not be disturbed. Some courts enunciate this exception in terms of res judicata. That is, they hold that a child support decree is res judicata unless and until there is a material change of circumstances which opens the door to modification. McKenna v. McKenna, 928 S.W.2d 910, 913-14 (Mo.App.1996); O'Callaghan v. O'Callaghan, 515 N.W.2d 821, 823 (N.D.App.1994); Smith v. Smith, 793 P.2d 407, 410 (Utah App.1990). While we believe that motions to modify child support, under Alaska law, do not technically raise res judicata concerns, the principle of finality is a sound one. As Professor Clark wrote: [The requirement of a change in circumstances places] greater emphasis on the need for finality in the tension which necessarily arises between modification and the policies underlying res judicata. It also reflects the need to achieve some reduction in the level of divorce litigation which now raises serious problems of judicial administration in nearly all states. 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 18.2, at 370-71 (2d ed. 1987). A party should not be allowed to relitigate the same facts in the hope of gaining á more favorable result. There must be a material change of circumstances before a support order can be modified. Our opinions recognize that certain fact changes occurring after the entry of a judgment may constitute a material change in circumstances. Such changes often take the form of shifts in the needs of the children or a change in one or both parents' level of income. Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988); Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979). A change in custodial or visitation patterns may also constitute a material change in circumstances. E.g., Arndt v. Arndt, 777 P.2d 668, 670 (Alaska 1989). In addition to factual changes, certain changes in the law can constitute material changes of circumstances permitting the modification of child support orders. "For the purposes of a motion to modify or terminate child support, the adoption or enactment of guidelines or a significant amendment to guidelines for determining support is a material change in circumstances, if the guidelines are relevant to the motion." AS 25.24.170(b). It was for this reason that we held the adoption of Civil Rule 90.3, itself, to be a material change in circumstances allowing the recalculation of child support obligations embodied in orders entered before Rule 90.3 came into existence. Charlesworth v. State, Child Support Enforcement Div. ex rel. Charlesworth, 779 P.2d 792, 793-94 (Alaska 1989). Further, we have recognized an exception to the requirement that there be a change of circumstances before a support order can be modified if the moving party can show that, although there has been no change in the facts or law, the needs of the children are not being met by the original order. Headlough v. Headlough, 639 P.2d 1010, 1012-13 (Alaska 1982). This exception is predicated on the idea that the court's primary duty is to see to the well being of the children of a broken marriage. Id.; see also Neil v. Neil, 648 N.Y.S.2d 740, 741 (N.Y.App.Div.1996) (recognizing same exception). Based on this review of prior case law, it is evident that a change in a party's legal theory is not a change of circumstances which warrants the modification of a child support order. House's new method for determining the proper level of child support was not based on any change in the facts or the law. It was merely a different theory, one which could have been presented in the 1991 adjudication. House's position on appeal — that the new method of calculation yields an amount of support sufficient to trigger the 15% "per se" material change of circumstances embodied in Civil Rule 90.3(h)(1) — lacks merit. The "15% rule" is a rule of materiality, not a definition of what constitutes a change of circumstances. There must be a change of circumstances, either factual or legal. If such exists, whether the change is material can be gauged by asking if it would result in a 15% change in the level of support. Where the change is factual, the same method of calculating support must be applied to the old and new facts. Otherwise, the materiality of the factual change cannot be measured. If House believed that the superior court erred in entering its October 1991 order, she was free to appeal that order to this court. Absent an appeal, she might have made a motion for reconsideration resting on one of the grounds enumerated in Civil Rule 60(b). Dewey v. Dewey, 886 P.2d 623, 626-27 (Alaska 1994); Propst v. Propst, 776 P.2d 780, 783 (Alaska 1989). However, the motion in this case was made pursuant to Civil Rule 90.3 and "the change in circumstances test relates to changes in external facts, not to mistakes." Larson v. Larson, 661 P.2d 626, 628 (Alaska 1983). III. CONCLUSION The fact that one method of child support calculation yields a result more than 15% different from another method used in an extant order is not a material change of circumstances. To so hold would mean the end of the principle of finality in this area of law. Because the record does not show a change in circumstances which would allow the superior court to modify the 1991 order, we hold that the superior court abused its discretion in modifying the order. The modified order entered on June 8, 1995, is VACATED and this case is REMANDED for proceedings consistent with this opinion. . House asserts in her brief that the motion for reconsideration was not opposed, but the record shows that it was. . Bunn argued: CSED [The Child Support Enforcement Division, which represented House with respect to the motion to modify] has made a mistake not basing their calculations on the most current order and amended decree, both dated October 29, 1991, as they pertain to child support. . . CSED has completely ignored the order dated October 29, 1991 where it is order [sic] that the plaintiff pay 20% of her adjusted gross income to defendant, and defendant pays 27% of his adjusted gross income to plaintiff. - The court used Rule 90.3(a) when it issued its order dated October 29, 1991 and there has not been any changes in the amount of visitation or custody since then. Bunn concluded: The defendant moves this court to deny the plaintiff's Motion to Modify Child Support. The defendant moves this court to order Child Support Enforcement Division to continue to enforce the current order. If and when a modification is requested, the modification should be based on Civil Rule 90.3(a) using current and accurate information supplied by both parties involved without any zealous and erroneous interpretations of the facts by CSED. Until that time the current order should be enforced. . The difference between the amount asked for by House and that awarded by the superior court is explained by different rounding methods. . Bunn had been attending school, and thus his actual income was lower. The court used Bunn's 1991 income, stating that "Bunn does not have the unilateral right to further his career ambitions at the expense of his obligation to support his children." .Civil Rule 90.3(a)(2), relating to sole or primary physical custody, provides: (a) Guidelines — Sole or Primary Physical Custody. A child support award in a case in which one parent is awarded sole or primary physical custody as defined by paragraph (f) will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2). (2) The percentage by which the non-custodial parent's adjusted income must be multiplied in order to calculate the child support award is: (A) 20% (.20) for one child; (B) 27% (.27) for two children; (C) 33% (.33) for three children; and (D) an extra 3% (.03) for each additional child. Civil Rule 90.3(b) provides the formula for shared physical custody. It provides in relevant part: (b) Shared Physical Custody. A child support award in a case in which the parents are awarded shared physical custody as defined by paragraph (£) will be calculated by: (1) Calculating the annual amount each parent would pay to the other parent under paragraph (a) assuming the other parent had primary custody. (2) Multiplying this amount for each parent by the percentage of time the other parent will have physical custody of the children. However, if the court finds that the percentage of time each parent will have physical custody will not accurately reflect the ratio of funds each parent will directly spend on supporting the children, the court shall vary this percentage to reflect its findings. (3) The parent with the larger figure calculated in the preceding subparagraph is the obligor parent and the annual award is equal to the difference between the two figures multiplied by 1.5. However, if this figure is higher than the amount of support which would be calculated under paragraph (a) assuming sole or primaiy custody, the annual support is the amount calculated under paragraph (a). . Civil Rule 90.3(f)(3) defines this as "divided custody": (3)Divided Custody. Parents have divided custody under this rule if one parent has sole or primary physical custody of one or more children of the relationship and the other parent has sole or primary custody of one or more other children of the relationship. . The commentary was prepared by the Child Support Guidelines Committee appointed by this court. It has not been adopted or approved by this court. Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993). Nonetheless, this court often relies upon the commentary for guidance in child support matters. See Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992); Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991). We have not followed it in every instance, however. See Eagley, 849 P.2d at 781 (rejecting commentary treatment of real estate depreciation). . We have neither approved nor disapproved the use of this formula. However, the formula could also apply to cases where some children of a marriage are in shared custody and some are in primary custodial arrangements. We have had occasion to adjudicate two such cases. In Coats v. Finn, 779 P.2d 775, 776 (Alaska 1989), we approved a child support award which appeared to have been based on either of two alternative methods, neither of which was the commentary formula. More recently in Turinsky v. Long, 910 P.2d 590, 596-7 (Alaska 1996), we indicated that a third method, also different than the commentary formula, should have been used. . . Using Judge Cranston's formula, the calculations are as follows: . The commentary formula is applied to the parties' 1991 incomes as follows: . This is so because a motion to modify is not a new action. It, rather, asks the court to re-open the final judgment in the same action. . We need not decide in this case whether the doctrine of the law of the case requires that the method on which the extant order is based be used. See Rooney v. Rooney, 914 P.2d 212 (Alaska 1996). As shown above, neither Judge Cran-ston's nor Judge Caipeneti's formula produces a 15% change when applied consistently to the parties' 1991 and 1995 incomes.

11866755

Cherry CONGER, Appellant, v. Arthur Terry CONGER, Appellee

Conger v. Conger

1997-12-19

No. S-8052

119

123

950 P.2d 119

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Cherry CONGER, Appellant, v. Arthur Terry CONGER, Appellee.

Cherry CONGER, Appellant, v. Arthur Terry CONGER, Appellee. No. S-8052. Supreme Court of Alaska. Dec. 19, 1997. Alan J. Hooper, Law Office of Alan J. Hooper, Fairbanks, for Appellant. Bonnie J. Coghlan, Fairbanks, for Appel-lee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

2154

12869

OPINION PER CURIAM. I. INTRODUCTION Terry Conger sought and was granted modification of a 1985 custody agreement. Cherry Conger appeals, seeking to reverse the superior court's denial of her Civil Rule 60(b) Motion to Set Aside Order Modifying Custody, its denial of her Motion to Accept Late Filed Opposition, and its Order Modifying Custody. We reverse. II. FACTS AND PROCEEDINGS In 1980 Cherry Diane Treat and Arthur "Terry" Conger were married in Phoenix, Arizona. In 1981 Cherry gave birth to their only child, Candy Diane. Cherry and Terry were divorced in 1985. Pursuant to a child custody and support agreement, Cherry was awarded custody of Candy. Terry agreed to pay Cherry $300 per month in child support. After the divorce Cherry lived in both Fairbanks and Arizona. She now lives in Phoenix, while Terry lives in Fairbanks. According to Terry's affidavit, Candy lived with him in Fairbanks from September 1989 through May 1992. Candy then lived with Cherry in Fairbanks until February 1993. She lived with Cherry's mother from February 1993 until April 1996. Candy has been living with Terry and his present wife in Fairbanks since then. In January 1997 Terry filed, in Fairbanks superior court, motions to modify custody, to restrain removal of Candy from Alaska, and to seal the file. He also filed supporting memoranda, affidavits, and related papers. On January 8 Cherry was served with these papers, by certified mail, in Phoenix. On January 16 Terry filed a motion for expedited consideration of his motion to modify custody, serving it on Cherry by express mail addressed to Cherry in Phoenix. Cherry retained Fairbanks counsel, who appeared on her behalf on January 17. On January 21 Cherry's counsel filed a non-opposition to the motion for an order restraining removal of Candy from the State, stating that "[Cherry] realizes that her daughter wants to remain in Fairbanks during the remainder of the school year and is respectful of that wish." On the same day Cherry's counsel filed an opposition to the motion for expedited consideration. On January 23 Cherry and Terry, through counsel, filed a Stipulation and Order which recited that they "stipulated and agree[d] that Plaintiff Cherry Conger may have an additional fifteen (15) days within which to file her Opposition to Defendant's Motion to Modify Custody." The superior court signed the order on January 24. It was filed and served on counsel on January 27. The Stipulation and Order did not state on what date the additional fifteen days was to commence running. On February 5 the court denied the motion for expedited consideration and granted the unopposed motion to seal the file. On February 10 the court entered an order granting Terry's motion to modify the custody agreement and ordering Cherry to pay fifty dollars per month in child support payments. The order was filed on February 11 and served on counsel February 13. On February 10, before learning of the order granting modification, Cherry attempted to file her Opposition to Motion to Modify Custody. The court clerk's office refused to file the opposition, stating that "[y]our Oppo to Mtn to Modify cannot be considered unless you file a Mtn to accept late filing." On February 19 Cherry filed a motion pursuant to Rule 60(b) to set aside the order modifying custody, and a motion to accept a late-filed opposition. In support of the motions, Cherry's counsel stated that he had assumed the fifteen-day extension for filing began on January 27, the day the order granting the extension was stamped and filed, which he refers to as the "effective date" of the order. If the fifteen-day extension had begun to run from January 27, Cherry's opposition would have been due on February 11, one day after Cherry attempted to file her opposition. The superior court denied Cherry's motion to set aside the order and refused to accept her "late-filed" opposition. The court stated: "It is disingenuous [to] claim that the agreement to extend runs from an unknown date in the future when a judge signs off. The opposition was 9 days late." III. DISCUSSION A. Standard of Review We review an order denying a Civil Rule 60(b) motion to determine if the trial court abused its discretion. See Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996). Reversal of the trial court "is justified only if this court concludes the trial court was clearly mistaken." Grothe v. Olafson, 659 P.2d 602, 611 (Alaska 1983). B. Did the Superior Court Abuse Its Discretion in Denying Cherry's Civil Rule 60(b) Motion to Set Aside the Order Modifying Custody and Accept Her Late-Filed Opposition? Pursuant to Alaska Civil Rule 60(b)(1), Cherry moved to set aside the Order Modifying Custody and to accept her late-filed opposition. Civil Rule 60(b)(1) provides: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect." Cherry argues that her assumption that the fifteen-day extension began on January 27 was a mistake, and that Rule 60(b)(1) provides the remedy. She states that "[t]he Stipulation and Order that the parties presented to the Court was not a model of clarity. It left ambiguous the question as to what date the 15 days was to be added." Terry does not address whether it was excusable neglect for Cherry to assume that the fifteen-day extension commenced running from the date the order was stamped and filed, and not from the date it was signed or from the date it was initially due. Cherry's opposition may have been late, depending on what date the fifteen additional days commenced to run. Cherry was served with the moving papers on January 8. Pursuant to Rule 77(c), and the notice served on Cherry, she had ten days following service to file her opposition to the motion to modify custody. However, on January 23 Cherry and Terry stipulated and agreed that Cherry would have an "additional" fifteen days within which to file her opposition. It was "SO ORDERED" by the court on January 24. The order was filed and served on the parties on January 27. Arguably, Cherry was to have filed her opposition as early as February 4, fifteen days after the original due date of January 20. At the latest, Cherry had until February 11 to file her opposition, fifteen days after the court's order was filed and served on the parties. See Alaska Civil Rule 58.1(a)(2) ("The date of entry of a written order not preceded by an oral order is the date the written order is signed unless otherwise specified in the order."); Johnson v. Siegfried, 838 P.2d 1252, 1255 n. 4 (Alaska 1992) ("Written orders are considered effective on the date they are entered, that is, the date on which the order is signed."). Cherry, however, filed her opposition on February 10. We conclude that Cherry's possible miscalculation of the date on which the "additional" fifteen-day period expired constituted excusable neglect. The Kansas Supreme Court addressed a similar situation in Jenkins v. Arnold, 223 Kan. 298, 573 P.2d 1013 (1978). In Jenkins, counsel miscounted the time in which he could file an answer and a default judgment was entered against his client. The court stated: [w]e are inclined to agree with counsel that a proper showing was made that the default was not the result of "inexcusable neglect".... The failure of counsel to answer would appear to be that type of excusable inadvertence or neglect common to all who share the ordinary frailties of mankind. Id., 573 P.2d at 1016. Other courts have similarly held that a party's failure to timely file constitutes excusable neglect. See INVST Fin. Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 400 (6th Cir.1987) (holding that because the party "offered a credible explanation for the delay that did not exhibit disregard for the judicial proceedings," filing their answer late was excusable neglect); United Coin Meter v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983) (holding that a misunderstanding as to when the extension was to begin, which resulted in a late filing and a default judgment, was excusable neglect because the record did not show "that the default occurred as the result of willful conduct"). Cherry was an out-of-state party who promptly retained counsel in Fairbanks. Counsel promptly entered his appearance on Cherry's behalf and filed a number of papers addressing the various motions filed by Terry. Cherry's prompt participation in the proceedings, and the fact that her opposition was at most six days late, if late at all, support the conclusion that her arguable tardiness showed neither a disregard for the proceedings nor a willful failure to proceed. Further, in view of Cherry's willingness to abide by the status quo until Candy's school term ended four months later, no need for haste was apparent. The court's precipitous action in granting Terry's motion to modify custody is inexplicable. It also nearly guaranteed a time-consuming appeal on a purely technical issue. Resolution of a custody dispute should not reach its final conclusion in a manner that effectively precludes one party from presenting his or her case. Courts must recognize that the issue is the best interests of the child, or children, and not merely a determination of the private rights of nominal parties. Moreover, it is critical that the court be as fully informed as possible when determining the best interests of a child. IV. CONCLUSION ' We conclude that the superior court abused its discretion by not granting Cherry's Rule 60(b) motion. We REVERSE the superior court's denial of Cherry's Rule 60(b) motion to set aside the order modifying custody, direct the superior court to accept her late-filed opposition, and REMAND the ease for further proceedings on Terry's motion to modify custody. . Counsel's failure to specify the date the fifteen-day extension was to commence running, or the date that the opposition was due, resulted in unnecessary confusion and litigation. The appeal that resulted from counsel's oversight should serve as an example of what litigants should not do when seeking an extension. Rather, they should specify when the additional time begins to run, and/or the due date of the document, given the time extension. . The Order reads: Defendant having moved this court to modify the custody, visitation and support in the above entitled matter, this court having considered the matter and being duly advised; IT IS HEREBY ORDERED that the terms of the Decree of Divorce entered July 15, 1985, be modified to provide that Defendant shall have primary physical custody of the parties' minor daughter, Candy Diane Conger, subject to rights of visitation in Plaintiff. IT IS FURTHER ORDERED that Plaintiff shall pay Defendant child support in the amount of $50.00 per month through the Child Support Enforcement Division. Support shall continue while Candy Diane Conger is 18 years old if she is (1) unmarried, (2) actively pursuing a high school diploma or equivalent level of technical or vocational training, and (3) living as a dependent with the obligee parent. . Although Cherry labels her time miscalculation as a "mistake," the proper analysis under Rule 60(b)(1) is whether the time miscalculation was excusable neglect. . Neither the court, in its order, nor the parties, in their briefing, venture to opine when Cherry was to have initially filed her opposition, from what date the "additional" 15 days was to have commenced running, or on what date the 15-day period expired. Cherry was served with Terry's motion on January 8. She had 10 days within which to file her opposition. It would have been due January 18, but since that was a Saturday, it was due Monday, January 20. If the "additional" 15-day period commenced running the following day, it expired February 4. if it corn-menced on January 23, the day the Stipulation and Order was signed by the parties, it expired on February 7. If it commenced on January 24, the date the court signed the order granting the "additional" time, it expired February 10. If it commenced on January 27, the date the order was filed and served on the parties, it expired February 11. An opposition filed February 10 was either 6 days late, 3 days late, on time, or 1 day early. There would appear to be no scenario which would result in the opposition being "9 days late." .In light of our Rule 60(b) resolution, we need not address the correctness of the Order Modifying Custody.

11880783

Dennis R. FATHKE, Appellant, v. STATE of Alaska, Appellee

Fathke v. State

1998-01-23

No. A-6350

1226

1231

951 P.2d 1226

951

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

Before COATS, C.J., and MANNHEIMER, J., and JOANNIDES, District Court Judge.

Dennis R. FATHKE, Appellant, v. STATE of Alaska, Appellee.

Dennis R. FATHKE, Appellant, v. STATE of Alaska, Appellee. No. A-6350. Court of Appeals of Alaska. Jan. 23, 1998. Paul E. Malin, Assistant Public Defender, Barbara K. Brink, Acting Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COATS, C.J., and MANNHEIMER, J., and JOANNIDES, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3118

18787

OPINION JOANNIDES, District Court Judge. Dennis R. Fathke was convicted of first-degree robbery, AS 11.41.500, for robbing a Subway sandwich shop of approximately eighty dollars and a meatball sandwich. Pri- or to trial, Fathke moved to compel the production of the palm print of the employee who handed the money and the sandwich bag to the robber. The trial judge denied the motion. Fathke now appeals, contending that the trial judge erred in denying his motion. FACTS AND PROCEEDINGS A Subway sandwich shop on Northern Lights Avenue was robbed at gunpoint on the night of January 28, 1995. A man entered the store and ordered a meatball sandwich. Amy Hanson, the crew leader at the Subway shop that night, made the sandwich, put it in a plastic bag, and rang up the purchase on the cash register. When she turned back toward the counter, the man showed her the butt of a gun sticking out of his pocket and demanded that Hanson open the cash register. Hanson did as she was told, and gave the robber the money that was in the register. The robber then left with both his freshly-ordered meatball sandwich and the money from the register, which added up to just under eighty dollars. Hanson called 911 and described the man who had robbed the store. Anchorage Police Officer Anthony Henry was sent to the shop. Near the scene of the crime, Henry saw a man who partially matched Hanson's description of the robber. The man identified himself as Dennis Fathke; Henry conducted a pat-down search of Fathke and found a .22 caliber starter pistol in Fathke's left jacket pocket; he found no money on Fathke, except for some loose change. Another officer took Hanson to the alley where Officer Henry was holding Fathke, and Hanson was asked if she recognised Fathke. Hanson identified Fathke as the man who had robbed the Subway store earlier that night. The police later found the meatball sandwich in its bag near the scene of the robbery. The police lifted a partial palm print from the sandwich bag. It did not match Fathke's palm print. The police were unable to rule out the possibility that the palm print belonged to Hanson as they did not take Hanson's palm print. Fathke was indicted for first-degree robbery. Prior to trial, Fathke asked the state to obtain Hanson's palm prints and to compare them to the palm print on the plastic bag. The state did not respond to Fathke's request. As a result, Fathke filed a pretrial motion to compel Hanson to produce palm and fingerprints for comparison with the print found on the sandwich bag. Fathke argued that Hanson's print was potentially exculpatory because if the palm print — already established as not being his — was not Hanson's print either, a logical inference would be that the print belonged to an unknown third person — i.e., the actual robber. The trial judge denied Fathke's motion without comment. A jury later convicted Fathke. Fathke appeals, claiming that Hanson's prints were relevant trial evidence, and that the trial judge's refusal to compel Hanson to produce these prints was reversible error because it denied him the opportunity to present potentially exculpatory evidence at trial. The state raises three alternative arguments in response to this claim: (1) that the trial court had no authority to compel Hanson to submit to fingerprinting; (2) that even if it had this authority, its failure to exercise it did not constitute an abuse of discretion; and (3) even if the court did abuse its discretion, any error was harmless. DISCUSSION The trial court had the authority to issue a subpoena compelling Hanson to produce palm and fingerprints. Alaska Criminal Rule 17(c) provides: A subpoena may . command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may suppress or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time they are to be offered in evidence and may, upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys. The state asserts that Criminal Rule 17 authorizes a trial court to issue subpoenas only to compel a person's appearance or to produce documents or other objects in court but that nothing in the rule suggests that the court has the authority to issue a subpoena requiring a person to allow the taking of her fingerprints. This argument seems based on the notion that a subpoena requiring the production of fingerprints impermissibly compels the creation of evidence, rather than merely compelling the production of an object. This distinction is unpersuasive. Hanson's palm and fingerprints can easily be viewed as objects in her possession; submitting to fingerprinting is merely the means by which this object would be made available for inspection, much as photocopying might be the means by which a document could be made available. A citizen's duty to cooperate in judicial proceedings includes not only the duty to comply with a subpoena to testify or to provide objects in one's control, but also the duty to provide certain forms of nontestimo-nial physical evidence, such as "submitting] to 'fingerprinting, photographing, or measurements, . writing] or speak[ing] for identification, . appearing] in court, . standing], . assuming] a stance, . walking], or . makfing] a particular gesture.' " United States v. Euge, 444 U.S. 707, 713, 100 S.Ct. 874, 879, 63 L.Ed.2d 141 (1980) (quoting Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966)). A similar issue arose in a recent Eighth Circuit case, United States v. Montgomery, 100 F.3d 1404 (8th Cir.1996). Montgomery was charged with possession of cocaine found in the pocket of a shirt in his luggage. Id. at 1405. The state had Montgomery try on the shirt. Montgomery requested that two other men with access to the luggage also try on the shirt (the two men had invoked their Fifth Amendment privilege when called to testify); the trial court refused. Id. at 1406. The Eighth Circuit Court of Appeals reversed Montgomery's conviction, holding that the Fifth Amendment did not prevent compelling the two witnesses from trying on the shirts in front of the jury, and that "[t]he district court abused its discretion in failing to follow this long line of settled authority" where, as here, the evidence was "material and relevant." Id. The state contends that the "non-consensual fingerprinting of a person is subject to the probable cause constraints of the Fourth Amendment," and would therefore require a showing of probable cause which cannot be shown here. The state is correct that nonconsensual fingerprinting can constitute a search and seizure within the meaning of the Fourth Amendment. See Hayes v. Florida, 470 U.S. 811, 813-14, 105 S.Ct. 1643, 1645-46, 84 L.Ed.2d 705 (1985). However, the Fourth Amendment does not place the same limitations on the production of evidence under subpoena as it places on police investigations; normally, no probable cause determination is necessary when the court subpoenas evidence. See Dept. of Revenue v. Oliver, 636 P.2d 1156, 1165 and n. 19 (Alaska 1981); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 195, 208-09, 66 S.Ct. 494, 505-06, 90 L.Ed. 614 (1946). Additionally, the Alaska Criminal Rules belie the state's argument that forcing a witness to be fingerprinted is an invasion of privacy; the rules specifically authorize a court to order persons to participate in certain non-testimonial identification procedures, such as fingerprinting. See Alaska R.Crim. P. 16(e)(2)(iii). In sum, we find that the trial court had, but failed to exercise, the authority to compel Hanson to produce palm and fingerprints. We now turn to whether this was an abuse of discretion. The refusal to compel the production of Hanson's prints was an abuse of discretion. Alaska Criminal Rule 17(c) authorizes a court to refuse to issue a subpoena, or to limit the scope of a requested subpoena, "if compliance would be unreasonable or oppressive." Alaska R.Crim. P. 17(c). On appeal, the state makes three arguments why the trial judge's refusal to order the taking of Hanson's prints was not an abuse of discretion: (1) Even without Hanson's print, Fath-ke could argue the police investigation was flawed for failing to print Hanson, thus leaving open the possibility that the print belonged to a third person; (2) even if the print on the bag was not Hanson's, Fathke's argument is flawed because some innocent third person could have touched the bag; and (3) forcing Hanson to be palm and fingerprinted-would have been unwarranted intrusion into her privacy. These arguments are unconvincing. The state's first argument is flawed because Fathke wanted to show that the print actually belonged to a third person, not just that the police investigation was flawed. Without proof that another person's print was- on the bag, Fathke's argument that some unknown person touched the bag would be wholly speculative; conversely, actual evidence that a third person had indeed touched the bag would have given him an evidentiary basis for making this argument before the jury. While it is true that Fathke might have touched the bag but left no print, Fath-ke was not trying to secure evidence capable of eliminating any possibility that he had touched the bag; instead, he was merely seeking evidence establishing the fact that some third person had touched it. While it is true that another store employee or a patron may have innocently touched the bag, this possibility appeared remote under the facts and does not eliminate the evidentiary value of a third person's palm print. A third person's palm print would make it less probable that Fathke was the robber. Therefore Fathke would have been unable to make this argument as effectively without this print. The state further argues that a subpoena requiring Hanson, a witness, to provide her prints would have involved a very significant intrusion into her privacy. We believe however that if the court had established appropriate safeguards in the use and dissemination of Hanson's prints, the intrusion on her privacy would have been negligible when compared to society's interest in the judicial process. "Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969). With appropriate safeguards in place, the intrusion into Hanson's privacy would have been minimal compared to the benefits of obtaining her palm and fingerprints. Based on the above factors, we find that the trial judge's denial of Fathke's motion to compel prints was an abuse of discretion. The prints were relevant and potentially exculpatory. Securing these prints would not have been unduly oppressive or unreasonably intrusive. The error in denying Fathke's motion to compel production of Hanson's prints was not clearly harmless error. Because the trial judge's error in denying Fathke the opportunity to secure Hanson's prints implicated his constitutional right to compulsory process, we next examine whether it can safely be said that this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The state's evidence against Fathke was strong. Hanson was within only a few feet of the robber, in a well-lit store interior. Within minutes of the crime, Hanson was taken to the alley where the police had detained Fathke. Fathke's facial features were the same as the robber's, and — but for the fact that Fathke was wearing a cap and was no longer wearing a hood, "[h]e was wearing the same clothes.... He had the same coat on with the checkered pattern, the same blue pants on." The jacket was apparently one that was quite unique: it had a distinctive logo on its back, a checkered collar, and a discolored area on the shoulder. Hanson testified at trial that the jacket taken from Fathke and made a trial exhibit was the same jacket worn by the robber in all these regards. While the police could not "make a positive match," Fathke's shoes nonetheless were of "the same length, the same width, the same sole pattern, and the same fairly unique feature of wear pattern" as footprints found outside the scene of the crime. However, there were some missing pieces, uncertainties, and contradictions in the state's ease against Fathke. To begin with, the stolen money was never found. Also, while the store's video camera captured footage which, when enhanced, showed that the robber's dark jacket had some sort of lighter emblem or image on its back, much as Fath-ke's jacket did, the police "couldn't make a . positive ID," and "couldn't say it was absolutely — absolutely the jacket[.]" Nor could the police make a positive identification of the footprints they found near the scene of the crime. Officer Henry testified that, "it was obvious to me that [Fathke] had been drinking," and that, "I could smell it on him outside in the open air"; Hanson, however, testified that the robber did not smell of alcohol when in the store. The state's strongest evidence against Fathke seems to be Hanson's positive identification of Fathke by his clothes. While she told Officer Sims that she was "100 percent sure on the clothes," however, Hanson also testified that "it was hard to tell" whether Fathke was the robber from his facial features alone, since the robber had worn a hood in the store and Fathke's "hair was all in the hood before." Furthermore, Hanson, who understood the difference between an automatic and a revolver, identified the robber's gun as an automatic; Fathke, however, was found with a revolver. Hanson initially said the robber wore a gray jacket; later she said it was dark blue, then black. Hanson never mentioned the discoloration on the jacket when she called 911, despite the fact that this was one of the most distinguishing features of the jacket. At trial, she initially testified that she was only 85 percent certain that the defendant was the robber, but on the following day she testified that she was 100 percent certain; when asked whether her certainty had increased overnight, she said, "Yes, it has. I've been thinking about it all night. I've been remembering everything." Under these circumstances, we cannot be sure that evidence of a third person's print on the sandwich bag would not have altered the jury's decision. We therefore REMAND this case to the superior court so that Hanson's prints may be taken. Based upon the results of the print comparison, the superior court should determine whether the print evidence could have appreciably affected the jury's verdict, thereby necessitating a new trial. The superior court is hereby ordered to enter findings of fact and conclusions of law based upon the new evidence. The findings and conclusions should be transmitted to this court within 90 days of this order. We retain jurisdiction of this appeal. . The line of cases referred to as authority include Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); and Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). . Hanson testified that Subway's plastic bags come stapled onto a cardboard base in stacks of approximately fifty to a hundred, that these stacks are situated near the cash register at the end of the production line, that the bags would not be handled around the food preparation area at all, and that the individual bags pull away quite easily, one at a time. In contrast to this rather concrete testimony suggesting that it was unlikely the bag had been touched by other employees, the part of Hanson's testimony that does suggest the possibility of other employees touching the bag seems to be based almost entirely on speculation. Hanson testified that "the cookies are right there and the napkins are right there, and people can touch them when they put — they're reaching for cookies, people can touch them when they're reaching for napkins." "People can just walk by and lean against the counter and touch them." Even then, however, Hanson had to concede that such people would likely touch only the top bag, or "[m]aybe the bag underneath when they're ripping the top one away." This testimony suggests that bags touched by wayward palm prints would likely be used and gone within one or two sandwiches of being touched. Hanson also testified that, while it was unlikely that someone had taken the entire stack of bags out of the dispenser box and touched them, "you just reach in and grab it, and your hand can get on any one." Charles J. McMichael, another Subway crew leader, also testified. His testimony did suggest a greater possibility of wayward prints on bags than Hanson's did. He suggested that because the bags are inventoried on a weekly basis, which involves their being counted by hand individually, and because the reams of bags have to be transferred from the box to the countertop, it is possible that an employee might touch the bags, even those within a stack. He also testified that "the bags intend [sic] to get messed up, so all of them — we'll go through and we'll straighten them out. That way they look nice on the line." McMichael also testified, however, that this straightening out would be done with fingers, not with the palm of one's hand, and that while other employees might possibly conduct inventories differently, he himself would feather through the bags with his fingertips, "like you would with papers." He went on to agree with the assertion that, when one person is both making the sandwich and running the cash register, as Hanson did on the night of the robbery, "in all likelihood, if we're going to find a print on the bags not made by a customer, that it would be — that we'd be looking at that one person[J"

10346789

MUNICIPALITY OF ANCHORAGE, POLICE AND FIRE RETIREMENT BOARD, Appellant, v. Lisa COFFEY, Appellee

Municipality of Anchorage, Police & Fire Retirement Board v. Coffey

1995-04-14

No. S-6136

722

731

893 P.2d 722

893

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:51:08.921001+00:00

CAP

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

MUNICIPALITY OF ANCHORAGE, POLICE AND FIRE RETIREMENT BOARD, Appellant, v. Lisa COFFEY, Appellee.

MUNICIPALITY OF ANCHORAGE, POLICE AND FIRE RETIREMENT BOARD, Appellant, v. Lisa COFFEY, Appellee. No. S-6136. Supreme Court of Alaska. April 14, 1995. Robert D. Klausner, Klausner & Cohen, Hollywood, Florida and Allan E. Tesche, Russell, Tesche & Wagg, Anchorage, for appellant. David W. Baranow, Anchorage, for appel-lee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

5392

33460

OPINION COMPTON, Justice. I. INTRODUCTION Lisa Coffey petitioned the Municipality of Anchorage Police and Fire Retirement Board (Board) for permanent occupational disability benefits under Plan III of Anchorage Municipal Code (AMC) 3.85.230. The Board denied her claim and awarded her non-occupational benefits under AMC 3.85.240. Ms. Coffey appealed the Board's decision to the superior court. AS 22.10.020(d); Alaska R. Appellate P. 602. The superior court reversed the Board's decision. It concluded that there was not substantial evidence to support the Board's conclusion that Ms. Coffey's disability was non-occupational. The Board appeals. We affirm. II. FACTUAL AND PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND Lisa Coffey was employed as a police officer and call taker by the Municipality of Anchorage Police Department (APD) for approximately six years. On January 1, 1990, she was attempting to make an arrest. She was knocked down and kicked in the left shoulder blade area by the arrestee. She was wearing a three-to-four pound Kevlar protective vest when she was kicked. Ms. Coffey sought treatment from Dr. James C. Emerson, a chiropractor, for the injuries she sustained in this episode. Although the parties do not agree when Dr. Emerson began treating Ms. Coffey's left shoulder, Dr. Emerson's chiropractic records from January 2, 1990 show that Dr. Emerson adjusted Ms. Coffey's left hip and thoracic area, set her jaw, and took an x-ray of her lumbar region the day after the accident. After four months of treatment Dr. Emerson released Ms. Coffey to return to full duty. After being released by Dr. Emerson, Ms. Coffey returned to full duty until August of that year. During this time she worked regular shifts for the APD with no medical restrictions. She claims that she continued to experience nagging minor symptoms in varying degrees during this period, although there is no record of medical treatment. In August Ms. Coffey reported to Dr. Denise Z. Anderson, her family physician, that she had experienced pain and numbness in her left arm. Dr. Anderson referred Ms. Coffey to Dr. Robert Fu, a physiatrist, for testing. After evaluating Ms. Coffey's condition, Dr. Fu diagnosed Ms. Coffey as suffering from thoracic outlet syndrome. He recommended that Ms. Coffey change occupations. Ms. Coffey worked light duty in the training department from September 1990 through December 1991. During this period the physicians treating her never released her to return to full duty. In December the APD terminated Ms. Coffey from her sworn position as a patrol officer and rehired her in a non-sworn position as a call taker. In September 1992, Ms. Coffey's primary physician, Dr. Chang-Zern Hong, took her off this light-duty work. He reasoned that her job duties, combined with the stress of pressing her claim before the Board, rendered her incapable of continuing to work as a call taker. In addition to Doctors Emerson, Anderson, Fu, and Hong, Ms. Coffey has consulted with at least thirteen other physicians and health care providers. She conferred with many of these at the request of the Board. In summarizing the testimony and diagnoses given by these physicians and health care providers, the Board's own physician, Lee Glass, J.D., M.D., stated that virtually all of the physicians agreed that Ms. Coffey's current complaints are secondary to trauma. Dr. Glass emphasized that all of the physicians directly or by implication pointed to the incident of January 1, 1990 as the cause of Ms. Coffey's chronic pain complaints. Dr. Glass further remarked that no health care provider had identified an alternative etiology for Ms. Coffey's condition. Although Ms. Coffey's medical history pri- or to January 1, 1990, is largely undisputed, it is significant because the etiology of her disability is at issue. Most relevant to this dispute are four injuries which Ms. Coffey sustained to her back and neck prior to 1990: (1) in 1985 Ms. Coffey sustained a strained right shoulder muscle in a physical training class; (2) in 1986 she pulled a shoulder and neck muscle or nerve while assisting an off-duty officer; (3) in 1987 she pulled a muscle on the right side of her lower back while breaking up a fight; and (4) in 1989 she experienced pain and limited movement of her right shoulder after lifting a toilet bucket. Ms. Coffey sought medical attention for these injuries from both Dr. Emerson and Dr. Anderson. The Board specifically notes the importance of three entries in Ms. Coffey's medical history: (1) in 1987 Dr. Emerson recorded that Ms. Coffey was complaining of pain under her right shoulder blade; (2) as early as 1987 Dr. Anderson diagnosed Ms. Coffey with "mild myofascial syndrome;" and (3) in 1989 Ms. Coffey sought treatment from Dr. Anderson because she could not lift her arm and had difficulty turning to the right. B. PROCEDURAL HISTORY On May 23, 1991 Ms. Coffey applied for permanent occupational disability benefits under the Municipality of Anchorage Police and Fire Retirement Plan III. The Board awarded Ms. Coffey temporary occupational disability benefits. After further investigation, the Board concluded that Ms. Coffey had failed to prove by a preponderance of the evidence that her disability was permanent. On this theory it denied permanent disability benefits. Ms. Coffey appealed the Board's decision, and under AMC 3.85.004(C) (1993) requested a formal administrative hearing. At the conclusion of the formal administrative hearing the Board reversed its prior ruling on the permanency of Ms. Coffey's disability and concluded that she was permanently disabled. However, the Board also found that Ms. Coffey had failed to prove by a preponderance of the evidence that her disability was occupationally related. The Board ordered that Ms. Coffey receive permanent non-occupational disability benefits. These benefits are significantly less than occupational benefits. See AMC 3.85.230, 3.85.240 (1989). Ms. Coffey appealed to the superior court the issue of whether her disability was non-occupational. The superior court reversed the Board's determination and ordered the Board to award Ms. Coffey permanent occupational disability benefits. The Board appeals. III. DISCUSSION A. STANDARD OF REVIEW We review the merits of the Board's administrative determination de novo. When we review a decision of the superior court sitting as an intermediate court of appeal, we give no deference to the superior court's decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). There are four recognized standards employed to review administrative decisions: "the 'substantial evidence' test for questions of fact; the 'reasonable basis' test for questions of law involving agency expertise; the 'substitution of judgment' test for questions of law where no expertise is involved; the 'reasonable and not arbitrary' test for review of administrative regulations." Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975). Both parties and the superior court agree that this case should be reviewed under the substantial evidence test. We concur, because the only Board ruling at issue is its determination concerning the etiology of Ms. Coffey's disability. The question of whether Ms. Coffey's disability was the result of an injury she received while making an arrest on January 1, 1990 is purely a question of fact. The substantial evidence test requires this court to determine "whether there is substantial evidence, in light of the whole record, such that a reasonable mind might accept the board's decision." State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d 679, 682-83 n. 6 (Alaska 1991) (citing Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985) overruled on other grounds, Wade v. Anchorage School Dist., 741 P.2d 634, 638-39 (Alaska 1987)). When applying the substantial evidence test the court does not independently reweigh the evidence. Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993). The court should only determine whether such evidence exists, and not choose between competing inferences. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992); Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974). Whatever type of evidence is offered, whether affirmative, negative or otherwise relevant, the crucial question after considering the whole record remains whether the quantum of evidence is substantial enough to support a conclusion in the contemplation of a reasonable mind. The question whether the quantum of evidence is substantial is a legal question. Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1188-89 (Alaska 1984) (citations omitted). Therefore, if the Board is faced with two or more conflicting medical opinions — each of which constitutes substantial evidence— and elects to rely on one opinion rather than the other, we will affirm the Board's decision. Yahara, 851 P.2d at 72. B. THE BOARD'S RULING WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE Under the Anchorage Municipal Code the Board must "determine whether an occupational disability exists based upon medical records and other evidence satisfactory to the Retirement Board." AMC 3.85.230(B) (1989). The issue before this court is whether there was substantial evidence upon which the Board could have concluded that Ms. Coffey's injuries were not occupationally related. Although the Board's ruling contradicts all of the medical evidence presented at Ms. Coffey's hearing, the Board asserts that its decision that Ms. Coffey's injury was not occupationally related was based on substantial evidence. The Board offers seven rationales for its decision not to award Ms. Coffey occupational disability benefits. We address them seriatim. First, the Board argues that its decision was substantially motivated by its belief that Ms. Coffey "simply was not telling the truth." Its basis for this conclusion is Ms. Coffey's admission that she never told any of the examining physicians about her prior shoulder injuries. Second, the Board argues that none of the physician's diagnoses are reliable because they are all based on insufficient evidence. The Board claims that Doctors Fu, Hong, and Rosomoff had no knowledge of the toilet bowl incident for which Ms. Coffey was hospitalized. It also avers that Dr. Hong testified that he did not weigh prior possible causes when rendering his medical opinion. The Board gives no record cite to substantiate these claims. The closest it comes to identifying evidence supporting its position is testimony by Ms. Coffey that she had not told any of the examining physicians that she had been diagnosed with myofascial pain syndrome in 1987. The Board omits the remainder of Ms. Coffey's testimony in which she explains that until she testified she had been unaware that in 1987 she had been diagnosed with this condition. The Board further emphasized Dr. Roso-moffs testimony, which recognized that in making a diagnosis a physician is at the mercy of what a patient tells him. Dr. Roso-moff actually testified that he is at the mercy of what the patient tells him, or of whatever medical records exist. Regardless of what Dr. Rosomoff said, none of the physicians relied solely on Ms. Coffey's description of her symptoms in creating their diagnoses. They all used her medical records, independent testing, and observations. At the time they examined Ms. Coffey all of the physicians, except for the emergency room physicians, had access to her medical records. Dr. Hong even testified that he may have been aware of Dr. Anderson's 1987 diagnosis of myofascial pain syndrome, and that he definitely knew that Ms. Coffey had experienced other trauma previous to the January 1990 incident. Similarly, Dr. Rosomoff clearly had Ms. Coffey's medical records because he later noted that although she did not tell him that she had fractured her arm, he was aware of this injury. Dr. Rosomoff noted that there had been inconsistencies in the descriptions Ms. Coffey gave to him, but that this was typical of patients. Third, the Board relied on a statement by Dr. Rosomoff that myofascial pain syndrome can be hereditary, and thus need not be caused by trauma. However, Dr. Rosomoff went on to testify: this depends entirely on Lisa Coffey's testimony unless you have facts before you, that I know nothing about, she tells me that this began with her altercation, I have to accept from there on out that all of the sequence of events that followed, were due to that cause. Dr. Rosomoff never testified that Ms. Coffey's injury was hereditary. The only causal diagnosis he made linked her injury to the January 1, 1990 injury. Fourth, the Board focused on the three-to-four pound Kevlar body armor which Ms. Coffey was wearing at the time she was kicked. The Board asserts that Dr. Hong stated that because of the vest, the kick could not have caused her disability. What Dr. Hong said in fact was that because of the vest it is unlikely that the impact of the kick was the cause of the disability. He hypothesized that it is not unlikely that Ms. Coffey's condition was the result of her falling when she was kicked. Additionally, Dr. Rosomoff testified that he had treated other officers who had incurred injuries similar to Ms. Coffey's while wearing Kevlar vests. Fifth, the Board argues that the fact that Ms. Coffey sought no medical attention for pain from April through August 1990 is inconsistent 'with her disability having its onset in January 1990. The Board relies on notes taken by Linda Glick, a physical therapist, which report that Coffey suffered no physical problems from April to August 1990. However, both Doctors Rosomoff and Hong testified that this type of time lag is not inconsistent with Ms. Coffey having incurred the disability in January 1990. Sixth, the Board asserts that Dr. Emerson's records demonstrate that he did not begin treating Ms. Coffey's shoulder until January 17,1990, almost two weeks after the accident. The Board claims this time lag is also inconsistent with the disability having been incurred on January 1,1990. However, a closer examination of Dr. Emerson's notes reveals that the annotation the Board referenced is in fact a progress report on how Ms. Coffey's shoulder was improving. Such an annotation clearly indicates Dr. Emerson was in the process of treating a shoulder injury. Seventh, the Board argues that Ms. Coffey's myofascial pain syndrome was a preexisting condition evidenced by Dr. Anderson's diagnosis of mild myofascial pain syndrome in 1987. However, this court has held that the existence of a preexisting condition will not bar an employee from receiving occupational disability benefits. "It is basic that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury." Hester v. State, Pub. Employees Retirement Bd., 817 P.2d 472, 475 (Alaska 1991) (citing 22 Am.Jur.2d Damages § 280 (1988)). None of the foregoing arguments articulates any evidence which the Board could reasonably have relied on to conclude that Ms. Coffey's disability was not the result of her occupational injury of January 1990. All of the Board's contentions focus on the credibility of testimony given. Not one of the Board's assertions offers a fact or piece of evidence which would contradict Ms. Coffey's claim that her disability is work related. All of the physicians, including those the Board asked Ms. Coffey to consult, related her condition directly or indirectly to the trauma suffered during the January 1990 injury. Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993), provides that under the substantial evidence test this court will affirm the Board's decision where the Board is faced with conflicting medical opinions, and the Board elects to rely on one opinion rather than the other. However, this case is distinguishable from Yahara because, as we have already noted, the Board did not have conflicting medical opinions from which to choose. Although the Board correctly argues that this court should not substitute its judgment for the Board's own preference between competing medical opinions, the Board never references a single medical opinion contrary to Ms. Coffey's claim. In fact, there is a complete absence of contrary or conflicting medical opinion. The Board further argues that there was substantial evidence for its decision because it rejected all of Ms. Coffey's proofs. It asserts that the trier of fact is entitled to disbelieve witnesses or otherwise discount their testimony. Credibility determinations made by the trier of fact are generally left undisturbed by this court on review. See Richey v. Oen, 824 P.2d 1371, 1376 (Alaska 1992); Jackson v. White, 556 P.2d 530, 532 n. 4 (Alaska 1976). The Board cites Innes v. Beauchene, 370 P.2d 174 (Alaska 1962), for the proposition that where the trier of fact disbelieves a witness, that disbelief may, in fact, prove the opposite of the witness' testimony. The Board further insists that this court has applied this theory of evidence in reviewing administrative decisions. The Board contends that this court has held that substantial evidence supporting an administrative agency's findings of fact may take the form of circumstantial evidence or indirect proof. See Commercial Fisheries Entry Comm'n v. Baxter, 806 P.2d 1373, 1375 (Alaska 1991). In Innes, we held the witness's demeanor may convince the trier of fact that the truth lies directly opposite of the statements of the witness, especially where the witness is interested in the outcome of the case. 370 P.2d at 177. However, there are two flaws with the Board's application of Innes to this case. First, the Innes court was concerned with allowing trial courts the discretion to be skeptical of testimony by biased or interested witnesses. The only interested witness to testify was Ms. Coffey; the testifying physicians were not interested parties. Second, this holding has nothing to do with whether merely discrediting all of the witnesses would constitute sufficient evidence for an administrative agency's decision. Baxter is also distinguishable, because it involved a question of whether circumstantial evidence could constitute substantial evidence. 806 P.2d at 1375. In the ease at bar the agency had no evidence, circumstantial or testimonial, upon which it based its decision. C. THE SUPERIOR COURT PROPERLY DECLINED TO REMAND THE CASE FOR FURTHER EVIDEN-TIARY PROCEEDINGS The superior court did not err in reversing the Board, rather than remanding the case to the Board for further evidentiary proceedings. The Board argues that the superior court had misgivings over the sufficiency of the Board's inquiry into the work relatedness of Ms. Coffey's disability. It claims that the superior court erred in deciding the issue in the face of such uncertainties. The Board asserts that where the superior court finds that an administrative agency failed to consider an important factual issue, that issue is not to be decided by the superi- or court, but rather the case should be remanded to the agency for further fact finding. The Board advances a series of eases in which this court held that remand was necessary because the factual record was inadequate and further evidentiary hearings were needed: Southeast Alaska Conservation Council v. State, 665 P.2d 544 (Alaska 1983); Arkanakyak v. State, Commercial Fisheries Entry Comm'n, 759 P.2d 513 (Alaska 1988); City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870 (Alaska 1985). The Board correctly articulates the circumstances under which remand to an agency is appropriate. However, it fails to note that the case at bar is distinguishable from these cases. In each of the cases cited, this court clarified which interpretation of an agency rule or regulation should be applied to the given ease. Remand was necessary for evidentiary hearings which applied the new rule. These further evidentiary proceedings were required because the agency had an incomplete record or had made insufficient findings of fact with regard to the newly settled law. In City of Nome, we held that the superior court had properly remanded the case to the relevant administrative agency because equity required additional investigation. 707 P.2d at 877. The court concluded that the Board had made incomplete findings of fact because the Board awaited judicial clarification of the legal "mess" involved in the case. Id. In Southeast Alaska Conservation Council, we held that the superior court could have remanded to the agency if it found that the decisional document issued by the agency contained an inadequately reasoned explanation. 665 P.2d at 549. Similarly, in Phillips v. Houston Contracting, Inc., 732 P.2d 544 (Alaska 1987), a case not discussed by the Board, we remanded the case after we determined how to interpret a rule. The Board had not made all of the findings of fact which were necessary to apply the new interpretation of this rule. See Phillips, 732 P.2d at 547. Likewise, in Arka nakyak, we remanded the case because we determined that an exception not previously considered by the court might be applicable. 759 P.2d at 517. In the case at bar the superior court did not reverse due to the Board's failure to consider a factual issue, or because it found that the record needed to be supplemented with further fact finding. Instead, the superior court reversed the Board because even presuming that all of the inferences made by the Board were accurate, "there was still not substantial evidence to justify the Board's determination that Appellant's permanent disability was not caused by the work-related injury she suffered on January 1, 1990." The Board contends that the following statement, which appears in a footnote to the superior court's order, demonstrates that the superior court found the fact finding incomplete, and therefore, should have remanded: Perhaps the lack of "substantial evidence" to support the Board's decision is a consequence of the fact that the focus of the hearing was the permanence of the injury rather than the cause of injury. The Board's decision on an issue that was not the focus of the dispute shifted the decision from what Appellant had successfully proved to what neither party had focused on and which was not really an issue. The court recognizes that the Board was free to review all aspects of appellant's claim. Though it may not technically violate due process for an agency to rule on a matter parties don't view as primary, one can see how a sense of fairness in the proceeding might be jeopardized. Although this language emphasizes that the occupational relatedness of Ms. Coffey's injury was not the focus of the Board's hearing, the superior court does not assert that the Board did not make sufficient findings of fact as to this issue. It is disingenuous for the Board to argue that this case should be remanded. This is not a case where necessary findings of fact were not made. The Board's "Findings of Fact and Conclusions of Law" include a section specifically noting the Board's ruling on the occupational nature of Ms. Coffey's injury: The Board finds that the Applicant failed to meet her burden of proof that her disability arises out of an occupational injury. After weighing the evidence presented by the Applicant and the Staff, the Board finds that the evidence does not preponderate in favor of finding the disability is occupational. Additionally, the Board itself argues that all four elements of a disability claim were presented and argued at the hearing. While making another point the Board even emphasizes that the counsel for the Board spent "a substantial amount of his argument pointing out the pre-existence of the veiy complaints which Coffey states originated on January 1, 1990." There is further evidence in the record that although the main focus of the hearing was on the permanency of Ms. Coffey's injury, the Board addressed questions about the etiology of Ms. Coffey's disorder to the different doctors who testified. D. THE SUPERIOR COURT DID NOT ERR IN COMMENTING THAT THE TESTIMONY OF ALL THE PHYSICIANS WAS CLEAR AND CONSISTENT The Board argues that the superior court's finding that the medical evidence was "clear and consistent" exceeded the court's permissible scope of review. The Board emphasizes that when conflicting medical opinions are present, deciding between the theories is a matter exclusively for the Board and not for the court. See Hester v. State, Pub. Employee Retirement Bd., 817 P.2d 472, 477 (Alaska 1991). However, this case is distinguishable from Hester and its progeny because no conflicting medical evidence was produced relating to the issue of work relatedness. All of the physicians consulted either would not hypothesize about the source of Ms. Coffey's disability, or agreed that Ms. Coffey's disability was directly or indirectly caused by her occupational injury of January 1, 1990. The Board does not cite one physician's opinion which affirmatively contradicts Ms. Coffey's claims about the etiology of her disability. E. THE SUPERIOR COURT'S AWARD OF ATTORNEY'S FEES WAS NOT AN ABUSE OF DISCRETION "Appellate Rule 508(e), rather than Civil Rule 82, controls any award of attorney's fees when the superior court determines an administrative appeal." Diedrich v. City of Ketchikan, 805 P.2d 362, 371 (Alaska 1991); see also Kodiak W. Alaska v. Bob Harris Flying Sew., 592 P.2d 1200 (Alaska 1979); Alaska R.App.P. 601(b). Appellate Rule 508(e) provides that "[ajttorney's fees may be allowed in an amount to be determined by the court." Thus, the superior court has broad discretion to award a party reasonable attorney's fees, and we will only reverse where there is an abuse of discretion. See Cook Inlet Pipe Line Co. v. Alaska Pub. Util. Comm'n, 836 P.2d 343, 348 (Alaska 1992). The superior court awarded Ms. Coffey $3,200.00 in attorney's fees and $2,056.00 in appellate costs. This award was within the discretion of the court. We affirm the superior court's award of attorney's fees to Ms. Coffey. IV. CONCLUSION We AFFIRM the superior court's reversal of the Board's denial of permanent oecupa-tional benefits to Ms. Coffey. The superior court correctly concluded that substantial evidence did not support the Board's determination that Ms. Coffey's permanent disability was not caused by the work-related injury she suffered on January 1, 1990. The Board has not pointed to any evidence upon which it could have relied in concluding Ms. Coffey's disability was not occupationally related. The superior court did not err by reversing rather than remanding this case. The superior court concluded that the lack of sufficient evidence was not the result of the Board failing to consider an important factual issue. Over fifteen physicians and health care providers testified at the hearing, and all who opined on the etiology of Ms. Coffey's disability related it to the January 1, 1990 incident. Thus, the Board had ample opportunity to, and in fact did, consider the factual issue in question. The superior court did not exceed its authority or inject itself into the role of the trier of fact when it commented that the physicians' testimony was clear and consistent. All of the physicians who offered an opinion on the etiology of Ms. Coffey's disability testified that it was directly or indirectly caused by the occupational injury of January 1, 1990. The superior court did not abuse its discretion in awarding attorney's fees and costs. The award of attorney's fees also is AFFIRMED. . Ms. Coffey claims that the x-ray indicates that she was treated for severe back pain as early as January 2, 1990. Conversely, the Board claims that there is no record of left shoulder treatment until a notation by Dr. Emerson made on January 17, 1990. This notation suggests that Dr. Emerson had already begun treatment of Ms. Coffey's shoulder. The note states that Ms. Coffey is "feeling better with improved range of motion and much reduced shoulder pain." The notation does not suggest that onset of the pain was the reason for the appointment, particularly in light of Dr. Emerson's January 2 notation. . The Board found it significant that Ms. Coffey does not remember whether she told Dr. Fu that she had previously pulled her shoulder muscles and is sure that she did not inform him of a diagnosis of mild myofascial pain syndrome made by Dr. Anderson in 1987. . These other health care providers included: Dr. David M. Dietz, Ms. Linda I. Glick, Dr. Paul L. Craig, Dr. Ronald E. Mertens, Dr. Kenneth M. Wilson, Dr. Paul J. Duewelius, Dr. John N. Porter, Dr. Lee S. Glass, Dr. Hubert L. Rosomoff, Dr. Alan Saltzman, Dr. Morris R. Horning, Dr. Bruno M. Kappes, and Dr. Lawrence M. Blume. . Both parties also note that over the course of her employment as a law enforcement officer, Ms. Coffey made workers' compensation claims for a tailbone fracture, a broken nose, a fractured wrist and a pulled shoulder muscle. . AMC 3.85.230 (1989). . It is the usual rule that when the superior court, sitting as an intermediate appellate court, remands a case to the administrative agency for further proceedings, the remand is not a final judgment from which an appeal may be taken. City & Borough of Juneau v. Thihoudeau, 595 P.2d 626, 629-30 (Alaska 1979). However, we will review the remand in this case because its effect was to order the Board to perform a ministerial act, i.e., enter an order directing payment of permanent occupational benefits to Ms. Coffey. This is sufficient to constitute a final judgment for the purpose of Appellate Rule 202. . In addition to arguing for the application of the substantial evidence test, Ms. Coffey also contends that pursuant to AS 44.62.570 this court may exercise its independent judgment on the evidence. However, as the Board correctly notes, this contention is based upon the mistaken belief that AS 44.62, the Administrative Procedure Act (APA), should dictate the scope of review employed in this case. Alaska Statute 44.62.570 does not apply. Alaska Statute 44.62.330(b) specifically limits coverage of the APA to agencies either listed in AS 44.62.330(a) or made subject to the APA by other statutes. Galt v. Stanton, 591 P.2d 960, 962 n. 8 (Alaska 1979); see also, Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990). The Board is not among the agencies enumerated, nor is it made subject to the APA by another statute. See AS 44.62.330; AMC 3.85.010-.095 (1990). . The issue is not, as the Board argues, whether there was substantial evidence upon which the Board could have concluded that Ms. Coffey did not cany her burden of proof at the administrative hearing. Both parties agree that an applicant seeking benefits from the Retirement Board bears the burden of proving all of the elements required by AMC 3.85.230 and any implementing regulations. This differs from the workers' compensation system where there is a presumption of compensability. State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d 679, 683 (Alaska 1991). . The causation standard which the Board might have applied is whether the occupational injury was a substantial factor in aggravating the preexisting condition. See Hester v. State, Pub. Employees Retirement Bd., 817 P.2d 472, 475 (Alaska 1991) (citing Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985) overruled on other grounds, Wade v. Anchorage School Dist., 741 P.2d 634, 638-39 (Alaska 1987)). The employee bears the burden of establishing by a preponderance of the evidence that their work or a work related injury was a substantial factor in causing the disability. Hester, 817 P.2d at 475; State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d 679, 683 n. 6 (Alaska 1991). This is the causation standard used to determine worker's compensation benefits. We have held that it should also apply in occupational disability cases. Hester, 817 P.2d at 475. Under this causal standard occupational disability benefits can be awarded where the disability resulted from a work related aggravation of a preexisting condition. Id. Although the Board argues there is evidence of a preexisting condition (the early diagnosis of myofascial pain syndrome), the Board produces no evidence that the January 1990 incident was not a substantial factor in aggravating this condition. . The four elements of the administrative decision tree: (1) Does a disability exist? (2) Is the disability permanent? (3) Is the disability caused by employment? (4) If the member is disabled what is the effective date of the disability? . Ms. Coffey argues that the superior court did not inject itself into the role of fact finder by holding that the medical evidence was clear and consistent because this finding was statutorily warranted by AS 44.62.570(c). However, as discussed in section III., C. of this opinion, AS 44.62.570(c) does not apply to a decision by this Board.

10377898

STATE of Alaska, Petitioner, v. George KENDALL, Respondent

State v. Kendall

1990-06-22

No. A-3003

114

117

794 P.2d 114

794

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. George KENDALL, Respondent.

STATE of Alaska, Petitioner, v. George KENDALL, Respondent. No. A-3003. Court of Appeals of Alaska. June 22, 1990. Michael S. McLaughlin, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for petitioner. Leslie A. Hiebert, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for respondent.

2050

12566

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. On December 1, 1988, the grand jury indicted George Kendall for misconduct involving a controlled substance in the third degree, possession of cocaine, a class B felony. AS 11.71.030(a)(1). In March 1989, Kendall filed a motion to suppress evidence of a warrantless search conducted by the police on October 22, 1988, which resulted in the discovery of the cocaine. Following an evidentiary hearing, Superior Court Judge Joan Katz granted Kendall's motion and suppressed the evidence. The state filed a petition for review in this court. We granted the petition and ordered briefing. We now reverse Judge Katz's decision ordering suppression of the evidence. After investigating and making several undercover cocaine purchases from Lavon-da Heenan, Sergeant William Gaither of the Anchorage Police Department arranged to make a final cocaine purchase from Heenan at her home. When Gaither arrived, Heenan told him that she had just sold half of what she had promised him but that "more would be coming" and that Gaither could come back later if he wished. Gaither bought what was available and departed. As Gaither left, a team of police officers arrived with a search warrant and began to search the house. While the search was in progress, two officers monitored the phone. One of these officers intercepted an anonymous phone call and learned that an unidentified person would be coming with "some dope" in approximately fifteen minutes. Approximately fifteen minutes later, Kendall came to the front door of the house. Officer Audie Holloway, a plain clothes officer wearing surgical gloves, answered the door. Officer Gardner Cobb, who was in uniform, stayed out of sight behind the door. Holloway asked Kendall to come in, but Kendall hesitated, noticing the surgical gloves. Cobb then stepped out from behind the door. Kendall looked surprised at seeing a uniformed officer and began to back away. The officers reached for Kendall. Kendall hurled a beer toward them and turned to run. The two officers chased Kendall, wrestled him to the ground, and placed him under arrest for resisting an officer in violation of Anchorage Municipal Code § 08.05.530A. During the struggle, the officers saw the top of a propane torch protruding from Kendall's trouser waistband. According to the officers testifying at the evidentiary hearing, people who use crack cocaine employ propane torches to heat the cocaine. The officers also noticed some glass tubing protruding from Kendall's right front jacket pocket. The officers identified the glass tubing as a device to smoke crack cocaine. The officers took Kendall into the house. They removed the propane torch and glass tubing and, in the same coat pocket as the tubing, found a film canister which rattled when it was shaken. In a second jacket pocket, Cobb found a velvet bag containing something soft. As he removed the bag from Kendall's pocket, Kendall asked who had put the bag there and stated that he had never seen the bag before. Holloway upended the bag and three plastic packets containing cocaine fell out. When the police officers opened the film canister, it contained crack cocaine. Kendall moved to suppress the results of the search, claiming that since he had been arrested for resisting an officer, the officer could search him only for fruits of that particular crime. He argued that once the officers found the bag and the canister, they were required to stop and obtain a search warrant before they could open the closed containers. The state asserted that the search could be supported by several legal theories. It argued that the officers were properly engaged in a Coleman stop and that Kendall was searched incident to a valid arrest. The state also contended that given the facts and circumstances known to the officers at the time of the search, there was probable cause to arrest Kendall for possession or delivery of controlled substances. The trial court concluded that because the officers had arrested Kendall for resisting an officer, they could not search him for evidence of any other crime. It rejected the state's argument that because the officers learned information in a legal pat-down, they had probable cause to arrest for the additional offense of possession or delivery of cocaine. The court suppressed the evidence and dismissed the indictment. The state asked for reconsideration, arguing that the officers' misstated legal opinions should not govern the legality of the search. In response, the trial court held that the officers' removal of the two containers without examining the contents was proper as a search incident to the arrest on the resisting an officer charge. The court also expressly found that the officers had probable cause to arrest Kendall on cocaine charges prior to opening the containers. The court, though, applied a subjective standard and held that evidence must be suppressed. This petition followed. When Kendall arrived at the door of the house where the police were searching, the police had the legal authority to detain Kendall as part of an investigative stop. An investigatory stop is permissible "where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred_" Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Heenan had told Gaither that more cocaine would be coming at a later time. The officers then received an anonymous phone call from which they learned that an unidentified person would be coming with "more dope" in approximately fifteen minutes. The officers reasonably understood this to mean that someone would be delivering more cocaine. Approximately fifteen minutes later, Kendall arrived at the front door of the house. Under these circumstances, the officers were entitled to conclude that Kendall might be the person who was bringing more cocaine to the house. The officers had the right to detain Kendall briefly to determine his identity and take other reasonable steps to further their investigation. When Kendall attempted to flee the police were entitled to use reasonable force to detain him. During the course of the struggle to detain Kendall, the officers saw the top of a propane torch which was protruding from Kendall's trouser waistband. The police testified that these propane torches are used to heat crack cocaine. The police also noticed glass tubing protruding from Kendall's right front jacket pocket. The police identified the tubing as a device which is often used in smoking crack cocaine. The police then took Kendall into the house and found the film canister and the velvet bag. In her ruling, Judge Katz stated the following (emphasis original): Without detailing the other relevant facts, the court finds that at the time of removal of the closed containers from the defendant, the officers had probable cause to arrest the defendant on cocaine charges. They did not do so, however, until after the search of the containers. The issue presented is whether the search of the contents of the containers can properly be considered incident to arrest, when (1) the arrest was made for a crime (resisting) which results in production of no evidence that could be concealed in these containers, but (2) grounds existed at the time of the search of the containers for arresting defendant for a crime (misconduct involving a controlled substance), evidence of which could be located in the containers. Judge Katz reasoned that the law would best protect individuals' privacy interests by requiring police officers to first determine whether they had probable cause to arrest for a particular crime before allowing the officers to conduct a search incident to an arrest for evidence of that crime. She stated, "Officers operating on hunches who have failed to determine whether they have probable cause to arrest for the crime for which they are seeking evidence, could intrude unconstitutionally on the privacy rights of others." As Judge Katz noted in her opinion, there is authority to support her position. See State v. Ercolano, 79 N.J. 25, 397 A.2d 1062, 1067-69 (1979). However, an arrest is legal in this state when the objective information which the police have is sufficient to justify the arrest. For instance, in State v. White, 707 P.2d 271, 278-79 (Alaska App.1985), we stated that an arrest is valid if the information the officers had . amounted to probable cause. In making this determination, we look to all the information the police had, and not merely the information that they put in their affidavit for the the search warrant. [The officers'] testimony that they did not, in fact, believe that they had probable cause is irrelevant. In his treatise on the fourth amendment, Professor LaFave extensively discusses the issue of whether courts should review the objective facts which the police officers knew in determining whether there was a valid arrest or whether courts should consider the police officers' subjective conclusion that they had probable cause. W. LaFave, I Search and Seizure § 1.4(d), at 86-90 (2nd ed. 1987). LaFave indicates that Ercolano, the case relied upon by Judge Katz, represents a minority view. According to LaFave, the majority view is that the court should determine whether an officer has probable cause to arrest based upon the objective facts which the officer knew at the time of the arrest. LaFave strongly favors the majority view, finding that the Ercolano rule "erects an unduly rigid standard by insisting 'that policemen act on necessary spurs of the moment with all the knowledge and acuity of constitutional lawyers.' " Id. at 90 (quoting State v. Romeo, 43 N.J. 188, 203 A.2d 23, 32 (1966), cert. denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 563 (1965)). He concludes that it is unlikely that a rule which requires the police to state the correct theory which justified an arrest would have beneficial results. In LaFave's view, where police give the wrong reason for conducting an arrest, they likely would give the proper reason if they knew that the first ground was invalid. It seems that application of the rule requiring officers to state the correct ground before an arrest is valid would lead to a procedure where officers would be trained to state every possible ground for making an arrest, so that the arrest would be upheld if any one of the grounds was valid. Furthermore, requiring the officer to state the correct ground for arrest would result in the exclusion of evidence in cases where the person who was arrested had not had his rights violated. In the instant case, the police had reasonable suspicion to stop Kendall, to briefly detain him, and ultimately had sufficient information to arrest him for possession of cocaine. Kendall personally had no interest in whether the police who arrested him were able to correctly articulate the basis for the arrest. The only possible goal which we would accomplish by suppressing the evidence against Kendall would be to require police in future cases to more carefully articulate their grounds for arrest. We are unconvinced that such a ruling would have any positive effect. We accordingly adhere to the conclusion which we have stated in previous cases: the trial court should analyze the objective information which the police had at the time when they made an arrest in determining whether there was probable cause to make that arrest. Accordingly, we REVERSE the order to suppress the evidence. . Anchorage Municipal Code § 08.05.530A states: It is unlawful for any person to willfully resist, delay or obstruct any public officer in the discharge or attempt to discharge any duty of his office. . Coleman v. State, 553 P.2d 40 (Alaska 1976). . Alaska law also uses an objective reasonable person test in determining whether a person is in custody. In deciding whether a person is in custody, the court determines "whether the defendant, as a reasonable person, would have felt free to break off the questioning." Hunter v. State, 590 P.2d 888, 895 (Alaska 1979).

10371008

Rochette MOSS, Appellant, v. STATE of Alaska, Appellee

Moss v. State

1991-12-27

No. A-3146

671

676

823 P.2d 671

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Rochette MOSS, Appellant, v. STATE of Alaska, Appellee.

Rochette MOSS, Appellant, v. STATE of Alaska, Appellee. No. A-3146. Court of Appeals of Alaska. Dec. 27, 1991. Linda Wilson, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3110

18433

OPINION COATS, Judge. Rochette Moss was convicted, based upon his plea of no contest, of misconduct involving a controlled substance in the third degree, a class B felony. AS 11.71.-030. In entering his plea, Moss reserved his right to appeal Judge Rowland's denial of his motion to suppress his statements which Moss claimed the police obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree with Moss and reverse his conviction. On November 9, 1988, Sergeant James Grimes of the Alaska State Troopers obtained a search warrant which authorized him to search a trailer home which was Moss' residence. The police served the warrant the evening of November 9, 1988, at approximately 6:00 p.m. Approximately ten police officers, who were dressed in police marked raid gear, served the warrant. The police followed their usual procedure for executing warrants in drug cases, entering the residence with drawn weapons. The police found four people present in the trailer, including Moss and his wife. The police first searched a couch in the living room. The police then ordered Moss and the other occupants of the residence to sit on the couch. Sergeant Grimes explained at the suppression hearing that the police searched the couch to make sure there were no weapons or evidence in that area and then placed the occupants on the couch so that they could not obtain weapons or destroy or hide any evidence. Sergeant Grimes had a uniformed police officer stationed inside the residence at the front door. Sergeant Grimes explained that this officer's job was to watch the people who were sitting on the couch and make sure that they did not obtain any weapons or destroy any evidence. Sergeant Grimes stated that he believed that this officer would have stopped anyone trying to leave the residence and would have asked Sergeant Grimes if that person could leave the residence. Grimes stated that he would have given anyone permission to leave, but apparently never expressed this. Sergeant Grimes stated that he allowed the officer who was guarding the door to leave after approximately twenty to thirty minutes when the officer was no longer needed to secure the area. After the police secured the residence and had the residents placed on the couch, Sergeant Grimes told them that they were not under arrest, that the police were going to search the residence "and then we will be out of your hair and gone." At this point Grimes and Moss went into the back bedroom and closed the door. Grimes explained that he was a sergeant with the state troopers involved in narcotics enforcement. Grimes asked Moss questions about several people the police had intercepted at the airport who were involved in selling cocaine as part of a large organization. According to Grimes, police had information that these people were connected with Moss. Moss told Grimes that there was nothing for the police to find in the residence. Grimes explained that he had a court order, that he was going to search, and "then we will be on our way." Moss then explained that the police might find a plate which had some cocaine on it where a friend had consumed some cocaine. It is unclear whether the troopers had already located this cocaine before Moss made this statement, but the troopers apparently located a small amount of cocaine on a plate at this time. Grimes then asked Moss about a piece of paper which appeared to have notations of drug transactions on it. Moss originally tried to tell Grimes that the piece of paper was homework from a college course he was taking, but ultimately confessed to Grimes that the numbers represented drug transactions. According to Grimes, he questioned Moss for about fifteen to twenty minutes during this initial exchange. Grimes and Moss returned to the living room and Moss sat down again. A short time later, the police found more cocaine in a tool box. Following this discovery, Grimes again interviewed Moss in the back bedroom. Moss again made admissions admitting possession of this cocaine. Grimes then separately interviewed the other residents of the trailer. Following these interviews, Moss asked to talk to Grimes again. Moss wanted to know what the other residents had told Grimes. Moss asked Grimes if he was going to be arrested that evening. Grimes assured Moss that he was not going to be arrested. The police ultimately left the residence without placing anyone under arrest. Grimes estimated that the police started the search at 6:00 p.m. and left the residence at about 8:30 p.m. The state first contends that the issue which Moss seeks to raise is not a dispositive issue. In Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978), the supreme court held that the appellate courts of this state would not allow defendants to enter no contest pleas and reserve appellate issues unless the record clearly showed that the appellate court's resolution of the issue which the defendant reserved for appeal would be dispositive of the entire case and that the parties had so stipulated with trial court approval. However, in the trial court, the state agreed that this issue was dispositive of the case. At the change of plea hearing, the state represented that the police found two ounces of cocaine in Moss' home. The state represented that the police did not find any •cocaine in Moss' bedroom and implied that except for the fact that the police found cocaine in Moss' home, there was little evidence which would otherwise show Moss' possession of the cocaine. The state specifically represented that it was necessary for the state to introduce Moss' admissions to prove its case. On appeal the state argues that it had sufficient evidence to prove its case without Moss' statements. The state therefore argues that the issue which Moss raises is not dispositive. The state points out that the police found cocaine on a plate which was in plain view in Moss' residence and in a plastic bag in Moss' tool box. In addition, the police found scales and a piece of paper with numbers on it which appeared to represent cocaine transactions in the trailer. However, given the number of people in Moss' residence at the time the police arrived, the state's case against Moss appears problematical without his statements. We accordingly conclude that we should hold the state to its original representation that the issue concerning Moss' statements is dispositive. Moss contended in the trial court and contends on appeal that he was in custody during the time the police searched his residence. Moss contends that since he was in custody, the police needed to warn him of his Miranda rights before they could question him. It is undisputed that the police never warned Moss of his Miranda rights. The only question which this case presents is whether Moss was in police custody so that the police were required to warn Moss of his Miranda rights before questioning him. In Miranda, 384 U.S. at 436, 86 S.Ct. at 1602, the Supreme Court required the police to advise a person of his fifth and sixth amendment rights before engaging in "custodial interrogation." The court stated: By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. (footnote omitted). The Supreme Court of Alaska explained the concept of custodial interrogation in Hunter v. State, 590 P.2d 888, 895 (Alaska 1979). The court stated: We agree that the objective, reasonable person perspective is the proper standard for determining custody. The custody determination must be made on a case-by-case basis, but the inquiry, as expressed by the court in United States v. Hall, 421 F.2d [540] at 545 [2nd Cir. 1969], is whether: in the absence of actual arrest something . [is] said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates [to the defendant] that they would not have heeded a request to depart or to allow the suspect to do so. This requires some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police questioning. At least three groups of facts would be relevant to this determination. The first are those facts intrinsic to the interrogation: when and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning — whether he came completely on his own, in response to a police request, or escorted by police officers. Finally, what happened after the interrogation — whether the defendant left freely, was detained or arrested — may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning. Id. (footnotes omitted). Superior Court Judge Mark C. Rowland, who conducted the evidentiary hearing and made the ruling in this case, applied the Hunter standard. He emphasized the fact that the police told Moss that he was not under arrest and concluded that Moss was not in custody at the time that he made the admissions to the police. Although we believe that this is a close case, we reach the opposite conclusion. We believe that the amount of force which the police used to enter the residence and maintain control of the residence is a factor which supports a finding that a reasonable person in Moss' position would have felt that he was in police custody. We certainly do not fault the police for using necessary force to safely serve a search warrant and maintain control over a place while it is being searched. However, where the police use this type of force, even though it is necessary and justifiable, the force tends to establish custody. In Lowry v. State, we stated: Yet, especially when force is used or a display of weapons is made, a person who has been stopped and placed in the effective custody — albeit temporary — of the police may find little consolation in being advised that a formal arrest has not been made. The person so detained will certainly understand that he has been placed in custody, but he may not understand the temporary nature of the seizure unless it is explained. And if, as is likely, the person does not understand the technical distinction between an investigative stop and a formal arrest, a mere statement that he has not been arrested may not suffice to inform him of the temporary nature of the detention; he may not realize that he will be free to leave as soon as the police have completed the brief, on-the-scene investigation that constitutes a stop. 707 P.2d 280, 283-84 (Alaska App.1985). The fact that the police use force when they initially encounter a person, although an indication of custody, is not dispositive. In Lowry we upheld the decision of a trial court judge who concluded that Lowry was not in custody in spite of the fact that the police displayed weapons when they initially encountered him. Id. at 283. However, in that case we placed particular emphasis on the fact that, prior to the time when the police stopped Lowry, the police had contacted him by telephone and he had stated that he would willingly talk to the police. Lowry volunteered to drive from his home to meet with police investigators. Id. at 284. In addition, following the stop at gunpoint, the police put away their weapons after they found out Lowry was not armed, told him he was not under arrest, and asked him if he would be willing to accompany the police to the police station for questioning. Lowry was never handcuffed or otherwise physically restrained. Id. at 282. A major factor which tends to establish that Moss was not in police custody during the search is the fact that Sergeant Grimes told Moss that he was not under arrest and told Moss that he was going to search Moss' residence and then leave. However, the Miranda decision does not merely cover situations when a person is in custody because he is arrested, it also applies to a situation when a person is deprived of "his freedom by the authorities in any significant way." 384 U.S. at 478, 86 S.Ct. at 1630. In Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984), the Supreme Court acknowledged that a traffic stop significantly curtailed a person's freedom. However, in deciding this issue, the Supreme Court em phasized the fact that a motorist who is subject to a traffic stop realizes that he will only be stopped for a short period of time, issued a citation, and allowed to leave. In United States v. Musgrave, 726 F.Supp. 1027 (W.D.N.C.1989), the court held that the police were required to give Miranda warnings when they detained Musgrave while they were serving a search warrant. In Musgrave, the police told Musgrave that he was not under arrest. Musgrave testified that he understood that he was not going to be arrested during the search. Id. at 1031. Apparently the police did not display any weapons, although they were armed while they conducted the search. Id. at 1029-30. During the search the police questioned Musgrave for thirty to forty-five minutes. Id. at 1030. In deciding the case, the court pointed out that the fact that the police questioned Mus-grave in his home tended to reduce the coercive impact of the questioning. Id. at 1032. However, the court concluded that the length of the questioning tended to show custody. In deciding that Musgrave was in custody, the Musgrave court distinguished that case from an ordinary traffic stop: The questioning in this case is also distinguishable from an ordinary traffic stop. A traffic stop occurs in public, and the exposure to public view reduces the ability of an unscrupulous policeman from using illegitimate means to elicit self-incriminating statements. The motorist is not likely to fear he will be subjected to abuse if he does not cooperate. Moreover, the motorist realizes that he will be given a citation and be permitted to proceed on his way after several minutes. Berkemer, 468 U.S. at 438-39, 104 S.Ct. at 3149-50. The questioning of Defendant in this case did not occur in public. Instead, Defendant was placed in a closed room with three officers. Although he realized he would not be placed under arrest, it cannot be said that Defendant knew he would be free to leave after several minutes. In fact, Defendant's freedom of movement was significantly restrained for over an hour. Id. at 1033. Although we concede that the issue is close, we conclude that Moss was in custody during the police questioning and that the police were required to give him Miranda warnings. In making this determination, we emphasize the fact that the police entered Moss' residence at gunpoint and controlled his movements and the other residents at least at the beginning of the search. The tape recording which the police took during the service of the search warrant shows that Sergeant Grimes questioned Moss extensively. Although Sergeant Grimes did tell Moss that he was not under arrest and that the police would search the residence and then leave, we still believe that the record shows that Moss was deprived of his freedom of action in a significant way. Moss was in custody much more than he would have been in an ordinary traffic stop. Once the police found the plate with cocaine, it does not seem reasonable to conclude that Moss knew that he was not under arrest and was free to go. The search and questioning took a significant period of time — Sergeant Grimes estimated approximately two and one-half hours. Under these circumstances, we conclude that Moss was in police custody. The police were required to give Moss Miranda warnings or clarify that Moss was not in custody in order to question him. We accordingly reverse the decision of the superior court. REVERSED and REMANDED. BRYNER, C.J., dissents. MANNHEIMER, J., not participating. . Grimes testified that he interviewed Tina Moss in the back bedroom. Tina Moss refused to answer any questions. Following this short interview Grimes told Tina Moss that she was free to leave. Apparently Tina Moss then left the trailer and walked around outside the trailer. Grimes testified that as far as he knew, no one was with Tina Moss when she was walking around outside. . Among other things, the record shows that Sergeant Grimes and Moss discussed the fact that Moss was on probation for a drug offense and was facing revocation of his probation.

10350372

STATE of Alaska, Appellant, v. Mefail CELIKOSKI, Appellee

State v. Celikoski

1994-01-07

No. A-4555

139

142

866 P.2d 139

866

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Appellant, v. Mefail CELIKOSKI, Appellee.

STATE of Alaska, Appellant, v. Mefail CELIKOSKI, Appellee. No. A-4555. Court of Appeals of Alaska. Jan. 7, 1994. W.H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Ben Esch, Anchorage, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2109

13601

OPINION COATS, Judge. On October 1, 1991, Mefail Celikoski filed an application for post-conviction relief, alleging that he had been denied conflict-free representation as guaranteed by the United States and Alaska Constitutions. Following a hearing, Superior Court Judge Milton Souter granted post-conviction relief. The state appeals. We affirm. On January 9,1986, Mefail Celikoski, Ajra-din Celikoski, and Medzait Ramadanoski were indicted, on six counts of third-degree misconduct involving a controlled substance. An Illinois attorney, Robert Novelle, was hired as counsel for Ramadanoski. Begin- rung in January of 1986, an Alaskan attorney, Bill Bryson, acted as Novelle's local eo-coun-sel in Ramadanoski's case. Novelle testified that he consulted Bryson for advice concerning appropriate statutes, sentencing, and plea bargaining procedures. Novelle's testimony concerning the substance of the conversations was vague and he did not remember whether he and Bryson had discussed a strategy for Ramadanoski's defense. On March 4, Mr. Bryson entered an appearance for Celikoski. Celikoski testified that Bryson did not tell him that he was also acting as co-counsel for Ramadanoski. Bry-son testified that he did not remember telling Celikoski that he (Bryson) was also acting as co-counsel for Ramadanoski. Bryson recalled discussing the strength of the state's case with Novelle and whether each defendant was going to change his plea. Bryson also testified that both he and Novelle may have sat in on discussions with both defendants concerning whether or not the defendants were going to change their pleas. Bryson recalled being present on at least one occasion when Novelle met with Ramadano-ski before Ramadanoski changed his plea. Bryson further testified that he and Novelle had discussed some strategy concerning Ra-madanoski's defense. On April 22, both Celi-koski and Ramadanoski changed their pleas to guilty. During the post-conviction relief hearing, Judge Souter inquired of Bryson, "Was any of the advice that you gave Mr. Celikoski tempered by your concern for Mr. Ramada-noski's fate in the criminal system?" Bryson responded: I don't have specific recall of that. As I recall the case, both of them were in a situation where they would not have a very good chance at trial. And so at that point the advice was negotiate for the best disposition we could get. And that was to be done on behalf of each of them. And Mr. Novelle advised Mr. Ramadanoski, I advised Mr. Celikoski. As I previously stated, because they tended to trust Mr. No-velle because of his connection with family members, I believed that they each spoke with Mr. Novelle. Bryson later stated, "I suppose that's the ultimate problem here in that none of us have a recall as to whether or not there were strategic advantages gained. I mean from what I remember of the case my advice would have been the same regardless of the role.... " At the post-conviction relief hearing, Celi-koski testified that the judge who accepted his plea did not explain to him that Bryson was representing Ramadanoski, and that Celikoski never waived his right to conflict-free representation. Celikoski stated that no one had explained the dangers of dual representation to him. Judge Souter granted Celikoski's application for post-conviction relief. Judge Souter found that Bryson's representation of Rama-danoski was more than a technical representation; he found that Bryson had advised Ramadanoski and provided practical representation. Therefore, he found that Celiko-ski had established dual representation by a preponderance of the evidence. Judge Souter stated that, under Moreau v. State, 588 P.2d 275, 284 (Alaska 1978), the burden of showing that Celikoski suffered no substantive- harm then shifted to the state. Judge Souter concluded the state failed to meet this burden. Judge Souter emphasized that Bry-son had been unable to declare, with certainty, that his representation of Ramadanoski did not influence Ms representation of Celi-koski. The state argues that the trial court applied the wrong legal standard to CelikosM's application. In ruling on Celikoski's application, Judge Souter relied on the standard announced in Moreau. The Moreau court addressed the issue of joint representation of defendants in criminal trials, stating: We do, however, recognize the dangers of joint representation to a defendant's right to counsel protected under both the Umted States and Alaska Constitutions. Minne-, sota has recently emphasized its disapproval of joint representation, and has established procedures to assure that any waiver of the sixth amendment right to conflict-free representation meets constitutional standards. State v. Olsen, 258 N.W.2d 898, 903-08 (Minn.1977). Henceforth, in that state, the trial judge must personally advise the defendant of potential dangers inherent in dual representation. If the record fails to establish a "satisfactory" inquiry, the burden shifts to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist. We approve tMs standard adopted by the Minnesota court, and it will be applied to Alaska cases tried after the mandate is issued in the instant appeal. Id. at 284 (footnotes omitted). Judge Souter ruled as follows: [T]he applicant, under Moreau, has to bear the burden of proof by a preponderance to show the ground for post conviction relief. Here the ground for post conviction relief is the improper joint representation not inquired into by the court, not waived by the defendant, Mr. Celikoski. And that ground has certainly been established here. There is absolutely no question in tMs record that Mr. CelikosM was represented by the same counsel who was representing a codefendant. [CelikosM] has therefore established a sufficient ground for post conviction relief unless — unless under the Moreau case the state has shown, beyond a reasonable doubt that the defendant suffered no substantive harm in the situation. The state asserts that Judge Souter applied Moreau incorrectly because "[u]nder Moreau, CelikosM is entitled to relief if and only if Bryson had a 'prejudicial conflict' of interest due to his concurrent representation of RamadanosM." However, the language in Moreau indicates that CelikosM does not bear the burden of proving prejudicial conflict. Once CelikosM establishes dual representation and the failure of the trial court to make an appropriate inquiry, the state bears the burden of proving an absence of prejudicial conflict. The state also argues that Judge Souter should not have applied the Moreau standard, but rather should have applied the standard set out by the Umted States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Cuyler holds that: In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Id. at 348, 100 S.Ct. at 1718 (footnote omitted). Unlike the instant case, however, Cuyler deals with a situation where the defendant was aware of his attorney's representation of Ms co-defendants. Moreover, in Moreau the Supreme Court of Alaska appears to have adopted a standard wMch is more favorable to defendants. We recognize that Moreau was decided before Cuyler. Although we cannot be sure that the Alaska Supreme Court would continue to apply the Moreau test in light of developments in the law since that decision, the Moreau opinion appears to have adopted a rule specifically for Alaska based on policy considerations. The court did not appear to be merely attempting to apply federal law and we, therefore, believe that we must follow Moreau in this case. The state argues that Celikoski has the burden of establishing all facts necessary to his claim by a preponderance of the evidence because he is the petitioner in a post-conviction relief action. Therefore, the state claims, he must prove by a preponderance of the evidence both the existence of a conflict and that the conflict adversely affected his representation. Only then would the state be required to demonstrate that Celikoski's dual representation was harmless beyond a reasonable doubt. Consistent with Moreau, however, in order to qualify for post-conviction relief, Celikoski need only establish that Bryson had undertaken the dual representation and that the trial judge did not "personally advise the defendant of potential dangers inherent in dual representation." Moreau, at 284. Once Celikoski proved this, and it is undisputed that he did, he had met his burden of establishing all facts necessary to his claim and "the burden [then shifted] to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist." Id. Prejudice is not a part of a defendant's claim under Moreau. To support its position, the state also cites two Minnesota cases, Mercer v. State, 290 N.W.2d 623 (Minn.1980) and Lundin v. State, 430 N.W.2d 675 (Minn.App.1988). In these post-Moreau cases, Minnesota courts denied post-conviction relief to defendants who claimed prejudice resulting from dual representation. However, in each of these cases, the appellants were aware of the dual representation at the time it occurred. Mercer at 626; Lundin at 678. In fact, in Mercer, the court found that Mercer suggested the joint representation in spite of his attorney's previous warning about the potential conflict. Furthermore, in both Mercer and Lundin, appellate courts affirmed trial court decisions that appellants had not been prejudiced by dual representation. Celikoski testified that he was never aware of Bryson's conflict of interest. Bry-son testified that he did not recall advising Celikoski of the conflict. Although Judge Souter never made any specific factual findings concerning Celikoski's awareness of the conflict, we believe that on this record we must accept Celikoski's allegation that he knew nothing of Bryson's involvement in Ra-madanoski's defense until years later. We may reverse Judge Souter's finding, that the state failed to prove the absence of a prejudicial conflict beyond a reasonable doubt, only if that finding is clearly erroneous. The state has relied on the testimony of Celikoski's former attorney to establish that Celikoski was not prejudiced. Bryson recalled that the case against Celikoski was "a fairly strong case." Bryson stated that, to the best of his recollection, the charges against Celikosky resulted from alleged hand-to-hand drug transactions with an undercover police officer who had been involved in a prior prosecution of Celikoski. Bryson recalled that several of these transactions were recorded. Although Bryson stated that he thought his advice would have been the same regardless of the dual representation, he was unable to recall the case and was very equivocal in his responses. We believe that the evidence is such that Judge Souter could find that the state did not "prove beyond a reasonable doubt that a prejudicial conflict did not exist." Moreau at 284. We accordingly AFFIRM Judge Souter's decision granting Celikoski's application for post-conviction relief. . U.S. Const.Amend. VI; Alaska Const. Art. I § 11. . Rule of Professional Conduct 1.7 (formerly DRS-105) provides in pertinent part: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client in the same or a substantially related matter, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. . Shortly after Cuyler was decided, Federal Rule 44(c) was adopted. Federal Rule 44(c) provides: Joint representation. Whenever two or more defendants have been jointly charged and are represented by the same retained or appointed counsel the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. . The record suggests that the trial judge before whom Celikoski entered his plea was aware that Bryson was representing both Ramadanoski and Celikoski since Bryson filed an appearance for both defendants. Yet the trial court did not comply with the mandate of Moreau by advising Celikoski "of potential dangers inherent in dual representation." Moreau at 284.

10359880

STATE of Alaska, Petitioner, v. Joseph J. HAZELWOOD, Respondent

State v. Hazelwood

1993-12-03

No. S-5311

827

837

866 P.2d 827

866

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Joseph J. HAZELWOOD, Respondent.

STATE of Alaska, Petitioner, v. Joseph J. HAZELWOOD, Respondent. No. S-5311. Supreme Court of Alaska. Dec. 3, 1993. Cynthia M. Hora, Asst. Atty. Gen., Richard W. Maki, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for petitioner. Richard H. Friedman and Jeffrey K. Rubin, Friedman & Rubin, Anchorage, Michael G. Chalos, Thomas Russo, Chalos, English <& Brown, New York City, and Dick L. Madson, Fairbanks, for respondent. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, and COMPTON, JJ.

7032

44466

OPINION RABINOWITZ, Justice. This petition for hearing presents essentially two issues: (1) whether as a matter of federal law the State demonstrated that it had an independent source for the evidence it introduced against Captain Joseph Hazel-wood at his criminal trial; and (2) whether as a matter of federal law use and derivative use immunity granted under the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(5), is subject to an inevitable discovery exception. FACTS AND PROCEEDINGS On March 24, 1989, the Exxon Valdez ran aground off Bligh Reef, spilling eleven million gallons of oil into Prince William Sound. The captain of the tanker, Joseph J. Hazel-wood (Hazelwood), radioed the Coast Guard approximately twenty minutes after the grounding and stated: Yeah, ah Valdez back, ah we've, should be on your radar there, we've fetched up ah hard aground, north of Goose Island, off Bligh Reef, and ah evidently leaking some oil and we're gonna be here for awhile and ah, if you want ah, so you're notified, over. Subsequently, the State charged Hazel-wood with several crimes related to the grounding. Hazelwood moved to dismiss the charges and suppress evidence, arguing that all of the State's evidence was derived either directly or indirectly from his notification, and that its admission violated the immunity granted by 33 U.S.C. § 1321(b)(5) and the principles of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The superior court denied Hazelwood's motions, accepting the State's arguments that (1) 46 U.S.C. § 6101, the marine casualty reporting statute, and its implementing regulation constituted a separate and independent source for the State's evidence; and (2) the evidence used by the State would have been inevitably discovered. A jury subsequently convicted Hazelwood of negligent discharge of oil. The court of appeals reversed Hazelwood's conviction, holding as a matter of law that the marine casualty statute and regulation did not constitute an independent source for the State's evidence and that the inevitable discovery doctrine was inapplicable in the context of a congressionally enacted grant of immunity. Hazelwood v. State, 836 P,2d 943 (Alaska App.1992). We subsequently granted the State's petition for hearing as to both the independent source and inevitable discovery rulings. DISCUSSION A. Protection from Prosecution Provided by 33 U.S.C. § 1321(b)(5). The federal reporting requirement for oil and hazardous substance discharges, 38 U.S.C. § 1321(b)(5), includes a statutory grant of immunity from criminal prosecution. At the time of Hazelwood's offense, the statute provided for both use and derivative use immunity: Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person . who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notificar tion received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. 33 U.S.C. § 1321(b)(5) (1988) (amended 1990) (emphasis added). Hazelwood argues that by admitting evidence that he notified the Coast Guard about the spill, and by admitting evidence derived from this notification, the superior court violated this statutory grant of immunity. B. Applicability of the Independent Source Doctrine. The State argues that the evidence admitted was obtained through a source independent of Hazelwood's notification, and thus was not subject to exclusion. The U.S. Supreme Court has explicitly recognized that a statutory grant of use and derivative use immunity, like the Fifth Amendment's protection against self-incrimination, "allow[s] the government to prosecute using evidence from legitimate independent sources." Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972) (emphasis added). However, once a defendant shows that he or she testified under a statutory grant of immunity, the burden shifts to the prosecution "to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. at 1665. We must determine, then, whether the State has met its burden of proving that the evidence admitted against Hazelwood was obtained from a source wholly independent of the notification compelled by the statute. The State argues that upon grounding the Exxon Valdez, Hazelwood incurred two separate legal reporting duties. Under the oil spill statute, 33 U.S.C. § 1321(b)(5), he was required to report that he was discharging oil. Under the marine casualties reporting statute, 46 U.S.C. § 6101, and its implementing regulations, he was required to report that the ship had grounded. The marine casualty statute and regulations also require that the person making the report provide additional information, such as the identity and location of the ship. 46 C.F.R. § 4.05-1, -5 (1992). Parsing Hazelwood's radio transmission, the State argues that only one part of it is protected under the grant of immunity. According to the State, Hazelwood's statement that the tanker "evidently [was] leaking some oil" was sufficient to fulfill his obligation under the oil spill statute. This statement, the State concedes, is covered by the statute's immunity clause. The State argues, however, that any additional information provided by Hazelwood, specifically "we've fetched up ah hard aground north of Goose Island, off Bligh Reef," was reported pursuant to the marine casualty statute, and thus amounted to a source of evidence wholly independent of the immunized statement. We cannot accept the State's arguments. As noted by the court of appeals, the State's argument rests on the premise that, under the oil spill reporting statute, Hazelwood was required to report nothing more than the fact that his ship was discharging oil. Hazelwood v. State, 836 P.2d 943, 948 (Alaska App.1992). Interpreting the statute to require no more than this would be unreasonable. Congress initially enacted the oil spill statute as part of legislation designed to improve the nation's water quality. Viewed in light of this overall purpose, the notification process required by the statute must be construed to require that regulatory officials be provided with adequate information, such as the location of the spill, so that they may begin immediate remedial measures. Thus we decline to hold that Hazelwood's statement concerning the location of the vessel was made solely to comply with the marine casualty statute and therefore provided an independent source. Furthermore, the U.S. Supreme Court clearly stated in Kastigar that the government must "prove that the evidence it proposes to use is derived from a legitimate source wholly independent " of the immunized statement. 406 U.S. at 460, 92 S.Ct. at 1665 (emphasis added). In this case, there is only one source: Hazelwood's single radio transmission made shortly after the Exxon Valdez ran aground on Bligh Reef. The State asks us to accept the contention that Hazelwood's radioed statement to the Coast Guard was immunized at one point and an independent source at another. The initial report cannot be divided: it was a single radio transmission made shortly after the Exxon Valdez ran aground on Bligh Reef. We cannot accept this argument in the face of Kastigar ⅛ requirement that the independent source be "wholly independent" from the immunized source. We therefore AFFIRM this aspect of the court of appeals' decision. C. The Application of the Inevitable Discovery Doctrine Under S3 U.S.C. § 1821(b)(5). Alternatively, the State argues that the evidence admitted against Hazelwood at trial was admissible under the inevitable discovery doctrine. The United States Supreme Court recognized the inevitable discovery doctrine in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The doctrine is an exception to the exclusionary rule in eases where evidence has been obtained in violation of constitutional protections such as the Fifth Amendment privilege against self-incrimination. The doctrine is essentially a variation on the independent source rule, except that the question is not whether the police actually obtained evidence from an untainted source, but whether evidence obtained through a constitutional violation would inevitably have been discovered through a lawful means. 4 Wayne R. La-Fave, Search and Seizure § 11.4(a), at 378 (2d ed. 1987). The Supreme Court noted that the "core rationale" for the exclusionary rule is "to deter police from violations of constitutional and statutory protections." Nix, 467 U.S. at 442-43, 104 S.Ct. at 2508. "On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired." Id. at 443, 104 S.Ct. at 2508. However, the rule is not meant to put the prosecution in a position worse than if no police misconduct occurred. Id. Thus the Supreme Court has recognized the inevitable discovery doctrine. If the prosecution can prove that the challenged evidence "ultimately or inevitably would have been discovered by lawful means, . then the deterrence rationale has so little basis that the evidence should be received." Id. at 444, 104 S.Ct. at 2509. Hazelwood contends that the absence of a deterrence rationale makes the inevitable discovery doctrine "inappropriate in the context of immunity analysis." Hazelwood asserts that the exclusionary rule and exceptions thereto were developed by balancing two competing interests: the need to deter police misconduct and the need for evidence of wrongdoing to convict the wrongdoer. Exceptions to the exclusionary rule are recognized because the interest of deterring illegal police conduct is not enhanced by excluding' evidence that would have been found legally. Hazelwood argues, however, that the purpose behind excluding information derived from immunized testimony is unrelated to deterrence of official misconduct. Rather, the exclusionary rule serves to enforce the government's assurance that no immunized statement or evidence derived therefrom will be used against a person compelled to give the statement. Additionally, Hazelwood contends that while courts are free to modify the judicially created exclusionary rule, only Congress can change the scope of the immunity statute it created. Thus he concludes that the inevitable discovery doctrine cannot apply in the context of a statutory grant of immunity. The court of appeals agreed, finding a critical distinction between the role played by the exclusion of illegally obtained evidence and that played by exclusion of evidence derived from immunized information. Based on this perceived distinction the court of appeals concluded that "the inevitable discovery doctrine — an exception rooted in the pragmatism of the exclusionary rule and its narrow deterrent purpose — has no application in the immunity context." Hazelwood v. State, 836 P.2d 943, 953 (Alaska App.1992). We disagree. The U.S. Supreme Court's opinion in Nix is of significance here. There the defendant contended that certain evidence was derived from a police interrogation conducted in violation of Ms Sixth Amendment right to counsel. 467 U.S. at 441, 104 S.Ct. at 2507. He challenged application of the inevitable discovery rule, arguing that the purpose for the exclusionary rule under the Sixth Amendment was not to deter police misconduct but to preserve the right to a fair trial and the integrity of the factfinding process. Id. at 446, 104 S.Ct. at 2510. The Court disagreed, stating that "[ejxclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial." Id. The Court again emphasized that the exclusionary rule was not meant to put the State in a worse position than would have been the case had the illegality not occurred. The Nix defendant's interpretation of the rule placed the State at a disadvantage, and the Supreme Court rejected tMs result, noting that "[sjuppression in these circumstances . would inflict a wholly unacceptable burden on the admimstration of criminal justice." Id. at 447, 104 S.Ct. at 2510. The argument Hazelwood presents in the context of a statutory grant of immumty is similar: the lack of a deterrence rationale for the exclusionary rule precludes the application of the inevitable discovery exception to the rule. While the U.S. Supreme Court has not directly addressed tMs question, we think the foregoing discussion in Nix provides the answer. In order to determine whether an exception to the exclusionary rule is permissible, we, like the U.S. Supreme Court m Nix, must balance the societal costs of excluding evidence against the particular interest the rule might serve: deterrence of police misconduct, preservation of the right to a fair trial, or enforcement of the government's promise. If we accept Hazelwood's contention and hold that the inevitable discovery doctrine is not applicable in the immumty context, the State will be in a worse position than if the statutory grant of immumty did not exist. We do not think the interest served by the exclusionary rule in the immu-mty context requires such a result. Rather, we hold that when the evidence at issue inevitably would have been discovered without reference to immunized statements, "there is no nexus sufficient to provide a taint and the evidence is admissible." Id. at 448,104 S.Ct. at 2511; see also United States v. Kiser, 948 F.2d 418, 422-23 (8th Cir. 1991). The court of appeals also concluded that application of the inevitable discovery doctrine would defeat the congressional purpose in granting immumty for the immediate report of a spill. The court of appeals reasoned that persons who potentially stood to incriminate themselves would be discouraged from complying if it were predictable at the outset that the inevitable discovery doctrine would apply. Hazelwood, 836 P.2d at 953. Again we .disagree. Congress did not rely solely upon the grant of immumty to encourage the reporting of oil spills. The oil spill statute itself provides stiff penalties for those failing to notify the authorities of a spill. A failure to notify would be a criminal act in addition to any criminal acts causing the spill. We therefore hold, in accordance with the applicable U.S. Supreme Court precedent, that the court of appeals erred in ruling that the inevitable discovery doctrine has no application in the context of this statutory grant of immunity. Since our reading of Kastigar and Nix impels us to the conclusion that application of the doctrine of inevitable discovery to the use and derivative use immunity provided for in 33 U.S.C. § 1321(b)(5) is permissible, we remand this case to the court of appeals for further proceedings. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. BURKE, J., not participating. . The scope of immunity under 33 U.S.C. § 1321(b)(5), and its constitutionally permissible exceptions, are issues of federal law. Thus United States Supreme Court precedent, rather than our own precedent, controls our resolution of this case. The difference this distinction can make is illustrated in our recent decision in State v. Gonzales, 853 P.2d 526 (Alaska 1993). There, we were presented with the question whether a statute authorizing an order compelling testimony based on a grant of use and derivative use immunity satisfied the scope of the privilege against self-incrimination provided for in article I, section 9 of the Alaska Constitution. We concluded that use and derivative use immunity impermissi-bly dilutes the protection of article I, section 9. Id. at 530. . Use and derivative use immunity allows prosecution for the crimes referred to in the compelled testimony, but prohibits use of the compelled testimony and evidence derived therefrom in such prosecutions. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). The statute at issue in Kastigar directed that when the district court issued an order compelling a witness to provide testimony, "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." 18 U.S.C. § 6002 (1988). The U.S. Supreme Court held that the grant of immunity provided protection equivalent to the Fifth Amendment privilege against self-incrimination: The statute's explicit proscription of the use in any criminal case of "testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)" is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of 'penalties affixed to . criminal acts.' " Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted) (alteration in original). .The Oil Pollution Act of 1990 included several amendments to 33 U.S.C. § 1321(b)(5). See Pub.L. No. 101-380, § 4301(a), 104 Stat. 484, 533 (1990). The provision now reads: Any person in charge of a vessel or of an onshore facility or an offshore facilhy shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge_ Any such person . who fails to notify immediately such agency of such discharge shall, upon conviction, be fined in accordance with title 18, or imprisoned for not more than 5 years, or both. Notification received pursuant to this paragraph shall not be used against any such natural person in any criminal case, except a prosecution for peijuty or for giving a false statement. 33 U.S.C. § 1321(b)(5) (Supp. Ill 1991). .At the time of Hazelwood's offense, this statute called for regulations to require reporting of a number of marine casualties, including "material loss of property" and "material damage affecting the seaworthiness or efficiency of the vessel." 46 U.S.C. § 6101(a)(3), (4) (1988) (amended 1990). The Oil Pollution Act of 1990 added a subsection (5) to this provision. Pub.L. No. 101-380, § 4106(b), 104 Stat. 484, 513 (1990). The new subsection added "significant harm to the environment" to the list of marine casualties that are required to be reported. See 46 U.S.C. § 6101(a)(5) (Supp. Ill 1991). . The State analogizes the "statements" in this case to the two statements at issue in United States v. Lipkis, 770 F.2d 1447, 1450-51 (9th Cir.1985). Lipkis is inapplicable, however, as in that case there were two separate statements made six months apart. Id. at 1449. . See 33 U.S.C. § 1251(a) (1988) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."). .The court of appeals noted: In the present case, witnesses called by the state during the evidentiary hearing testified that the grounding of the Exxon Valdez would in all likelihood have been discovered and investigated, with negligible delay, even if Hazel-wood had failed to notify the Coast Guard immediately. Based on this testimony, Judge Johnstone declared the inevitable discovery doctrine applicable: The defendant's report of the grounding notwithstanding, the state inevitably would have discovered the grounding of the Exxon Valdez and initiated the investigatory process by not later than 12:45 a.m. on March 24, 1989. The court further concludes, based on the facts, that the investigating team . would have arrived at approximately the same time as they, in fact, did. Any observation made or investigation actually commenced would have been made or commenced at approximately the same time. Hazelwood, 836 P.2d at 951 (alteration in original). The dissent observes, "It is difficult to conceive how Hazelwood's oral statements — specific pronouncements occurring at specific points in time — ever could have been 'inevitably discovered.' " This observation misstates the State's position and misinterprets our opinion. First, at no point in its briefing does the State contend that the text of Hazelwood's radio transmissions made to the Coast Guard within 20 minutes of the grounding is admissible in evidence. Rather, the State argues that as a consequence of the court of appeals' decision it is placed in a position where it cannot use any of the evidence gained from its investigation of the .oil spill, despite the superior court's factual findings that the State would have discovered the accident. Second, our opinion is limited to the question whether the grant of immunity provided for in 33 U.S.C. § 1321(b)(5) is subject to the inevitable discoveiy doctrine. We express no view as to the admissibility of any particular portion of the State's evidence against Hazelwood. Such evi-dentiaiy questions remain for resolution by the court of appeals on remand. . The Supreme Court described the exclusionary rule as a "doctrine requiring courts to suppress evidence as the tainted 'fruit' of unlawful governmental conduct." Nix, 467 U.S. at 441, 104 S.Ct. at 2507-08. The exclusionary rule applies "not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence." Id. (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Furthermore, the exclusionary rule extends to "evidence that was the indirect product or 'fruit' of unlawful police conduct." Id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The Supreme Court was careful to emphasize, however, that information or evidence illegally obtained "need not always be suppressed." Id. Thus, the Supreme Court has recognized exceptions to the exclusionary rule, such as the independent source doctrine and the inevitable discovery doctrine. . See Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964) ("[A] state witness may not be compelled to give testimony which may be incriminating . unless the compelled testimony and its fruits cannot be used in any manner by . officials in connection with a criminal prosecution against him."). . Specifically, the Supreme Court explained: The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired. By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. Id. 467 U.S. at 442-43, 104 S.Ct. at 2508. . The court of appeals reasoned in part that the primary purpose of the exclusionary rule is to deter official lawlessness, and the application of the inevitable discovery rule in such circumstances serves to temper the impact of the exclusionary rule. On the other hand, in the immunity context no deterrent purpose is served, as the purpose of exclusion is to enforce the privilege against self-incrimination and the government's promise. Hazelwood, 836 P.2d at 951-53. . The court of appeals appears to have weighed whether Alaska law, rather than federal law, should recognize inevitable discovery in immunity cases. See Hazelwood, 836 P.2d at 951 ("For present purposes, we may assume that the inevitable discovery doctrine would be adopted in Alaska in appropriate cases...."). The court's reliance on Justice Marshall's dissent in Kastigar, see Hazelwood, 836 P.2d at 952 (quoting Kastigar, 406 U.S. at 470-71, 92 S.Ct. at 1669-70 (Marshall, J., dissenting)), would be appropriate had the court of appeals been deciding Alaska law. But in this case we are interpreting federal law, and thus are bound by the acceptance of the inevitable discovery rule in Nix and the constitutionality of use and derivative use immunity in Kastigar. . See 33 U.S.C. § 1321(b)(5) (1988) (amended 1990) ("Any such person . who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both."). . The court of appeals further reasoned that Congress, not the court, should decide if the inevitable discovery rule is applicable to 33 U.S.C. § 1321(b)(5). We disagree. Congress, in drafting this statute, used terms of art that indicate use and derivative use immunity. The role of this court is to interpret the statute Congress has enacted, including the grant of immunity, within the context of Supreme Court precedent. . As noted previously on remand the court of appeals may be required to address several other specifications of error raised by Hazelwood depending on its review of the superior court's predicate findings regarding the applicability of the inevitable discovery doctrine.

10350341

George L. MILLER, Appellant, v. STATE of Alaska, Appellee

Miller v. State

1994-01-07

No. A-3954

130

139

866 P.2d 130

866

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

George L. MILLER, Appellant, v. STATE of Alaska, Appellee.

George L. MILLER, Appellant, v. STATE of Alaska, Appellee. No. A-3954. Court of Appeals of Alaska. Jan. 7, 1994. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Richard W. MaM, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

5290

32502

OPINION BRYNER, Chief Judge. George L. Miller was convicted, following a jury trial, of first-degree robbery. Superior Court Judge Mark C. Rowland sentenced Miller to fifteen years' imprisonment. Miller appeals, claiming that the trial court erred in admitting evidence of uncharged misconduct by Miller, in allowing the prosecutor to comment improperly on this evidence during final argument, and in instructing on the manner in which the evidence could be used by the jury. Miller also claims that the trial court erred in refusing to grant a mid-trial motion for a bill of particulars and misin-strueted the jury on accomplice liability. Finally, Miller claims that his sentence is excessive. We affirm. FACTS In 1987, David and Mavis McClurg owned and operated a gold mine in northwest Alaska, near Kotzebue. They lived in Anchorage with their fifteen-year-old daughter Jackie and ran a jewelry shop in their house. On September 21, 1987, Jackie McClurg was staying at the house while her parents were at the mine. In the evening, she got a phone call from a man who said he needed to drop off some papers for her father. Shortly after 10:00 p.m., a car pulled into the McClurgs' driveway, and a man wearing a red hat got out and came to the front door. As Jackie opened it, the man grabbed her, turned her around, and told her that he had a gun and this was a robbery. A second, shorter man followed the first man into the McClurg home. The men forced Jackie to take them downstairs to the jewelry shop, where they tied her up and began taking jewelry. Just then, Belinda Nix and Gary Greener, friends of the McClurgs, drove up to the house. As Nix and Greener approached, they saw an unfamiliar car with a man behind the wheel in the driveway; the driver honked the horn and started to drive away. Nix and Greener went into the house, where they saw the second, shorter man heading out the back entrance near the shop. Then the first, taller man pushed his way past Greener and went out the front door. Nix and Greener heard Jackie call out and found her tied up in the shop. They called the Alaska State Troopers, who eventually determined that more than $50,000 in gold and jewelry had been taken by the robbers. Jackie McClurg identified the taller man as Dan Finnigan, a former employee at the McClurg mine. Earlier that day, Finnigan had come to the McClurgs' house and had tried unsuccessfully to collect wages for his work at the mine. Finnigan matched descriptions given the troopers by Nix and Greener. Several days later, on September 24, 1987, the troopers arrested Finnigan for the robbery. They also arrested a friend of Finni-gan's, Randy Ringler, whom they suspected as the second, shorter robber. Greener and Nix later identified Finnigan and Ringler as the two men they had seen in the McClurg's house. In October of 1987, the troopers received word that a woman named Neva Johnson had been seen wearing a watch stolen from the McClurgs' shop. On October 21, 1987, they contacted Johnson, who said that her boyfriend, Michael Casalichhlio had given her the watch. When contacted by the troopers, Casalichhlio denied being involved in the robbery but turned over several stolen items that he admitted receiving from George Miller. Casalichhlio eventually implicated Miller as the driver of the getaway car in the robbery. Casalichhlio also revealed that, soon after the robbery was committed, he accompanied Miller on an airline trip to Florida, using tickets purchased with robbery proceeds. The troopers also located two other friends of Miller, Aaron and Sue Foltz, to whom Miller had admitted participating in the robbery. Before the robbery, Aaron and Sue Foltz had also heard Miller planning the crime. Information given to the troopers by Casa-lichhlio and the Foltzes also indicated that, prior to the robbery, Miller and Casalichhlio had engaged in a joint venture trafficking cocaine that Casalichhlio had obtained through a burglary involving a cocaine dealer. Casalichhlio evidently furnished the drugs to Miller, who was responsible for selling them; he would then share the proceeds with Casalichhlio. Finnigan, and to a lesser extent Ringler, had worked for Miller as runners, delivering cocaine and collecting money. Miller and Casalichhlio had planned to use profits from their cocaine sales to finance a trip to Florida, where they intended to buy two additional kilograms of cocaine for resale in Alaska. Miller, however, had begun to use cocaine heavily himself and had failed to collect enough money in sales to keep current on his payments to Casalichhlio. Prior to the McClurg robbery, he had become indebted to Casalichhlio for between $4,000 and $4,500. Finnigan, in turn owed a substantial sum of money to Miller. When it became apparent that there would be insufficient funds to finance the trip to Florida for additional cocaine, Miller hit upon the idea of the McClurg robbery as an alternative means to finance the Florida trip. Based on the foregoing information, the state secured indictments charging Miller, Finnigan, and Ringler with the McClurg robbery and Casalichhlio with theft for receiving property stolen in the robbery. When the indictments were issued, Miller, who had never returned to Alaska from his trip to Florida, remained at large. Finnigan, Rin-gler, and Casalichhlio were tried and convicted. Soon after the trial ended, however, Rin-gler wrote Finnigan a letter in which he (Ringler) acknowledged his own participation in the McClurg robbery but proclaimed Fin-nigan's innocence. Ringler identified himself as the second, shorter man in the robbery and claimed that the first, taller man had been Miller, not Finnigan. According to Ringler's letter, the driver of the getaway car had been someone named "Bill," whose last name he did not know. As a result of Ringler's letter, Finnigan was awarded a new trial. Before the second trial, Miller, who had been arrested in Texas on a fugitive warrant, was extradited to Alaska. His trial was consolidated with Finni-gan's second trial. At trial, the state relied primarily on its original theory of the case— that Finnigan had been the taller of the two robbers who entered the McClurg home and that Miller had been the getaway driver and had masterminded the robbery. Finnigan, relying on Ringler, defended on the theory that Miller had been the taller robber and that another, unknown man had driven the getaway car. Although Miller did not testify or present witnesses, he attempted to establish that none of the state's evidence against him was sufficiently credible to prove his participation in the robbery. EVIDENCE OF PRIOR MISCONDUCT Over Miller's objection, the trial court allowed the state to present evidence at trial that Miller, Casalichhlio, Finnigan, and Rin-gler trafficked in and used cocaine. The judge admitted the evidence because "[i]t defined the relationship between the parties at the time. It dealt with motive, plan, completed the history of the crime." Miller challenges this ruling on appeal, arguing that the evidence was inadmissible under Alaska Rules of Evidence 404(b) and 403. Alaska Rule of Evidence 404(b) governs the admissibility of evidence of prior misconduct. A.R.E. 404(b)(1) states: Evidence of other crimes, wrongs, or acts 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. Under this rule, evidence of prior bad acts is categorically barred if it has no relevance apart from its tendency to establish the accused's propensity to engage in misconduct. If evidence of prior bad acts does have relevance to a material issue other than propensity, then it may be admitted, provided that its probative value outweighs its potential for prejudice. A.R.E. 403. See Martin v. State, 797 P.2d 1209, 1215 (Alaska App.1990). Miller argues first that evidence of his cocaine dealing had no relevance apart from its tendency to establish criminal propensity. But this view is plainly incorrect. As the trial court properly determined, the evidence of Miller's cocaine use and dealing had a direct and obvious bearing on his motive to participate in the alleged robbery. Miller, however, cites cases that have disapproved the admission of evidence showing the accused's addiction to drugs as proof of motive. See, e.g., Gould v. State, 579 P.2d 535, 538 (Alaska 1978) and Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973). These cases recognize that, since the desire for money is virtually universal and motivates most property crimes, it is a motive that can readily be understood by jurors, even in the absence of specific proof. For this reason, evidence that the accused needed money for a particularly reprehensible purpose such as the use of drugs, while potentially highly prejudicial, will add little on the issue of motive, at least unless the evidence establishes a particularized connection, or affirmative link, between the drug use and the charged offense. Here, we think the evidence below plainly established an affirmative link between Miller's prior drug dealing and the McClurg robbery, since it supported the conclusion that Miller's drug dealings and the robbery were an integral part of a common scheme or plan. Indeed, under A.R.E. 404(b), the existence of a common scheme or plan amounts to an independent basis for admission of the disputed evidence. The evidence of Miller's drug dealing tended to establish how the idea of the McClurg robbery was conceived and why the robbery was executed. Specifically, the evidence indicated that Miller's failed drug dealings, his debt to Casalichhlio, and Finnigan's debt to him, led directly to the McClurg robbery. Beyond this, the evidence also depicted both the drug dealing and the robbery as part of a more comprehensive plan to buy cocaine in Florida for resale in Alaska. Miller correctly notes that the plan to rob the McClurgs was not even hatched until much of the cocaine dealing and use had already occurred. Miller contends that, for this reason, the robbery and cocaine trafficking cannot properly be characterized as part of a common scheme or plan. See, e.g., Oswald v. State, 715 P.2d 276, 280 n. 2 (Alaska App.1986) ("To be properly admissible under Rule 404(b) it is not enough to show that each crime was 'planned' in the same way; rather, there must be some overall scheme of which each of the crimes is but a part."), overruled on other grounds, Yearty v. State, 805 P.2d 987, 995 n. 3 (Alaska App.1991). Here, however, as we have already observed, the evidence tended to show that the robbery originated in Miller's failure to generate sufficient funds through his drug dealings to carry through with his planned trip to buy greater quantities of drugs in Florida. The fact that the robbery had its source in the failed drug trafficking and that both the robbery and the drug trafficking were aimed at a common goal — to bankroll a larger drug enterprise — gave the disputed evidence legitimate relevance as proof of a common scheme or plan. See, e.g., United States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir. 1974). See also Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3:21 at 54, 3.22 at 57 (1984) ("[T]he specific crime the defendant is charged with need not have been contemplated originally." "Even if the crimes are not predicated on each other, there may be a strong inference of a connected chain of crimes."). The issue of motive and the existence of a common scheme or plan were not formal elements of the offense with which Miller was charged. Under the circumstances of this case, however, proof of motive and common scheme or plan were crucial and legitimate components of the prosecution's case. The disputed evidence bore directly on the primary issue in dispute at trial — Miller's identity as a participant in the robbery. The state had a strong need for this evidence. Miller had not been identified by any of the witnesses to the robbery. The state's efforts to establish his connection to the crime depended in large measure on its ability to show the robbery as an integral part of an overarching plan in which his participation was more clearly established. Because the disputed evidence had direct and obvious bearing on an actively disputed issue and was actually necessary to the state's case, we conclude that the trial court did not abuse its discretion in finding the evidence more probative than prejudicial under A.R.E. 403 and in allowing its admission. PROSECUTION'S CLOSING ARGUMENT Miller next contends that the prosecution made numerous improper references to his prior drug dealings during its closing argument to the jury. To a large extent, however, Miller's argument is premised on a notion we have already rejected: that evidence of Miller's drug use was of dubious relevance and should not have been admitted in the first place. Moreover, Miller objected to the prosecution's closing argument at only one juncture: We're in here searching for the truth. You are. And you are going to be the ultimate determiners of what happened to the facts. But don't hold it against the State because we gave immunity. Because, listen, Ladies and Gentlemen, people like Dan Finnigan and George Miller don't confess to crimes to people like yourselves. The only people that they confess to crimes to and talk about their involvement in these type of things is people of their ilk, drug dealers, drug users. At this point Miller's attorney objected: Well, I have to object. I think that is drawing an improper witness statement as to improper inferences of guilt by association. That evidence wasn't admitted for that purpose. THE COURT: Overruled. Overruled. I don't think it does that to begin with. And I think the argument was proper. You may continue. As the trial transcript makes clear, the basis of Miller's objection was not that the prosecutor was improperly commenting on evidence of Miller's prior misconduct, but rather that the prosecution was raising "improper inferences of guilt by association," evidently by implying that Miller should be convicted for associating with "drug dealers, drug users." However, this does not appear to be what the prosecutor was attempting to do. The prosecutor's argument was evidently aimed at convincing the jury that its own witnesses — Casalichhlio and the Foltzes — were credible in attributing admissions to Miller, despite the fact that they had themselves been shown to be "drug dealers, drug users" who had demanded immunity from prosecution in return for their testimony at trial. The point of the prosecutor's remarks, as we understand it, was essentially that, given the nature of the relationship between Miller, Fin-nigan, Casalichhlio, and the Foltzes, it was natural for Miller to have made the types of admissions Casalichhlio and the Foltzes attributed to him, and it would have been unnatural for him to make such admissions to anyone else. Because it does not appear that the prosecution's argument raised "improper inferences of guilt by association," we find no error in the trial court's decision to overrule Miller's objection. Nor do we find plain error in the remaining portions of the prosecution's final argument, to which Miller raised no contemporaneous objection. INSTRUCTION ON PRIOR MISCONDUCT EVIDENCE At the conclusion of the trial, the court gave the jury the following instruction concerning the manner in which it could consider the evidence of Miller's prior cocaine dealings: The jury, in the course of taking evidence, has heard evidence suggesting that the defendants used and distributed illegal substances. Mr. Miller and Mr. Finnigan are not on trial for drug offenses. This evidence should not be considered by you as evidence that the defendants are bad people and are, therefore, more likely to have committed the offenses with which they are charged. This evidence may only be considered by you as it may aid in determining whether or not the State has proven beyond a reasonable doubt the defendants' guilt of the crime with which they are charged. On appeal, Miller challenges this instruction, contending that its final sentence was vague, allowing the jury to consider the evidence of prior misconduct as proof of Miller's propensity to commit crimes. Miller points out that the instruction does not conform to Alaska Pattern Jury Instruction 1.43, which specifically informs the jury how to consider evidence of a prior crime. In particular, Miller emphasizes the concluding language of Pattern Instruction 1.43: For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. Miller contends that this language should have been given to his jury. Miller's position, however, is curiously inconsistent with the position he took below. Miller objected at trial to an instruction proposed by the state that tracked Pattern Instruction 1.43 and specifically included the language Miller now claims should have been given. In response to Miller's objection, the trial court drafted the instruction Miller now finds objectionable; yet Miller failed to object to that instruction below. During final argument to the jury, the prosecution repeated the reasons for the introduction of prior misconduct evidence, correctly informing the jury that it had been admitted only for purposes of showing motive, plan, and Miller's relationship to Casali-chhlio, Finnigan, and Ringler. Also, Miller's trial counsel expressly cautioned the jury against misusing the prior misconduct evidence. While the challenged instruction was perhaps less than exemplary, we conclude that it did not amount to plain error. INSTRUCTIONS ON ACCOMPLICE LIABILITY Miller next contends that the trial court's instructions on accomplice liability were deficient. Miller was evidently indicted on the theory that he was the getaway driver in the robbery. At trial, an element of confu sion as to Miller's role arose when Ringler testified that Miller and Ringler had entered the McClurg house together, that a third man named "Bill" had driven the getaway ear, and that Finnigan was entirely innocent of the alleged crime. In an attempt to address this- problem, the state sought jury instructions allowing Miller to be convicted as either an accomplice (for being the driver) or as a principal (for being one of the two men who had entered the house). The trial court, while initially receptive, ultimately decided that, since Miller had been indicted as an accomplice for driving the getaway ear, he could be convicted only on that theory. The court fashioned its jury instructions accordingly, instructing the jury as follows: The defendant, George Miller, is charged in Count I of the Indictment with robbery in the first degree. A person commits the crime of robbery in the first degree if the offense is committed by the conduct of another person for whom he is legally accountable. A person is legally accountable for the conduct of another person constituting an offense if, with intent to promote or facilitate the commission of an offense, he aids or abets the other person in planning or committing the offense. In order to establish that the defendant is legally accountable in this case the State must prove the following beyond a reasonable doubt: First, that the event in question occurred on or about September 21, 1987, and at or near Anchorage, in the Third Judicial District; Second, that the defendant, George Miller, acted knowingly and with the intent to promote or facilitate commission of the crime of robbery in the first degree; Third, that the defendant aided or abetted another person in planning or committing the crime of robbery in the first degree; and Fourth, that the person, who the defendant aided or abetted, in the course of taking or attempting to take property from the immediate presence and control of another, used or threatened the immediate use of force upon any person with the intent to prevent or overcome resistance to taking the property or retention of the property after taking, or to compel any person to deliver the property or engage in other conduct which might aid in the taking of the property and in the course of the taking or the immediate flight after the taking, the person, who the defendant aided or abetted, or another participant was armed with a deadly weapon or represented by words or conduct that any of the participants was so armed. If you find from your consideration of all the evidence that each of these propositions has been proven beyond a reasonable doubt, then you shall find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proven beyond a reasonable doubt, then you shall find the defendant not guilty. Although Miller concedes on appeal that this instruction conforms with Alaska Pattern Jury Instruction 16.100-.110(2), and although he acknowledges that he failed to object to it, he claims plain error, arguing that the instruction was so vague that it allowed his conviction as a principal. We find this argument meritless. Miller in effect posits that the jury might have convicted him as an accomplice for being a principal: he reasons that, under the challenged instruction, the jury might have found that he was one of the men who entered the McClurg house, might have concluded that the two robbers aided and abetted each other, and so might have convicted him as an accomplice. This theory proceeds from a strained interpretation of the evidence and an attenuated reading of the challenged instruction. Moreover, the theory is premised on a fundamentally flawed view of accomplice liability, for it mistakenly assumes that a defendant indicted as an accomplice must be convicted as an accomplice and that it would therefore have been error to allow the jury to convict him as a principal. However, the legal distinction between principals and accomplices has long been abrogated in Alaska. See AS 11.16.110. See also Morris v. State, 630 P.2d 13, 15-16 (Alaska 1981); Machado v. State, 797 P.2d 677, 685-86 (Alaska App.1990). It is well-settled that a defendant charged as a principal may be convicted as an accomplice; the converse is also true. Scharver v. State, 561 P.2d 300, 302 (Alaska 1977); Totemoff v. State, 866 P.2d 125 (Alaska App.1993). See generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.6(d)(2) at 131 (1986). Here, the trial court, evidently accepting Miller's argument that a contrary result would be legally impermissible, sought to limit the state to the original theory upon which it indicted Miller: that Miller was guilty of robbery as an accomplice for driving the getaway car. As a matter of law, however, Miller was properly subject to conviction as either a principal or as an accomplice. Hence, even if the jury instructions did not succeed in narrowing the charge to accomplice liability and allowed Miller to be convicted as a principal, plain error could not be found. SENTENCING ISSUES Miller contends that his sentence was improperly imposed and is excessive. First-degree robbery is a class A felony. AS 11.41.500(b). Miller had previously been convicted of second-degree criminal mischief, a felony; as a second felony offender, he was subject to a presumptive term of ten years' imprisonment. AS 12.55.125(c)(3). Judge Rowland found three of the aggravating factors specified in AS 12.55.155(c) applicable to Miller's case: that Miller's conduct had created a risk of imminent physical injury to three or more persons (factor (c)(6)); that Miller had a history of repeated instances of assaultive behavior (factor (c)(8)); and that Miller was on felony probation when he committed the robbery (factor (c)(20)). Based on these aggravating factors, Judge Rowland sentenced Miller to an enhanced presumptive term of fifteen years. In imposing sentence, Judge Rowland briefly summarized Miller's extensive criminal history and, in the course of doing so, mentioned Miller's previous involvement in a robbery for which he had not been convicted. Judge Rowland's reference to the prior robbery was evidently based on the presen-tence report, which disclosed that in 1978 Miller had been an accomplice in an armed robbery but had received immunity in ex change for his testimony against other participants. Miller now asserts that he in all likelihood received transactional immunity for his testimony concerning the prior robbery and that, for this reason, Judge Rowland's consideration of the prior robbery amounted to a violation of both the immunity agreement and of Miller's privilege against self-incrimination. Miller never raised this issue at the sentencing hearing. He did not move to strike the information concerning the prior robbery from the presentence report, nor did he object to Judge Rowland's mention of the incident. Furthermore, Miller has presented nothing to establish the nature and terms of the immunity agreement that he entered into with the state. Without further information, it would be wholly speculative for this court to conclude that Judge Rowland's consideration of the prior robbery violated Miller's rights under the agreement. Moreover, the prior incident was merely mentioned by Judge Rowland as one of many acts of misconduct included in Miller's lengthy criminal history. We decline to find that Judge Rowland's passing reference to the prior robbery amounted to plain error. Miller further asserts that Judge Rowland erred in finding aggravating factor (c)(6) applicable to his case: that Miller's conduct created a risk of imminent physical injury to three or more persons other than accomplices. According to Miller, the evidence does not support the conclusion that Greener and Cox — who entered the McClurg house while the robbery was in progress— were placed at risk, since it was undisputed that the robbers who were in the house left immediately upon Greener's and Cox's arrival. The evidence also indicated, however, that one of the robbers was armed with a stun gun. He encountered Greener and Cox while making his exit and pushed past both of them. In the course of doing so, he grabbed Greener's head and shoved him out of the way. In our view, this evidence was sufficient to allow Judge Rowland to conclude that, even though Greener and Cox were not actually injured, both were placed in imminent risk of injury. The court's finding that factor (c)(6) applied is not clearly erroneous. Miller lastly asserts that his fifteen-year term is excessive. He suggests that Judge Rowland's decision to enhance the applicable ten-year presumptive term by five years was "overzealous" and at odds with the "measured and restrained approach toward adjustment of presumptive terms" that this court counseled in Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on other grounds, 665 P.2d 30, 31-34 (Alaska App.1983). However, Miller stood convicted of an armed robbery that involved the theft of more than $50,000 in jewelry. The robbery, which involved three persons, was carefully planned; the evidence at trial suggested that Miller was primarily responsible for planning it. The apparent purpose of the robbery was to fund another criminal venture. In the course of the robbery, Jackie McClurg was incapacitated and held captive. Although her captivity was brief — due to the fortuitous arrival of Greener and Cox — the situation obviously involved a significant risk of injury. Miller's criminal history is extensive, dating back to his youth; it includes several convictions for assaultive behavior. He has consistently failed at rehabilitation and was on felony probation when he committed this offense. At sentencing, Miller claimed innocence and insisted that he had been framed. Considering the totality of the sentencing record, Judge Rowland could properly find that Miller was a dangerous offender with poor prospects for rehabilitation. Judge Rowland could also properly find that, under the circumstances, a sentence emphasizing community condemnation and isolation was appropriate. Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below is not clear ly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). CONCLUSION The conviction and sentence are AFFIRMED. MANNHEIMER, J., not participating. . As the state notes, Alaska Rule of Evidence 404(b)(1) was amended by ch. 79, § 4, SLA 1991. At the time of Miller's trial, it lacked the phrase "if the sole purpose for offering the evidence is." . The state's efforts also hinged on its ability to convince the jury of the credibility of testimony given by Casalichhlio and the Foltzes concerning various incriminatory statements Miller made before and after the robbery. We agree with the state that the credibility of these witnesses and the meaning of the statements they attributed to Miller could not have been fully established without revealing the relationship of the various parties and the context in which they spoke with each other. This, in turn would amount to another independent justification for admission of the disputed evidence. See, e.g., Braham v. State, 571 P.2d 631, 640-41 (Alaska 1977); Dulier v. State, 511 P.2d 1058, 1061 (Alaska 1973); McKee v. State, 488 P.2d 1039, 1041 (Alaska 1971); Ciervo v. State, 756 P.2d 907, 911 (Alaska App.1988), overruled on other grounds, Swain v. State, 817 P.2d 927, 933 (Alaska App.1991). . Miller's confusion on this score centers on Michael v. State, 805 P.2d 371 (Alaska 1991), the sole case he relies on to support his argument on this issue. Michael, however, is readily distinguishable. There the supreme court found a fatal variance between the indictment and the evidence at trial when an offender was convicted of a crime that was not charged in the indictment, based on a legal and factual theory that had not been presented to the grand jury. No question of accomplice liability was presented in that case. . Our resolution of this issue also disposes of Miller's related claim that the trial court erred in denying his mid-trial motion for a bill of particulars, which sought to narrow his indictment to charge him as the driver of the getaway car. The fact that the jury instructions pertaining to Miller ultimately addressed only accomplice liability rendered Miller's motion for a bill of particulars moot. As we have indicated, even if the instructions did not succeed in limiting the jury to the original accomplice liability theory, Miller was properly subject to conviction as either a principal or as an accomplice. Thus, he was not entitled to a bill of particulars narrowing the charge. .Judge Rowland said: Before the court is George L. Miller who's now 36 years old. He's here on his second felony offense which figures a presumptive sentencing scheme. The defendant has an extensive criminal history going back many, many years to his — back to his juvenile years in which — during which time there were serious crimes committed. There are as I — many convictions and it's apparent that previously he was involved in a robbery, although he was not convicted of that crime. The defendant has a demonstrated capacity for violence, cruelty and assaultive conduct, the latest assault occurring as recently as December 1988. The defendant has been involved in narcotics as demonstrated by the testimony in this case. I don't need to go over that at this time. . The prior robbery is described (and Miller's immunity mentioned) in Miller v. State, 629 P.2d 546 (Alaska App.1981).

6996236

MAT-SU REGIONAL MEDICAL CENTER, LLC, Appellant, v. Brandi M. BURKHEAD and Meg J. Voss, Appellees; Mat-Su Regional Medical Center, LLC, Appellant, v. Meg J. Voss, Appellee

Mat-Su Regional Medical Center, LLC v. Burkhead

2010-02-19

Nos. S-13010, S-13326

1097

1106

225 P.3d 1097

225