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Michael J. BRUNER, Appellant, v. Judith A. PETERSEN, Professor and Chair, A.A.S. School of Nursing and Health Sciences, University of Alaska, Anchorage, Appellee

Bruner v. Petersen

1997-08-29

No. S-7736

43

50

944 P.2d 43

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

Before COMPTON, C.J., MATTHEWS, FARE and BRYNER, JJ.

Michael J. BRUNER, Appellant, v. Judith A. PETERSEN, Professor and Chair, A.A.S. School of Nursing and Health Sciences, University of Alaska, Anchorage, Appellee.

Michael J. BRUNER, Appellant, v. Judith A. PETERSEN, Professor and Chair, A.A.S. School of Nursing and Health Sciences, University of Alaska, Anchorage, Appellee. No. S-7736. Supreme Court of Alaska. Aug. 29, 1997. Rehearing Denied Oct. 8, 1997. Michael J. Bruner, Anchorage, pro se. Mark E. Ashburn, Ashburn & Mason, Anchorage, for Appellee. Before COMPTON, C.J., MATTHEWS, FARE and BRYNER, JJ.

3892

24438

OPINION FABE, Justice. I. INTRODUCTION Michael J. Bruner claims that the University of Alaska, Anchorage (UAA) breached its contract with him by requiring him to take a course in critical thinking before allowing him to enroll in a nursing course that he had previously failed. The superior court upheld UAA's decision to place this condition on Bruner's continued enrollment in the nursing program. We affirm. II. FACTS AND PROCEEDINGS Bruner is a student at UAA, pursuing an Associate of Applied Science Degree in Nursing. During the fall 1995 semester Bruner earned a grade of "No Pass" in Nursing 222. This was not the first time Bruner had difficulty passing a class required for his major. He received a "D" in Nursing 100 and an "F" in Nursing 160 during the fall semester of 1992, and he received a "D" in Nursing 180 during the spring semester of 1994. Bruner's clinical supervisor in Nursing 222 believed that Bruner failed to pass the course due to inadequate critical thinking abilities. In the supervisor's opinion, Bruner had difficulty assessing and documenting data and was unable to incorporate the data into the "complete patient picture." The supervisor noted in her evaluation that Bruner did not use certain equipment correctly and that he demonstrated inconsistency in calculating and preparing multiple medications. UAA Nursing students who are unable to earn an acceptable grade in a nursing or health science course during their initial enrollment may attempt to earn a satisfactory grade one additional time. After failing to pass Nursing 222, Bruner applied to be placed on the waiting list for re-admission to Nursing 222 in the fall 1996 semester. The Admissions and Retention Committee of the Nursing Program (Committee), composed of nursing faculty, informed Bruner of its decision to require him to pass English 120, a course entitled "Critieal/Creative Thinking," with a grade of "C" or higher before allowing him to re-enroll in Nursing 222. The Committee stated that taking Critical/Creative Thinking would assist Bruner "in developing more fully cognitive skills which should help [him] to be successful in the nursing courses [he] must complete to graduate from the AAS, Nursing Program." In the letter informing him of the Committee's decision, Professor Judith A. Petersen, chair of the Committee, asked Bruner to call or make an appointment to see her if he had any questions regarding the decision. UAA provides a course catalog to all students. This catalog states on the inside cover that the catalog "is not a contract but rather a guide for the convenience of students." The catalog further declares that "[t]he University reserves the right to change or withdraw courses, to change the fees, rules, and calendar for admission, registration, instruction, and graduation; and to change other regulations affecting the student body at any time." The UAA School of Nursing and Health Sciences provides a student handbook to all of its students. The handbook states that it is designed to assist students in becoming familiar with various aspects of the nursing degree programs and should be used in conjunction with the UAA course catalog. The course catalog does not list Critical/Creative Thinking as a required course in the Associate of Applied Science Nursing Program. However, the section of the course catalog relating to academic progress in the nursing program states that "[i]n order to progress within the Associate of Applied Science, Nursing program, students must earn a satisfactory grade (C or higher or P) in all nursing and health sciences courses." The School of Nursing and Health Sciences student handbook provides: Academic Progress In order to progress within the Associate of Applied Science, Nursing program, students must earn a satisfactory grade (C or higher or P) in all nursing and health sciences courses. Please refer to "Withdrawal and Re-Enrollment" for students who are unable to earn an acceptable grade in a nursing course during their initial enrollment. Withdrawal and Re-Enrollment Conditions for re-enrollment will be reviewed on an individual basis by the Chairperson and/or faculty, and is contingent upon space available. (Emphasis added.) The course catalog contains UAA's procedure for resolving student grievances regarding academic decisions made by the university. Under this procedure, a student has the right to appeal academic actions to the dean of the appropriate school and is "entitled to address the [dean] directly if desired before the decision is rendered by [the dean]." A further appeal to the vice chancellor for academic affairs is available "[f]or removal from a major program or loss of baccalaureate degree-seeking status only." While the student handbook does not address academic appeals, it contains a section entitled "Resolving Conflicts," which details the steps a student should take in attempting to resolve a conflict between a student and a faculty member. The handbook suggests that the student should make an appointment with the faculty member in question to discuss the problem thoroughly. If the problem is not resolved at this stage, the handbook then recommends a series of individual administrators with whom the student should meet. The handbook states that the last step within the school is an appointment with the dean, which is the same procedure afforded for an academic appeal. If the problem is still not resolved at this stage, the handbook informs students that they have a right to follow the University Grievance Procedure. On December 18, 1995, Tina DeLapp, the Associate Dean for Nursing, met with Bruner to discuss the requirement that he pass English 120 before re-enrolling in Nursing 222. In a memorandum written after the meeting, DeLapp stated that she told Bruner "that the faculty had identified critical thinking skills as impeding his ability to apply knowledge gained in theory portions of course work in the clinical practice area." She also "indicated that the faculty was concerned that those deficits would result in continued lack of success in subsequent nursing courses and had identified completion of ENGL 120 as being potentially beneficial in facilitating his steady progress through the remaining clinical courses in the program." Bruner wrote a letter to the Nursing Administration protesting the requirement that he pass English 120 prior to re-enrolling in Nursing 222. He argued that since English 120 is not a requirement of the nursing program, the Committee's decision should be overturned as arbitrary and capricious, clearly erroneous, or based on unlawful discrimination. Bruner submitted the letter to Nancy Creason, the Interim Dean for the School of Nursing and Health Sciences, on December 18,1995. Dean Creason met with Bruner on December 20 to discuss his complaint. According to Dean Creason's summary of the meeting written the same day, the discussion was "convoluted." Dean Creason's summary states that Bruner "was unable to clearly articulate anything on these charges except to say the critical thinking course is not a degree requirement and he thinks he can think critically now." Following the meeting, Dean Creason sent Bruner a letter affirming the Committee's decision. In it she stated that the Committee's decision was within its authority to impose individual conditions for re-enrollment as stated in the student handbook, was carefully considered, and was reasonably based upon the evidence before it. Creason also noted that "the faculty identified critical concerns about [Bruner's] performance including concerns for [patient] safety in the areas of medication administration, physical assessment and documentation, managing patient's changing status and concerns for independent practice and thought processes." Dean Creason stated in her letter that because the requirement was a condition of continuing enrollment rather than removal from a major program, her decision was the final decision of the university. She informed Bruner that if he wished to seek judicial review of the decision, he could file an appeal with the superior court within thirty days of her decision. A week later, Bruner filed a complaint against Professor Judith Petersen in superior court. The superior court found that the suit was functionally an appeal of Dean Creason's decision and issued a written decision affirming Dean Creason. The superior court held that the provisions in the course catalog and the student handbook did not constitute a contract between the university and Bruner. The court further concluded that even if a contract did exist, the "requirement placed upon appellant was clearly based upon his performance as a student and appears to be more than reasonable." Finally, the superior court found that the university provided Bruner with the correct administrative procedure for an appeal of an academic action as described in the course catalog. During the summer session at UAA, Bruner took English 120 and received a grade of "A". On September 29, 1996 the superior court granted UAA's motion for attorney's fees and ordered Bruner to pay Petersen $2,103.00 in attorney's fees. Bruner now appeals the superior court's decision. III. DISCUSSION A. Did UAA Breach a Contract with Bruner by Requiring Him to Pass English 120 before Re-enrolling in Nursing 222? Bruner contends that the superior court erred in finding that no contract existed between himself and UAA. He claims that the course catalog and student handbook together constituted a contract between himself and the university promising that he would have to take only the required courses listed under his major in the catalog to graduate. According to Bruner, UAA breached this contract when the committee required him to pass English 120 before re-enrolling in Nursing 222 because English 120 is not listed as a requirement for Bruner's major. The course catalog lists required courses for each major, but also states that "[i]n order to progress within the Associate of Applied Science, Nursing program, students must earn a satisfactory grade (C or higher or P) in all nursing and health sciences courses." The student handbook states that "for students who are unable to earn an acceptable grade in a nursing course during their initial enrollment . [Conditions for re-enrollment will be reviewed on an individual basis by the Chairperson and/or faculty." The catalog and handbook do not promise that Bruner's requirements for graduation will be limited to those classes listed as required for his major. Instead, they explicitly state that further academic conditions may be imposed on a student who fails a class. Therefore, the Committee acted in accordance with the provisions of the course catalog and student handbook when it evaluated Bruner's academic record to determine what conditions of re-enrollment were necessary to ensure his successful completion of the program. While we have not previously decided whether the catalog or handbook of a state university constitutes a contract between the student and the university, we need not reach that issue in this case. Here, UAA's actions fully conformed with the provisions of the course catalog and the student handbook. Thus, even if the handbook and catalog constitute a contract between UAA and Bruner, there was no breach. Bruner also argues that if a provision of the handbook authorizes the faculty to set conditions for re-enrollment, the provision is "unconscionable" and should be ignored. In matters of academic merit, curriculum, and advancement, courts afford university faculty and administrators substantial discretion. Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90-92, 98 S.Ct. 948, 955-56, 55 L.Ed.2d 124 (1978); see also id. at 96, n. 6, 98 S.Ct. at 958, n. 6 (Powell, J., concurring); Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985). When judges are asked to review the substance of a genuinely academic decision . they should show great respect for the faculty's professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Ewing, 474 U.S. at 225, 106 S.Ct. at 513. The faculty is in the best position to determine how to help the student to succeed and must have the discretion necessary to maintain the integrity of the curriculum and the degree. There is nothing in the provision governing the circumstances in which a student must re-take a class that he or she has failed that represents a "departure from accepted academic norms." Therefore, the provision is valid. B. Was Bruner Afforded the Appropriate Administrative Procedure for His Academic Appeal? Bruner contends that the superior court erred in finding that the administrative process furnished to him was adequate. He claims that he was denied due process because the UAA Nursing Administration did not follow their own regulations in the School of Nursing and Health Sciences handbook. He also argues that he should have been allowed to appeal the dean's decision to the chancellor, and that the "Nursing Administration," which decided his academic appeal, was not an impartial tribunal. These claims are without merit. UAA's catalog and handbook provide procedures to resolve a student's dispute about an academic action and to resolve conflicts between individual faculty and students. The Committee's decision to require Bruner to pass English 120 before re-enrolling in Nursing 222 was a formal academic action changing Bruner's required curriculum. The procedure for a student to appeal an academic action is clearly set forth in the course catalog. To institute an appeal, the student must make a written request for appeal to the dean within fifteen days of the action disputed; The request must set forth "the action to be reviewed, the reason [he] believes the action was inappropriate, and the corrective action" requested. Bruner followed this procedure when he submitted his letter of December 18, 1995, to the dean. The procedure detailed in the catalog sets forth the standard for the dean to utilize in considering the appeal. Bruner cited this standard in his letter of appeal, and Dean Creason followed it in making her decision. The procedure provides that a student has the right to address the dean directly before a decision is rendered, and that in circumstances such as these the dean's decision is final. Bruner was allowed to discuss his appeal with the dean at length. We conclude that UAA afforded Bruner all of the procedural requirements provided for in the catalog and handbook. As to Bruner's argument that he should have been allowed to appeal Dean Creason's decision to the chancellor of the university, the course catalog states that in most instances, the dean's decision is the final decision within the university. The catalog provides that in instances of "removal from a major program or loss of baccalaureate degree-seeking status only, the decision of the dean/director shall be appealable to the Vice Chancellor for Academic Affairs." (Emphasis added.) Because Bruner was not threatened with removal from his program or loss, of baccalaureate degree-seeking status, he did not have a right to appeal the dean's decision to the vice-chancellor. The catalog and handbook do not provide for appeal to the chancellor under any circumstances. Finally, Bruner alleges that Dean Creason's decision should be overturned because she is not an impartial decision maker. He suggests that because the faculty members on the committee and Dean Creason have a "close and supportive working relationship," Dean Creason was biased. Dean Creason was not a member of the committee that made the initial decision to require Bruner to take English 120. Furthermore, agency personnel and procedure are presumed to be honest and impartial until a petitioner makes a showing of actual bias or prejudgment. Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 962 n. 1 (Alaska 1983). Bruner has not offered any evidence that Dean Creason had actual or probable bias other than the fact that she is dean of the nursing program. We affirm the superior court's conclusion that Bruner "was afforded the correct administrative procedure for his academic appeal." C. Did the Superior Court Err in Awarding Petersen Attorney's Fees? In November 1996 Bruner amended his points on appeal to include the assertion that the superior court erred in awarding Petersen attorney's fees. However, his briefing on the issue is limited to a concluso-ry request "for an injunction ordering: . the appellant and appellee to both bear their own attorney's fees." We review the award of attorney's fees under the abuse of discretion standard. McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167 (Alaska 1993). We will find that a trial court abused its discretion only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling. Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982). After considering Petersen s motion for attorney's fees and Bruner's opposition, the superior court awarded Petersen attorney's fees in the amount of $2,103.00, the percentage stipulated in Alaska Civil Rule 82(b)(2). The superior court rejected Bruner's argument that he was a public interest litigant and thus exempt from paying attorney's fees. In Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988), we articulated four criteria that must be satisfied before a party will qualify as a public interest litigant: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? Id. at 233. The superior court found that the "economic incentive of $10,000 in wages, coupled with the request for 'punitive damages' for an additional $10,000, demonstrates a sufficient economic incentive to bring the suit regardless of the possible public interest elements of his claim," and determined that Bruner was not entitled to public interest litigant status. We agree with the superior court's reasoning and conclude that it did not abuse its discretion in awarding attorney's fees consistent with Rule 82. IV. CONCLUSION We AFFIRM the superior court's ruling that the university did not breach a contract with Bruner and that the administrative procedure afforded Bruner was adequate. We also AFFIRM the superior court s award of attorney's fees. EASTAUGH, J., not participating. . A "D" is the lowest passing grade at UAA. However, only one "D" in a required course is permitted. A "C" average is required to maintain satisfactory academic standing in the nursing program. . At the time Bruner was required to take English 120 the university did not have a formal grievance procedure. The procedure for an academic appeal and the procedure for resolving conflicts were the sole grievance mechanisms available to students. This issue is discussed further in Section III.B. . Professor Petersen filed a Motion to Dismiss Bruner's complaint and convert the action into an administrative appeal. In an order dated April 17, 1996, the superior court allowed Bruner's breach of contract and denial of administrative process claims to proceed as an administrative appeal and dismissed the remaining counts. The court's dismissal of the remaining counts is not at issue in this appeal. . The fact that Bruner has already taken and passed English 120 raises the issue of mootness. In the present appeal, Bruner is protesting the requirement that he pass English 120 before re-enrolling in Nursing 222. Since he has already passed that course, there is no relief that Bruner can now request from this court. Under ordinary circumstances, we will refrain from deciding questions where events have rendered the legal issues moot. O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996). A claim is moot if the party bringing the action would not be entitled to any relief even if he prevailed. Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n. 2 (Alaska 1995). However, Bruner also appeals the superior court's dismissal of his claim for $10,000 for income lost because he gave up working to take English 120. In addition, we will review an otherwise moot issue to determine who the prevailing party is if such a determination is necessary for purposes of awarding attorney's fees. LaMoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840 n. 1 (Alaska 1982). Bruner was ordered by the lower court to pay Petersen fees in the amount of $2,103. Since Bruner's appeal of the court's denial of his claim for lost income and his appeal of the attorney's fees award are still at issue, we consider the merits of this appeal. .We independently review the merits of an administrative determination. No deference is given to the superior court's decision when that court acts as an intermediate court of appeal. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). The "substitution of judgment" test is used for questions of law where no agency expertise is involved. Id. Whether a contract existed between Bruner and UAA is a question of law that does not involve agency expertise. Therefore, we review the superior court's decision using the "substitution of judgment" test. . Bruner also contends that the provision is unacceptably vague. He alleges that the provision's vagueness allowed the UAA Nursing Administration to treat Bruner differently from his fellow students, to "maliciously" discriminate against him, and to deny him due process of law. Bruner also argues in a conclusory fashion that "the Nursing Administration violated the equal protection of the law by making unjust distinctions between students." There is nothing in the record to support these claims, and the superior court did not err in rejecting them. . The Academic Appeals section of the catalog states: "[A]s a general rule, the dean/director will not overturn the action of a faculty member or committee unless it is shown to be arbitrary and capricious, clearly erroneous, or based on unlawful discrimination." . Bruner argues that the university violated its regulations because it did not have a formal grievance procedure available as stated in the handbook. The handbook provides that if a student is "unable to resolve a problem on an informal basis . the student has a right to follow the University Grievance Procedure," and that "[plackets for student grievances with employees, faculty, or the University as a whole may be obtained from the Office of the Chancellor." At the time of this suit, the grievance procedure was in draft form, and not available to students. However, the draft grievance procedure states that it is not available to resolve academic decisions. The Committee's decision was an academic decision because it determined Bruner's required curriculum. Therefore, even had it been adopted by the time of Bruner's case, the grievance procedure would not have provided the appropriate manner for Bruner to appeal the Committee's decision. Bruner also alleges that UAA has violated the Americans with Disabilities Act of 1990(ADA) by failing to "adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited" by the Act. While he states that he is a person covered by the Act, he does not specify his disability. Nor does he allege that requiring him to take English 120 constitutes a violation of the ADA. Therefore, we will not address this argument.

9264423

Douglas K. BARRY, Appellant, v. UNIVERSITY OF ALASKA, Appellee

Barry v. University of Alaska

2004-02-27

No. S-10178

1022

1030

85 P.3d 1022

85

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:31:50.955736+00:00

CAP

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

Douglas K. BARRY, Appellant, v. UNIVERSITY OF ALASKA, Appellee.

Douglas K. BARRY, Appellant, v. UNIVERSITY OF ALASKA, Appellee. No. S-10178. Supreme Court of Alaska. Feb. 27, 2004. John E. Havelock, Law Offices of John E. Havelock, Anchorage, for Appellant. Mark E. Ashburn, Ashburn & Mason, P.C., Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

5578

34805

OPINION MATTHEWS, Justice. I. INTRODUCTION The question presented is whether a pre-retirement release bars an employee's claim for a later breach of an employer's promise to recognize that the employee had twenty years of allowable service. We answer this question in the negative because a release cannot govern the enforceability of a promise to be performed after the release. II. FACTS AND PROCEEDINGS When his retirement pay fell short of the amount he expected, Douglas Barry sued both the University of Alaska and the Teachers' Retirement System. We are concerned on appeal only with his claim against the University. Barry's complaint presented three legal theories against the University: breach of contract, negligent record keeping, and promissory estoppel. In the paragraph that follows we summarize the allegations of the complaint. Barry was employed by the University between 1976 and July 1, 1997, but his employment was not continuous. During this period Barry held faculty and non-faculty positions in five different academic disciplines, with four research centers and institutes, and with the University's educational television network. In 1996 the University authorized a retirement incentive program (RIP) under which some University employees who were eligible for retirement were offered a special benefit of up to three years additional retirement credit. Barry contacted Amy Clifford, the University benefits coordinator, to make sure that he had twenty years of allowable service so he could take full benefit of the RIP program. He was assured by her that he would have twenty years of service if he retired in the summer of 1997. Relying on data supplied by the University, Barry applied for RIP benefits. When Barry's application was initially rejected, Barry appealed within University channels. While awaiting the outcome of the appeal he again sought and received confirmation from the University that he had accumulated the necessary twenty years of service for retirement. After negotiations, the University agreed that Barry was entitled to RIP benefits. Consequently, Barry retired based on an understanding that the University would assign him twenty years of actual service credit and three additional years of RIP credit. Barry signed a release as a part of this arrangement. Subsequently the University determined that it had overstated Barry's term of actual service. When his retirement benefits were recalculated they fell short of the amount he expected by some $816 per month. Barry acknowledged that his service "may have been overstated by as much as a year" but claimed that he had "additional service with the University and outside credit which he had not put forward for credit so that the amount of creditable time which [he] had with the University is in doubt." Barry would not have retired if he had known that his retirement benefits were going to be reduced. In order to retire he borrowed money to raise approximately $35,000 to "buy back" retirement time because he had previously withdrawn sums from his retirement account to meet financial contingencies. The University answered, admitting that "there was an incorrect notation of service data in some information maintained by the University concerning [Barry's] employment at the University." The University also explained the RIP program in its answer as follows: Defendant admits that the RIP was an inducement by the State of Alaska to encourage employees to consider retirement. The State program offered an enhanced retirement benefit without having to put in additional years of work. If a State employee had 20 years of service, the program added it to the retirement benefit available to the employee. The University denied many of the other allegations of Barry's complaint and pled several affirmative defenses including the defense that Barry's claims were barred by the release. The University moved for summary judgment as to all of Barry's claims. The sole basis for the motion was the release. The University explained the background of the release: Barry applied for the RIP, but his application was denied by [the University] because [the University] believed that it would not be able to demonstrate any cost savings as required by the RIP.... Barry stated his intent to appeal the decision by [the University] to reject his RIP application . Counsel for [the University], Jean Sagan, engaged in settlement discussions with [Barry's counsel] concerning Barry's intended appeal of [the University's] decision to reject Barry's RIP application. Ms. Sagan proposed that if Barry signed a release of all claims relating to or arising out of his employment relationship with [the University] prior to July 1, 1997, then [the University] would take the extraordi nary administrative steps necessary to ensure that Barry's position was eligible to participate in the RIP. The proposed resolution would also relieve [the University] from the costs and the inconveniences associated with Barry's pending appeal and with any other litigation Barry might file against [the University] associated with either his employment or his retirement from [the University]. The release provided in relevant part: In consideration of the University of Alaska's taking such administrative steps as are necessary to enable the position presently held by Dr. Douglas K. Barry to qualify under the University's current statutorily authorized Retirement Incentive Program, Dr. Barry hereby releases the University of Alaska . from any and all claims . for damages, costs, expenses or compensation for or on account of any damage, loss or injury . whether developed or undeveloped, resulting or to result, known or unknown, past, present, or future, arising out of or directly or indirectly or in any way connected with his employment with the University prior to July 1, 1997, including but not limited to those relating to tenure, retirement, or other employee benefits.... The University argued that the comprehensive terms of the release covered Barry's claims and that a reasonable person in Barry's position would have so understood the release. Barry opposed the motion for summary judgment. He argued, "the parties intended that the release, taken as a part of the agreement to retire, meant that Dr. Barry was eligible to retire with twenty years of service and three years of RIP service," and that "neither party contemplated that Dr. Barry was foregoing his right to sue on the contract of retirement itself." Barry contended that if the release had the effect that the University claimed, the University could have changed its position after he retired and he would have been without a remedy: "If the University is right in its interpretation of the Release, then the University could have reduced Dr. Barry's retirement record to zero, causing his pension to be terminated by TRS." Barry's opposition is summed up in the following paragraph: A release is intended to reflect the intent of the parties. The test of the enforceability of a release is whether, at the time of signing the release, the releasor intended to discharge the claim which was subsequently discovered. All the facts and circumstances surrounding execution of the release are pertinent to determining this intent. Also the determination of whether a reasonable person in the circumstances then existing would have had such an intent. Witt v. Watkins, 579 P.2d 1065 (Alaska 1978). Reposing the question, would a person retiring from the University have reasonably intended that the release would prevent him or her from suing if the University subsequently told the TRS to reduce the benefit expected at the retirement? Barry's opposition also contained a cross-motion for summary judgment. The University replied to Barry's opposition to its motion for summary judgment and responded to his cross-motion. In reply, the University stressed the literal language of the release: "The language of the Release is plain and direct; it provides that Barry releases [the University] from all claims related to his retirement benefits." In response to Barry's cross-motion for summary judgment, the University filed an affidavit of Amy Clifford, the University benefits coordinator, that took issue with Barry's account of their dealings. The University urged that there were "genuine factual disputes as to the facts relating to the substance of each of the three claims set forth by Barry in his complaint." In response to the University's opposition to the cross-motion, Barry filed a reply that effectively withdrew it. He concluded that, in light of Clifford's affidavit, "there are indeed questions of fact that prevent either party from obtaining summary judgment." Superior Court Judge John Reese granted the University's motion for summary judgment. Noting that Barry was represented by counsel at the time that he signed the release and that the release was clear and unambiguous, the court concluded: "All of the claims raised by [Barry] are directly correlated to his retirement benefits or to his employment with [the University] prior to July 1, 1997, and can not as a matter of law be litigated now." The court also observed that in a proceeding involving Barry's appeal from an adverse decision of the Teachers' Retirement Board, the reviewing court, in interpreting board findings, had concluded that Barry should have known that the misadvice he received was incorrect. The court observed that it would be inconsistent with this decision to allow Barry's claims to proceed. III. DISCUSSION A. Standard of Review Grants of summary judgment are reviewed de novo and will be affirmed if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Questions of law including the interpretation of contracts are also reviewed de novo. B. Discussion On appeal Barry makes two claims. He asserts first that the release does not preclude him from asserting claims against the University for breaching the terms of the retirement agreement. Second, he argues that he was entitled to summary judgment against the University based on his claims of negligent record keeping and false assurances that he had received from University personnel that he would have twenty years of allowable service independent of the RIP program. Barry's second claim is without merit. The University correctly argues that in the superior court Barry conceded that questions of fact prevented him from obtaining summary judgment on his cross-motion. Since he abandoned pursuit of his cross-motion it is waived for purposes of this appeal. With respect to Barry's first argument concerning the release, Barry challenges the application of the release both on factual and legal grounds. His factual argument is that whether the release governed the University's conduct in taking the position after he retired that he had less than twenty years of allowable service depends on whether at the time of signing the release a reasonable person in his position would have understood that subsequent conduct by the University of this nature would be encompassed by the release. He contends that at least a question of fact exists on this point. His legal argument is that subsequent conduct breaching the agreement could not have been contemplated as coming within the terms of the release. In response, the University relies on the terms of the release that encompass all claims relating to Barry's retirement benefits. In addition, it stresses that Barry was at all times represented by counsel and thus the release was not the result of disproportionate bargaining power. The University contends that even if Barry had an agreement with the University to retire for a specific benefit "the relevant fact is that such an agreement with the University would necessarily relate to the time period prior to Barry's retirement on July 1, 1997," and therefore any claim concerning such a contract would be barred by the release. The University, also denies any such agreement: "It was never part of any agreement with the University that Barry would receive a certain monthly retirement from TRS or that he would retire with any particular amount of service credit." In order to be entitled to summary judgment the moving party must establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. The summary judgment movant "has the entire burden of proving that his opponent's case has no merit." The University moved for summary judgment based only on its affirmative defense that the release barred Barry's claims. Had it moved for summary judgment on the merits it would have had to show the absence of genuine issues of fact by presenting evidence negating Barry's claim that an agreement was made that he would be credited with twenty years of service. A motion on the merits would have alerted Barry to the need to present evidence showing such an agreement. But this process has not taken place. Since they have not been negated, we must assume as true the allegations in the complaint that an agreement was made that Barry would be credited with twenty years of allowable service. We make this assumption despite the University's present contention in its brief on appeal that there was no such agreement. The University did not undertake to refute the allegations of the complaint in its motion. It cannot on appeal convert a summary judgment motion that was based on an affirmative defense — concerning which the truth of most of the allegations of the complaint would be irrelevant— to a motion challenging the truth of those allegations. Further, in response to Barry's cross-motion for summary judgment, the University conceded that there were genuine issues of material fact as to "whether there was an agreement between [the University] and Barry that [the University] would report to TRS that Barry had twenty years of credit service at [the University] without the benefit of the three RIP years." Assuming then an agreement that the University would credit Barry with twenty years of actual service, the release could not immunize the University from a suit to enforce such an agreement. The University's promise was to be performed after the date of the release and the contract would be illusory if it were governed by the release. No reasonable person in Barry's position would have understood the release language to bar suit for a breach of the contract occurring after the release. An example can readily illustrate this. We can assume that parties to a contract settle a dispute in exchange for a release by the first party, and a promise by the second to pay the first $3,000 per month for life. If the second party after the settlement decides to pay only $2,000 a month, that party would not be insulated by the release from a suit by the first party for breach of the contract. Such a result would be contrary to the concept that a contract that governs future conduct is binding and enforceable. For these reasons we conclude that the University's motion for summary judgment was erroneously granted. The trial court's reference to the reviewing court's conclusion in the administrative appeal by Barry from the adverse decision of the Teachers' Retirement Board that Barry " 'should have known' that the misadvice was incorrect" requires additional comment. The actual language of Superior Court Judge Fred Torrisi's opinion on appeal from the decision of the Teachers' Retirement Board is, "Here, it could be said that Dr. Barry 'should have known' that the misadvice was incorrect, and that is what the Board found." The actual findings of the board on which Judge Torrisi bases this conclusion exonerate the Division of Insurance, but do not purport to address the relative fault of Barry and the University, as Barry's case against the Uni versity was not before the board. None of the parties' briefs discussed this aspect of the superior court's decision. It may represent a ruling that collateral estoppel effect should be given to the quoted statement. If so, such a ruling seems inappropriate at this point, as the University did not argue that the statement should be given collateral es-toppel effect. There has been no discussion as to whether the statement meets the requirements for issue preclusion by operation of the doctrine of collateral estoppel as applied to administrative agencies. Further, if collateral estoppel effect is to be given, the consequences of that effect are both uncertain and unbriefed. For these reasons we believe that questions concerning the effect of the board proceeding and its resolution on appeal must be decided on remand after appropriate briefing. IV. CONCLUSION For the above reasons the judgment of the superior court is REVERSED and this case is REMANDED for further proceedings. . Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003) (citation omitted). . Id. . Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) ("We will not consider arguments that parties fail to raise in the lower court, let alone arguments that they have conceded below, unless the trial court committed plain error."). .Alaska R. Civ. P. 56(c). . Braund, Inc. v. White, 486 P.2d 50, 54 n. 5 (Alaska 1971). . See, e.g., McWilliams v. Bolstridge, 644 P.2d 240, 241 (Alaska 1982) ("In order to meet their initial burden of showing that the counterclaim was without merit, [the movants] had to negate it, as, for example, by filing an affidavit . that no such agreement was made. This they failed to do."). . See, e.g., Jones v. Wadsworth, 791 P.2d 1013, 1015 (Alaska 1990). Under review was a grant of summary judgment in favor of the defendant on the affirmative defense that the tort statute of limitations had run. We held that "for purposes of this appeal" we must "assume as true" the allegations of the plaintiff's complaint that the defendant had made certain express promises. .See Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001) (future performance under an agreement not barred by release clause in same agreement). . We set out here the relevant findings of the Teachers' Retirement Board. After noting that the first two elements of Barry's claim of estop-pel against the board were assertion of a position by the board by conduct or words and reasonable reliance by Barry, the board wrote: Dr. Barry has not proven by the preponderance of the evidence that he has met each of the four elements, particularly the first two elements noted above. First, while UAA may well have erred in recording Dr. Barry's work history, the Division did not independently err and thereby "assert" a position. It is the employer which provides employment records. 2 AAC 36.840. The Division has no independent basis to conclude that employment records are correct, although as in this case, it may well seek verification of records when certain red flags occur in a records check. In any event, the prospective retiree is advised that the employer, not the Division, is the source of employment information. The distinction between the Division's responsibilities in administering TRS and the employer has been confirmed in cases such as Holmberg v. State Division of Risk Management, 796 P.2d 823 (Alaska 1990). The Division, unlike the Crum [v. Stalnaker, 936 P.2d 1254 (Alaska 1997)] circumstances, did not cause, by omission or commission. Dr. Barry to retire based on erroneous information. Second, Dr. Barry has not demonstrated a reasonable reliance upon information provided by the Division given notice that the employer is the source of employment information and also given the fact that, at least with respect to certain periods of time, Dr. Barry was the person with the best knowledge of when he was not employed — particularly the erroneously reported period of uninterrupted service between 1980 and 1985. . Judge Torrisi's statement did not purport to be independent fact finding; it was a characterization of what the board found. Thus the rules governing issue preclusion arising out of facts found in administrative proceedings must be consulted. See generally Restatement (Second) of Judgments § 83 (1982); Johnson v. State, Dep't of Fish & Game, 836 P.2d 896, 906-09 (Alaska 1991) ("a determination of the appropriate pre-clusive effect of administrative decisions is possible only on a case by case analysis").

12041534

CHUGACH ELECTRIC ASSOCIATION, Inc., a non-profit electric cooperative corporation, and D. Bailey Calvin, Appellants, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees; ALASKA PUBLIC SERVICE COMMISSION, State of Alaska, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees

Chugach Electric Ass'n v. City of Anchorage

1967-05-01

Nos. 705, 706

1001

1005

426 P.2d 1001

426

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:24:25.965672+00:00

CAP

Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

CHUGACH ELECTRIC ASSOCIATION, Inc., a non-profit electric cooperative corporation, and D. Bailey Calvin, Appellants, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees. ALASKA PUBLIC SERVICE COMMISSION, State of Alaska, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees.

CHUGACH ELECTRIC ASSOCIATION, Inc., a non-profit electric cooperative corporation, and D. Bailey Calvin, Appellants, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees. ALASKA PUBLIC SERVICE COMMISSION, State of Alaska, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Municipal Light and Power Department, Robert H. Oldland and Carroll A. Oliver, and Calais Company, Inc., Appellees. Nos. 705, 706. Supreme Court of Alaska. May 1, 1967. William J. Moran, Anchorage, for appellants Chugach Electric Ass’n, Inc. and D. Bailey Calvin. Warren C. Colver, Atty. Gen., and Andrew E. Hoge, Asst. Atty. Gen., Juneau, for appellant Alaska Public Service Commission. Stanley Howitt, Asst. City Atty., Anchorage, for appellees City of Anchorage, Municipal Light & Power Department, Carroll A. Oliver and Robert H. Oldland. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

1843

11697

RABINO WITZ, Justice. We are again asked to resolve a dispute between a municipally owned and operated electric utility and a public utility which has been certified pursuant to the provisions of the Alaska Public Service Commission Act. This consolidated appeal arises from the superior court's denial of a permanent injunction to appellants Chugach and Calvin. In the lower court these parties sought to restrain the city of Anchorage from furnishing electrical energy to Bancroft Subdivision which is located approximately one-quarter of a mile outside Anchorage's city limits. Several questions presented in this appeal have been answered by our recent decision in Homer Electric Ass'n v. City of Kenai. That case involved questions as to the effect of the issuance of a certificate of public convenience and necessity to a public utility by the Alaska Public Service Commission. We held that such a certificate was not an exclusive, or monopoly, grant to furnish electrical energy within the corporate limits of the city of Kenai. Our study of the legislative history of the Alaska Public Service Commission Act, and in particular the 1963 amendments thereto, led us to conclude that municipally owned and operated utilities were intended to be excluded from the act's coverage. We, therefore, held that the delineation of a service area contained in a certificate of public convenience and necessity did not provide the basis for precluding a municipality from competing, within its own corporate limits, with such a certificated utility. We adhere to our decision in Homer Electric and hold that appellant Chugach's certificate of public convenience and necessity does not, in relation to the city of Anchorage's electrical utility system, grant it a monopoly to furnish electrical energy throughout the service areas which have been allotted to it. As we view the issues in this appeal, the primary question raised is whether the city of Anchorage is authorized to furnish electrical power to the geographical area in question which is located outside of Anchorage's corporate limits. Resolution of this question involves construction of, and determination of the applicability of, the provisions of AS 29.10.-135(b). This statute provides: A municipality which owns or operates plants for the use, sale or distribution of light, power service for the residents of the city may also sell and distribute the light, power service to the residents of contiguous and adjacent districts outside the limits of the city, and for that purpose may construct, purchase or otherwise acquire, own, maintain and operate extensions, pole lines and other necessary apparatus and equipment, together with the real property necessary for them, outside the limits of the city. The precise controversy in this appeal is over the proper interpretation of the language "contiguous and adjacent districts" and whether or not the geographical area in dispute comes within this phraseology. In Chugach Electric Ass'n v. City of Anchorage the Ninth Circuit had occasion to construe "contiguous and adjacent districts" as used in the statute. The Ninth Circuit concluded that the disputed phrase refers to contiguous districts and adjacent districts. We think this is its plain meaning. This involves no conversion of the word 'and' to 'or.' We think the court correctly considered that the word 'districts' meant 'areas' or 'localities.' We adopt this construction of "contiguous and adjacent districts" and hold that under AS 29.10.135(b) the city of Anchorage is authorized to sell and distribute electrical energy to adjacent districts, areas, or localities located within a reasonable distance from the limits of the city of Anchora ge. This leads us to the question of whether the Bancroft Subdivision is an adjacent district, area, or locality within the intendment of AS 29.10.135(b). Named appellee Calais Company is the owner and subdivider of the Bancroft Subdivision which, at its closest point, lies within approximately one-quarter of a mile of the southerly limits of the city of Anchorage. Examination of the record in this case has convinced us that- the Bancroft Subdivision is an adjacent district within the definition adopted in Chugach Electric Ass'n v. City of Anchorage. We further hold that Bancroft Subdivision lies within a reasonable distance from the city of Anchorage. Therefore, under the provisions of AS 29.10.135(b) the city of Anchorage is empowered to sell and distribute electrical energy to residents of the Bancroft Subdivision. The -fact -that the service area designated in appellee Chugach's certificate of public convenience and necessity encompasses this subdivision does not, under our holding in Homer Electric Ass'n v. City of Kenai, grant it a monopoly in regard to the furnishing of electrical energy to Bancroft Subdivision. Here, as in Homer Electric, the municipally owned and operated electric utility is furnishing service to, and within, an authorized geographical area. In such circumstances the certificated utility is not, under the Alaska Public Service Commission Act, insulated from competition by municipally owned and operated utilities. Brief reference will be made to two other issues in this appeal. Appellants argue that the superior court erred in failing to hold that the city of Anchorage's extension of its electrical system into Bancroft Subdivision constituted waste, or misuse, of public funds. The record discloses that the trial court's findings of fact and conclusions of law pertaining to this question are amply supported by evidence. We sustain the superior court's determination of this issue. In our opinion there is no merit in appellees' contention that appellants should be barred from any relief in this court because of laches on their part. Ap-pellees' assertions in this regard are not borne out by the record. In Homer Electric Ass'n v. City of Kenai we noted that a satisfactory solu tion to the question presented was dependent upon legislative resolution. This appeal presents yet another facet of the still unresolved questions regarding the relationship between certificated utilities and municipally owned and operated utilities, The judgment entered below is affirmed, . Appellants also requested mandatory in-junctive relief (i.e., removal of tlie city's transmission facilities from the area in question). . Opinion No. 390, 423 P.2d 285 (Alaska 1967). . The certificate of public convenience and necessity which was issued to Homer Electric provided for a service area which included portions of the city of Kenai. . AS 42.05.010-42.05.650. .We also pointed out that it was not disputed that the city of Kenai possessed the right and authority to own and operate an electrical distribution system. In this regard AS 29.10.135(a) provides: The council may purchase, construct, or otherwise acquire, establish and operate public wharves, public sewers, public cold storage plants, telephone systems and plants for the use, sale and distribution of light, water, power, heat and telephone service and the collection and treatment of sewage for the residents of the city and the public. .See also AS 29.10.138 which provides: Extraterritorial jurisdiction. Eor the purpose of installing, acquiring, owning or operating plants for the supply of water, light, heat or power to the city or its people, or for the purpose of constructing and maintaining a sewer system, a city may acquire and own property outside the boundaries of the city and may enact and enforce ordinances to protect the sources of the supply of water for the city from contamination, interruption, interference or injury even though they are situated outside of the boundaries of the city. The council may also enact and enforce ordinances to protect, whether in or out of the city, parts, cemeteries, and playgrounds, and light, heat, power and water plants, and sewers, together -with dams, flumes, pipelines, electrical transmission lines and other equipment for serving the city or its inhabitants with light, heat, power or water or drainage through sewers, whether owned by the city or not. . 214 F.2d 110, 113, 15 Alaska 70 (9th Cir. 1954). . AS 29.10.138 was codified at that time as ACIA 1949 § 16-1-38. . The trial court in its opinion in Chugach Electric Ass'n v. City of Anchorage, 106 F.Supp. 6, 7-8, 13 Alaska 747 (D. Alaska 1952), had held that "the conjunctive 'and' must be read as 'or.' " In his opinion Judge Eolta also wrote that under the statute quoted a municipality is authorized to extend its distribution system into any non-contiguous area within a reasonable distance of its corporate limits, provided that the intervening territory is unsettled and uninhabited or virtually so, but that it was never intended by the use of the term 'adjacent' to permit a municipality to leapfrog a settled area, particularly where, as here, such area is, from all appearances, a part of the metropolitan area, and extend its distribution system into the territory beyond. . Appellees contend that the Alaska legislature was aware of the Ninth Circuit's holding in the Chugaoh case when it enacted the 1963 amendments to the Public Service Commission Act. Appellees argue that if the Chugach decision did not express the legislature's intent, the section would have been changed or clarified. See Reed v. Steamship Yaka, 373 U.S. 410, 414, 83 S.Ct. 1349, 10 L.Ed.2d 448, 452 (1963), where the Supreme Court said: But we cannot now consider the wording of the statute alone. We must view it in the light of our prior cases in this area ⅜ the holdings of which have been left unchanged by Congress. See 1 Sutherland, Statutory Construction § 1935 (3d ed. 1943). . In the Chugaoh case referred to above, the area in question, at its closest point, was approximately one and one-half miles from the city limits of Anchorage. . Chugach Electric Ass'n v. Calais Co., 410 P.2d 508 (Alaska 1966), also involved this same subdivision. . See generally sketch of the area in question contained in the appendix hereto. . 214 F.2d 110, 15 Alaska 70 (9th Cir.1954). We shall not pass upon what appears to be an alternative basis of the trial court's decision, namely, the expanded powers possessed by municipalities through constitutional and statutory provisions providing for home rule cities. . Opinion No. 390, 423 P.2d 285 (Alaska 1967). . More specifically, the trial court held 'that: Construction- of the line is neither wasteful nor uneconomic so far as the City is concerned. Furthermore, I find that the contemplated service will be extremely profitable to the City. . 423 P.2d 285, 290 (Alaska 1967).

10376235

Ruth GUDSCHINSKY, Appellant, v. Glenda HARTILL, as Personal Representative of the Estate of J.C. Bewley, Appellee

Gudschinsky v. Hartill

1991-07-26

No. S-3651

851

857

815 P.2d 851

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:24:28.774412+00:00

CAP

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

Ruth GUDSCHINSKY, Appellant, v. Glenda HARTILL, as Personal Representative of the Estate of J.C. Bewley, Appellee.

Ruth GUDSCHINSKY, Appellant, v. Glenda HARTILL, as Personal Representative of the Estate of J.C. Bewley, Appellee. No. S-3651. Supreme Court of Alaska. July 26, 1991. Michael A. Stepovich, Fairbanks, for appellant. Valerie M. Therrien, Fairbanks, for ap-pellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3327

20672

OPINION MATTHEWS, Justice. I. INTRODUCTION Ruth Gudschinsky appeals from an order of the superior court assessing her a total of $45,702.57 in the form of surcharges stemming from her tenure as personal representative of the estate of J.C. Bewley. The appellee is Glenda Hartill, the current personal representative of the estate and one of Bewley's children. Hartill replaced Gudschinsky as personal representative in 1987 after Hartill petitioned the court to have Gudschinsky removed. II. FACTS AND PROCEEDINGS J.C. Bewley died testate on June 11, 1985. Bewley's will was admitted to probate in Alaska on June 19, 1985, with Ruth Gudschinsky acting as personal representative of the estate. Bewley was survived by three children: Glenda Hartill of Oregon, Norma Womack of Oregon, and Jesse Bew-ley of Fairbanks. The will bequeathed the estate to the children in equal shares. Gudschinsky had managed some of Bew-ley's real property before he died as part of a continuing long-term verbal contract between friends. Although she hired an accountant and an attorney to assist her in handling the estate after Bewley died, she continued to manage things much the same way as she had when Bewley was alive. Bewley's estate, valued to be at least $760,-601, consisted of real property in California, Oregon, and Alaska and assorted personal property, including over $125,000 in liquid investments. Gudschinsky was appointed personal representative in June 1985. Over the next two years, her performance led Hartill to petition the court for her removal as personal representative. On November 10, 1987, the probate master entered findings of fact and conclusions of law on Hartill's removal petition. Citing a lack of full documentation, carelessness, and delay in settling the estate, the master found that it would be in the "best interests of the estate" to replace Gudschinsky with Hartill as personal representative. A year and a half later, on May 15, 1989, Hartill filed a "Petition for Judgment Against Ruth Gudschinsky." Following hearings before another probate master in August 1989, findings and recommendations were entered on September 15. The superior court adopted these findings and recommendations on October 12, entering judgment against Gudschinsky in the amount of $45,702.57. The $45,702.57 figure was based on various surcharges which will be discussed in turn. III. DISCUSSION A. The Pre-Death Charges The first surcharge was for "pre-death charges" of $4,344.33. On July 3, 1985, notice to creditors was first published, giving them until November 3, 1985, to present their claims against the estate. In July and September of 1985, Gudschinsky paid herself from estate funds a total of $4,344.33 for debts allegedly owed by Bew-ley to Gudschinsky at the time of Bewley's death. The probate master found that: 1) it was "inappropriate" for Gudschinsky to reimburse herself ahead of other possible creditors, and 2) her reimbursement was supported only by "scratch-pad" type notes and thus was "not satisfactorily documented to allow court approval" several years later. The master did not make clear the legal basis for this assessment. Although she begins her discussion by citing AS 13.16.-460, § 460 does not provide for liability of the personal representative. Alaska Statute 13.16.480 provides for liability of a personal representative in cases of early payment. But § 480 provides for such liability only in instances where another claimant has been injured by the early payment. There has been no finding, express or implied, to that effect. Without such a finding, the master could not properly surcharge Gudschinsky for the pre-death charges based on § 480. Reliance on AS 13.16.395, as suggested by Hartill, suffers from the same deficiency. To impose liability based on § 395, there must be findings that (1) there was an improper exercise of power, (2) there was "damage or loss" to the party to whom the personal representative is liable, and (3) this damage or loss resulted from a breach of a fiduciary duty. Although the master found that it was inappropriate for Gud-schinsky to reimburse herself ahead of other possible creditors, thus making the first required finding, there has been no finding of any "damage or loss" to any "interested persons," which is the second required finding. Nor has the third required finding been made, i.e., that Gudschinsky breached her fiduciary duty by making such payments. Without these findings, it was error to surcharge Gudschinsky for the pre-death charges based on § 395. We therefore reverse that part of the superior court's order affirming the master's surcharge against Gudschinsky for the pre-death charges. We remand to the superior court with directions to remand the matter to the master to make findings of fact on the issues discussed above. B. Personal Draws The master surcharged Gudschin-sky $2,297.05 for excessive fees as personal representative. A personal representative is entitled to "reasonable compensation for services." AS 13.16.430. We, like most other courts, review a lower court's determination of "reasonable compensation" only for abuse of discretion. See, e.g., Estate of fully, 545 A.2d 1275, 1276-78 (Me.1988); In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800, 801-02 (1985). In the proceedings below, it was found that a reasonable fee was $20 per hour and that Gudschinsky should be allowed to bill the estate for 1000 hours. In setting the rate at $20 per hour, the master considered Gudschinsky's lack of special expertise, the large number of hours spent without much to show for it, the poor job done in administering the estate, and that the customary fee in the area is about $10-$20 per hour. Gudschinsky does not dispute these considerations; she simply maintains that her fee of $22,297.05 was not excessive in light of the size of the estate. However, the only case she cites in support of this position is In re Estate of Wright, 132 Ariz. 555, 647 P.2d 1153 (App.1982). It is true that the total fee in Wright was larger than what was awarded to Gudschinsky. Yet if one calculates the representative's hourly fee in Wright, it turns out that it was only $12.50 per hour — $7.50 less than the hourly rate awarded to Gudschinsky. In light of the master's findings, we find no abuse of discretion in setting Gudschin-sky's rate at $20 per hour. Gudschinsky also contests the master's finding that she should be compensated for only 1000 hours instead of the 1148 hours she requested. The master cited an error rate of approximately 10% in the time sheets submitted by Gudschinsky. Considering this and the fact that Gudschinsky's sloppy administration resulted in duplica-tive work by the new personal representative, we cannot say that the figure of 1000 hours is clearly erroneous. Thus, we affirm the superior court's order with respect to the surcharge of $2,297.05 for excessive fees. C. Expenditures After Authority Lapsed Gudschinsky was assessed $1,834.38 for unapproved payments made for work done on estate property in Fairbanks after the court had issued an order requiring court approval. Although Gudschinsky paid out $2,334.38, the master allowed $500 for "reasonable" janitorial services as permitted under the court order. Gudschinsky argues that none of the necessary findings for imposing this surcharge were ever made. Again, the master did not specify the legal basis for imposing this surcharge. Hartill contends that the surcharge was based on AS 13.16.395. As discussed above, to impose liability based on § 395 requires that there be findings of (1) an improper exercise of power, (2) damage or loss, and (3) breach of a fiduciary duty. Not all of these findings were made. The master implicitly found that there was an improper exercise of power. However, there was no finding of "damage or loss" to the estate resulting from the payments. As Gudschinsky notes, the entire benefit of these payments went to the estate. There was no finding that Gud-schinsky appropriated any of the benefit from these payments to herself. Nor was there any finding concerning the breach of a fiduciary duty. Given the state of the record, we reverse the superior court's order to the extent it affirms the surcharge for expenditures after authority lapsed. We remand to the superior court with directions to remand to the master to make specific findings on the issues discussed above. D. Penalties and Interest on Late Taxes As a result of the late filing of estate tax returns, the estate was assessed $26,688.84 in penalties and interest. The master surcharged Gudschinsky this amount based on AS 13.16.485(b). The master also cited 47 A.L.R.3d 507 (1973) for the general proposition that a personal representative is personally liable for penalties and interest if estate tax returns are filed late. Gudschin-sky acknowledges this general rule but argues that it should not apply in her case. Gudschinsky makes several arguments to escape all or part of this surcharge. First, she argues that she reasonably relied on the advice of her accountant who, she claims, informed her that the returns had been timely filed. We have found no cases which absolve from liability a personal representative who took no steps to assure that the estate's tax return had been filed on time. See, e.g., In re Estate of Bartlett, 680 P.2d 369, 377 (Okla.1984) (executor not excused by failure of legal counsel to notify him that taxes were due); In re Estate of Lohm, 440 Pa. 268, 269 A.2d 451 (1970) (executor should be aware that deadline exists); see also 47 A.L.R.3d 512 (1973) (fiduciary cannot escape liability if he "blindly leav[es] all tax matters and considerations affecting an estate to his attorney"). We agree with those courts which hold that if the personal representative displays some effort to ascertain the deadline or comply with it, then a delay might be justified. See, e.g., Estate of Smith, 767 S.W.2d 29, 36 (Mo.1989) (personal representative not personally liable after asking accountant to secure filing extension); Giesen v. United States, 369 F.Supp. 33, 35 (W.D.Wis.1973) (financially inexperienced executor asked and was assured by tax attorney that taxes would be filed on time); see also Wohl v. Lewy, 505 So.2d 525, 526 (Fla.App.1987) (personal representative cannot be held liable for costs incurred in erroneously claiming tax deduction where he relied on advice of accountant). In Gudschinsky's case, she apparently left all tax matters to the accountant. Gudschinsky does not point to any evidence in the record which shows that she tried to find out when the taxes were due. She merely claims that she interpreted a conversation with her accountant to mean that the estate's tax returns had been filed on time. We find that Gudschinsky's mere passive acceptance of an interpretation of a conversation with her accountant does not relieve her of liability for penalties and interest. Second, Gudschinsky argues that she should not be held liable for the late penalties because Hartill, as the new personal representative, failed to appeal the State of Alaska's decision not to waive the tax penalty despite the fact that all other jurisdictions had done so. We see no reason why the estate or its new personal representative is under a duty to appeal the state's decision absent a showing that such an appeal had at least a reasonable likelihood of success. The mere fact that other jurisdictions waived their penalties does not establish a reasonable likelihood that such an appeal would succeed in Alaska. It is possible that the standard for granting waivers is higher in Alaska than in other jurisdictions. In any case, Gudsehinsky cites no evidence that an appeal would likely have succeeded. In fact, the only evidence revealed by our own investigation of the record suggests that a successful appeal was unlikely. Finally, citing Orsini v. Bratten, 713 P.2d 791 (Alaska 1986), Gudsehinsky argues that she should not have to pay the surcharge for interest on the late taxes. In Orsini, Orsini had given the Brattens erroneous investment and tax advice, including the incorrect claiming of investment tax credits on their tax returns. This resulted in state and federal interest penalties charged against the Brattens. Id. at 792. On appeal, we held that the Brattens could not recover these charges from Orsi-ni: [T]he Brattens are not entitled to receive damages for interest repaid to either the federal government or to the state government. The Brattens had the use of these monies and, presumably, were able to earn interest while they held it. Therefore, paying the interest penalties effectively cost the Brattens nothing. Id. at 794. The master distinguished Orsi-ni on the ground that the Brattens were individuals free to risk their money as they desired whereas Gudschinsky's role as personal representative did not allow her the same freedom. Although this distinction certainly exists, it is nevertheless true that a personal representative has the duty of prudently investing the assets of the estate until they are ready for distribution. In re Estate of Gregory, 487 P.2d 59, 64 (Alaska 1971). Bewley's estate was apparently receiving interest on its large reserves of cash. We therefore reverse that part of the superior court's order affirming the master's surcharge for interest paid on late taxes. However, since we cannot determine from the master's decision the breakdown between the interest and the penalties, we remand to the superior court with directions to remand to the master to make such a determination and to assess only the penalties against Gudsehinsky. E. Costs and Attorney's Fees The last surcharge was for "costs and attorney's fees required to review and correct work done by [Gudsehinsky] as personal representative." The master recommended that the estate be awarded an "equitable assessment of $10,000." We review such an award for any abuse of discretion. Gudsehinsky is properly responsible for the costs and fees required to review and correct the improper work done by her. However, the master made no findings as to how much extra cost was incurred by the estate in this remedial work. We recognize the difficulty in this matter, but the master cannot simply pick an arbitrary number. To do so is an abuse of discretion. Findings establishing at least a ballpark figure are required. Therefore, we reverse the superior court's order with re spect to the assessment of $10,000 in attorney's fees and costs, and we remand to the superior court with directions to remand to the master to make findings on the extra expenses incurred due to any improper management of the estate by Gudschinsky. IV. CONCLUSION To summarize, the order of the superior court affirming the surcharges against Gudschinsky is affirmed in part and reversed in part. First, the $4,344.33 surcharge for the pre-death claims is reversed and remanded for the master to make appropriate findings under AS 13.16.480 or AS 13.16.395. Second, the surcharge of $1,834.38 for expenditures after authority lapsed is reversed since not all of the required statutory findings had been made by the court. Upon remand, the master is to make all appropriate findings under AS 13.16.395. Third, the surcharge for interest paid by the estate for the late payment of taxes is reversed. Upon remand, the master is to determine how much of the $26,688.84 surcharge was for interest and how much was for penalties. Finally, the $10,000 surcharge against Gudschinsky for attorney's fees is reversed and remanded for findings on the amount of extra expenses incurred resulting from Gudschin-sky's management of the estate's affairs. AFFIRMED in part, REVERSED in part, and REMANDED. . In her removal petition, Hartill claimed, among other things, that Gudschinsky had improperly administered the estate and had failed to take steps necessary to settle the estate. Bew-ley's other two children opposed Hartill's petition and submitted affidavits supporting Gud-schinsky. . The "best interests of the estate" standard is enunciated in AS 13.16.295(b). The November 10 findings and conclusions were amended on December 2, but there were no significant changes. The new findings and conclusions were approved by the superior court on December 3. . We have considered Hartill's jurisdictional arguments and find them to be without merit. . AS 13.16.460(a) provides that creditors' claims against the estate are barred unless presented to the personal representative within four months after first publication of notice to creditors. . The New Mexico Supreme Court, interpreting a statute similar to AS 13.16.460, held that a disbursement to an executor could not be allowed to stand where no claim was filed. In re Hamilton, 97 N.M. 111, 637 P.2d 542, 545-47 (1981). But Hamilton does not deal with reimbursement before other possible creditors, which was the master's justification for the surcharge on Gudschinsky. . AS 13.16.480(b) provides: The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but the personal representative is personally liable to any other claimant whose claim is allowed and who is injured by such payment if (1) the payment was made before the expiration of [four months from the date of the first publication of the notice to creditors] . . AS 13.16.395 provides: If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from the breach of fiduciary duty to the same extent as a trustee of an express trust. . We note that neither the master nor Hartill called our attention to any statutory requirement that a personal representative submit written documentation to prove his or her own claim. Nor does In re Estate of Gregory, 487 P.2d 59 (Alaska 1971), establish such a requirement. There we upheld a lower court's ruling that a personal representative was required to repay the estate certain insurance payments be cause she had not introduced any evidence to support her claim to the money. Id. at 64. .We also call attention to a possible error in calculating the pre-death charges. Although Gudschinsky testified that she reimbursed herself $4,404.33 for pre-death charges, the master surcharged her only $4,344.33. The master may have switched a digit in one of Gudschinsky's reimbursement checks from $1,882.04 to $1,822.04. This would account for the difference. . See supra note 7. . The master's report states: "[Gudschinsky] was prohibited by court order to expend any further funds from the estate after August 31, 1987.... [Gudschinsky nevertheless] paid out over $2,000 for extensive work to be done at 508 9th." . Even if the estate were to some extent injured by these payments, the master should have determined the value of the unauthorized work done on the 9th Street property and deducted that from the surcharge. See Estate of Tully, 545 A.2d 1275 (Me.1988); In re Estate of Bartlett, 680 P.2d 369 (Okla.1984). Such a procedure would have more closely approximated the estate's damages. . AS 13.16.485(b) provides: A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault. . The record reveals that, as of October 23, 1987, the estate had $120,798 in a cash management fund and $7,135 in a money market fund. . Cf. In re Estate of Gregory, 487 P.2d 59, 64 (Alaska 1971) (reviewing award of attorney's fees to administrator under abuse of discretion standard). . Gudsehinsky does not contest this and has thus waived the issue. . The master did not cite any specific evidence in support of the $10,000 award for attorney's fees and costs. Hartill did testify as to the additional costs and attorney's fees incurred after she became personal representative. However, when the accounting report on which Har-till's testimony was based was offered into evidence, the master said: [T]he Court will take i[t] as just a summary of what's going on, but again it's probably more appropriate that it would be pleading rather than an exhibit. It has no weight as to the truth of the contents of it. (Emphasis added).

10328695

Jack A. OZENNA, Appellant, v. STATE of Alaska, Appellee

Ozenna v. State

1996-07-23

No. A-06265

640

642

921 P.2d 640

921

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:24:33.186737+00:00

CAP

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

Jack A. OZENNA, Appellant, v. STATE of Alaska, Appellee.

Jack A. OZENNA, Appellant, v. STATE of Alaska, Appellee. No. A-06265. Court of Appeals of Alaska. July 23, 1996. James A Wendt, Office of Public Advocacy, Anchorage, for Appellant. Cynthia M. Hora, Office of State Pros. Atty., Anchorage, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1568

9535

Order The state has moved for full-court reconsideration of the single-judge order entered on June 28, 1996, granting Ozenna's motion to accept his late-filed notice of appeal. We grant the state's motion for full-court reconsideration and conclude that the motion to accept Ozenna's late notice of appeal should be granted for the reasons stated in the June 28 single-judge order. In its motion for reconsideration, the state argues that Appellate Rule 502(b) should be narrowly construed to authorize appellate courts to extend a time period "only within the limits permitted by Appellate Rule 521." The state argues that this narrow interpretation is necessary to reconcile the two rules and give effect to chapter 79, section 21, SLA 1995 — the statute enacting the current form of Appellate Rule 521. When Appellate Rule 502(b) was adopted, however, Appellate Rule 521 specified no time limits governing an appellate court's authority to extend the time for filing a notice of appeal. Accordingly, in originally promulgating Rule 502(b), the Alaska Supreme Court could not have intended to subject the powers granted therein to any time limitation stated in Rule 521. The state's request for a narrowing interpretation of Rule 502(b) thus seems directed at implementing legislative intent in enacting chapter 79, section 21, SLA 1995, rather than at reflecting the supreme court's intent in adopting Rule 502(b). For this reason, the request is in effect an argument that chapter 79, section 21, SLA 1995 should be construed to have impliedly amended Rule 502(b). But the Alaska Supreme Court has made it clear that the doctrine of implied repeal or amendment does not apply to legislation affecting procedural rules adopted by the court. Because article IV, section 15 of the Alaska Constitution expressly gives rule-making power to the supreme court rather than the legislature, the supreme court has held that a statute dealing with a procedural matter will not alter a conflicting rule of court unless the statute is enacted with the stated purpose of changing that rule. Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1047 (Alaska 1981); Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963). As the court said in Nolan, "we need not look to the legislature's intentions to discern whether it has attempted to prescribe a different procedure than that contained in a court rule, unless the legislature has acted in the requisite manner[.]" 627 P.2d at 1046. In enacting chapter 79, section 21, SLA 1995, the legislature specifically stated its intent to amend Appellate Rule 521. It did not specifically state a similar intent to amend or limit Appellate Rule 502. We assume that the legislature's failure to address Rule 502 was an oversight and that it would have intended the provisions of Rule 521 to govern over those of Rule 502. However, Nolan and Leege preclude this court from relying on our perception of probable legislative intent as a basis for construing Rule 502 to have been amended. For the reasons stated in this court's order of June 28, 1996, we grant the motion to accept Ozenna's late notice of appeal. Entered by direction of the court. . Published pursuant to the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). . For this reason, in ruling on a request to accept a late notice of appeal, we think it highly relevant to consider the restrictions stated in the amended version of Rule 521 and to exercise restraint in light of those restrictions. In the present case, we do not exercise our authority under Rule 502(b) lightly. It appears highly likely to us that Ozenna is entitled to restoration of his appellate rights as a constitutional matter. Because the state has not challenged, or even alleged any desire to challenge, Ozenna's factual assertions on their merits, we see little purpose to be served in requiring him to pursue a costly and time consuming post-conviction relief action to assert his right to appeal.

9380056

Daniel DeNARDO, Appellant, v. Diane BARRANS, Teresa Williams, Mark Begich, Milton Byrd, Alaska Student Loan Corp., Alaska Commission on Postsecondary Education, Frank Love, Jan Ferrell, Burton Research, Sharon Burton, and Karla Burton, Appellees

DeNardo v. Barrans

2002-11-29

No. S-10292

266

270

59 P.3d 266

59

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:24:56.847230+00:00

CAP

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

Daniel DeNARDO, Appellant, v. Diane BARRANS, Teresa Williams, Mark Begich, Milton Byrd, Alaska Student Loan Corp., Alaska Commission on Postsecondary Education, Frank Love, Jan Ferrell, Burton Research, Sharon Burton, and Karla Burton, Appellees.

Daniel DeNARDO, Appellant, v. Diane BARRANS, Teresa Williams, Mark Begich, Milton Byrd, Alaska Student Loan Corp., Alaska Commission on Postsecondary Education, Frank Love, Jan Ferrell, Burton Research, Sharon Burton, and Karla Burton, Appellees. No. S-10292. Supreme Court of Alaska. Nov. 29, 2002. Daniel DeNardo, pro se, Anchorage. Kevin M. Saxby, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees Bar-rans, Williams, Begich, Byrd, Alaska Student Loan Corp., Alaska Commission on Postsec-ondary Education, Love, and Ferrell, Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2510

16119

OPINION BRYNER, Justice. I. INTRODUCTION Daniel DeNardo filed a superior court action for damages arising out of his allegedly wrongful termination from state employment. The superior court dismissed his case, ruling that it was barred under the doctrine of res judicata by a prior judgment on a nearly identical federal claim, which the federal court had dismissed "with prejudice" under Federal Civil Rule 41(b) as a result of De-Nardo's wilifal refusal to comply with a calendaring order. The primary question on appeal is whether claim-preclusive effect attaches to the federal dismissal. Because we conclude that federal law requires us to give claim-preclusive effect to a punitive dismissal entered on the merits by a federal court under Rule 41(b), we affirm the superior court's judgment. II. FACTS AND PROCEEDINGS After being fired as an auditor for the Alaska Commission on Postsecondary Education, Daniel DeNardo filed an action for damages in the United States District Court for the District of Alaska against nine state employees, claiming that various actions they had taken against him in the course and scope of their employment resulted in his wrongful termination and deprived him of his constitutional rights. The district court entered a summary judgment order dismissing "with prejudice" DeNardo's claims against all defendants except Diane Barrans, his supervisor. Several days before trial on the claims against Barrans, DeNardo asked for a continuance for medical reasons. When the court denied his request and directed him to proceed with trial on the date scheduled, DeNardo stated that he did not intend to appear as directed. In response, the district court dismissed DeNardo's case for "failure to abide by the orders of the court," specifying that the dismissal would be "with prejudice." DeNardo then filed a nearly identical complaint in the Alaska superior court, naming as additional defendants two state agencies, the Alaska Commission on Postsecondary Education and the Alaska Student Loan Corporation. The defendants moved for summary judgment, arguing that DeNardo's claims were barred by res judicata. Superi- or Court Judge Stephanie E. Joannides granted the motion, ruling that DeNardo's complaint raised claims that the federal court had already resolved. DeNardo appeals. III DISCUSSION In challenging the superior court's summary judgment order, DeNardo emphasizes that the doctrine of res judicata can apply only when a previous judgment has resolved the same claim "on the merits." He argues that the federal district court's judgment dismissing his prior complaint does not qualify as a judgment "on the merits" because the dismissal was entered under Federal Civil Rule 41(b). Although this rule expressly specifies that a dismissal under its provisions "operates as an adjudication upon the merits" unless the court specifically states otherwise in its dismissal order, De-Nardo nonetheless cites the United States Supreme Court's recent decision in Semtek International, Inc. v. Lockheed Martin Corp. as holding that Rule 41(b) dismissals do not qualify as judgments "on the merits" under the doctrine of res judicata. But DeNardo's argument is unpersuasive. Preliminarily, we note that DeNardo's federal claims against all the defendants other than Barrans were dismissed with prejudice by summary judgment for failure to establish a prima facie case. This dismissal was unrelated to the subsequent Rule 41(b) dismissal of DeNardo's claims against Barrans; and because an order dismissing a claim for failure to establish a prima facie case necessarily passes on the substance of that claim, the federal court's order dismissing DeNardo's case against all defendants other than Bar-rans qualified as a judgment "on the merits" triggering res judicata's preclusive effect. The federal court's summary judgment order thus barred DeNardo from relitigating his claims against all individual defendants other than Barrans, regardless of whether the subsequent Rule 41(b) dismissal had claim-pre-clusive effect. As to the federal claims against Barrans, DeNardo's argument based on Semmtek is unpersuasive because it misconstrues the decision and overstates Semtek's significance in determining a punitive dismissal's preclusive effect. Although DeNardo insists that Sem-tek stands for the proposition "that dismissals pursuant to [FRCP 41(b)] are not 'on the merits' and have never had res judicata ef-feet," its holding is considerably narrower. In construing Rule 41(b)'s default provision, which specifies that a dismissal under the rule's terms "operates as an adjudication upon the merits" unless the order of dismissal specifies otherwise, Semtek began by observing that "[the original connotation of 'an on the merits' adjudication"-the connotation traditionally used to determine a judgment's preclusive effect-"is one that actually 'pass[es] directly on the substance of [a particular] claim' before the court." But Sem-tek held that the rule's use of the phrase has a narrower meaning: "[The effect of the 'adjudication upon the merits' default provision of Rule 41(b) . is simply that, unlike a dismissal 'without prejudice," the dismissal in the present case barred refiling of the same claim in the [same court]." Having adopted this interpretation, however, Semtek did not go on to conclude-as DeNardo insists it did-that Rule 41(b) dismissals can never have preclusive effect as judgments "on the merits" in the traditional sense. Instead, Semtek recognized that Rule 41i(b) simply does not address the issue. Noting that a judgment "upon the merits" under Rule 41(b) "is undoubtedly a necessary condition, but it is not a sufficient one, for claim-preclusive effect in other courts," the Court in Semtel found it necessary to search elsewhere to determine the issue: "Having concluded that the claim-preclusive effect . [of the federal judgment at issue] is dictated neither by Dupasseur v. Rochereau [88 U.S.(21 Wall.) 130, 22 L.Ed. 588 (1874)], as petitioner contends, nor by Rule 41(b), as respondent contends, we turn to consideration of what determines the issue." After considering this issue, Semtek concluded that federal common law determines a federal dismissal's preclusive effect in both federal-question and diversity cases. Regarding - federal-question - dismissals, the Court in Semtel emphasized that "no federal textual provision addresses the claim-preciu-sive effect of a federal-court judgment in a federal-question case, yet we have long held that States cannot give those judgments merely whatever effect they would give their own judgments, but must accord them the effect that this Court prescribes." To determine the claim-preclusive effect of a punitive dismissal under Rule 41(b), then, Semtek requires us to look for an answer in federal common law, not Rule 41(b). And federal case law provides a clear answer, holding that, unless the dismissing court otherwise specifies, a Rule 41(b) dismissal for failure to comply with a court order is "on the merits" in the traditional sense and must be given preclusive effect: All of the dismissals enumerated in Rule 41(b) which operate as adjudications on the merits-failure of the plaintiff to prosecute, or to comply with the Rules of Civil Procedure, or to comply with an order of the Court, or to present evidence showing a right to the relief on the facts and the law-primarily involve situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court's reaching them. It is therefore logical that a dismissal on one of these grounds should, unless the Court otherwise specifies, bar a subsequent action.[ ] Wriceut, Murer & Cooper amplifies this reasoning, describing the unique characteristics of "penalty dismissals" that justify giving them a preclusive effect: Rule 41(b) provides that unless the court in its order for dismissal otherwise provides, dismissals for failure to prosecute, to comply with the civil rules, or to comply with any order of court operate as an adjudication on the merits. The purpose of this provision is to establish a strong sanction to enforce compliance with proper procedure. Quite apart from Rule 41(b), this purpose of itself would suggest that penalty dismissals often should preclude a see-ond action on the same claim.[ ] And Semtek itself makes the same point. The specific question at issue in Seméek was the preclusive effect of a federal judgment that dismissed a diversity claim on statute-of-limitations grounds under Rule 41(b). Applying its common-law power to decide the issue, the Court fashioned a federal rule for diversity cases that ordinarily would incorporate the claim-preclusion law of the state whose substantive law is at issue. But the Court took pains to warn that it might deviate from this rule if the state law at issue refused to give claim-preclusive effect to a punitive dismissal: This federal reference to state law will not obtain, of course, in situations in which the state law is incompatible with federal interests. If, for example, state law did not accord claim-preclusive effect to dismissals for willful violation of discovery orders, federal courts' interest in the integrity of their own processes might justify a contrary federal rule.[ ] In summary, then, Semtek requires us to determine the preclusive effect of DeNardo's Rule 41(b) dismissal by referring to federal common law. Because federal cases unequivocally treat a punitive dismissal like DeNardo's-a judgment that terminates a case for failing to follow court orders-as a judgment "on the merits" that has claim-preclusive effect, we hold that the federal-court judgment dismissing DeNardo's claim against Barrans had the effect of precluding his subsequent state action against Barrans, which asserted the same claim. So far, our decision precludes DeNar-do from pursing his state claims only against the individual defendants that he named in his superior court complaint. We have not yet considered his state claims against newly named agencies, the Alaska Commission on Postsecondary Education and the Alaska Student Loan Corporation. DeNardo asserts that, because federal law barred him from naming these agencies as defendants in his federal-court action, the superior court erred in concluding that res judicata precluded him from suing them in state court. Yet res judicata can bind parties who did not participate in the prior action: the doctrine holds that a properly entered judgment "should be conclusive upon the parties and those in privity with them. Because the commission and the corporation are governmental entities, not individuals, and so could not act except through their officers and employees, their liability could only be established vicariously, through proof that their officers and employees (the individual defendants named in DeNardo's complaint) acted wrongfully. Under these cireum-stances, privity arises between the agency defendants, who had not been sued in federal court, and the individual defendants, all of whom were sued for actions taken in the course of their employment, because their relationship is "such that one of them is vicariously responsible for the conduct of the other." It follows that, by precluding De-Nardo's individual claims, we also must preclude his agency claims. IV. CONCLUSION We therefore AFFIRM the superior court's judgment of dismissal. . The Ninth Circuit Court of Appeals summarily affirmed the dismissal in DeNardo v. Barrans, 230 F.3d 1366 (9th Cir.2000) (unpublished table decision), cert. dismissed, 531 U.S. 989, 121 S.Ct. 505, 148 L.Ed.2d 452 (2000). . The Ninth Circuit Court of Appeals summarily affirmed the dismissal in DeNardo v. Barrans, 238 F.3d 428 (9th Cir.2000) (unpublished table opinion}, cert. dismissed, 531 U.S. 1006, 121 S.Ct. 607, 148 L.Ed.2d 480 (2000). . Several of the defendants named in the state complaint are different from those named in the federal complaint, but those differences are irrelevant. Three of the newly named defendants, Burton Research, Sharon Burton, and Karla Burton, were never served with process and did not participate in the superior court proceedings. The remaining newly named defendants are either successors of previously named defendants or additional commission members not alleged to have committed specific wrongful acts. . For example, we recently stated: The doctrine of res judicata provides that a judgment in a prior action will bar a subsequent action if the prior judgment was (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action. Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1251 (Alaska 2001), cert. denied, 534 U.S. 1135, 122 S.Ct. 1081, 151 L.Ed.2d 981 (2002) (mem.). . - Federal Rule of Civil Procedure 41(b) provides, in relevant part: Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. . 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). . See id. at 501-02, 121 S.Ct. 1021 ("[A)n 'on the merits' adjudication is one that actually 'pass[es] directly on the substance of [a particular] claim' before the court.") (quoting ResraremEnt (Seconp) or Jupements § 19 cmt. a (1982) [hereinafter ReSTATEMENT] ). . Id. (quoting Restatement § 19 cmt. a). . Id. at 506, 121 S.Ct. 1021. . Id. . Id. . Id. at 507-08, 121 S.Ct. 1021. . Id. at 507 (citations omitted). . Costello v. United States, 365 U.S. 265, 286-87, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). . 18A Aran Waricur, Artgur R. Miter, & Epwarp H. Coopgr, Feperar Practice anp § 4440 (2d ed.2002); see also Restatement § 19 emt. e (adopting a rule of preclusion for failure to prosecute, to obey an order of court, or to appear). . See Semtek, 531 U.S. at 499, 121 S.Ct. 1021. . See id. at 508, 121 S.Ct. 1021. . Id. at 509, 121 S.Ct. 1021. . We include in this category individual defendants newly named in DeNardo's state claim by virtue of their status as successors of previously named defendants, since these newly named individuals are essentially placeholders for previously named defendants; we similarly include commission members newly added in the state action, since these defendants were simply added in their capacity as board members representing the newly named agency defendants and are not alleged to have committed any specific wrongful acts. . Pennington v. Snow, 471 P.2d 370, 374 (Alaska 1970) (quoting State v. Baker, 393 P.2d 893, 897 (Alaska 1964)). . See City of North Pole v. Zabek, 934 P.2d 1292, 1300 (Alaska 1997) ("For vicarious liability to attach, some sort of underlying liability must be established for which the employer can be held liable."). . See Restatement § 51. We follow the Restatement of Judgments in determining whether privity exists for res judicata purposes. See, eg., Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989).

6895609

Linda R. MOFFITT, as Guardian and Conservator for her Mother, Betty Schroeder-Moffitt, Successor Trustee of the Leonard E. Moffit Family Trust, and Successor Trustee of the Betty Schroeder-Moffitt Family Trust, Appellant, v. Tracy A. MOFFITT and Kathryn A. Moffitt, Appellees

Moffitt v. Moffitt

2014-08-08

No. S-14495

1102

1107

341 P.3d 1102

341

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:25:22.844475+00:00

CAP

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

Linda R. MOFFITT, as Guardian and Conservator for her Mother, Betty Schroeder-Moffitt, Successor Trustee of the Leonard E. Moffit Family Trust, and Successor Trustee of the Betty Schroeder-Moffitt Family Trust, Appellant, v. Tracy A. MOFFITT and Kathryn A. Moffitt, Appellees.

Linda R. MOFFITT, as Guardian and Conservator for her Mother, Betty Schroeder-Moffitt, Successor Trustee of the Leonard E. Moffit Family Trust, and Successor Trustee of the Betty Schroeder-Moffitt Family Trust, Appellant, v. Tracy A. MOFFITT and Kathryn A. Moffitt, Appellees. No. S-14495. Supreme Court of Alaska. Aug. 8, 2014. Rehearing Denied Dec. 1, 2014. Cynthia L. Ducey and Kendra E. Bowman, Delaney Wiles, Inc., and Peter C. Gamache, Law Offices of Peter C. Gamache, Anchorage, for Appellant. Chris D. Gronning, Bankston Gronning O'Hara, P.C., Anchorage, for Appellees. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

2315

14492

OPINION BOLGER, Justice. I. INTRODUCTION Linda Moffitt filed a lawsuit as her mother's guardian and conservator and the successor trustee of her parents' living trusts, seeking to rescind or reform a deed they executed in 1995 and a contract they signed in 1998. The superior court dismissed Linda's claims, reasoning that the statutes of limitations had run before Linda filed her lawsuit in 2005. The primary question in this appeal is whether the superior court properly applied the statutes of limitations. We conclude that Linda's mostly equitable claims are subject to the defense of laches, and the statutes of limitations do not apply to these claims. II. FACTS AND PROCEEDINGS In 1992 Leonard and Betty Moffitt created two trusts to provide lifetime support for the surviving spouse, and then to pass the trusts' assets to their children. In 1995 Leonard and Betty agreed to sell their family farm to their son, Tracy, and his wife, Kathy, and deeded part of the property to Tracy and Kathy. In 1998 Leonard and Betty signed a contract memorializing the 1995 agreement and providing that the rest of the farm would be sold to Tracy and Kathy after Leonard and Betty died. Leonard died in 2000 and Betty was diagnosed with dementia in 2001. Their daughter, Linda Moffitt, became personal representative of Leonard's estate, Betty's guardian and conservator, and sue-cessor trustee of Leonard's and Betty's trusts. In 2005 Linda, in her capacity as guardian, conservator, and trustee, brought a civil suit against Tracy and Kathy seeking damages and rescission of the contract. In 2009 Linda filed an amended complaint, adding an alternate request for reformation and containing five counts: conversion, diminished capacity, undue influence, unconscionability, and unJust enrichment. In Leonard's probate proceeding, Linda petitioned the court for the sale of the real property free of contract. The probate court denied the petition. In 2010 Linda moved to consolidate the civil case with the probate case, but the motion was denied. The superior court ultimately dismissed part of the civil case on summary judgment, concluding that, although the limitations periods were tolled during Leonard's and Betty's disabilities, Linda's claims were barred by the two-year tort statute of limitations and the three-year contract statute of limitations. The court noted Linda may retain claims for certain profits received by Tracy and Kathy and for repayment of an allegedly unpaid loan, and it denied summary judgment as to those collateral matters. The superior court awarded Tracy and Kathy $80,025.75 in attorney's fees and $9,528.08 in costs. Linda appealed. Betty died before oral argument in the fall of 2018. III. STANDARD OF REVIEW "We review a grant or denial of summary judgment de novo." "[We review de novo questions regarding the applicable statute of limitations, the interpretation of that statute, and whether that statute bars a claim." We review the denial of a motion to consolidate for abuse of discretion. IV. DISCUSSION A. The Laches Defense Applies To Linda's Equitable Claims. 1. Linda's claims are equitable claims. Linda's main claims are for rescission or reformation of the 1995 deed and the 1998 agreement due to diminished capacity, undue influence, and unconscionability. She argued that the deed and the agreement are invalid and asked that the superior court declare these transactions "null and void or voidable" or reform them "to correct any unconscions-ble terms and to avoid unjust enrichment." A claim for rescission may be either legal or equitable. "Rescission at law is a suit based upon rescission already accomplished." "Rescission at law occurs where at least one of the parties to a contract rescinds the contract and then turns to a court for enforcement of that rescission and an award of damages." In contrast, "rescission in equity occurs only upon a court's decree. In those cases, the court must intervene both to rescind the agreement and to award damages." In other words: "Rescission is equitable if the complaint asks the court to order rescission of the contract, and is legal if the court is asked to enforce a completed rescission." Here, Linda had not rescinded the contract when she filed her claim. Rather, she asked the court for an order declaring both transactions null and void, that is, rescinded. And Linda alleged adequate grounds for rescission: undue influence and diminished capacity. Thus, it appears that she has pleaded claims for equitable rescission. Linda's complaint also requested the remedy of reformation. "Reformation is an equitable remedy by which a court alters the terms of a written instrument to make the writing conform with the meaning that the parties agreed upon. As noted above, Linda's complaint specifically requested that the court reform the 1995 deed and the 1998 agreement. Linda's reformation claims are also equitable in nature. 2. Linda's equitable claims are not subject to a statute of limitations, but are subject to laches. Equitable claims for rescission or reformation of a contract may be barred by the doctrine of laches. This doctrine "creates an equitable defense when a party delays asserting a claim for an unconscionable period." To apply this defense, "[a] court must find both an unreasonable delay in seeking relief and resulting prejudice to the defendant." Several courts have held that statutes of limitations do not control the time limit for asserting equitable claims. For example, the Pennsylvania Supreme Court stated: "[Blecause statutes of limitation are not controlling in equity, but only provide guidance in determining the reasonableness of any delay, this Court has allowed suits in equity to proceed despite significant delays in bringing the action." Similarly, the South Carolina Supreme Court noted "that the statute of limitations does not apply to actions in equity." This rule was applied by the Ninth Cireuit to a dispute in the Alaska territorial court around the time of statehood. And it is consistent with our determination in the inverse situation that the defense of laches does not apply to a legal claim governed by a statute of limitations. We are not aware of any statutory provision that would conflict .with our decision to apply the defense of laches to this case. We therefore conclude that Linda's equitable claims for reformation and rescission are controlled by the doctrine of laches. The laches defense should also apply to any associated restitution claims. In the superior court, Tracy and Kathy moved for summary judgment based on the statutes of limitations for tort and contract claims. In response, Linda asserted that these statutes did not apply to her equitable claims. But neither party raised the issue of laches in the motion papers, so the superior court did not have the occasion to address this doctrine. And we cannot determine on appeal whether there are factual issues that may preclude summary judgment on the laches defense. We must therefore reverse the summary judgment order as to the equitable claims and remand this case for further proceedings. B. The Contract And Tort Statutes Of Limitations Apply To Linda's Legal Claims. Some of Linda's claims are clearly legal claims-particularly her claim for punitive damages. Linda argues that her complaint asserts claims regarding the ownership and possession of the property. Thus, she contends the real property statutes of limitations apply. But Alaska law prevents the application of real property statutes of limitations to this case. In Bauman v. Day, the superior court set aside a foreclosure where the defaulting plaintiff buyers argued their original land sale agreement with the defendant sellers was invalid. We affirmed that decision but rejected the plaintiffs' argument that their separate action contesting the validity of the sales contract fell under a statute of limitations for real property." We reasoned that the salient issue there was "not the ownership interest itself but improprieties in the bargaining that resulted in the conveyance of that interest to the Baumans." Here, as in Bauman, Linda's claim is not subject to a real property statute of limitations because, as discussed above, her claim attacks the legality of the land sale contracts. We thus affirm the superior court's decision that the tort and contract statutes of limitations apply to Linda's legal claims. We note that in 1997 the statute of limitations for contract cases changed from six years to three years under the newly adopted AS 09.10.053. Finally, while there are substantial questions about the operation of the tolling statute, AS 09.10.140(a), they were not adequately addressed in the briefing on appeal. We thus do not decide whether the cases applying the tolling statute to a minor's claims, even when the minor has competent parents, also apply to toll an incompetent plaintiff's claims after appointment of a guardian. C. It Was Not An Abuse Of Discretion For The Superior Court To Decline To Consolidate This Case With The Probate Proceedings. Linda points out that she attempted to sell the farm in probate court, but the probate court denied her motion. The superior court also denied her motion to consolidate, and Linda argues that this ruling was an abuse of discretion. In CL v. P.C.S,, however, we found no abuse of discretion in the trial court's denial of a motion to consolidate the probate case with the civil case where the moving party was not prejudiced and the trial court had reasonably considered the moving party's arguments. The superior court denied Linda's motion to consolidate, reasoning that: (1) the motion was procedurally defective because venue of the probate case had not yet been changed from Anchorage to Palmer; (2) consolidation was not appropriate because the probate proceedings involved issues beyond the dispute over the family farm; and (8) denying consolidation posed little risk of delay or duplica-tive litigation. These reasons are sufficient to support the superior court's decision, and Linda has not explained how she has been prejudiced. We conclude that the superior court did not abuse its discretion when it denied the motion for consolidation. V. CONCLUSION The superior court's order of dismissal is VACATED. The attorney's fees and costs awards are therefore also VACATED. In view of our disposition, it is not necessary to address the other issues raised in this appeal. . Alaska Civil Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005) (citations omitted). . Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1271 (Alaska 2013) (citing Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)). . C.L. v. P.CS., 17 P.3d 769, 772 (Alaska 2001) (citing Foltz-Nelson Architects v. Kobylk, 749 P.2d 1347, 1349 n. 2 (Alaska 1988)). . Knaebel v. Heiner, 663 P.2d 551, 554 (Alaska 1983) (emphasis in original). . Commercial Recycling Ctr., Ltd. v. Hobbs Indus., Inc., 228 P.3d 93, 98 (Alaska 2010) (citation omitted). . Id. at 99 (citation omitted). . 12A CJ.S. Cancellation of Instruments § 5 (2014) (citation omitted). . Id. § 46 ("Alone, or accompanied by other inequitable circumstances, undue influence is a ground for the cancellation of instruments."). . Id. § 62 ("As a general rule, total incapacity to contract because of unsoundness of mind constitutes a ground for the rescission and cancellation of contracts executed by persons in that condition."). . Wasser & Winters Co. v. Ritchie Bros. Auctioneers (Am.), 185 P.3d 73, 77 (Alaska 2008) (citing Restatement (Seconp) or Contracts § 155 cmt. a (1981)). . Cf. Vockner v. Erickson, 712 P.2d 379, 384 (Alaska 1986) (evaluating laches defense to a claim for reformation where no prejudice from delay was shown). . Offshore Sys.-Kenaiv. State, Dep't of Transp. & Pub. Facilities, 282 P.3d 348, 354 (Alaska 2012) (quoting State, Dep't of Commerce & Econ. Dev. v. Schnell, 8 P.3d 351, 358-59 (Alaska 2000) (internal quotation marks omitted)). . Id. (alteration in original) (quoting Schnell, 8 P.3d at 358-59) (internal quotation marks omitted). . E.g., Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ("Traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief."); Castner v. First Nat'l. Bank of Anchor age, 278 F.2d 376, 385 (9th Cir.1960); see also 30A C.J.S. Equity § 164 (2014) (citations omitted) ("Statutes of limitations, . as ordinarily enacted, apply only to actions at law, and do not in terms apply to suits in equity."). . United Nat'l Ins. Co. v. J.H. France Refractories Co., 542 Pa. 432, 668 A.2d 120, 124 (1995) (citations and internal quotation marks omitted). . Dixon v. Dixon, 362 S.C. 388, 608 S.E.2d 849, 855 (2005). . Castner, 278 F.2d at 385 (holding that the statute of limitations did not apply to an equitable claim). . Kodiak Elec. Ass'n, Inc. v. Delaval Turbine, Inc., 694 P.2d 150, 157 (Alaska 1984) ('The defense of laches is inapplicable to an action at law."). . See Restatement (THirp) or Restitution anp UnJust Enricament § 70 (2011). . See Loomis Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341, 1344 (Alaska 1976) (holding action for damages is an action at law). . 892 P.2d 817 (Alaska 1995). . Id. at 822-23. . Id. at 824-25. . Id. at 825. . The three-year contract statute of limitations applies to all claims arising on or after August 7, 1997, and the prior six-year statute of limitations applies to claims arising before that date. See ch. 26, § 55, SLA 1997; 1997 House Journal 1796. . See Grober v. State, Dep't of Revenue, 956 P.2d 1230, 1233 (Alaska 1998) (quoting Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1326 (Alaska 1997)); see also Sands ex rel. Sands v. Green, 156 P.3d 1130, 1133 (Alaska 2007). . 17 P.3d 769, 773 (Alaska 2001).

6892813

Joe D. GARIBAY, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee

State, Department of Administration, Division of Motor Vehicles

2014-11-28

No. S-15017

446

451

341 P.3d 446

341

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:25:22.844475+00:00

CAP

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

Joe D. GARIBAY, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee.

Joe D. GARIBAY, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee. No. S-15017. Supreme Court of Alaska. Nov. 28, 2014. Rehearing Denied Jan. 21, 2015. Robert A. Sparks, Law Office of Robert A. Sparks, and Robert John, Fairbanks, for Appellant. Erling T. Johansen and Kathryn Vogel, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

2694

17102

OPINION MAASSEN, Justice. I. INTRODUCTION After a woman reported having an altercation with Joe Garibay in a store, the police stopped him, then arrested him for driving under the influence of alcohol. The Department of Motor Vehicles revoked Garibay's driver's license for 90 days, and the superior court affirmed the revocation. Garibay appeals, arguing that the police stop constituted an unconstitutional search and seizure requiring that evidence of his drinking be ex-eluded from the license revocation proceedings. We affirm on the basis of our prior cases, which hold that the exclusionary rule applies in license revocation proceedings only in exceptional cireumstances not present here. II. FACTS AND PROCEEDINGS Joe Garibay was at the Sam's Club in Fairbanks when he collided with a woman's shopping cart, waking her baby. The woman demanded an apology, but Garibay swore at her instead. Assuming he was drunk because of the beer in his cart and his threatening manner, the woman called the police, then followed Garibay out to the parking lot to get his license plate number. When a police officer arrived a few minutes later, the woman told him that Garibay was "maybe . a drunk," that he had threatened her in front of her children, and that she wanted him charged with assault. Informed that an assault charge was unlikely, the woman asked that the police at least "find that guy to make sure he's not drunk." The officer assured her that they would try to find Gari-bay and "make sure he's not, you know, drunk driving, something like that." The police located Garibay's empty vehicle shortly afterward in a nearby parking lot. Officer Fett parked behind it and activated his emergency lights When Garibay returned, he attempted to back out of the parking space despite the police car behind him; he apparently did not notice he was blocked in until Officer Fett knocked on his window. Another officer arrived, and both officers spoke with Garibay. Although he told them he had not consumed any aleohol that day, the officers observed that he swayed, had bloodshot and watery eyes, and smelled strongly of alcohol. He failed three field sobriety tests and blew .128 .on the preliminary breath test. The officers arrested him for driving under the influence of alcohol and for possessing firearms while in an impaired state. They then tested him again using the Datamaster breath testing machine, which showed a breath alcohol content of .111. As a result, the Department of Motor Vehicles (DMV) revoked Garibay's license for 90 days. Garibay appealed the license revocation, and the DMV held an administrative hearing. Garibay was represented by counsel, who cross-examined both police officers involved in the arrest. It was Garibay's position that the officers' conduct in approaching his vehicle constituted an illegal investigative stop. But the hearing officer, citing prior decisions of this court, instructed Garibay's attorney not to inquire about the stop's legality. The hearing officer concluded that the legality of the stop was not relevant in a license revocation proceeding, that there was probable cause to believe Garibay was operating a motor vehicle while under the influence of alcohol, and that the Datamaster breath test demonstrated that Garibay's breath alcohol limit was over the legal limit-thus satisfying the requirements of the revocation statute, AS 28.15.166(g). The hearing officer therefore affirmed the 90-day license revocation. Garibay appealed the agency decision to the superior court, arguing again that the investigative stop was illegal. Like the hearing officer, the superior court held that the legality of the stop was irrelevant in license revocation proceedings and therefore affirmed the revocation of Garibay's license. Garibay appeals, arguing again that the investigative stop was illegal and that this divested the DMV of jurisdiction to revoke his license. He also argues that the exclusionary rule should apply in civil license revocation proceedings, and alternatively that the exclusionary rule should at least apply to his case because the police conduct was shocking. III STANDARDS OF REVIEW We set out the standards of review relevant here in our earlier decisions involving the application of the exclusionary rule in license revocation proceedings: We review license revocation hearings under AS 28.15.166(m), which provides that the court may reverse the department's determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record. Where the superi- or court acts as an intermediate court of appeals, we independently review the hearing officer's decision. For legal questions not involving agency expertise, we apply the substitution of judgment standard. We also review constitutional questions de novo, and will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. The Exclusionary Rule Generally Does Not Apply In License Revocation Proceedings. & Under the exclusionary rule, "evidence obtained from an unconstitutional search or seizure is inadmissible and must be excluded." In Nevers v. State we considered for the first time whether the exclusionary rule should apply to search and seizure violations in license revocation proceedings. Citing State v. Sears, we balanced the costs of applying the rule against its benefits. On the cost side, we noted that "application of the exclusionary rule to license revocation hearings will in some cases frustrate the important state interest in keeping drunk drivers off the road by excluding pertinent evidence"; "will significantly increase the administrative burden of what is intended to be an informal process," particularly given that "hearing officers in Alaska need not even be lawyers"; and will likely "result in longer and more complicated hearings in many cases." On the benefit side, we considered the likelihood that applying the rule in license revocation proceedings would "deter unlawful police conduct," concluding that the effect would be insignificant "because the police are already sufficiently deterred from such unlawful conduct by the applicability of the exclusionary rule to all criminal cases that may result from their investigations." Finding that the costs significantly outweighed the potential benefits, we held that the exclusionary rule was inapplicable to license revocation proceedings-with a few exceptions, discussed below. In a subsequent case, Alvarez v. State, Department of Administration, Division of Motor Vehicles, we affirmed a hearing officer's decision to preclude cross-examination of the arresting officer about "details leading up to the initial stop." We agreed with the hearing officer "that only [the arresting officer's] observations after pulling Alvarez over were relevant to the statutory inquiry whether [the arresting officer] had probable cause to arrest Alvarez for driving while intoxicated." We explained that "whether or not [the arresting officer] had reasonable suspicion to stop Alvarez is irrelevant in a license suspension proceeding." Applying Nevers and Alvares in this case, the hearing officer was correct to rule that the exclusionary rule did not apply to Garibay's Heense revocation hearing. B. The Exceptions Noted In Nevers Do Not Apply To This Case. In Nevers we did note certain exceptional cireumstances that would justify application of the exclusionary rule in license revocation proceedings. We held that the rule would apply if there is "police misconduct which shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom." In a footnote we set out another exception relevant here: "where a Fourth Amendment violation stems from a lack of probable cause for a DWI arrest, . because probable cause is an affirmative statutory element of the offense of refusal and is an affirmative element for proof in the license revocation proceeding." Garibay argues that these exceptions allow him to challenge the legality of the investigative stop at the license revocation hearing, but we disagree. First, we reject Garibay's argument that "the police action in this case was shocking misconduct, because of the completely speculative basis for the police officer's investigative stop." The investigative stop was based on the report of the woman at Sam's Club, who suspected from Garibay's actions and demeanor that he was drunk. Garibay did not present any facts to indicate that the officers who stopped him acted deliberately to violate his constitutional rights or that they engaged in any other shocking behavior. We see no basis for applying the exception to this case. Also inapplicable is the exception that requires exclusion of evidence where the DUI arrest is not based on probable cause. Garibay frames the relevant time as the moment of the investigative stop rather than the arrest. But his argument is precluded by our decision in Alvares, where we affirmed the hearing officer's determination that "only [the arresting officer's] observations after pulling Alvarez over were relevant to the statutory inquiry whether [the arresting officer] had probable cause to arrest Alvarez for driving while intoxicated." Here, after stopping Garibay in his attempt to back out of his parking space, the officers observed that he had bloodshot, watery eyes, smelled strongly of alcohol, had balance issues, failed several field sobriety tests, and had a preliminary breath test result significantly over the legal limit. These observations "would warrant a prudent person in believing" that Garibay had committed the offense of operating a vehicle while under the influence of alcohol. Because the officers had probable cause to arrest Garibay at the relevant moment-the moment of his arrest for DUI-the second Nevers exception does not apply here either. C. The DMV Had Jurisdiction To Revoke Garibay's License. Under the implied consent statute, AS 28.35.031(a), "[a] person who operates or drives a motor vehicle in this state . shall be considered to have given consent" to a test to determine the person's blood or breath aleohol concentration, if that person is "lawfully arrested" for driving under the influence of aleohol. Garibay argues that this "lawful arrest" component of the implied consent statute must be read into AS 28.15.166(g), the statute providing for administrative review of a license revocation, such that the DMV lacks the authority to revoke a license absent a "lawful arrest." We reject this argument too as inconsistent with our prior cases. In Javed v. Department of Public Safety, Division of Motor Vehicles, we explained that although AS 28.15.166(g)(1) cites the implied consent statute, its focus "is clearly on the result of the test or the fact of refusal to take the test." Our explanation continued: Reading subsection .166(g)(1)-(8) to encompass an inquiry into the underlying facts that justify administration of the test would render the first part of subsection .166(g), regarding the issue of whether the law enforcement officer had reasonable grounds to believe that the person was operating a motor vehicle, almost meaningless. The statute offers very precise limiting language for the issues that are to be considered. There is no reason to believe that the reference to the implied consent statutes is anything more than a descriptive tool used to identify the "chemical test" named in each instance. The statute thus does not require an inquiry into the lawfulness of the investigative stop at the administrative review hearing. For his contrary reading of the statute, Garibay relies on the dissent in Hartman v. State, Department of Administration, Divi sion of Motor Vehicles. The dissent concluded that the investigative stop in Har-man was unlawful, and that therefore "[the ensuing arrest was also unlawful because [the trooper] established probable cause to arrest Hartman with information gathered during the unlawful stop." But the dissent in Hartman is not the law in Alaska, and it conflicts with Nev-ers, which is the law in Alaska. The police unlawfully entered Nevers's home, questioned him, and gave him a preliminary breath test that showed he was intoxicated." They then arrested him. Nevers tried to exclude the results of the breath test because of the police's unlawful entry. We held, however, that the results could not be suppressed because the exclusionary rule does not apply to license revocation proceedings. Nevers's arrest was based on probable cause; the problem was that the probable cause was the result of an unlawful entry into his home. In a criminal proceeding, under the exclusionary rule, the police's illegal conduct would invalidate the breath test and the subsequent arrest. But in a license revocation proceeding, because the excluéionary rule does not apply, illegal police conduct prior to arrest does not invalidate the arrest unless it "shocks the conscience." As the dissent in Hartman recognized, it is the exclusionary rule that acts to invalidate an arrest by-taking out of the equation some evidence on which probable ecause to arrest was based; without the exclusionary rule, the evidence stays in and the arrest stands. Because the exclusionary rule does not apply to Garibay's case, his argument that he was unlawfully arrested fails. . The DMV had the authority to revoke his license. v. CONCLUSION We AFFIRM the hearing officer's decision upholding the revocation of Garibay's license. . The facts of this altercation are the subject of police reports but were not adjudicated; they are recited here only to place the actions of the police in the context of what they had been told. . See AS 11.61.210(a)(1) (defining fourth-degree weapons misconduct to include a person's possession of a firearm "when the person's physical or mental condition is impaired as a result of the introduction of an intoxicating liquor"). . See Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles, 249 P.3d 286, 296 (Alaska 2011) (holding, in part, that whether the police have reasonable suspicion to stop a driver is irrelevant in a license suspension proceeding because the exclusionary rule does not apply); Nevers v. State, Dep't of Admin., Div. of Motor Vehicles, 123 P.3d 958, 966 (Alaska 2005) (holding that the exclusionary rule does not apply to license revocation hearings as a general rule). . As relevant here, the statute states that administrative review of a revocation decision "shall be limited to the issues of whether the law enforcement officer had probable cause to believe . that the person was operating a motor vehicle . while under the influence of an alcoholic beverage" and had chemical test results that violated the statutory limits. 5. Alvarez, 249 P.3d at 290-91 (quoting Nevers, 123 P.3d at 961) (internal quotation marks omitted). . Nevers, 123 P.3d at 962 (citing Schultz v. State, 593 P.2d 640, 642 n.5 (Alaska 1979); Ellison v. State, 383 P.2d 716, 718 (Alaska 1963)). . Id. at 962 n. 16. . 553 P.2d 907, 912-14 (Alaska 1976). . Nevers, 123 P.3d at 963-64. . Id. at 963. . Id. at 964. . Id. . 249 P.3d 286, 295 (Alaska 2011). . Id. at 296 (emphasis in original). . Id. . Nevers, 123 P.3d at 964 (quoting State v. Sears, 553 P.2d 907, 914 (Alaska 1976)) (internal quotation marks omitted). . Id. at 964 n. 21. . See Fraiman v. State, Dep't of Admin., Div. of Motor Vehicles, 49 P.3d 241, 245 (Alaska 2002). . Alvarez, 249 P.3d at 296 (emphasis in original). . State v. Blank, 90 P.3d 156, 162 n. 38 (Alaska 2004) (citing Schmid v. State, 615 P.2d 565, 574 (Alaska 1980)). . AS 28.35.030(a). . "Probable cause to arrest exists if the facts and circumstances known to the officer would warrant a prudent person in believing that the defendant had committed an offense." Blank, 90 P.3d at 162 n. 38 (citing Schmid, 615 P.2d at 574). . 921 P.2d 620, 625 (Alaska 1996). 24. Id. . 152 P.3d 1118, 1126-30 (Alaska 2007) (Eastaugh, J., dissenting). . Id. . Nevers v. State, Dep't of Admin., Div. of Motor Vehicles, 123 P.3d 958, 960-61 (Alaska 2005). . Id. . Id. at 963. . See id. at 962. . Id. at 964. . Hartman v. State, Dep't of Admin., Div. of Motor Vehicles, 152 P.3d 1118, 1130 (Alaska 2007) (Eastaugh, J., dissenting) ("[(Aln unlawful stop may 'invalidate' an ensuing arrest . 'through the exclusion of evidence garnered from the stop." (alterations in original)).

6895716

Richard HUGHES, The Alaska Miners association, and the Council of Alaska Producers, Appellants, v. Mead TREADWELL, Lieutenant Governor of the State of Alaska, The State of Alaska, Division of Elections, Christina Salmon, Mark Niver, and John H. Holman, Appellees

Hughes v. Treadwell

2015-01-30

No. S-15468

1121

1134

341 P.3d 1121

341

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:25:22.844475+00:00

CAP

Before: WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

Richard HUGHES, The Alaska Miners association, and the Council of Alaska Producers, Appellants, v. Mead TREADWELL, Lieutenant Governor of the State of Alaska, The State of Alaska, Division of Elections, Christina Salmon, Mark Niver, and John H. Holman, Appellees.

Richard HUGHES, The Alaska Miners association, and the Council of Alaska Producers, Appellants, v. Mead TREADWELL, Lieutenant Governor of the State of Alaska, The State of Alaska, Division of Elections, Christina Salmon, Mark Niver, and John H. Holman, Appellees. No. S-15468. Supreme Court of Alaska. Jan. 30, 2015. Matthew Singer and Robert J. Misulich, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellants. Elizabeth M. Bakalar, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellees Lieutenant Governor Mead Treadwell and the State of Alaska, Division of Elections. Timothy A. McKeever and Seott M. Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees Christina Salmon, Mark Niver, and John H. Holman. Before: WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

6668

44133

OPINION STOWERS, Justice. I. INTRODUCTION Richard Hughes, the Alaska Miners Association, and the Council of Alaska Producers (collectively referred to as "Hughes") challenged Lieutenant Governor Mead Treadwell's certification of a ballot initiative that would require final legislative approval for any large-scale metallic sulfide mining operation located within the Bristol Bay watershed. Hughes argued that the initiative violates the constitutional prohibitions on appropriation and enacting local or special legislation by initiative. Following oral argument we issued an order affirming the superior court's summary judgment order in favor of the State and the initiative sponsors, and allowing preparation of ballots to proceed.. This opinion explains our reasoning. II. FACTS AND PROCEEDINGS In October 2012 Lieutenant Governor Mead Treadwell received an application for an initiative entitled "Bristol Bay Forever"; the Division of Elections denominated the initiative "12BBAY." The stated purpose of the initiative was to enact law "providing for [the] protection of Bristol Bay wild salmon and waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve." Seetion 1 of the initiative would add the following new section to AS 38.05: Sec. 38.05.142. Legislative approval required for certain large scale mines. (a) In addition to permits and authorizations otherwise required by law, a final authorization must be obtained from the legislature for a large-scale metallic sulfide mining operation located within the watershed of the Bristol Bay Fisheries Reserve designated in AS 38.05.140(f). This authorization shall take the form of a duly enacted law finding that the proposed large-scale metallic sulfide, mining operation will not constitute danger to the fishery within the Bristol Bay Fisheries Reserve. (b) The commissioner may adopt regulations under AS 44.62 to implement this section. (c) In this section, "large-scale metallic sulfide mining operation" means a specific mining proposal to extract metals, including gold and copper, from sulfide-bearing rock that would directly disturb 640 or more acres of land. Section 2 would amend the "uncodified law of the State of Alaska" to make findings recognizing the ecological and economic importance of the Bristol Bay Fisheries Reserve and the potential adverse effects of metallic sulfide mining. After review by the Department of Law-which concluded that the initiative did not make an appropriation or enact local or special legislation and violated no other constitutional provisions-the Licuten-ant Governor certified 12BBAY. In January 2013 Hughes challenged 12BBAY's certification in superior court, arguing that the initiative "constitutes impermissible local and special legislation and violates the separation of powers doctrine." Hughes amended his complaint several times, joining the Alaska Miners Association and the Council of Alaska Producers as plaintiffs. Initiative sponsors Christina Salmon, Mark Niver, and John H. Holman moved to intervene as defendants; the superior court granted their unopposed motion. In February the initiative sponsors moved for summary judgment. They then filed a separate answer to the amended complaint in March. In August Hughes cross-moved for summary judgment. In January 2014 Hughes filed a third amended complaint, adding a claim that 12BBAY would unconstitutionally appropriate state assets, and again moved for summary judgment. Considering his motions for summary judgment together, Hughes argued that 12BBAY would: (1) enact local or special legislation in violation of article XI, section 7 of the Alaska Constitution; (2) violate separation of powers under article XII, section 11 of the Alaska Constitution; and (8) appropriate state assets in violation of article XI, section 7 of the Alaska Constitution. The superior court concluded that 12BBAY would not enact local or special legislation, would not clearly violate separation of powers, and would not appropriate public assets. The court granted summary judgment in favor of the State and the initiative sponsors and declined to enjoin placement of 12BBAY on the ballot. Hughes appeals to this court, challenging the superior court's conclusions that 12BBAY would not make an unconstitutional appropriation of public assets or enact local or special legislation. III STANDARD OF REVIEW We review a superior court's summary judgment decision de novo, reading the record in the light most favorable to, and drawing all reasonable inferences in favor of, the non-moving party. Ballot initiatives are subject to pre-election review only "where the initiative is challenged on the basis that it does not comply with the state constitutional and statutory provisions regulating initiatives" or "where the initiative is clearly unconstitutional or clearly unlawful." The constitutionality of a ballot initiative is a question of law, which we review using our independent judgment, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy." We "construe voter initiatives broadly so as to preserve them whenever possible." And "we liberally construe constitutional and statutory provisions that apply to the initiative process." However, whether an initiative complies with article XI, section T's limits on the right of direct legislation requires careful consideration. IV. DISCUSSION Article XI, section 1 of the Alaska Constitution provides that "[the people may propose and enact laws by the initiative." But article XI, section 7 creates several specific restrictions on this power: "The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define jurisdiction of courts or prescribe their rules, or enact local or special legislation." Here, Hughes argues that 12BBAY violates article XI, section T's prohibition on appropriation by initiative and on enacting local or special legislation by initiative. We conclude that 12BBAY would not appropriate state assets or enact local or special legislation. A. 12BBAY Does Not Violate Article XI, Section 7's Anti-Appropriation Clause. Hughes argues that 12BBAY violates the anti-appropriation clause of article XI, section 7 because it impermissibly interferes with the legislature's appropriation authority. Hughes contends that "12BBAY would set aside the entire Bristol Bay Watershed for the purpose of propagating salmon" and "would immediately ban new large-scale har-drock mining in this vast area without any further legislative action." The State and sponsors respond that 12BBAY is not an appropriation because it regulates rather than allocates resources, expressly leaving final authority to allocate state resources with the legislature. We employ a two-part inquiry to determine whether an initiative makes an appropriation of state assets in violation of article XI, section 7. First we must determine "whether the initiative deals with a public asset." Second, if the initiative deals with a public asset, then we must determine "whether the initiative would appropriate that asset."" None of the parties dispute the superior court's conclusion that "12BBAY concerns a 'public asset." As the superior court noted, "[wJhether the initiative is construed as one that affects fish, waters of the state or state lands, each of these resources is a public asset. The issue here is whether 12BBAY appropriates fish, waters of the state, or state lands. In evaluating whether an initiative that deals with a state asset appropriates that asset, we look to "two core objectives" of the prohibition against appropriation by initiative. Those objectives are (1) "to prevent give-away programs that appeal to the self-interest of voters and endanger the state treasury," and (2) "to preserve legislative discretion by ensur[ing] that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs." Hughes does not challenge the superior court's conclusion that 12BBAY is not a give-away program. And that conclusion is clearly correct 12BBAY does not give away state resources to voters or to any particular group, person, or entity. Thus, the only remaining question is whether 12BBAY impermissibly interferes with the legislature's control over allocation of state assets. Hughes argues that because the legislature delegated the allocation of mineral leases to the Department of Natural Resources (DNR), 12BBAY impermissibly limits legislative discretion by forcing the legislature itself to make final allocation decisions and thus violates the anti-appropriation clause. The superior court concluded that 12BBAY does not limit legislative control over state assets because it expressly leaves final authority for appropriating state resources in the hands of the legislature. The superior court rejected Hughes's argument that the second objective of the anti-appropriation clause is violated when an initiative affects the process of making appropriations. We have previously stated that an initiative "narrows the legislature's range of freedom to make allocation decisions in a manner sufficient to render the initiative an appropriation" when "the initiative 'would set aside a certain specified amount of money or property for a specific purpose or object in such a manner that is executable, mandatory, and reasonably definite with no further legislative action.'" +*} Several of our decisions regarding whether particular initiatives would make an appropriation illuminate this principle. In McAlpine v. University of Alaska we considered an initiative that would have established a state community college system and required the University of Alaska to transfer certain property to the new system. We upheld the initiative's provisions creating and funding an independent community college system, but struck the initiative's third sentence, which provided: "The amount of property transferred shall be commensurate with that occupied and operated by the Community Colleges on November 1, 1986." We concluded that this language impermissibly "designat[ed] the use of an ascertainable and definite amount of state assets"-that amount in use by the community colleges on November 1, 1986." We noted that a key consideration supporting this conclusion was that "no further legislative action would be necessary to require the University to transfer property to the community college system, or to specify the amount of property the University must transfer." * But we concluded that the ini tiative's second sentence, which provided that "Itlhe University of Alaska shall transfer to the Community College System of Alaska such real and personal property as is necessary to the independent operation and maintenance of the Community College System," was not an appropriation because the legislature would maintain "all the discretion it needs with respect to appropriations for community colleges. We reasoned that the legislature's discretion would be limited only to the extent that the legislature could not eliminate all appropriations for community colleges, and we saw no realistic danger that the legislature would attempt to do so. In City of Fairbanks v. Fairbanks Convention & Visitors Bureau we considered a local ballot initiative that would have amended a municipal ordinance governing the use of funds from the city's hotel tax by allowing revenue from the tax to be used for non-tourist and entertainment purposes and eliminating the requirement that a certain percentage of the tax go to the Fairbanks Convention and Visitors Bureau. We concluded that the initiative did not repeal an appropriation because the ordinance it amended was not an "appropriation" as the legislature used the term in AS 29.85.100-"that is as an act which accompanies the approval of the annual budget or is supplemental to that act." We further concluded that the initiative was not an appropriation in its own right because it would not "reduce the [city] council's control over the appropriations process. Instead, the initiative [would] allow[ ] the council greater discretion in appropriating funds than [did] the current law, In Pullen v. Uimer we considered an initiative that would direct allocation of the salmon harvest among competing users and would create preferences for subsistence, personal, and recreational users." After determining that wild salmon were a state asset, we held that the initiative would im-permissibly appropriate that asset. We concluded that the initiative was a giveaway, both because it was "designed to appeal to the self-interests of sport, personal and subsistence fishers" and would "significantly reduce[ ] the legislature's and Board of Fisheries' control of and discretion over allocation decigions, particularly in the event of stock-specific or region-specific shortages of salmon between the competing needs of users." We distinguished McAlpine by emphasizing that the initiative at issue could significantly limit the Board of Fisheries' discretion to make allocation decisions in times of shortages and that "there is a very realistic danger that such shortages will oceur." In Alaska Action Center, Inc. v. Municipality of Anchorage we considered an initiative that would have limited development on municipal property. We concluded that the initiative was distinguishable from the permissible section of the initiative in MeAlpine because it " 'designat[ed] the use of specified amounts of public assets in a way that encroaches on the legislative branch's exelusive 'control over the allocation of state assets among competing needs"" We rejected Alaska Action Center's argument that the initiative was distinguishable from the one at issue in McAlpine because it did not mandate a transfer of property: "McAlpine did not rest . on the fact that the initiative at issue there would have required a formal land transfer; the ruling focused on the fact that the initiative directed a specific amount of property to be used for a specified purpose." We also emphasized that the prohibition against appropriations is meant to keep "control of the appropriation process in the legislative body and concluded that the initiative would intrude on legislative control by "limiting the mechanism for future change to another initiative process. In Staudenmaier v. Municipality of Anchorage we considered whether two initiatives that would have directed the municipality to sell utility assets would impermissibly appropriate assets. The first initiative would have required the municipality to sell Anchorage Municipal Light & Power Utility and its assets and would have granted Chu-gach Electric Association a right of first refusal. The second initiative would have required the municipality to sell the Anchorage Municipal Refuse Collection Utility to the highest bidder. We concluded that the municipal clerk properly rejected the initiative petitions because, by requiring the sale of public assets, they violated article XI, section T's prohibition on appropriating by initiative. We explained that the line between an unobjectionable initiative that deals with a public asset and one that is an impermissible appropriation is crossed "where an initiative controls the use of public assets such that the voters essentially usurp the legislature's resource allocation role." In Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell we considered an initiative that would have regulated large-scale metallic mines for the purpose of protecting water quality." We concluded that the initiative dealt with a public asset-waters of the state-but that the initiative would not appropriate that asset.! As in this case, no party argued that the initiative was a "give-away program." Instead, the primary question was "whether the initiative narrow[ed] the legislature's range of freedom to make allocation decisions in a manner sufficient to render the initiative an appropriation." We concluded that because the initiative was properly read as "preclud[ing] only discharges of toxic chemicals and other mine waste that cause 'adverse effects' to humans, salmon, and waters used for human consumption or as salmon habitat," it did not make an appropriation. We stated that "the prohibition against initiatives that appropriate public assets does not extend to prohibit initiatives that regulate public assets, so long as the regulations do not result in the allocation of an asset entirely to one group at the expense of another." We further observed that the initiative left the Department of Environmental Conservation and Department of Natural Resources the discretion to determine specific amounts of toxic pollutants that may be discharged and did not exhibit any "explicit preference among potential users." In Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough we considered a ballot initiative passed by voters that required voter approval for all Borough capital projects with a total cost in excess of one million dollars. We concluded that requiring voter approval for a specific class of Borough expenditures was an appropriation, and, therefore, the initiative was invalid. We explained that "an initiative may make an impermissible appropriation not only when it designates public assets for some particular use, but also when it allocates those assets away from a particular group." We concluded that the voters would not invariably approve all capital projects placed on the ballot as a result of the initiative, and thus the initiative would allocate assets away from those capital projects meeting the voter-approval threshold. Most recently in Municipality of Anchorage v. Holleman we considered, among other things, whether a referendum to repeal a municipal ordinance was an appropriation. The ordinance at issue made a number of changes to the employee relations chapter of the Anchorage Municipal Code, including limiting overtime compensation, prohibiting strikes, and placing new restrictions on collective bargaining. The municipality argued that by repealing an ordinance intended to save money on labor costs, the referendum would effectively appropriate public assets that the municipal assembly could direct to other priorities We rejected that argument, noting that "we have never held that any effect on public resources triggers the prohibition on direct legislation; nearly all legislation involves public assets to some degree." We observed that "the referendum [did] not compel or restrict the expenditure of public funds, the approval of labor contracts, or any particular level of employee compensation," and that "the economic effects of the ordinance are indirect and presently unknowable. Thus, we concluded that the referendum was not an " 'executable, mandatory, and reasonably definite' set-aside [of money or property] that our case law requires before we will find that an initiative or referendum makes an appropriation." Read together, these cases create a relatively detailed outline of when an initiative or referendum impermissibly limits legislative discretion to allocate state assets in violation of article XI, section 7. An initiative or referendum may: (1) mandate a non-ap-propriative allocation of property-including a transfer of property from a specific government entity-sufficient to accomplish a particular purpose; (2) repeal a legislative enactment that designates the use of government funds, as long as the statute or ordinance is not an "appropriation" as the legislature used the term in AS 29.35.100; (3) increase the legislative body's discretion in making appropriations by changing existing law; (4) regulate the use of public assets; or (5) repeal a legislative enactment intended to reduce government expenditures in a particular area of the budget. But an initiative or referendum may not: (1) require the allocation of "an ascertainable and definite amount of state assets"; (2) set aside specified property for a particular use, especially where the initiative "limit{s]} the mechanism for future change to another initiative process"; (8) set preferences among user groups of a particular public resource; (4) require the sale of specified public assets; or (5) require voter approval for any public expenditure of funds within a particular class. Additionally, an initiative that regulates the use of public assets may not "result in the allocation of an asset entirely to one group at the expense of another. These cases also suggest that a limitation on legislative discretion is only an "appropriation" where the limitation would restrict a plausible legislative choice. The effect of 12BBAY is similar to that of the initiative at issue in City of Fairbanks in that it ultimately gives the legislature more discretion whether to approve a particular mining project. In City of Fairbanks an existing ordinance allocated the use of hotel tax revenue and the initiative would have returned complete control of that revenue to the City Council. In the present case an extensive set of statutes and regulations governs mining, and the legislature has delegated permitting decisions to DNR. 12BBAY would alter that scheme by returning final decision-making authority to the legislature for proposed "large-scale metallic sulfide mining operation{s] located within the watershed of the Bristol Bay Fisheries Reserve." 12BBAY is also distinguishable from each case where this court has invalidated an initiative on the basis that it interferes with the legislature's control over resource allocation. Unlike the initiative at issue in McAlping, 12BBAY would not direct the use of "an ascertainable and definite amount of state assets. "} While 12BBAY would regulate resource use in an identified geographic area, it does not set that area aside for a particular use as the initiative in Alaska Action Center would have. 12BBAY does not require the sale of any public assets and does not require voter approval for any expenditure of public funds. Finally, contrary to Hughes's assertion, 12BBAY does not attempt to allocate any state assets to one user group to the exclusion of another." Adding an additional regulatory step for large-scale mining projects may or may not benefit the fishing industry and burden a segment of the mining industry, but it certainly does not "result in the allocation of an asset entirely to one group at the expense of another." And, ultimately, the legislature retains the discretion to make the necessary findings and decisions. 12BBAY undeniably would alter the legislature's existing scheme for allocating and regulating the use of the state's mineral resources. But this court concluded in Pebble Limited Partnership that there is no prohibition on initiatives altering existing public resource regulations An initiative violates the anti-appropriation clause of article XI, section 7 only when it "controls the use of public assets such that the voters essentially usurp the legislature's resource allocation role." 12BBAY does not cross that line. Because the legislature would retain ultimate control over allocation of state assets, 12BBAY is not an appropriation. B. 12BBAY Does Not Violate Article XI, Section 7's Local And Special Legislation Clause. Hughes argues that 12BBAY violates the local and special legislation clause of article XI, section 7 of the Alaska Constitution. He asserts that there is no legitimate basis for 12BBAY's narrow geographic scope. ~ The State responds that 12BBAY is not unconstitutional under this court's interpretation of article XI, section 7s local and special legislation prohibition as articulated in Pebble Limited Partnership. Both article XI, section 7 of the Alaska Constitution and AS 15.45.010 prohibit enacting local or special legislation by initiative. This prohibition is absolute. Article XI, section 7 provides that "[the initiative shall not be used to . enact local or special legislation." We apply a "two-stage analysis for determining whether proposed legislation is 'local or special legislation' barred by article XI, section 7. We first consider "whether the proposed legislation is of general, statewide applicability." If the initiative is generally applicable, the initiative will not enact local or special legislation and the inquiry ends." If the initiative is not generally applicable, we move on to consider whether the initiative nevertheless "bears a fair and substantial relationship to legitimate purposes." We have explained that this standard is analogous to our most deferential standard of equal protection review." The parties agree that 12BBAY is not generally applicable. We agree and therefore next consider whether 12BBAY "bears a fair and substantial relationship to legitimate purposes. 12BBAY's purpose is to protect "Bristol Bay wild salmon and waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve." We conclude there is no serious question that requiring legislative approval of large-scale metallic sulfide mining operations in the Bristol Bay watershed bears a fair and substantial relationship to that purpose. Thus, we must consider only whether protecting "Bristol Bay wild salmon and waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve" comprises a legitimate purpose. We conclude that it does. The superior court determined that protecting the Bristol Bay fishery is legitimate because the legislation creating the Bristol Bay Fisheries Reserve had the same purpose and applied to the same geographic area as 12BBAY. The court stated that "in effect ., [Hughes's] attack on 12BBAY as local and special legislation is really a misdirected attack on the creation of the fisheries reserve in 1972" and that "(there is nothing in Alaska constitutional jurisprudence that authorizes a collateral constitutional attack on an existing statute in the guise of a pre-election challenge to an initiative that does not seek to revise the existing statute." Hughes argues that the superior court erred by concluding that AS 38.05.140(f) justified 12BBAY's special treatment of the Bristol Bay watershed. He suggests that the correct question is "whether the narrow classification drawn by the legislation that is actually at issue is fairly and substantially justified." As discussed above, the issue here is whether protecting the Bristol Bay fishery comprises a legitimate purpose, not whether it is "fairly and substantially justified." While we conclude that AS 38.05.140 is relevant to whether 12BBAY's purpose is legitimate, we reject the superior court's conclusion that AS 38.05.140 is dispositive of that question. Under the court's reasoning, the purpose of any initiative that relies on the unchallenged classification or geographic seope of an existing and unchallenged statute with a similar purpose would be per se legitimate. Nothing in our jurisprudence supports such a rule. Hughes argues there is no legitimate economic or biological basis for limiting 12BBAY to the Bristol Bay watershed. His argument suggests that the initiative's geographic seope must be justified by detailed economic or scientific findings. But such a requirement would not be consistent with our deferential "legitimate purpose" test. In State v. Lewis it was sufficient that legislation allowing a specific land transfer was "designed to facilitate statewide land use management and to resolve a host of pressing legal issues arising in the context of [the Alaska Native Claims Settlement Act]." In Baxley v. State it was sufficient that the oil and gas leases singled out for modification had unique characteristics that could incentivize lessees to abandon the fields before extracting all of the oil, thus implicating the state's interest in maximizing oil production. As the superior court discussed in its decision in this case, the legislature recognized the importance of the Bristol Bay fishery by establishing the Bristol Bay Fisheries Reserve in AS 38.05.140(f). This statute mandates that oil and gas leases or exploration licenses may "not be issued on state owned or controlled land [within the reserve] until the legislature by appropriate resolution specifically finds that the entry will not constitute danger to the fishery." The record in this case also indisputably establishes that the Bristol Bay watershed has unique ecological, geographic, and economic characteristics; that the fishery has significant statewide importance; and that metallic sulfide mining poses potential water quality risks. For example, the initiative sponsors provided a report extensively documenting the economic importance of the Bristol Bay salmon industry, which concluded that Bristol Bay has the world's most valuable wild salmon fishery. The initiative sponsors also provided a report discussing the potentially significant impacts of a proposed large-scale mining project on the Bristol Bay wild salmon ecosystem. Hughes's argument and the expert reports that he relies on paint a picture of the Bristol Bay fishery as comparatively less economically and biologically important than several other fisheries in the state. But even if this were correct, the Bristol Bay fishery does not need to be the most important or best fishery in the state to justify targeted legislation. Rather, it merely needs to have some unique statewide importance that justifies geographically limited legislation. Even Hughes's economist, Dr. Michael Taylor, points to factors that distinguish Bristol Bay from the state's other salmon-producing regions and also show its significance to the state as a whole. For example, Bristol Bay possesses a particularly high incidence of sockeye salmon relative to other salmon species. Its salmon enter the supply chain through different markets than other state fisheries-particularly Japan, China, and Russia-thus contributing to Alaska's Asian-Russian export market. Bristol Bay has a significantly compressed harvest window, with correspondingly low employment stability. Dr. Taylor states that "[clompared to other regions in Alaska, the Bristol Bay salmon fishery is an economic engine," even though much of the economic benefit favors non-residents. The total annual average (2008-2012) of gross earnings by salmon permit holders was approximately $143,000,000 for Bristol Bay, $94,000,000 for Southeast Alaska, and $98,000,000 for Prince William Sound. Excluding gross earnings by nonresident permit holders, the annual averages for these three regions were approximately $61,000,000 (Bristol Bay), $56,000,000 (South- east Alaska), and $71,000,000 (Prince William Sound). According to a report prepared by the University of Alaska Anchorage's Institute of Social and Economic Research titled "The Economic Importance of the Bristol Bay Salmon Industry," the Bristol Bay sockeye fishery "is the world's most valuable wild salmon fishery, and typically supplies almost half of the world's wild sockeye salmon." The report states that in 2010 "harvesting, processing, and retailing Bristol Bay salmon and the multiplier effects of these activities created $1.5 billion in output or sales value across the United States." "Between 2005 and 2010, Bristol Bay averaged 67% of total sockeye salmon harvests (by volume). ." In 2010, Bristol Bay salmon fishing and processing employed an estimated 4,869 Alaska residents. We conclude that Bristol Bay's unique and significant biological and economic characteristics are of great interest not just to the Bristol Bay region but to the state as a whole. We also conclude that 12BBAY's purpose-to protect "Bristol Bay wild salmon and waters"-is legitimate. And we conclude that 12BBAY bears a fair and substantial relationship to the initiative's legitimate purpose. The sponsors of 12BBAY certainly could have proposed an initiative of statewide application, but instead they chose to focus on a very important fishery in a single region. As we explained in Pebble Limited Partnership, however, "legislatures routinely must draw lines and create classifications." " As in the equal protection context, "we are guided by the familiar principles that a statute is not invalid under the Constitution because it might have gone farther than it did, that a legislature need not strike at all evils at the same time, and that reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Applying these principles, we conclude that 12BBAY permissibly distinguishes the Bristol Bay watershed and its salmon fishery and does not violate the Alaska Constitution's prohibition on local or special legislation. v. CONCLUSION For the reasons discussed above, we AFFIRM the superior court's summary judgment order in favor of the State and the initiative sponsors. FABE, Chief Justice, not participating. . Hughes v. Treadwell, 328 P.3d 1037 (Alaska 2014). . The initiative was passed by a majority of the voters in the November 4, 2014 general election. . Sections 3-5 of the initiative are not important to this appeal. Section 3 is a grandfather clause that would protect existing mining operations. Section 4 is a severability provision. Section 5 proposes an effective date. . Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1072 (Alaska 2009) (citing Anchorage Citizens for Taxi Reform v. Municipality of Anchorage, 151 P.3d 418, 422 (Alaska 2006)). . Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007) (quoting State v. Trust the People, 113 P.3d 613, 614 n. 1 (Alaska 2005)). . Pebble Ltd. P'ship, 215 P.3d at 1072 (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 422). . Id. at 1073 (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal quotation marks omitted). . Kodiak Island Borough v. Mahoney, 71 P.3d 896, 898 (Alaska 2003) (citing Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Interior Taxpayers Ass'n v. Fairbanks North Star Borough, 742 P.2d 781, 782 (Alaska 1987)). . Pebble Ltd. P'ship, 215 P.3d at 1073 ("[Xnitia-tives touching upon the allocation of public revenues and assets require careful consideration because the constitutional right of direct legislation is limited by the Alaska Constitution." (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal quotation marks omitted)). . Id. (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 422). . Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal quotation marks omitted). - . Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423) (internal quotation marks omitted). . See id. at 1073-74 (holding that "the waters of the state are a public asset," and noting that "[this court has] previously determined that public land, public revenue, a municipally-owned utility, and wild salmon are all public assets that cannot be appropriated by initiative" (footnotes omitted)). . Id. at 1074-75 (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 423). . Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423). . Id. (emphasis in original) (quoting McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988)) (internal quotation marks omitted). . See City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991) (concluding that an initiative was not a give-away program because "[nlo particular group or person or entity [was] targeted to receive state money or property, nor [was] there any indication that by passing [the] initiative, the voters would be voting themselves money"). . Pebble Ltd. P'ship, 215 P.3d at 1075 (citing Pullen v. Ulmer, 923 P.2d 54, 64 n. 15 (Alaska 1996)). . Id. (quoting Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1262 (Alaska 2006)). . 762 P.2d 81, 87-88 (Alaska 1988). . Id. at 83, 95-96. . Id. at 89-90. . Id. at 91. . Id. at 87. . Id. at 91. . Id. . 818 P.2d 1153, 1154-55 (Alaska 1991). . Id. at 1157. . Id. (emphasis added). . 923 P.2d 54, 55 (Alaska 1996). . Id. at 61. . Id. at 63-64. . Id. at 63. . Compare id. at 64 with McAlpine v. Univ. of Alaska, 762 P.2d 81, 91 (Alaska 1988) (upholding limitation on legislature's discretion to eliminate all funding for community colleges because there was "no realistic danger that the legislature would attempt to do so"). . 84 P.3d 989, 990-91 (Alaska 2004). . Id. at 994 (quoting McAlpine, 762 P.2d at 89; Pullen, 923 P.2d at 63) (footnote omitted). . Id. at 994-95. . 139 P.3d 1259, 1260 (Alaska 2006). . Id. at 1260-61. . Id. at 1261. . Id. at 1263. . Id. (citing Alaska Action Ctr. v. Municipality of Anchorage, 84 P.3d 989, 994 (Alaska 2004)). . 215 P.3d 1064, 1069-70 (Alaska 2009). . Id. at 1074-77. . Id. at 1075. . Id. (citing Pullen v. Ulmer, 923 P.2d 54, 64 n. 15 (Alaska 1996)). . Id. at 1077. . Id. . Id. . Id. . Id. (emphasis in original) (quoting City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153, 1156 (Alaska 1991)) (internal quotation marks omitted). . 273 P.3d 1128, 1130 (Alaska 2012). . Id. at 1137-38. . Id. at 1138 (emphasis added) (citing Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996)). . Id. . 321 P.3d 378, 380 (Alaska 2014). . Id. at 380-81. . Id. at 384. . Id. . Id. at 385. . Id. (quoting Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1136 (Alaska 2012)). . See McAlpine v. Univ. of Alaska, 762 P.2d 81, 87, 96 (Alaska 1988) (approving initiative's requirement that the University of Alaska transfer to an independent community college system "such real and personal property as is necessary to the independent operation and maintenance of the Community College System"). . See City of Fairbanks v. Fairbanks Visitors & Convention Bureau, 818 P.2d 1153, 1157 (Alaska 1991) (concluding that initiative amending a city ordinance that designated the use of the city's hotel tax did not repeal an appropriation). . See id. (concluding that initiative could not be an appropriation if it expanded the legislature's authority to allocate funds). . Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1077 (Alaska 2009) (concluding that an initiative precluding discharge of mining waste that causes " 'adverse effects' to humans, salmon, and waters used for human consumption or as salmon habitat" was not an appropriation). . Holleman, 321 P.3d at 381-85 (upholding referendum that would repeal municipal ordinance intended to reduce the Municipality of Anchorage's labor costs). . See McAlpine, 762 P.2d at 87-91 (striking from initiative a provision requiring the University of Alaska to transfer the amount of property "commensurate with that occupied and operated by the Community Colleges on November 1, 1986"). . See Alaska Action Ctr., v. Municipality of Anchorage, 84 P.3d 989, 994-95 (Alaska 2004) (invalidating initiative limiting the use of a particular area of municipal land). . See Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996) (invalidating initiative establishing preferences for subsistence, personal, and recreational users in salmon fishery). . See Staudenmaier v. Municipality of Anchor age, 139 P.3d 1259, 1260-63 (Alaska 2006) (upholding municipality's rejection of initiative requiring the municipality to sell specified public utility assets). . See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1137-38 (Alaska 2012) (invalidating initiative requiring voter approval for all Borough capital expenditures in excess of one million dollars). . Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1077 (Alaska 2009). . See Pullen, 923 P.2d at 64 (holding that initiative setting user preferences in salmon fishery was an appropriation because it would limit the Board of Fisheries' discretion to make allocation decisions in times of shortage and "there is a very realistic danger that such shortages will occur"); McAlpine v. Univ. of Alaska, 762 P.2d 81, 91 (Alaska 1988) (concluding that limiting legislature's discretion to eliminate all appropriations for community colleges was permissible because there was no realistic danger that the legislature would attempt to do so). . 818 P.2d 1153, 1154-55 (Alaska 1991). . 762 P.2d at 89. . 84 P.3d 989, 995-96 (Alaska 2004). . See Staudenmaier v. Municipality of Anchor age, 139 P.3d 1259, 1263 (Alaska 2006); Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1137-38 (Alaska 2012). . See Pullen, 923 P.2d at 64 (invalidating initiative that would have established preferences for subsistence, personal, and recreational users in salmon fishery). . See Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1077 (Alaska 2009) (citing Pullen, 923 P.2d at 63-64). . Id. . Staudenmaier, 139 P.3d at 1263 (citing Alaska Action Ctr., 84 P.3d at 994-95). . This contrasts with article II, section 19, under which a legislative act that is "local or special" may still be constitutional, so long as a general act could not have been made applicable. Hughes argues that 12BBAY is local or special legislation because the initiative could have been drafted to apply statewide. But neither article XI, section 7, nor any other source of authority in Alaska, suggests that an initiative would enact local or special legislation simply because it could have been drafted to apply statewide. Article II, section 19 implies that local or special legislation may be permissible where a general act could not have been made applicable, but that provision does not apply to initiatives. While the substantive provisions of these two constitutional provisions differ, the analysis they use to determine whether particular legislation is "local or special" is the same. . Pebble Ltd. P'ship, 215 P.3d at 1078. . Id. (citing Boucher v. Engstrom, 528 P.2d 456, 461 (Alaska 1974), overruled on other grounds by McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska 1988)). . Id. , Id. at 1079 (quoting State v. Lewis, 559 P.2d 630, 643 & n. 44 (Alaska 1977)) (internal quotation marks omitted). . Id. (citing Boucher, 528 P.2d at 461). . Id. (internal quotation marks omitted). . The record indicates that large-scale metallic sulfide mining has real potential to affect water quality and fisheries. . 559 P.2d 630, 643-44 (Alaska 1977). . 958 P.2d 422, 430-31 (Alaska 1998). . AS 38.05.140(f). . See Baxley, 958 P.2d at 430-31. . Bristol Bay also has the vast majority of sockeye (red) salmon statewide; chum and pink salmon represent the majority of the harvest in Prince William Sound and Southeast Alaska. A significant loss of salmon in Bristol Bay would therefore particularly affect the state's sockeye salmon population. . The commercial fishing season is six to eight weeks in Bristol Bay, but most of the run occurs in just two weeks. This contrasts with fisheries in Prince William Sound and Southeast Alaska, where the harvest windows are longer by a month or more. Other fisheries that have higher incidence of coho or chum salmon may have several months more of harvest as well. . Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1081 (Alaska 2009) (internal quotation marks omitted). . Id. (internal quotation marks omitted).

10344231

STATE of Alaska, Appellant, v. Benjamin ALBERT, Appellee

State v. Albert

1995-06-23

No. S-5754

103

132

899 P.2d 103

899

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:25:24.603364+00:00

CAP

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

STATE of Alaska, Appellant, v. Benjamin ALBERT, Appellee.

STATE of Alaska, Appellant, v. Benjamin ALBERT, Appellee. No. S-5754. Supreme Court of Alaska. June 23, 1995. Marilyn May, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellant. Susan Orlansky, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for appellee. Scott A. Brandt-Erichsen, Asst. Mun. Atty., Richard L. McVeigh, Mun. Atty., Anchorage, for amicus curiae Municipality of Anchorage. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, JJ., and BRYNER, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

19931

123953

OPINION MATTHEWS, Justice. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that in state criminal prosecutions "counsel must be provided for defendants unable to employ counsel" because of indigency. 372 U.S. at 340, 83 S.Ct. at 794. Gideon, however, did not address the subject of whether states could attempt to recover from indigent defendants some of the costs of providing counsel to them. Currently, all states and the federal government have some type of cost recoupment system. Consolidated cases presently before this court challenge Alaska's recoupment system. Alaska's system is set forth in AS 18.85.120(c), Alaska Criminal Rule 39, and Alaska Appellate Rule 209(b). See Appendix A. In brief, AS 18.85.120(e) authorizes the court, upon a person's criminal conviction, to enter a civil judgment against "a person for whom counsel is appointed . for services of representation and court costs." It provides that upon a showing of financial hardship, the court shall order payment in installments. Remission, reduction or deferral of the judgment can be ordered. AS 18.85.120(e). Payment is made to the state general fund. Id. Criminal Rule 39 and Appellate Rule 209(b) set forth procedures which implement the recoupment system. Under Criminal Rule 39, when an indigent person who has been represented by court- appointed counsel is convicted, the court issues a notice of intent to enter judgment for the cost of appointed counsel calculated in accordance with a schedule set out in subsection (d). Alaska R.Crim.P. 39(c)(1)(A). The scheduled fees are significantly lower than those charged by private counsel, ranging downward from the maximum of $5,000 for trial of a first or second degree murder charge. Upon receipt of a notice of intent to enter judgment, a defendant may oppose entry of judgment; if opposition is filed, a hearing may be held. Alaska R.Crim.P. 39(c)(1)(C). The schedule of fees may be varied "for good cause shown" by either the prosecuting authority or the defendant, in which case actual costs and expenses will be assessed. Alaska R.Crim.P. 39(d). If a recoupment judgment is entered, it has the same force and effect as a judgment in a civil action, Alaska R.Crim.P. 39(c)(2)(A), and proceedings to enforce the judgment are the same as those applicable to civil judgments. The judgment is not enforceable by contempt, payment of the judgment may not be a condition of the defendant's probation, and failing to pay the judgment does not affect the services available to the defendant from appointed counsel on appeal "or any other phase of a defendant's case in any way." Alaska R.Crim.P. 39(c)(2)(B). A defendant does not have the right to be represented by court-appointed counsel in connection with proceedings related to the notice of intent to enter the recoupment judgment, or to the collection of the judgment. Alaska R.Crim.P. 39(c)(2)(B). On a showing of financial hardship, the court shall order payment in installments. It may order remission, reduction or deferral of the unpaid portion of the judgment. Alaska R.Crim.P. 39(c)(2)(C). Alaska residents are entitled to an annual permanent fund dividend. AS 43.23.005. Recently the dividend has been in excess of $900. In recognition of this income source shared by all Alaskans, Criminal Rule 39(c)(1)(A) authorizes the court to order a convicted defendant to apply for a permanent fund dividend for every year in which the defendant qualifies for a dividend until the judgment is paid in full. A defendant may be held in contempt of court if the defendant does not comply with this order. Alaska R.Crim.P. 39(c)(2)(D). Appellate Rule 209 is similar to Criminal Rule 39. At the conclusion of appellate procedures, if the conviction of a defendant who is represented by appointed counsel is not reversed, the clerk shall serve the defendant with a notice which sets out the amount of the judgment which may be entered against the defendant. Alaska R.App.P. 209(b)(6). The amount is calculated according to a schedule designed to charge substantially less than fees charged by private counsel for the same services. The fees range downward from $2,000 for a combined merit and sentence appeal. Alaska R.App.P. 209(b)(7). The defendant has a right to oppose entry of the judgment. Alaska R.App.P. 209(b)(6). A judgment entered under Appellate Rule 209, like a Criminal Rule 39 judgment, is collectible in the same manner as an ordinary civil judgment. Alaska RApp.P. 209(b)(6). Recoupment judgments are subject to the exemptions on execution and garnishment applicable to other civil judgments as specified in the Alaska Exemption Act, AS 09.38.010-510. This act is designed to ensure that debtors can maintain "a certain basic level of economic vitality" and live "in reasonable comfort." Gutterman v. First Nat'l Bank of Anchorage, 597 P.2d 969, 970, 972 (Alaska 1979). The exemptions provided include an exemption of net weekly earnings of $402.50 for an individual and $632.50 for a head of household, a homestead exemption of $62,100, and exemptions for motor vehicles ($3,450), trade tools ($3,220), jewelry ($1,150) and household goods ($3,450). Un-matured life insurance and annuity contracts are exempt up to $11,500, and retirement plans are exempt without limit. The annual permanent fund dividend is not exempt with respect to child support, restitution in criminal cases, or debts owed the state. I. PROCEEDINGS BELOW On May 3, 1993, in State v. George, No. 4FA-S93-230 Cr. (Alaska Dist.Ct., May 3, 1993), a ease in which court-appointed counsel was defending an indigent, Judge Charles Pengilly of the District Court for the Fourth Judicial District, sua sponte declared Criminal Rule 39 unconstitutional. Judge Pengilly held that the rule violates the indigent defendant's rights (1) to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 11 of the Alaska Constitution; (2) to a jury trial in civil cases under article I, section 16 of the Alaska Constitution; and (3) to equal protection under article I, section 1 of the Alaska Constitution. The State appealed this order to the superior court and the appeal was transferred to this court by order of July 2, 1993. On June 1, 1993, in State v. Albert, No. 4FA-S89-3009 Cr. (Alaska Super., June 1, 1993), another case in which an indigent was defended by court-appointed counsel, Superi- or Court Judge Mary Greene declared Criminal Rule 39 unconstitutional for the reasons set forth by Judge Pengilly in George. The State appealed. Numerous additional cases followed the same pattern. We ordered that all appeals from orders declaring Criminal Rule 39 unconstitutional be consolidated with the Albert appeal, whether they arise from the district court or the superior court, and designated Albert as the lead case on appeal. We appointed counsel for appellees to brief and present oral argument on each of the three points on which Judge Pengilly relied. II. RIGHT TO COUNSEL The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . to have the assistance of counsel for his defense." This right applies to the states, requiring them to provide counsel for indigent defendants in criminal cases. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Alaska Constitution contains a cognate provision: "In all criminal prosecutions, the accused shall have the right . to have the assistance of counsel for his defense." Alaska Const, art. I, § 11. Judge Pengilly ruled that Criminal Rule 39 violates the right to counsel, guaranteed by the Sixth Amendment and article I, section 11 of the Alaska Constitution, because it is not " 'carefully designed' to 'take into account the ability to pay of a defendant who had been furnished counsel.'" Decision at 10. Judge Pengilly distilled the requirement that ability to pay be taken into account from the only two Supreme Court eases which have reviewed defense cost recovery systems, James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), and Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), and from several lower court decisions. At issue in James was the constitutionality of a Kansas recoupment statue under which civil judgments were entered against defendants for the amount expended in their defense. The recoupment judgment debtors were not accorded any of the exemptions provided other judgment debtors, except for a homestead exemption. At the outset the James court noted that the Kansas system was one of many state recoupment systems and that such systems differed significantly in their particular characteristics. In view of these differences, the Court observed that "any broadside pronouncement on their general validity would be inappropriate." Id. at 133, 92 S.Ct. at 2030. The Court noted that the district court had invalidated the Kansas law on the basis that it " 'needlessly encourages indigents to do without counsel and consequently infringes on the right to counsel as explicated in Gideon v. Wainwright.' " Id. at 134, 92 S.Ct. at 2031. The Court approached this rationale with skepticism, observing that there was no denial of the right to counsel "in the strictest sense" for "Kansas has enacted laws both to provide and compensate from public funds counsel for the indigent." Id. The Court, however, reserved the question "[wjhether the statutory obligations for repayment impermissibly deter the exercise of [the right to counsel]." Id. Instead, noting that the recoupment judgment debtor was stripped of "the array of protective exemptions Kansas has erected for other civil judgment debtors" the Court held that this aspect of the statute violated "the rights of citizens to equal treatment under the law." Id. at 135, 142, 92 S.Ct. at 2031-32, 2035. In reaching this conclusion, the Court noted that recoupment debtors need not be treated in all respects identically to judgment debtors owing obligations to private creditors: We recognize, of course, that the State's claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical. This does not mean, however, that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor. Id. at 138, 92 S.Ct. at 2033. The Court concluded: We thus recognize that state recoupment statutes may betoken legitimate state interests. But these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect. The statute before us embodies elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law. Id. at 141-42, 92 S.Ct. at 2035. Two years after its decision in James, the United States Supreme Court revisited the subject of state recoupment laws in Fuller, 417 U.S. 40, 94 S.Ct. 2116. The Oregon statute at issue there permitted probation to be conditioned on repayment of counsel fees. However, repayment could not be ordered unless the convicted person had, or would have, the ability to repay, and there were provisions for the remission of the obligation to repay in cases of manifest hardship. The Oregon statute also provided that failure to pay a recoupment order could be punishable as a contempt of court unless the defendant showed that the failure was not attributable to an intentional refusal to obey the order of the court or to a failure on the part of the defendant to make a good faith effort to pay. Id. at 43 n. 5 and 46, 94 S.Ct. at 2120 n. 5 and 2121. The Court held the Oregon statute to be constitutional, stressing the fact that the Oregon statute only imposed an obligation to repay the costs of counsel on those with a foreseeable ability to meet that obligation. Id. at 52-54, 94 S.Ct. at 2124-25. The Court also noted that the Oregon statute, unlike the Kansas statute reviewed in James, preserved for the benefit of the convicted person exemptions normally available to judgment debtors. In concluding that the Oregon statute was constitutional, the Court decided the question which it reserved in James: whether imposing an obligation to repay impermissibly deterred the exercise of the right to counsel. The Court answered this question in the negative, disapproving of the deterrence rationale enunciated by the Supreme Court of California in In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969). The Court stated: [Fuller] asserts that a defendant's knowledge that he may remain under an obligation to repay the expenses incurred in providing him legal representation might impel him to decline the services of an appointed attorney and thus "chill" his constitutional right to counsel. This view was articulated by the Supreme Court of California, in a case invalidating California's recoupment legislation, in the following terms: "[W]e believe that as knowledge of [the recoupment] practice has grown and continues to grow many indigent defendants will come to realize that the judge's offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the [Supreme] [C]ourt in Gideon. ." We have concluded that this reasoning is wide of the constitutional mark. Id. at 51-52, 94 S.Ct. at 2124 (alterations in original) (quoting Allen, 455 P.2d at 144). In reaching this conclusion, the Court observed that the burden of paying for counsel is in no sense unique to the indigent: We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defenses, even when they are able to pay without hardship. Id. at 53-54, 94 S.Ct. at 2125. The dissent of Justice Marshall, joined in by Justice Brennan, in Fuller, tends to highlight what was decided in that case. Justice Marshall pointed out that in Oregon ordinary civil judgment debtors may not be imprisoned for failing to pay their debts, whereas a recoupment judgment debtor was subject to imprisonment. This difference in treatment rendered Oregon's recoupment statute unconstitutional in Justice Marshall's opinion. Id. at 61, 94 S.Ct. at 2128. In view of this conclusion, Justice Marshall declined to rule on Fuller's argument that "some other defendant's knowledge that he may have to reimburse the state for providing him legal representation might impel him to decline the services of an appointed counsel and thus chill his Sixth Amendment right to counsel." Id. at 61 n. 2, 94 S.Ct. at 2128 n. 2. Justice Marshall observed: In any event, in my view such a claim could more appropriately be considered by this Court in the context of an actual case involving a defendant who, unlike petitioner, had refused appointed counsel and contended that his refusal was not a knowing and voluntary waiver of his Sixth Amendment rights because it was based upon his fear of bearing the burden of a debt for appointed counsel or upon his failure to understand the limitations the State imposes on such a debt. Id. Any effort to summarize the principles of law established by James and Fuller is best accompanied by the admonition made by the Court itself in James that given the wide variety of recoupment statutes, "any broadside pronouncement on their general validity would be inappropriate." 407 U.S. at 133, 92 S.Ct. at 2030. Nonetheless, respect for the Court, and recognition that its ability to fully expound on all the law within its jurisdiction is necessarily limited, require that subordinate courts attempt to generalize and synthesize legal propositions based on the Court's opinions. With this in mind, we conclude that James and Fuller together stand for the following propositions: Recoupment systems in which the means of collecting defense costs are significantly more onerous and less protective of debtors' interests than those available for the collection of private debts are generally invalid. However, systems containing the significantly more onerous power to condition freedom from incarceration on payment of recoupment are not invalid so long as they contain safeguards designed to ensure that only those who will be able to pay are required to pay. Finally, the general "chilling" argument — that requiring repayment of defense costs is per se unconstitutional because it may deter some indigents from accepting the services of counsel — has been rejected. Although we conclude that James and Fuller do not require a prior determination of ability to pay in a recoupment system which treats recoupment judgment debtors like other civil judgment debtors, a number of cases decided by lower federal courts and state courts contain broad language from which such a requirement might be inferred. Judge Pengilly cited one such case, Simmons v. James, 467 F.Supp. 1068, 1072-80 (D.Kan. 1979), aff'd sub nom. Olson v. James, 603 F.2d 160 (10th Cir.1979). In Simmons, the court stated as a general requirement that "the court may not order a convicted defendant to pay unless he 'is or will be able to pay.' " 467 F.Supp. at 1076. However, the actual statutory scheme under review in Simmons authorized a recoupment judgment as a condition of probation. Id. at 1070, 1075, 1079. Simmons is thus distinguishable, as Criminal Rule 39 recoupment judgments are merely civil judgments, nonpayment of them has no correctional consequences, and nonpayment does not give rise to contempt proceedings. Additional cases cited by appellees which contain general language that recoupment judgments must be preceded by a determination of the defendant's ability to pay are also distinguishable on the same basis as Simmons. For example, in Fitch v. Belshaw, 581 F.Supp. 273, 275-76 (D.Or.1984), the court struck down an Oregon statute which allowed recoupment judgments to be entered without adequate procedures to ensure that defendants would be able to repay without hardship. The statute contained discriminatory enforcement features which provided that debtors could have their driver's licenses revoked and were subject to arrest if they did not pay. Similarly, in State v. Lopez, 175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App.1993), the Arizona Court of Appeals stated that failure to first ascertain the defendant's financial resources and the burden recoupment would place on the defendant constituted "fundamental error." However, the trial court in Lopez had made repayment of the recoupment order a condition of probation. Id. at 80, 853 P.2d at 1127. Lopez is distinguishable on another ground as well. The applicable Arizona rule required prior consideration of a defendant's ability to pay. Thus, the court had no occasion to rule that such consideration was constitutionally required. People v. Amor, 12 Cal.3d 20, 114 Cal.Rptr. 765, 523 P.2d 1173 (1974), is cited by appellees as inferentially standing for the proposition that recoupment systems are not constitutional unless they are based on the defendant's ability to pay. The California court's opinion in Amor, however, does not contain any general statements that a prior determination of a defendant's ability to pay is a constitutional prerequisite to entry of a judgment for recoupment. As in Lopez, such a statement would have been dicta because the California statute under review required a determination of the defendant's present ability to pay prior to entering an order of recoupment. Amor, 523 P.2d at 1175 n. 1. Moreover, Amor suggests that a prior determination of ability to pay is not required where a recoupment judgment is only civil in character and not part of the "sentencing process." Id. 114 Cal.Rptr. at 768, 523 P.2d at 1176. The Amor court distinguished its prior decision, In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969), on three grounds. In Allen, (1) there was no prior determination of the defendant's ability to pay, (2) there was no warning to the defendant that she might be liable to pay, and (3) the defendant could have gone to jail if she had failed to pay as payment was a condition of probation. Id. The court went on to conclude that none of these grounds were present in Amor. However, the court indicated that the absence of the latter two grounds would suffice to render the system constitutional. The court contrasted Allen with its 1970 case In re Ricky H., 2 Cal.3d 513, 86 Cal.Rptr. 76, 468 P.2d 204 (1970), in which there was no prior determination of an ability to pay (or threat that probation would be withheld if payment was not made) but there was a warning that payment would be required: In In re Ricky II., [2 Cal.3d 513, 86 Cal.Rptr. 76] 468 P.2d 204, we distinguished the matter there involved from Allen, saying .: "The considerations which impelled us to strike down the probation condition in Allen do not require us to invalidate section 903.1. Unlike the petitioner in Allen, petitioner herein [a minor] was advised in advance that his father could be charged with the cost of appointed counsel, and petitioner does not claim that the fee involved was unreasonable or excessive. Moreover, in the instant case no unfair or unnecessary threat was made to withhold probation or other privileges unless counsel fees were reimbursed." The same factors are here applicable. Additionally, determination of the conditions of probation constitutes part of the sentencing process. In Allen, therefore, the order directing the petitioner to reimburse the county for the cost of counsel fees was made as part of the sentencing process. As pointed out by this court in Allen, "[T]he introduction of budgeting considerations could well divert or dilute the attention which the judge must give to the specific considerations which the law requires him to have in mind in the sentencing process." The determination in the present case, however, was made only after conclusion of the criminal proceedings. Hence, any consideration to "budgeting" would not have occurred until the sentencing process had been completed. Id. 114 Cal.Rptr. at 768, 523 P.2d at 1176 (citations omitted). Neither Judge Pengilly nor appellees have referred us to any cases in which a recoupment system which results merely in a civil judgment subject to the normal exemptions applicable generally to civil judgments has been held unconstitutional, based either on the system's failure to require an advance determination of ability to pay or on any other ground. We are aware of two cases in which such systems have been approved. In Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d 752, 756-57 (1974), appeal dismissed for want of a substantial federal question, 421 U.S. 901, 95 S.Ct. 1548, 43 L.Ed.2d 769 (1975), the Supreme Court of Virginia upheld Virginia's recoupment statute against a challenge based on right to counsel grounds. The statute, Code of Virginia § 14.1-184.1, currently codified as § 19.2-163, provided for the automatic taxation against a convicted defendant of the amount allowed by the court as payment for the attorney appointed as defense counsel. The amount so taxed was docketed as a judgment. The statute did not call for a prior determination of the defendant's ability to pay. The Virginia Supreme Court, adverting to the statement in Fuller that "only those who actually become capable of repay ing the state will ever be obliged to do so," Wicks, 208 S.E.2d at 756, observed that general exemptions available to civil debtors were available to debtors under the recoupment statute and were adequate to protect them from hardship. The court stated: It is entirely proper, and a constitutional requisite, that an indigent defendant be represented by court-appointed counsel. However, we can perceive no valid reason why, if the defendant is convicted, the cost of such representation should not be taxed as a part of the cost of the prosecution, treated as any other debt and collected of the convicted defendant at a later date if and when he becomes able to pay. The Code of Virginia abounds with statutes providing debtors, judgment and otherwise, with exemptions from execution, attachment, garnishment and distress. These statutes afford equal treatment and are adequate to protect any debtor from hardship, and from oppression or overreaching by a creditor. They are not discriminatory and do not penalize any judgment debtor of the Commonwealth. Id. 208 S.E.2d at 756-57 (citations omitted). Alexander v. Johnson, 742 F.2d 117 (4th Cir.1984), involved a challenge to the practice of North Carolina's parole commission which required certain inmates to make restitution for the costs of court-appointed counsel as a condition of parole. Of importance to the present case is what the Fourth Circuit said in dicta concerning North Carolina's separate statutory system for civil recoupment of fees. That system, reflected in General Statutes of North Carolina § 7a-455(b), requires the automatic entry of judgment against a convicted defendant for the costs of court-appointed counsel. No prior determination of ability to pay is made. The Fourth Circuit spoke approvingly of this system, stating: North Carolina's program for civil re-coupment of fees, though not directly attacked here, possesses the essential characteristics of the Oregon system upheld in Fuller v. Oregon. The legal obligation to repay the state for the costs of court-appointed counsel does not arise until after the defendant has been found guilty of the charged offense. To enforce this obligation, the amount the defendant owes must be determined in an independent proceeding, reduced to judgment, and collected through the same procedures used by other judgment creditors. Finally, the defendant is allowed to shelter a substantial portion of his assets from attachment if the state executes on its judgment, and to protect his wages from garnishment to the extent they are necessary for his and his family's support. The combined effect of these various civil collection protections is that the defendant will never be forced to repay the state for court-appointed counsel as long as he remains impoverished. Id. at 125, n. 10 (citations omitted). Thus, there are authorities which have approved systems like Alaska's, which provide nondiscriminatory recoupment judgments without a prior determination of the ability of the defendants to pay. In addition, there are a number of authorities which have held that no prior determination of a defendant's ability to pay is required in systems where jail is a possible consequence of nonpayment, so long as there is an opportunity to establish inability to pay before the jail sanction is imposed. In such systems recoupment judgments may be paid by defendants motivated by the coercive force of the jail sanction, or they may be collected involuntarily by other means. Thus, these cases necessarily reflect the view that a determination of ability to pay prior to entry of a recoupment judgment is not constitutionally required. One such case is State v. Kottenbroch, 319 N.W.2d 465 (N.D.1982). In this case the trial court deferred imposition of sentence conditioned on repayment of the defendant's court-appointed attorney's fees. North Dakota's recoupment statute did not provide for a prior judicial determination of an indigent's ability to pay and did not explicitly permit making payment of recoupment a condition of a suspended sentence. The North Dakota Supreme Court held that so conditioning a suspended sentence was within the general power of the trial court. The court further held that a prior determination of the defendant's future ability to pay was not required by Fuller, so long as the judgment debtor had the opportunity to present an inability to pay defense before his probation was actually revoked. Kotbenbroch, 319 N.W.2d at 473. In reaching this conclusion the court stated: The third argument made by Kotten-broch is that the North Dakota recoupment statute is constitutionally infirm because it does not have the safeguards of the Oregon statute which survived constitutional challenge in Fuller. It is true that the statute in question does not provide the many safeguards found in the Oregon statute. However, our reading of Fuller and James brings us to the conclusion that a statute need not provide all the safeguards of the Oregon statute. Instead, it only needs to be fashioned so that it does not invidiously discriminate between an indigent defendant who becomes a judgment debtor by virtue of his retention of a court-appointed attorney and a non-indigent defendant or other judgment debtor. Our recoupment statute, as previously construed herein, allows an indigent defendant the same exemptions any other person is entitled to. Further, as previously indicated herein, no probation can be revoked simply because the probationer is unable to pay the costs of his court-appointed counsel. We therefore conclude that North Dakota's recoupment statute does not invidiously discriminate between an indigent defendant and a non-indigent defendant or other judgment debtor. Id. Similarly, in State v. Crawford, 248 Kan. 42, 804 P.2d 1385 (1991), the defendant was ordered to reimburse the state for court-appointed counsel as a condition of probation. In entering this order the trial court did not consider defendant's financial resources or her ability to make repayment. Id. 804 P.2d at 1390. The Kansas Supreme Court held that such a determination was not necessary at the time the recoupment order was entered. Instead, it was sufficient that the defendant have the opportunity under the Kansas system to show that she was "not wilfully in default in the payment at any time." To the same effect is Basaldua v. State, 558 S.W.2d 2, 7 (Tex.App.1977). Based on James and Fuller and the authorities reviewed above, we are persuaded that Alaska's recoupment system does not violate the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Recoupment judgments are nondiscriminatory and there are no correctional consequences if payment is not made. The same protections against hardship available to civil debtors provided in the exemption act are available to recoupment debtors. Moreover, recoupment debtors have the additional right to petition the court for reduction or remission of a judgment based on a showing of manifest hardship to the debtor or members of the debtor's immediate family. Finally, the debtor is notified at the outset of the criminal proceedings of the possibility of a recoupment judgment and given an opportunity to challenge entry of the judgment before it is entered. We reach the same conclusion with respect to the right to counsel expressed in article I, section 11 of the Alaska Constitution for the same reasons. Appellees argue that the system "chills" indigents' exercise of this right. While Fuller rejects this argument for Sixth Amendment purposes, see 417 U.S. at 51-52, 94 S.Ct. at 2124, it is appropriate to address it at greater length with respect to the state constitutional guarantee. The argument that recoupment systems are unconstitutional because they unduly deter indigents from using counsel is, in its most basic form, an argument that recoupment systems are per se unconstitutional. Theoretically, pricing any service will deter at least some potential consumers from using that service. Since all recoupment systems require that at least some indigents pay for legal services, all carry the risk that some will be deterred from accepting counsel. Nonindigents who must pay for counsel may choose to forego counsel because they believe that the benefits of counsel's service are outweighed by its costs. The fact that our market system forces nonindigents to make such a choice has never been regarded as a deprivation of the right to counsel, even though the fees incurred in serious felony cases may exceed all the assets of all but the wealthiest defendants. An indigent's choice as to whether or not to accept appointed counsel, given the eventual cost of counsel under Criminal Rule 39, is not different in kind from the economic choice which must be made by a nonindigent accused of crime. There is no principled way to say that the burden placed on the indigent is unconstitutional while that placed on the nonindigent is constitutional. This is the rationale suggested by Fuller, see 417 U.S. at 51-52, 94 S.Ct. at 2124, and stated by the California Supreme Court in Amor, 114 Cal.Rptr. at 768, 523 P.2d at 1176: There is no more reason to suppose that an indigent defendant will refuse counsel because he may later be ordered to pay his counsel fees, to the extent it is determined he has the financial ability to do so at the conclusion of the criminal proceedings, than there is to suppose that some defendants who are not indigent will refuse counsel because of an unwillingness to incur a counsel fee. It is quite possible that a defendant who would not qualify as an indigent may have such limited resources, or restrict himself to such an extent with respect to the expenditure of his funds, that the factor of liability for counsel fees might prompt him, in a case where counsel is not required, to enter a guilty plea in order to save counsel fees; but if he elects to enter a guilty plea for that reason, such election, based largely on economic factors, could nevertheless not be said to result in his being deprived of the right to counsel. The option to be represented by counsel would have been his, with the right to give such priority as he wished to the economic or other factors involved. Appellees argue, however, that under Criminal Rule 39 indigents are more likely than nonindigents to reject the services of counsel because the economic consequences of accepting counsel are relatively greater than the cost to nonindigents of hiring counsel: A middle class defendant may have to choose between $1000 for a trip to Hawaii and $1000 to have a lawyer handle a DWI case. By contrast, an indigent defendant has to choose between life's necessities and a lawyer. This is a fundamentally different situation. What is a legitimate and noncoercive choice to require a middle class person to make may be unfairly coercive when imposed on an indigent. We agree that a recoupment system which resulted in indigents refusing counsel at a significantly higher rate than nonindigents would be constitutionally suspect. This could indicate, to use appellees' terms, that the system is imposing unfairly coercive choices on indigents. However, no evidence has been presented that this is occurring. III. RIGHT TO TRIAL BY JURY Judge Pengilly concluded that Criminal Rule 39 violates article I, section 16 of the Alaska Constitution, which provides: "In civil eases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law." Appellees defend this conclusion, arguing that a civil judgment entered under Rule 39 is akin to an action for attorney fees, which was an action at law, triable to a jury, under the common law. Therefore, they conclude that Rule 39 violates the right to a jury trial whenever the judgment is potentially greater than $250. We do not consider this question ripe for review. There is no indication in the record or by the parties that any of the appellees asked for and was denied a trial by jury. Rule 39 does not specifically prohibit trial by jury on Rule 39 claims. Therefore, even if trial by jury is appropriate, no cause would exist to strike the rule. We will defer ruling on whether there is a right to trial by jury in proceedings for judgment in excess of $250 under Criminal Rule 39 until the issue is properly before us. IV. EQUAL PROTECTION Judge Pengilly ruled that Criminal Rule 39 deprives indigents of "equal rights, opportunities, and protection under the law" as guaranteed them under article I, section 1 of the Alaska Constitution. Appellees support and expand this ruling, arguing that the federal right to equal protection of the law guaranteed by the Fourteenth Amendment of the United States Constitution is also violated. Appellees argue in general that Criminal Rule 39 provides "indigents subject to judgments for attorney's fees . [with] a procedure for resolving factual disputes that has far fewer protections than the procedures available to more affluent defendants who dispute the fees charged by their private attorneys." Appellees point out that if an individual with the resources to hire a private attorney has a dispute with the attorney, the individual may refuse to pay and take the attorney to fee arbitration under Alaska Bar Rules 34-40 or require the attorney to establish the amount of fees due in court, and that until these procedures are complete, no judgment is entered. In contrast, under the procedures established by Criminal Rule 39, the court initiates the proceeding, judgment is automatic unless the indigent defendant successfully objects, and a hearing is not required in all cases. A. Alaska Equal Protection Analysis This court has adopted a sliding-scale approach to equal protection analysis under article I, section 1 of the Alaska Constitution. State v. Erickson, 574 P.2d 1, 12 (Alaska 1978). Under this approach, we must first determine what weight to afford the interest impaired by the challenged enactment. Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984). Appellees claim that the interest impaired by the classification created by Rule 39 is the right of indigent defendants to access to the courts. They rely on Patrick v. Lynden Transport, Inc., 765 P.2d 1375 (Alaska 1988), in which this court held that a statute requiring nonresident plaintiffs to post a bond in order to bring suit in the state's courts implicated a right of access to the courts and was an "important" right on Alaska's sliding scale. Id. at 1379. We therefore subjected the statute to "close scrutiny." The State responds that indigents are not denied access to the courts, but are only afforded different procedures, and that therefore Patrick is inapplicable. The bond requirement at issue in Patrick imposed an obstacle to initial entry to the court system. 765 P.2d at 1377. Absent the resources to post bond, nonresident plaintiffs could not bring an action in an Alaska court. Id. In contrast, Criminal Rule 39 does not prevent entry to the courts for resolving disputes over the reasonableness of fees. It does, however, provide a different procedure for the determination of the amount owed and the entry of judgment than that available to those who retain an attorney privately. Therefore, the interest impaired by the clas sification is the criminal defendant's interest in these particular procedures. This interest is less important than Patrick's interest in access to the courts, so lesser scrutiny is appropriate. This is in accordance with prior decisions of this court which consider equal protection challenges to unique procedural matters under a low level of scrutiny. See Turner Constr. Co. v. Scales, 752 P.2d 467, 471 (Alaska 1988) (analyzing challenge to statute of repose under fair and substantial relationship test); Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 358 (Alaska 1988) (applying "relatively low level of scrutiny" to equal protection challenge to mandatory pretrial review of medical malpractice claims). On review at the low end of our sliding scale, the challenged provisions of Criminal Rule 39 need only serve a legitimate purpose and be fairly and substantially related to the accomplishment of that purpose. State, Dep't of Revenue v. Cosio, 858 P.2d 621, 629 (Alaska 1993). It is clear that the procedures of Rule 39 meet these requirements. Although the purpose of requiring reimbursement by the procedures of Rule 39 is not stated in the rule, the State contends that the purpose "is to obtain partial repayment for the cost of defending indigent criminal defendants." Appellees accept this statement of the general purpose of the rule "for the purposes of discussion" and concede that it is probably legitimate. The State further contends that the purpose of providing only the procedures of Rule 39 "is to achieve that end [repayment] with administrative efficiency while protecting the rights of the criminal defendants." We hold that both the general purpose of Rule 39 and the particular reason for providing only limited procedures are legitimate. Efficient collection is a legitimate reason for providing different procedures in different contexts generally, and especially for not providing indigent defendants with the same procedures afforded private clients involved in fee disputes. Fee disputes between a private attorney and client may involve many issues, including the reasonableness of the hourly fee, the actual hours expended, the reasonableness of expending these hours, and interpretation of the contract between the attorney and the client. In contrast, under Rule 39, the amount of the fee in most instances will be determined by the schedule, and the range of possible disputes is quite narrow. Equally detailed procedures therefore are unnecessary. Finally, the means employed by Rule 39 are substantially related to the purpose of fair but efficient collection. The procedures of Rule 39 apply only to individuals who receive appointed counsel and whose obligation to pay for that counsel is limited and subject only to a narrow range of possible disputes. This class is sufficiently differently situated from the class of individuals obligated to pay for private counsel that different procedures are appropriate. Moreover, Rule 39 does not prevent more detailed procedures from being utilized if more complex disputes emerge. For these reasons, Criminal Rule 39 does not violate the equal protection guarantee of the Alaska Constitution. B. Federal Equal Protection Analysis The United States Supreme Court has examined equal protection challenges to recoupment statutes under the rational relationship test. See Fuller, 417 U.S. at 49, 94 S.Ct. at 2122 ("Our task is merely to determine whether there is 'some rationality in the nature of the class singled out.' ") (qutoing Rinaldi v. Yeager, 384 U.S. 305, 308, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966)); Strange, 407 U.S. at 140, 92 S.Ct. at 2034 (stating that requirement of "rationality" in classification was not met). Although Strange involved a challenge to a recoupment statute's denial of execution exemptions and not to the procedures employed in reaching the judgment, use of the rational relationship test is proper. There is no suspect class or fundamental right at issue. Appellees apparently concede that the rational relationship test is appropriate, arguing that "Rule 39 has no rational relationship to a legitimate governmental interest." As discussed above, the purpose of Rule 39's classification is legitimate. The means chosen are rationally related to that end, in that more efficient procedures are justified by the simplified issues at stake. See Amor, 114 Cal.Rptr. at 772, 523 P.2d at 1180 (holding that recoupment statute did not violate equal protection despite providing different procedures than those available to other debtors). Criminal Rule 39 therefore does not violate the federal constitutional right to equal protection. V. CONCLUSION Criminal Rule 39 does not conflict with the right to counsel guaranteed by the Sixth Amendment of the United States Constitution and article I, section 11 of the Alaska Constitution. Judgments under the rule are civil judgments subject to the same laws and rules which govern other civil judgments. They do not have any sentencing or correctional consequences. The judgments are low compared to the actual cost of legal services; the exemption act and the remission power under the rule prevent collection in hardship cases. An advance determination of a defendant's ability to pay is not required. Although it is to be expected that some defendants will refuse the services of appointed counsel rather than incur a Criminal Rule 39 judgment, that is an economic choice similar to the choice made by a nonindigent who decides to forego counsel for economic reasons. We decline to address the right to trial by jury under Criminal Rule 39 as no appellee has asked for and been denied trial by jury and the question does not otherwise affect the constitutionality of the rule. Criminal Rule 39 also does not violate an indigent defendant's right to equal protection under the Alaska Constitution or the Fourteenth Amendment by providing special procedures for entry of judgment, because these procedures are substantially related to a legitimate state interest. The decisions of the trial courts in the consolidated cases, finding Criminal Rule 39 unconstitutional, are REVERSED. BRYNER, J. Pro Tern, dissents, joined by RABINOWITZ, J., as to parts I, II and III. APPENDIX A Alaska Statute 18.85.120(e) provides: (c) Upon the person's conviction, the court may enter a judgment that a person for whom counsel is appointed pay for services of representation and court costs. Enforcement of a judgment under this subsection may be stayed by the trial court or the appellate court during the pendency of an appeal of the person's conviction. Upon a showing of financial hardship, the court (1) shall allow a person subject to a judgment entered under this subsection to make payments under a payment schedule; (2) shall allow a person subject to a judgment entered under this subsection to petition the court at any time for remission, reduction, or deferral of the unpaid portion of the judgment; and (3) may remit or reduce the balance owing on the judgment or change the method of payment if the payment would impose manifest hardship on the person or the person's immediate family. Payments made under this subsection shall be paid into the state general fund. Alaska Criminal Rule 39 provides: (a) Informing Defendant of Right to Counsel. The court shall advise a defendant who appears without counsel for arraignment, change of plea, or trial of the right to be represented by counsel, and ask if defendant desires the aid of counsel. The court shall not allow a defendant to proceed without an attorney unless defendant understands the benefits of counsel and knowingly waives the right to counsel. (b) Appointment of Counsel for Persons Financially Unable to Employ Counsel. (1) If defendant desires the aid of counsel but claims a financial inability to employ counsel, the court or its designee shall determine whether defendant is an "indigent person," as defined by statute, by placing defendant under oath and asking about defendant's financial status, or by requiring defendant to complete a signed sworn financial statement. The court shall order defendant to execute a general waiver authorizing release of income information to the court. The court may require defendant to attempt to arrange private representation before the court makes a final determination on indigency. (2) Before the court appoints counsel for an indigent defendant at public expense, the court shall advise defendant that defendant will be ordered to repay the prosecuting authority for the cost of appointed counsel, in accordance with paragraph (d) of this rule, if the defendant is convicted of an offense. The court may enter such orders as appear reasonably necessary to prevent defendant from dissipating assets to avoid payment of this cost. (3) If the court or its designee determines that defendant is an "indigent person," the court shall appoint counsel pursuant to Administrative Rule 12 and notify counsel of the appointment. (4) In the absence of a request by a defendant otherwise entitled to appointment of counsel, the court shall appoint counsel unless the court finds that defendant understands the benefits of counsel and knowingly waives the right to counsel. (5) If the trial court denies defendant's request for appointed counsel, defendant may request review of this decision by the presiding judge of the judicial district by filing a motion with the trial court within three days after the date of notice, as defined in Criminal Rule 32.3(e), of the denial. The trial court shall forward the motion, relevant materials from the court file, and a cassette tape of any relevant proceedings to the presiding judge. The presiding judge or his or her designee shall issue a decision within three days of receipt of these materials. (c) Costs of Appointed Counsel. (1) Entry of Judgment. (A)Upon conviction of an offense, revocation of probation, denial of a motion to withdraw plea, and denial of a motion brought under Criminal Rule 35.1, the court shall prepare a notice of intent to enter judgment for the cost of appointed counsel in accordance with paragraph (d) of this rule, provide a copy of the notice to defendant, and order defendant to apply for permanent fund dividends every year in which the defendant qualifies for a dividend until the judgment is paid in full. (B) Defendant may oppose entry of judgment by filing a written opposition within 10 days after the date of notice, as defined in Criminal Rule 32.3(c), of the court's intent to enter judgment. The opposition shall specifically set out the grounds for opposing entry of judgment. The prosecuting authority may oppose the amount of the judgment by filing a written opposition within the same deadline. (C) If no opposition is filed within the time specified in section 39(c)(1)(B), the clerk shall enter judgment against defendant for the amount shown in the notice. If a timely opposition is filed, the court may set the matter for a hearing and shall have authority to enter the judgment. (D) The judgment must be in writing. A copy of the judgment shall be mailed to defendant's address of record. The judgment shall bear interest at the rate specified in AS 09.30.070(a) from the date judgment is entered. (2) Collection. (A) The judgment has the same force and effect as a judgment in a civil action in favor of the prosecuting authority and is subject to execution. (B) All proceedings to enforce the judgment shall be in accordance with the statutes and court rules applicable to civil judgments. The judgment is not enforceable by contempt. Payment of the judgment may not be made a condition of a defendant's probation. Default or failure to pay the judgment may not affect or reduce the rendering of services on appeal or any other phase of defendant's case in any way. A defendant does not have a right to be represented by appointed counsel in connec tion with proceedings under subpara-graph 39(c) or any proceedings to collect the judgment. (C) Upon a showing of financial hardship, the court shall allow a defendant subject to a judgment under this rule to make payments under a repayment schedule. A defendant may petition the court at any time for remission, reduction or deferral of the unpaid portion of the judgment. The court may remit or reduce the balance owing on the judgment or change the method of payment if payment would impose manifest hardship on defendant or defendant's immediate family. (D) Notwithstanding section 39(c)-(2)(B), a defendant may be held in contempt for failing to comply with an order under this rule to apply for a permanent fund dividend. (3) Appeal. (A) If defendant appeals the conviction, enforcement of the judgment may be stayed by the trial court or the appellate court upon such terms as the court deems proper. (B) If defendant's conviction is reversed, the clerk shall vacate the judgment and order the prosecuting authority to repay all sums paid in satisfaction of the judgment, plus interest at the rate specified in AS 09.30.070(a). (d) Schedule of Costs. The following schedules govern the assessment of costs of appointed counsel under paragraph 39(e). If a defendant is convicted of more than one offense in a single dispositive court proceeding, costs shall be based on the most serious offense of which the defendant is convicted. If a defendant is otherwise convicted of more than one offense, costs shall be separately assessed for each conviction. For good cause shown, the court may waive the schedule of costs and assess fees up to the actual cost of appointed counsel, including actual expenses. Trial $500.00 Change of plea 200.00 Post-conviction relief or contested probation revocation proceedings in the trial court 250.00 Felonies Class A and Murder in the Unclassified 1st and 2nd Class B & C (Except Murder) Degrees Trial $1,500.00 $2,500.00 $5,000.00 Change of plea after substantive motion work and hearing and before trial commences 1,000.00 1,500.00 2,500.00 Change of plea post-indictment but prior to substantive motion work and hearing 500.00 1,000.00 2,000.00 Change of plea prior to indictment 250.00 500.00 750.00 Post-conviction relief or probation revocation proceeding in trial court 250.00 500.00 750.00 (e) Review of Defendant's Financial Condition. (1) The court may review defendant's financial status at any time after appoints ment of counsel to determine (A) whether defendant continues to be an "indigent person," as defined by statute; or (B) whether defendant was an indigent person at the time counsel was appointed. (2) If the court determines that defendant is no longer an indigent person, the court may (A) terminate the appointment; or (B) continue the appointment and, at the conclusion of the criminal proceedings against defendant in the trial court, enter judgment against defendant for the actual cost of appointed counsel, including actual expenses, from the date of the change in defendant's financial status through the conclusion of the trial court proceedings. (3) If the court determines that defendant was not an indigent person at the time counsel was appointed, the court may (A) terminate the appointment and enter judgment against defendant for the actual costs of appointed counsel, including actual expenses, from the date of appointment through the date of termination; or (B) continue the appointment and, at the conclusion of the criminal proceedings against defendant in the trial court, enter judgment against defendant for the actual cost of appointed counsel from the date of the appointment through the conclusion of the trial court proceedings. (4) A defendant may request review of the court's decision to terminate the appointment according to the procedure set out in subparagraph 39(b)(5). (5) Judgment may be entered against a defendant under this paragraph regardless of whether the defendant is convicted of an offense. Alaska Appellate Rule 209(b) provides: (1)In criminal matters the trial court shall authorize appeals at public expense on behalf of defendants who are "indigent," as defined by statute, in accordance with the rules and decisions of the appellate courts of Alaska and where such appeals are required to be provided by state courts by decisions of the Supreme Court of the United States. Where an appeal at public expense is authorized by the trial court, the costs which shall be borne at public expense include those of providing counsel and of preparing a transcript and briefs. (2) After a trial court has authorized an appeal at public expense, the appellate clerk shall send defendant a written notice and order, to the address provided under Appellate Rule 204(b), that (A) advises defendant that, if defendant's conviction is not reversed, defendant will be ordered to repay the prosecuting authority for the cost of appointed appellate counsel, in accordance with the schedule of costs set out in subpara-graph 209(b)(7); and (B) orders defendant to apply for permanent fund dividends every year in which the defendant qualifies for a dividend until this cost is paid in full. (3) A defendant authorized to proceed at public expense in the trial court is presumed to be entitled to proceed at public expense on appeal. (4) The action of the trial court in authorizing or declining to authorize an appeal at public expense is reviewable by a motion in the appellate court, ancillary to the appeal. (5) Counsel appointed to represent a defendant in the trial court pursuant to Criminal Rule 39 shall remain as appointed counsel throughout an appeal at public expense authorized under this paragraph and shall not be permitted to withdraw except upon the grounds authorized in Administrative Rule 12. An attorney appointed by the court under Administrative Rule 12(b)(1)(B) will be permitted to withdraw upon a showing that either the public defender agency or the office of public advocacy is able to represent defendant on appeal. If an appeal is to be taken, trial counsel will not be permitted to withdraw until the notice of appeal and the documents required to be filed with the appeal by Rule 204 have been accepted for filing by the clerk of the appellate courts. (6) At the conclusion of the appellate proceeding, the appellate clerk shall enter judgment against defendant for the cost of representation on appeal unless defendant's conviction was reversed by the appellate court. The amount of the judg ment shall be determined by reference to the schedule in subparagraph 209(b)(7). Before entering judgment, the clerk shall mail, to the defendant's address of record, a notice that sets out the amount of the proposed judgment. Defendant may oppose entry of the judgment by filing a written opposition within 45 days after the date shown in the clerk's certificate of distribution on the notice. The opposition shall specifically set out the grounds for opposing entry of judgment. The prosecuting authority may oppose the amount of the judgment by filing a written opposition within the same deadline. Criminal Rule 39(c)(1)(D) and (c)(2) shall apply to judgments entered under this subparagraph. (7) The following schedule governs the cost of representation on appeal: Type of Appellate Proceeding Misdemeanor Felony Sentence Appeal 250 500 Merit Appeal and Appeals from Post-Conviction Relief Proceedings 750 1,500 Combined Merit and Sentence Appeal 1,000 2,000 Other Appellate Actions (Petition for Review, Petition for Hearing, etc.) 500 1,000 BRYNER, Justice Pro Tempore, dissenting, joined by RABINOWITZ, Justice, as to parts I, II and III. I. INTRODUCTION I agree with the majority that it is appropriate for the state to recoup costs for services provided to indigent defendants by court-appointed counsel. I further agree that there is nothing impermissible in a re-coupment plan that burdens an indigent defendant with the same economic choice that a nonindigent defendant must make. Finally, I agree that it is legitimate for the court to establish procedures that ensure "administrative efficiency" in recouping costs of providing appointed counsel. And I believe, as does the majority, that the establishment of such procedures can be accomplished without offending Albert's constitutional rights to counsel and equal protection. My major disagreement with the majority centers narrowly on the majority's conclusion that Rule 39 properly accomplishes the legitimate purpose it is meant to serve. II. ABILITY TO REPAY After reviewing James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), and their progeny, the majority concludes that ability to repay is essential to a recoupment plan only when the defendant may be incarcerated for failing to repay. This interpretation neglects the Alaska Constitution. Even if the federal constitution does not require that ability to repay be considered, such consideration must be allowed under the Alaska Constitution. In ordinary civil matters, of course, it is entirely permissible to enter judgment against a debtor regardless of the debtor's ability to pay. The majority repeatedly insists that a Rule 39 recoupment judgment has no "correctional consequences" and may therefore be treated as an ordinary civil judgment, without considering ability to repay. This assertion is incorrect. A civil judgment entered against an indigent defendant who has just been convicted of a crime can have distinctly different consequences than one entered against an ordinary debtor: The indigent defendant who is found guilty is uniquely disadvantaged.... A criminal conviction usually limits employment opportunities. This is especially true where a prison sentence has been served. It is in the interest of society and the State that such a defendant, upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of employment, rehabilitation and return to useful citizenship. James v. Strange, 407 U.S. at 139, 92 S.Ct. at 2033. The unique impact that a civil judgment can have on a convicted offender is plainly a "correctional consequence" in that it directly relates to the sentencing goal of rehabilitation. This sentencing goal finds express recognition in our state constitution. "Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration." State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (footnote omitted). Article I, section 12, of the Alaska Constitution declares that "Penal administration shall be based on the principle of reformation and upon the need for protecting the public." Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Chaney, 477 P.2d at 444. In some cases, entering a recoupment judgment against a defendant who is unable to repay will actively interfere with the sentencing goal of rehabilitation. This is essentially the point that we made in Karr v. State, 686 P.2d 1192 (Alaska 1984), when we rejected an argument for allowing sentencing courts to order the payment of restitution as a condition of probation for convicted offenders who have no foreseeable ability to pay: If restitution is ordered in an amount that is clearly impossible for the offender to pay, the offender's rehabilitation will be inhibited and not furthered. If the offender is haled into court for nonpayment of restitution . or if the offender petitions the court . to avoid this sanction, his reintegration into society will be disrupted. Also, an offender might simply give up and make no payments at all if the restitution ordered is clearly impossible to pay. This could result in the offender's incarceration . or in his fleeing the jurisdiction to avoid this sanction, neither of which would further the dual goals behind restitution. Id. at 1197 (footnote omitted). Although the dangers we adverted to in Karr were clearly magnified in the context of that case by the possibility of incarceration as a consequence of nonpayment, the absence of incarceration as a potential consequence in a recoupment situation merely reduces the extent of these dangers; it does not dispel them. In some circumstances, it will be predictable that the pendency of a judgment for a sum that would be impossible to pay might be disruptive of a defendant's reintegration into society and might encourage the defendant to "simply give up." When a court foresees this risk and deems rehabilitation to be a prominent sentencing goal in the case before it, the interests of the defendant and society alike will be served if the court forbears entering the recoupment judgment. Given the central role of reformation as a touchstone of penal administration under the Alaska Constitution, I would hold that our state constitution forbids a recoupment plan that provides courts no authority to engage in (and indigent defendants no right to request) prejudgment consideration of ability to repay. III. RIGHT TO COUNSEL AND EQUAL PROTECTION The Sixth Amendment to the United States Constitution expressly guarantees all persons accused of crime the right to be assisted by counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held the Sixth Amendment's guarantee to be a fundamental right, applicable to the states under the Fourteenth Amendment's Due Process Clause; Gideon further held the Sixth and Fourteenth Amendments to require states to provide court-appointed counsel upon request to accused persons who cannot afford to retain their own attorneys. As with other fundamental rights expressly secured by the Constitution, an accused's right to the assistance of counsel must be jealously guarded against erosion by rule or statute, even if the rule or statute furthers an otherwise legitimate state interest: Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. The question is not whether the chilling effect is "incidental" rather than intentional; the question is whether that effect is unnecessary and therefore excessive. United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968) (citations omitted). Jackson unambiguously states the standard for resolving Albert's right-to-counsel claim: whether the provisions of Rule 39 "needlessly chill the exercise of [that] basic constitutional right[.]" Id. Albert's right to appointed counsel is protected at a second level by the Equal Protection Clause of the Fourteenth Amendment, which prohibits the irrational imposition of "harsh conditions on a class of debtors who were provided counsel as required by the Constitution^]" James v. Strange, 407 U.S. at 140-41, 92 S.Ct. at 2034. Nor can discriminatory treatment of indigent defendants be justified by the mere fact that their debt is to the state: We recognize, of course, that the State's claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical. This does not mean, however, that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor. Id. at 138, 92 S.Ct. at 2033 (footnote omitted). Criminal Rule 39 must be evaluated in light of these standards. Rule 89(b) makes all criminal defendants who are provided court-appointed counsel hable upon conviction for the cost of representation. This liability attaches without regard to an individual defendant's financial ability to repay. The liability automatically attaches in the form of a civil judgment entered without a prior request or demand for payment. Upon a defendant's conviction, the trial court must issue in ah cases, sua sponte, a notice of judgment. The amount of the judgment is as automatic as its entry. Under Rule 39(d), the amount of the judgment is not based on services actually received by the defendant; rather, it is selected from a menu of fixed fees pegged to case type and stage at which disposition occurs. The judgment is entered without the right to a trial — jury or nonjury. For that matter, the defendant has no right even to a hearing. A convicted defendant who receives the notice and is capable of filing a written response within ten days of its issuance may object to it; but the rule does not specify any ground for objection, and, given the automatic nature of the judgment, the majority opinion seems to conclude there is essentially none. Along with the notice of judgment, the trial court must send an order requiring the defendant, if eligible, to apply for permanent fund dividends "until the judgment is paid in full." Rule 39(c)(1)(A). This requirement is imposed upon pain of contempt. Rule 39(c)(2)(D). Apart from this, the rule requires all defendants who cannot afford to retain counsel to be warned of the consequences of requesting court-appointed counsel — that, upon conviction, they "will be ordered to repay . the cost of appointed counsel, in accordance with paragraph (d) of this rule [the fee schedule]." Rule 39(b)(2) (emphasis added). This warning must be made at the outset of the case — "[b]efore the court appoints counsel," id. — prior to any preliminary contact or consultation with counsel. And the court itself is to deliver the message. Id. A unique set of problems emerges from Rule 39's provisions for entry of judgment without the right to a trial or hearing and its related use of a predetermined schedule of fees. To sustain its position that these aspects of Rule 39 do not unnecessarily chill the exercise of the right to appointed counsel and are not conspicuously more onerous than collection procedures applied to civil debtors, the majority points to the obvious difference between Rule 39 and the recoupment statute found unconstitutional in James v. Strange. James involved a Kansas statute that precluded convicted defendants against whom recoupment judgments were entered from claiming any of the exemptions commonly allowed civil judgment debtors. This denial of exemptions applied only to recoupment judgments for attorney's fees. The Supreme Court found this provision harsh, discriminatory, and impermissible. As the majority in the present case points out, Alaska's recoupment rule, in contrast, expressly allows judgment debtors to claim all commonly allowed exemptions. However, the fact that Rule 39 does not discriminate against indigent defendants in precisely the manner found impermissible in James does not make it constitutional. There are many ways in which a recoupment rule might arbitrarily "impose . harsh conditions on a class of debtors who were provided counsel as required by the Constitution[.]" James, 407 U.S. at 140-41, 92 S.Ct. at 2034. Yet the majority's scrutiny of Rule 39 proceeds little further than the aspect focused on by James. The majority fails to recognize, consider, or justify the other unprecedented aspects of Rule 39 that work to the unique disadvantage of indigent criminal defendants who request appointed counsel. In no other area of Alaska law that I am aware of is a private or public debtor virtually stripped of the right to a trial — or even the right to a hearing — and subjected upon ten days' notice to the automatic entry of a final civil judgment — all without even the courtesy of a request or demand for payment. This treatment is unique to indigent defendants who are subject to Rule 39, and it is uniquely harsh. Moreover, in no other area of Alaska law does a recipient of state-provided professional services become automatically hable to pay a charge based on an inflexible schedule of arguably arbitrary predetermined fees, without regard to the professional services actually rendered in the specific ease. Again, the treatment is unique, and despite the majority's protestations to the contrary, it is uniquely harsh. Under Rule 39, the indigent defendant who contemplates exercising the constitutionally granted right to appointed counsel is given one choice on a take-it-or-leave-it basis: accept the automatic entry of a judgment in the amount stipulated by the fee schedule set forth in Rule 39(d) or waive the right to counsel. In an effort to justify this arrangement, the majority repeatedly observes that the fees set by the schedule are intended to be "significantly lower than those charged by private counsel[.]" This implicit assumption that benevolent undercharging occurs is the majority's keystone to support Rule 39's fee schedule and automatic judgment provision. The majority in effect says that, since the fee schedule charges all indigent defendants rates that are clearly only a fraction of the actual price for similar services by a private attorney, there is no need to worry about any individual defendant being charged for services not actually received, no cause for case-by-case determination of services actually rendered, and no factual issue that could conceivably justify a trial or hearing of right before judgment is entered. The majority's comparison to private counsel fees, however, is misdirected, and its assumption of benevolence is unfounded. Indigent defendants who request appointed counsel do not receive private counsel of their own choice. Instead, they are given agency attorneys and contract defense lawyers who work at a fraction of the cost of private attorneys. A recoupment plan's only legitimate purpose lies in reimbursing the state for actual costs incurred for legal services, "not their equivalent value if privately ob tained." State v. Lopez, 175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App.1993) (quoting State v. Keswick, 140 Ariz. 46, 49, 680 P.2d 182, 185 (App.1984)). The court system thus has no business charging indigent defendants preset rates pegged to the price, or even a fraction of the price, they would otherwise pay on the open market for the attorneys of their own choosing. When the rates charged by Rule 39(d) are examined in light of available statistics reflecting the average cost the state pays per case for providing public representation rather than by comparison to supposed fees private attorneys would charge for providing equivalent services, the seeming benevolence of the fee schedule quickly evanesces. We are left with a hazy informational void in which predicting whether the schedule will overcharge or undercharge any particular defendant becomes impossible, and in which all prospective recipients of public representation appear to stand an appreciable risk of consenting to a judgment that charges them for more than they will actually receive. The Alaska Public Defender Agency Fiscal Year 1992 Report appears to contain the most recent readily available reflection of costs of public representation. The report indicates that during fiscal year 1992 the average cost to the Agency of representing its clients amounted to only $453 per ease. Of the eighteen fee categories listed in the Rule 39(d) schedule, only four fall below this cost-per-case figure; the rest surpass it. Three of the four fee categories that do not exceed the cost-per-case average entail $250 fees; this is more than half the average cost incurred by the Agency. The fourth below average fee — the least expensive fee that can be charged under the schedule — is the $200 charge for a misdemeanor change of plea, almost half the average cost. Admittedly, most of the defendants who receive public representation fall into one of the four least expensive fee categories. Thus, the average cost figure plainly does not suggest that Rule 39(d) routinely overcharges all or most defendants. But this is not the point. Because the average cost-per-case figure falls so close to the minimum charges that can be assessed under the schedule and so far below the fees that the schedule charges for so many of the services routinely provided to indigent defendants, the cost-per-case datum creates significant doubt, on a case-by-case basis, as to whether the fee schedule will overcharge a given defendant. Since the average cost per case is so low, predicting with any degree of confidence that most defendants who request appointed counsel will be undercharged, or that the fee schedule will accurately reflect services actually to be rendered in a given case, becomes impossible. Even the lowest scheduled fee might represent a questionable value in many eases. The indigent defendant charged with a first offense DWI who enters a plea of no contest after receiving a half-hour to an hour of an appointed attorney's time and who thereafter receives the standard first offense sentence may have good reason to ask whether the $200 preset charge for a misdemeanor change of plea is in fact a "modest fee" for the services actually rendered. Yet it would not be surprising to find that this is a commonplace scenario. Hence, the cost-per-case information erodes the majority's tacit premise that the schedule of predetermined fees is a benevolent provision which seldom if ever provides occasion for a reasonable objection. It is crucial to recall that this presumed benevolence is the sine qua non of the challenged rule, the essential rationale the majority relies on to support the multitude of procedural shortcuts that dot its recoupment plan. Remove this keystone, and the rationality of the rule crumbles. Unless the majority opinion can clearly demonstrate that the fee schedule creates no appreciable risk of overcharging indigent defendants, how can it justify a system that automatically enters judgment in the scheduled amount without the right to trial; a system that grants minimal relief — partial remission or time-scheduled payments — only upon post-judgment proof of hardship. Rule 39's fee schedule and its accompanying procedural shortcuts might be defensible if they were necessary, but they are in fact wholly unnecessary. Witness the fact that no similar treatment is accorded any other class of private or public debtor in Alaska. There is no obvious need to subject indigent defendants to discriminatory treatment of this kind. The majority's vague, if not unfounded references to administrative efficiency hardly demonstrate that such harsh measures are necessary to recoup costs of public representation. There is no evidence in the record to support a conclusion that it would be impractical or inefficient to determine the reasonable cost of services actually rendered on a case-by-case basis and to charge convicted defendants this amount. There is also no evidence or information indicating that the right to a prejudgment trial or hearing would prove impractical, inefficient, or unduly burdensome. The majority asserts that indigents who are forced to ask for counsel, unlike their nonindigent counterparts who retain counsel, simply have nothing to litigate. This assertion, however, is factually unsupported. Its validity has never been tested; nor can it ever be tested under the current version of Rule 39, since the rule has been designed to allow no reasonable opportunity for indigent defendants to litigate anything of consequence. There are other uniquely onerous features of Rule 39 that must be addressed. Foremost are the rule's provisions requiring the court to order all eligible defendants against whom a Rule 39 judgment will be entered to apply for permanent fund dividends and authorizing contempt proceedings for noncompliance with this order. See Criminal Rule 39(c)(1)(A) & (2)(D). The majority points to no other area of Alaska law in which recipients of public or private services become automatically liable for the entry of court orders enforceable by contempt that require them to apply for permanent fund dividend payments until their debts are satisfied. The majority also makes no effort to justify this unique aspect of the rule, which is not only harsh and unnecessary, but also economically illogical. Because the threat to strip indigent defendants of permanent fund dividends upon pain of contempt serves no necessary or even useful function, its only predictable effect will be to discourage legitimate requests for appointed counsel. When these provisions are made known to a prospective recipient of appointed counsel who must decide whether to request an attorney, they will almost inevitably be understood as a threat. This is particularly true, and particularly offensive, given that the threat is apt to come directly from a judge — the official specifically charged by the rule with informing defendants of their duty to repay under Rule 39. Rule 39(b)(2). Yet another discriminatory, potentially coercive, and entirely unnecessary aspect of Rule 39 lies in its requirement that the process of advising indigent defendants of their duty to repay under Rule 39 be inserted into the indigent defendant's first courtroom appearance. Rule 39 currently requires that, as a precondition of seeing an attorney, the indigent defendant must in effect make a binding commitment to become a judgment debtor in accordance with the detailed provisions of the recoupment rule. Because the rule calls for the choice as to appointed counsel to be presented to the defendant in open court at the first appearance, the indigent defendant, once advised of Rule 39, may have only moments to absorb the information, to reflect, and to decide — often under the impatient gaze of a judge in a courtroom crowded with spectators, guards, and other defendants awaiting the call of their own cases. And for the vast majority of indigent defendants— those charged with misdemeanors — this decision must be made at virtually the same time as the decision on the plea to be entered. The rule thus inextricably entwines the demand for immediate, binding acquiescence to the entry of a Rule 39 judgment for attorney's fees, not only with the choice of requesting appointed counsel, but also with the already difficult, confusing, and stressful choice of how to plead. Rule 39 makes no provision for the indigent defendant who contemplates requesting appointed counsel to consult with prospective counsel about the professional services that may be rendered, the benefits of representation, the potential merit of the charges, or the risks of self-representation. The rule seemingly makes even the most preliminary access to the advice of counsel contingent on an immediate on-record commitment to the entry of a judgment for fees in accordance with the schedule set out in Rule 39(d). In contrast, the nonindigent defendant will normally have the ability to choose between retaining and waiving counsel after the defendant has already consulted with counsel about the potential benefits and detriments of these options, and frequently after having consulted about the potential merits of the case. Nothing in the rule, or in the schedule of fees included therein, extends to indigent defendants any right to the type of referral and initial consultation that are available as a matter of course through the Alaska Bar Association to nonindigent defendants. Indigent and nonindigent defendants alike can properly be confronted with the economic choice of whether legal representation is worthwhile. As a practical matter, however, nonindigents can make this choice after consulting counsel and reflecting on their options. Rule 39 should put indigent defendants on an equal footing. Rule 39(b)(1) requires that defendants who make a request for appointed counsel during their first court appearance be screened to establish their financial eligibility therefor. The screening process is typically conducted by a designee of the court and occurs after the initial court proceeding has been concluded. There is no apparent reason why the process of advising defendants of their duty to pay the costs of appointed counsel could not similarly be deferred until after a preliminary request for counsel has been made. A final unique and uniquely troubling aspect of Rule 39 inheres in the provision of the rule calling for the court system itself to take charge of the entire process of collecting a state debt. Under the rule, the responsibility for initiating the action and for its prosecution is placed in the hands of the court, together with the responsibility for adjudication, for the entry of judgment, and for enforcing the judgment once entered. Normally, of course, the Department of Law is responsible for initiating and prosecuting actions for state debt; the courts adjudicate and enter judgment. I can think of no other situation in which the entire menu of collecting a debt, from soup to nuts, is heaped onto the court system's plate. This unique aspect of the rule is troubling because of the appearance it creates. For it inevitably tends to foster the appearance of conflict; it thereby compromises the court's ability to hold itself out as neutral arbiter of justice. In Public Defender Agency v. Superior Court, 534 P.2d 947 (Alaska 1975), the Department of Law suggested that the court system itself, through the court trustee, take responsibility for prosecuting contempt actions. This court rejected the suggestion: A well established principle of law is that the court may not combine prosecuto-rial and judicial functions. Although this precept most often arises in the criminal context, it is equally applicable in the civil area where the conflict of interest and the combination of functions is as readily apparent. For this reason, it would be unwise if not unconstitutional, as a violation of the doctrine of separation of powers, to charge the court trustee with the duty to prosecute contempt actions. Id. at 951-52 (citations and footnote omitted). Here, too, there is a "readily apparent" conflict in the court system taking charge of the prosecution and adjudication of debts for appointed counsel. When viewed through the eyes of an indigent defendant at an arraignment, this conflict may appear to infect, not only the court's neutrality with respect to adjudication of recoupment issues, but also its neutrality with respect to the criminal charges that provide occasion for attorney's fees to arise. This feature of Rule 39, too, is unnecessary. Surely it is not indispensable to an administratively efficient recoupment plan that the court system itself initiate and prosecute all recoupment actions; just as surely the Department of Law can be entrusted, as it is in other matters of public debt, with this job. Many indigent defendants who arrive in court for their first appearance are already suspicious of the court system's ability to dispense justice. These suspicions can only be confirmed when the defendants learn, not only that they will be required to repay the state for court-appointed counsel, but that the court itself will prosecute the ease against them if they fail. The confirmation, in turn, may quickly lead to a waiver of counsel that is born of frustration and hopelessness. I must emphasize that, for purposes of determining whether Rule 39 violates Albert's constitutional right to counsel, the threat of enforcing this kind of a recoupment plan against a prospective recipient of appointed counsel is as significant as its actual enforcement. As I indicated at the outset, I find nothing impermissible in presenting the indigent defendant with the same economic choice as to representation as the nonindi-gent defendant must make. But I find little similarity, in kind or circumstance, between the economic choice the nonindigent makes and the choice presented to an indigent defendant under Rule 39. Imagine a criminal justice system that allowed a defendant who could afford to hire an attorney the right to consult with and retain counsel only if the defendant made an express request for counsel in open court after being told, by the judge personally, that counsel could be retained only in accordance with a predetermined schedule which arbitrarily pegged fees to the number and kind of proceedings the defendant engaged in; that upon convicting the defendant the court would automatically enter a civil judgment for the scheduled amount of fees and would automatically order the defendant, upon pain of contempt, to apply for permanent fund dividend payments until the judgment was satisfied in full; and that, although the defendant could file an objection within ten days of notice of entry of judgment and the court would have discretion to hold a hearing upon receipt of the objection, there would be no right to a trial or a hearing as to the judgment's entry. To be sure, this imaginary system would not long survive if an attempt were made to foist it on paying defendants. And the reason it would not survive is precisely that the paying defendant in our imaginary system would obviously face a choice that is patently "different in kind from the economic choice" that the same paying defendant faces in deciding whether to retain counsel under our current system. Yet the choice presented to the nonindigent defendant in our hypothetical situation is essentially the same choice that Rule 39 now foists on the indigent defendant who cannot afford to retain an attorney and must decide whether to request appointed counsel. Because this choice is profoundly "different in kind from the economic choice which must be made by a non-indigent accused of crime," there is compelling reason to ask whether subjecting defendants to the potentially chilling effect of such disparate treatment is actually necessary. Under the test of United States v. Jackson, 390 U.S. at 582, 88 S.Ct. at 1216-17, the pertinent question for purposes of determining whether Rule 39 violates Albert's right to counsel is whether the choices facing indigent defendants under the rule "needlessly chill the exercise of [the] basic constitutional right [to counsel]." In other words, whether they are "unnecessary and therefore excessive." Id. And, under the equal protection test described in James v. Strange, 407 U.S. at 138-39, 92 S.Ct. at 2033, it is pertinent to inquire whether the state has "impose[d] unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor[,]" and whether "[t]he indigent defendant . is uniquely disadvantaged in terms of the practical operation of the [rule]." Most indigent defendants haled into court on criminal charges will have enough economic savvy to understand that Rule 39's method of debt collection is not mainstream — that it is not the conventional way we go about organizing and enforcing relationships between creditors and debtors in our American legal and social systems. It is thus not unreasonable to expect that many indigent defendants will sense palpable unfairness when confronted in open court by a judge who conditions their access to counsel upon the nonnegotiable demand that they assent without significant procedural recourse to the entry of an adverse judgment for attorney's fees in a predetermined amount which bears no perceptible relationship to the value of services that may actually be rendered. It seems quite reasonable to expect many indigent defendants in these circumstances to be discouraged from requesting counsel. Indeed, a more intimidating and coercive setting — one less conducive to a knowing, reasoned and voluntary choice as to the exercise of the right to appointed counsel — would be difficult to design. It escapes me how the majority can conclude that the procedural setting prescribed by Rule 39 is not coercive; that it does not discourage the exercise of the constitutionally secured right to counsel, but rather entails a choice "no different in kind from the economic choice which must be made by a nonindigent accused of crime." The majority's effort to skirt the discriminatory nature and chilling effect of these provisions verges on the paradoxical. The majority holds that the question of chilling is not ripe, since Albert has not proved a chilling effect. At issue, however, is Rule 39's potential for chilling the exercise of the right to counsel. To prevail, Albert need not allege that he was in fact chilled; nor must he demonstrate that others have been. United States v. Jackson, for example, considered a federal kidnapping statute under which the death penalty could be applied only in the case of a defendant who requested a jury trial. The Supreme Court invalidated the death penalty provision, holding that it violated the constitutionally protected right to a jury trial by unnecessarily chilling the exercise of that right. 390 U.S. at 570, 88 S.Ct. at 1210. The Court issued this ruling even though the defendants had not personally been chilled from exercising the right to a jury trial — in fact, they had not yet been tried and had apparently produced no evidence establishing that others had been chilled. See id., 390 U.S. at 571, 88 S.Ct. at 1210-11. Likewise, in City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975), this court was asked to construe Civil Rule 72(k) to allow an award of attorney's fees against an unsuccessful landowner in a condemnation case. In rejecting the proposed interpretation, this court relied in large part on the potential chilling effect that such an interpretation might have on the property owner's willingness to assert the constitutional right to just compensation for the condemned property. This court expressed no reluctance to consider the chilling effect issue on a purely predictive basis. For constitutional purposes, the relevant inquiry is how many potential recipients of appointed counsel have not been immune to the chilling treatment they received in the courtroom; how many have declined to make an in-court request for appointed counsel due to the uniquely intimidating nature of Rule 39. There are no statistics to illuminate this issue; the court system has faded to keep them. Given this failure, it is at once unfair to fault Albert for his inability to prove Rule 39's chilling effect and anomalous to expect that anyone will ever be able to offer such proof. I would find Rule 39 violative of the constitutionally guaranteed rights to counsel and to equal protection. TV. NONCONSTITUTIONAL DISPOSITION The majority's treatment of Albert's constitutional claims is incomplete and based on flawed assumptions; the correct resolution of Albert's claims is far less certain than the majority opinion asserts. Even if Rule 39 were constitutional, however, I would disagree with the majority's decision to dispose of Albert's case on constitutional grounds. Although my dissent necessarily addresses and responds to the majority's treatment of the constitutional issues, I would have preferred to reach a nonconstitutional disposition in this case. There is, in my view, good reason do so. The majority's constitutional analysis breaks new legal ground and is, at best, shaky. At worst, it is both wrong and wrongful. Yet the constitutional issues debated by the parties in this ease revolve exclusively around a rule that the court itself has drafted and is free to alter — a rule that can readily be amended, at no cost to its efficacy, to avoid the serious and substantial concerns Albert voices. Given that the amendment of Rule 39 to avoid potential constitutional difficulty appears to offer a practical, straightforward, and easily accomplished alternative disposition in the present case, I find the majority's enthusiastic exploration of new constitutional terrain difficult to justify. Particularly incongruous is the majority's endorsement of the rule, as is, by a narrowly exegetic application of low-level equal protection scrutiny. The minimal scrutiny that courts traditionally give to legislative enactments is born of the separation of powers doctrine. It reflects that the judicial branch cannot usurp the powers exercised by coequal branches of government and that great deference must therefore be given in reviewing the legitimacy of laws subjecting differing groups to disparate treatment. Transposed to the present context, in which the court reviews a rule of its own creation, the traditional rationale for minimal scrutiny in an equal protection case makes little sense at all: the court owes no deference to its own rule-making decisions and is free to alter its rules if it believes they ought to be changed. The question at the heart of this case is not whether the court must, through a process of deferential review, uphold an enactment of the legislative branch. Rather, because the challenged provision is the court's own rule, the fundamental question is one of policy: namely, is it desirable to perpetuate Rule 39 in its current form? This is another issue that the majority refuses to acknowledge or address. The majority does not deny that Albert may suffer adverse effects from the inequities built into Rule 39, but says only that his interest in equal treatment is not very important. And the majority does not defend the rule's procedural shortcuts as necessary or unavoidable but says only that they constitute a minimally rational way of efficiently collecting Albert's money. Accepting ar-guendo the dubious proposition that this is a sufficient resolution of Albert's equal protection claim, I fail to see how the majority's view does anything to resolve the more fundamental question of why the court would want to perpetuate a rule whose disparate treatment of indigent defendants is unnecessary and only minimally rational. That Rule 39 may be minimally adequate to pass constitutional muster under low-level scrutiny says very little. If this is all that can be said in defense of the rule, it is not enough. When a right as fundamental as the constitutional right to counsel is at stake, the court's rule-making obligations require a better justification or a better rule. V. CONCLUSION I would hold that the Alaska Constitution requires that courts be given discretion to consider an indigent defendant's ability to repay as a factor in determining whether to enter a recoupment judgment. Beyond that, I would revise Rule 39 along the other lines suggested in this dissent. I would adopt these changes, not because they are all constitutionally necessary, but to avoid the risk of violating the constitution — a risk that, in my view, can be avoided without significant sacrifice to the state's interest in recoupment or the court system's need for administrative efficiency. "It is a well established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case." Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 1579, 80 L.Ed.2d 36 (1984); see also Ashwander v. Tennessee Valley Auth, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Deubelbeiss v. Commercial Fisheries Entry Comm'n, 689 P.2d 487, 491 (Alaska 1984) (Compton, J., concurring). The majority opinion disregards this fundamental precept by unnecessarily deciding close and difficult questions of constitutional law that arise from a poorly considered rule of the court's own creation. The court should give thought to amending Criminal Rule 39 to avoid the constitutional problems the rule creates. Faced with the choice between amending a marginally defensible rule to avoid potential constitutional difficulties and upholding it by a chancy application of constitutional doctrine, I would opt for the "prudent exercise" of avoiding the constitutional issues and amending the rule. Escambia County v. McMillan, 466 U.S. at 51, 104 S.Ct. at 1578-79. Accordingly, I dissent. . Robert L. Spangenberg, et al., Containing the Costs of Indigent Defense Programs: Eligibility, Screening and Cost Recovery Programs 33 & Appendix A (1986). .Although the rule is silent as to the circumstances under which a hearing must be held when opposition is filed, our cases generally indicate the necessity for an evidentiary hearing in any case in which there are factual disputes on material issues. See, e.g., Douglas v. State, Dep't of Revenue, 880 P.2d 113, 117 (Alaska 1994); Perry v. Newkirk, 871 P.2d 1150, 1156 (Alaska 1994); Murray v. Murray, 856 P.2d 463, 466-67 (Alaska 1993); Adrian v. Adrian, 838 P.2d 808, 812 (Alaska 1992); Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992); Carter v. Brodrick, 816 P.2d 202, 204-205 (Alaska 1991); Smith v. State, Dep't of Revenue, 790 P.2d 1352, 1353 (Alaska 1990); Robbins v. Robbins, 647 P.2d 589, 592 (Alaska 1982). This precept applies to Criminal Rule 39(c) as well. . These judgments, like other civil judgments entered by Alaska lower courts, are appealable as a matter of right. AS 22.05.010; Appellate Rule 202(a), 602(a)(1); cf., K & L Distributors v. Murkowski, 486 P.2d 351 (Alaska 1971) (supreme court has constitutional duty to review agency action even where such review is prohibited by statute). . Convicted felons are not entitled to the dividend during any year in which they are incarcerated as a result of their conviction. AS 43.23.005(d). . AS 09.38.030(a); 8 Alaska Administrative Code (AAC) 95.030(d) (1995). . AS 09.38.050(b); 8 AAC 95.030(e) (1995). . AS 09.38.010; 8 AAC 95.030(a) (1995). . AS 09.38.020(a), (b), (c), (e); 8 AAC 95.030(b) (1995). . AS 09.38.025, AS 09.38.017; 8 AAC 95.030(c) (1995). . AS 43.23.065(b). . For convenience we follow the parties' practice of using "Criminal Rule 39" to refer not only to the provisions of the rule but to the other elements of our recoupment system. . In re Allen was relied on by Judge Pengilly. Its rationale was rejected by the United States Supreme Court in Fuller. 417 U.S. at 51-52, 94 S.Ct. at 2124. . The Amor court stated: Allen, however, is distinguishable from the present case. In Allen, there is justification for concluding that the petitioner would have been penalized for exercising a constitutional right, because not only would she have been liable for payment of the entire fee paid to counsel for representing her, without a finding that she had the financial ability to make payment and with no warning that she might be held so liable, but she could have been imprisoned if she failed to pay the fee, payment thereof being one of the conditions of her probation. 114 Cal.Rptr. at 767-68, 523 P.2d at 1175-76. . The right to counsel under the Alaska Constitution is more expansive in some of its applications than the corresponding right under the Sixth Amendment to the United States Constitution. Resek v. State, 706 P.2d 288, 291 n. 11 (Alaska 1985). . Court rules, like statutes and regulations, are presumptively constitutional and the burden of proving unconstitutionality is on the party challenging them. Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080, 1083 (Alaska 1992); Citizens for the Preservation of Kenai River v. Sheffield, 758 P.2d 624, 625 (Alaska 1988); Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979). . Appellees also argue that heightened scrutiny is required because Rule 39 discriminates against not only the poor but also against racial and ethnic minorities, because they are disproportionately represented among both the poor and the criminally convicted. This argument is without merit. Rule 39's civil judgment procedures apply only to those who use appointed counsel and are convicted. The fact that this class is uniformly poor and possibly disproportionally minority is incidental to the bases for the classification: use of the service and conviction of a crime. . The State characterizes the interest involved as a money judgment and relies on this court's holding in State v. Anthony, 810 P.2d 155, 157 (Alaska 1991), that only minimum scrutiny is required in reviewing statutes which affect an individual's right to a permanent fund dividend. Appellees' equal protection challenge focuses on the procedures by which a judgment is obtained, not on the judgment itself. The interest implicated, therefore, is not an indigent defendant's interest in the money she might lose through the judgment, but in the safeguards afforded her with respect to the judgment. The fact that these safeguards only protect against an economic loss, however, is one factor in weighing their importance. See, e.g., Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 359 (Alaska 1988) ("Access to the courts is not an independent right"; its importance is dependent on the rights which are sought to be protected through such access). . Appellees apparently agree that this is the purpose for the limited procedures of Rule 39, as they state: "Rule 39 is a streamlined system, obviously intended to maximize revenue while minimizing administrative expenses." . This appeal arises in the procedural context of Criminal Rule 39, but the issues decided by the court have equal bearing on the related provisions of Appellate Rule 209. The references to Criminal Rule 39 in this dissent are meant to encompass Appellate Rule 209 as well. . I am not as confident as is the majority that the federal constitution permits a recoupment plan that precludes any prejudgment consideration of ability to repay as a relevant factor in determining whether and in what amount judgment should be entered. Given my conclusion that such consideration is required under the Alaska Constitution, I do not address the point. .Shagloak v. State, 597 P.2d 142, 144 n. 14 (Alaska 1979) (holding that the Alaska Constitution may provide broader safeguards than the parallel provisions of its federal counterpart); see also Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972). . In this regard, there is a certain irony in the majority's reliance on cases holding that repayment may be imposed as a condition of probation regardless of ability to repay, as long as probation cannot be revoked when failure to repay results from financial inability. See, e.g., State v. Kottenbroch, 319 N.W.2d 465 (N.D.1982); State v. Crawford, 248 Kan. 42, 804 P.2d 1385 (1991). For the reasoning of these cases is precisely the reasoning this court rejected in Karr. These cases are also readily distinguishable on a more substantive ground. If the sentencing courts in Kottenbroch and Crawford believed that a condition of probation requiring repayment would interfere with a defendant's rehabilitation, the courts were under no obligation to order repayment as a condition of probation and presumably would not have done so. The sentencing courts thus had exactly the scope of discretion that I would hold to be required under the Alaska Constitution: the discretion to consider a defendant's ability to repay prior to entering a recoupment judgment. . In many — perhaps most — cases, the entry of a judgment for costs of appointed counsel against a convicted defendant will have little or no tendency to interfere with rehabilitation, regardless of the defendant's ability to pay. Indeed, even as to a defendant who has no foreseeable ability to repay, a judgment requiring payment of fees for appointed counsel might in some cases have a salutary effect by inculcating in the defendant a sense of responsibility. This is particularly likely to be true under a recoupment rule like Rule 39, which, even in its current form, allows the defendant to claim all normally applicable civil exemptions and to obtain post-judgment relief through a showing of financial hardship. When a judgment for attorney's fees would have no foreseeable negative effect on rehabilitation, I can see no reason to disallow the entry of such a judgment, even against an indigent defendant who has no foreseeable ability to pay. The treatment in such cases would be identical to treatment accorded ordinary civil debtors. . In practice, any attempt to distinguish between James' equal protection analysis and Jackson's unnecessary chilling effect test may involve more form than substance. Given the fundamental nature of the right to counsel and the liberty interest implicated by the needless discouragement of the exercise of the right to counsel, a constitutional challenge to a recoupment plan essentially calls into question the basic fairness of the challenged provision. In this situation, regardless of whether the challenge asserts a violation of equal protection or a direct violation of the right to counsel, "the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as 'the nature of the individual interest affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose[.]"' Bearden v. Georgia, 461 U.S. 660, 666-67, 103 S.Ct. 2064, 2069, 76 L.Ed.2d 221 (1983) (quoting Williams v. Illinois, 399 U.S. 235, 260, 90 S.Ct. 2018, 2031, 26 L.Ed.2d 586 (1970)). . The majority sidesteps Albert's claim that Rule 39 violates his right to a jury trial by noting that the rule does not expressly preclude a jury trial and that Albert has not requested one. I am tempted to ask how the rule's silence on the right to a jury trial can plausibly be construed to leave the door open to a request when the rule makes no provision for any trial at all. I agree with the majority that Albert's jury trial claim need not be considered. I reach this conclusion, however, because it seems clear that the issue is subsumed by the greater problem of Rule 39's failure to provide for any form of trial or hearing of right. . Rule 39(c)(1)(C) states that "[i]f a timely opposition is filed, the court may set the matter for a hearing and shall have authority to enter the judgment." The plain language of the rule seemingly makes the hearing discretionary and vests the court with authority to enter judgment regardless of whether a hearing is held. The rule also appears to create no right to any appeal from the entry of judgment. The majority for the first time today construes the rule to require a hearing in any case in which there is a factual dispute on a material issue and to allow appeals as a matter of course. In the context of Rule 39, however, it is unclear what a defendant must do to create a factual dispute on a material issue; it is also unclear how a defendant should pursue an appeal, particularly when the recoupment judgment is entered under Appellate Rule 209 by an appellate court. In any event, experience strongly suggests that the majority's interpretation of the rule has not been widely understood. In the years since its adoption, Rule 39 evidentia-ry hearings have apparently rarely been conducted by trial courts in disputed cases, and I am aware of no attempts to appeal adverse trial court rulings. While the court's current interpretation of the rule may have a salutary effect as to future indigent defendants, it comes too late for litigants who, like Albert, have proceeded through the system before this court's clarifying interpretation. Moreover, future generations of indigent defendants deciding whether to request court-appointed counsel will read the rule (without the assistance of counsel) as it is actually written, not as it has now been interpreted by this court. If the majority agrees that the rule could benefit from clarification, then the clarification should come in the form of an amendment, rather than an opinion interpreting the current version of the rule. .Upon a showing of financial hardship, a defendant may secure permission to make periodic payments or may obtain remission, reduction or deferral. Rule 39(c)(2)(C). But these are post-judgment remedies: they are available only to a defendant who is "subject to a judgment" and only cover "the unpaid portion of the judgment." Id. .Comparing an indigent defendant's overall situation with respect to representation to that of a nonindigent defendant's is fruitful in this regard. A nonindigent defendant who seeks to retain counsel will of course frequently encounter private attorneys who demand fixed-sum fees without regard to services actually to be rendered. But in the private setting, the defendant is free to negotiate with counsel and to shop for an attorney with a more favorable price or better terms. Moreover, the nonindigent defendant will have the ability to choose between retaining and waiving counsel after consulting with counsel about the potential benefits and detriments of these options, and frequently about the potential merits of the case. A nonindigent defendant who retains counsel and does not receive money's worth will have mandatory arbitration available; and before any judgment can be entered for nonpayment of fees, the defendant will be entitled to the full panoply of procedural and substantive rights that attach in all civil cases. And if a marginally situated defendant — one who falls on the financial borderline where the economic choice of retaining counsel is the most difficult— negotiates with private counsel and finds that fees or terms are too exorbitant, waiver of counsel is not the only available option. If all else fails, the defendant may as a last resort request— and will often be granted — court-appointed counsel. . 1992 Alaska Pub. Defender Agency Fiscal Year Rep. at 12. There is no information to indicate that cost-per-case figures for the Public Defender Agency have altered significantly since fiscal year 1992. Likewise, while I have found no readily available reports of per-case cost for conflict representation by the Office of Public Advocacy and its contractors, there is little reason to believe that any cost difference would be significant for present purposes. . The fee schedule set forth in Appellate Rule 209(b)(7) for appellate representation raises even greater concerns. Of eight categories of appellate representation, only one — misdemeanor sen tence appeals — entails a charge below the Public Defender Agency's average cost per case. Although it may be safe to speculate that a majority of trial court cases fall into the minimum fee category of Criminal Rule 39(d) — thereby making it unlikely that the schedule routinely overcharges most defendants at the trial level — it seems equally safe to speculate that only a minute segment of appellate cases are misdemeanor sentence appeals falling into the lowest fee category of Appellate Rule 209(b)(7). Hence, to receive appointed counsel on appeal, all but the exceptional appellant is routinely required to pay more than the average per-case cost of representation. . I certainly do not mean to disparage the level of representation provided by appointed counsel or to suggest that indigent defendants are systematically underrepresented by agencies such as the Public Defender Agency or the Office of Public Advocacy. That agency defense attorneys may frequently be capable of handling cases expeditiously and at low cost reflects the high degree of expertise that they develop in their practice and the efficiency of scale realized by their agencies in handling large volumes of similar cases. . Although the majority's opinion compares Rule 39 only to treatment accorded private debtors, the Court in James v. Strange deemed it germane to compare differences between a re-coupment plan's treatment of indigent defendants and the treatment accorded other classes of state debtors: It may be argued that an indigent accused, for whom the State has provided counsel, is in a different class with respect to collection of his indebtedness than a judgment creditor whose obligation arose from a private transaction. But other Kansas statutes providing for recoupment of public assistance to indigents do not include the severe provisions imposed on indigent defendants in this case. James v. Strange, 407 U.S. at 137, 92 S.Ct. at 2033. . In this regard, it seems symptomatic of the rule's design that this appeal arose from two cases in which superior court judges thought it necessary to address the constitutionality of Rule 39 sua sponte. Given the rule's conscious objective of achieving "administrative efficiency" by eliminating virtually all opportunity for challenging its provisions, the superior court's decision to address the constitutional issues sua sponte is entirely defensible. . A banker who did business in this manner would find survival difficult. As both the state and the majority opinion acknowledge, recoupment judgments will most frequently be entered in amounts significantly lower than the permanent fund dividend, which in past years has hovered just below the thousand dollar mark. Assuming that a defendant against whom a Rule 39 judgment has been entered fails to apply for a permanent fund dividend, the state is deprived of nothing it does not already have: the debt remains in effect, accruing interest and subject to execution; the state retains forever the near-thousand-dollar dividend it would otherwise have paid out. In contrast, when the state coerces the same defendant to apply for the permanent fund dividend, it expends the full amount of the dividend. The state can collect back from the defendant (or sign over to itself) a portion of the dividend (its own money that it just insisted on giving out) equivalent to the amount owed by the defendant, but the defendant will pocket the rest. At a maximum, the defendant returns to the state the entire dividend the state just paid. The recycled money does not go to repay counsel; it merely shifts from the state's permanent fund to its general fund. The state pays out of pocket the administrative costs of disbursing the dividend, and, in collecting the money back, it must cancel a preexisting debt that it might otherwise have eventually collected with funds not its own. In short. Rule 39(c)(1)(A) and (2)(D) make no sense at all unless the majority perceives some benefit in removing money from the state's permanent fund (where it is available for direct distribution to Alaska citizens), giving most to a convicted defendant who would not otherwise have asked for it, and depositing the fractional remainder in the general fund (where it becomes available to be spent at the pleasure of the legislature). .Rule 39(b)(2) does not expressly require the court to advise prospective recipients of appointed counsel that they will be ordered to apply for permanent fund dividends and prosecuted for contempt if they fail to do so, but the rule does provide that, "[bjefore the court appoints counsel for an indigent defendant ., the court shall advise defendant that defendant will be ordered to repay . in accordance with paragraph (d) of this rule[.]" It seems likely that, in providing the advisement required by this provision, many judges will attempt to give defendants a capsule explanation of Rule 39, including its permanent fund provisions. It is noteworthy that threats of future prosecution can have an especially chilling effect when communicated by a judge during a courtroom proceeding. Such threats have been found constitutionally offensive when directed without case-specific justification to a participant in a criminal case who must decide upon a future course of action. Cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (due process violated when a trial judge gratuitously singled out a prospective defense witness for an unnecessarily harsh admonition on the dangers of perjury, whereupon witness failed to testify). . The state cites court system statistics purportedly showing that virtually none of the potentially indigent defendants interviewed by Pretrial Services refused counsel because of Criminal Rule 39. These statistics shed no light on what percentage of potentially indigent defendants actually refuse counsel because of Rule 39. Pretrial Services typically interviews defendants referred from the courtroom who have already been through their initial appearances, have been advised of Rule 39, and have nonetheless requested counsel. Defendants who reach the door of Pretrial Services have been pre-chilled and have shown themselves immune. If anything, the Pretrial Services statistics prove too much: by showing that virtually no prospective recipients of appointed counsel decline representation based on Rule 39 at the Pretrial Services level, the statistics arguably demonstrate the efficacy of the rule's chilling effect in the courtroom setting. Apparently, virtually no defendant capable of being deterred by Rule 39 is left undeterred by the open court advisement. . Specifically, this court held: To place the property owner in the position of having to risk payment of often substantial expenses incurred by the condemning authority for expert witnesses, other costs and attorney's fees, as well as his own expenses in order to secure even an initial adjudication of the amount to which he is entitled, would so chill the right to secure just compensation as to nullify the effectiveness of the constitutional provisions. Faced with the choice of incurring such expenses, many property owners would feel compelled to give up their right to seek adjudication of the amount of compensation to which they would be entitled and would accept any amount tendered by the condemnor. Id. at 1175. . Specifically, I would revise the existing rule: 1) by eliminating the rule's fee schedule and requiring payment based on the cost of services actually rendered; 2) by requiring a consideration of ability to pay prior to entry of judgment and by allowing the court, in its discretion, to refrain from entering judgment when the entry of judgment against a defendant who has no foreseeable ability to pay would defeat the goal of rehabilitation; 3) by providing for a prejudgment hearing as a matter of right to determine both the reasonable amount to be charged for services rendered and ability to pay, and by providing that in contested cases the initiation and prosecution of recoupment actions be within the responsibility and discretion of the Department of Law; 4) by eliminating the requirement that defendants be ordered to apply for permanent fund dividend payments and the related provision allowing defendants to be prosecuted for contempt if they fail to do so; 5) by removing the process of advising the defendant of the need to repay under Rule 39 from the courtroom setting and making it a part of the post-request, out-of-court financial screening process, see Rule 39(b)(1); and 6) by providing defendants who have been informed of the duty to repay under Rule 39 the opportunity for a preliminary consultation with appointed counsel before deciding on the issue of waiving the right to appointed counsel, and by requiring that defendants be informed of this opportunity.

10373200

Joseph SONNEMAN, Appellant, v. Governor HICKEL, the State of Alaska, and other State Officers and Employees, Appellees

Sonneman v. Hickel

1992-08-14

No. S-4372

936

941

836 P.2d 936

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:26:32.809147+00:00

CAP

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

Joseph SONNEMAN, Appellant, v. Governor HICKEL, the State of Alaska, and other State Officers and Employees, Appellees.

Joseph SONNEMAN, Appellant, v. Governor HICKEL, the State of Alaska, and other State Officers and Employees, Appellees. No. S-4372. Supreme Court of Alaska. Aug. 14, 1992. Joseph A. Sonneman, pro se. Jack B. McGee, Asst. Atty. Gen., Charles E. Cole, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2893

17766

OPINION MATTHEWS, Justice. This case challenges the act which created the Alaska Marine Highway System Fund, ch. 193, § 1, SLA 1990, AS 19.65.-050-100, on the grounds that the fund is dedicated to a special purpose in violation of article IX, section 7 of the Alaska Constitution. The trial court ruled that the act was constitutional because it merely " 'allows' the legislature to appropriate funds from the fund to the Alaska Marine Highways but does not require it." We conclude that most of the act is constitutional, that the limitation on departmental power to request that the fund be appropriated for capital improvements violates article IX, section 7, and that this section is sever-able from the rest of the act. Briefly, the act establishes the Alaska Marine Highway System Fund as a special account in the general fund. AS 19.65.-060(a). The Alaska Marine Highway System, the entity responsible for the state's ferries, must deposit the gross revenue obtained from operating the ferry system into this account. The legislature "may appropriate" amounts from the fund back to the Alaska Marine Highway System. AS 19.-65.080(a). In addition, the Department of Transportation and Public Facilities (DOTPF), within which the Marine Highway System is contained, may request that the legislature appropriate money from the fund to the Marine Highway System for capital improvements if certain conditions are met. First, the legislature must have made an annual appropriation from the fund. Second, the fund, without regard to the appropriation, must exceed the total of gross revenues plus non-lapsable general fund appropriations by ten percent. Finally, the request for capital appropriations may not exceed fifty percent of the balance remaining after the annual appropriation is made. AS 19.65.080(a) & (b). The stated purposes of the fund are to "enhance performance and accountability," "provide the management tools necessary to efficiently operate" and, "within constitutional constraints, provide for a predictable funding base for system operations." AS 19.65.050(b). The legislature evidently intended that the Marine Highway System operate under constraints and incentives based partially on the revenues generated by the Marine Highway System. In order for this to work, there must be a reasonable expectation that the revenues generated by the system can be used by the system. Section 7 of article IX of the Alaska Constitution provides: "The proceeds of any state tax or license shall not be dedicated to any special purpose_" The question is whether the act violates this constitutional prohibition. The constitutional convention committee which drafted the prohibition on the dedication of funds commented that the reason for the prohibition is to preserve control of and responsibility for state spending in the legislature and the governor. Even those persons or interests who seek the dedication of revenues for their own projects will admit that the earmarking of taxes or fees for other interests is a fiscal evil. But if allocation is permitted for one interest the denial of it to another is difficult, and the more special funds are set up the more difficult it becomes to deny other requests until the point is reached where neither the governor nor the legislature has any real control over the finances of the state. In one Rocky Mountain state the legislature is free to appropriate only 17 per cent of the tax collections; the rest are dedicated. In Alaska at present, 27 per cent of territorial funds are earmarked, primarily for school construction and roads. 6 Proceedings of the Alaska Constitutional Convention (PACC) Appendix V at 111 (Dec. 16, 1955). Without earmarked funds, the constitutional framers believed that the legislature would be required to decide funding priorities annually on the merits of the various proposals presented. Delegate Barrie White, the spokesman, for the committee which drafted section 7, stated in the convention debates: [t]he Committee feels that if you accept the principle of not earmarking, it puts everyone in the same position and that the legislature will then be in the position being able to decide each case on its merits. If you go the other route and allow for earmarking or start drawing up all the exceptions that everybody would want to have drawn up, you are then back to the situation that most states now find themselves in, where an ever-increasing percentage of their revenues are earmarked for special purposes and an ever-decreasing amount is available to the general fund. 4 PACC 2364 (Jan. 17, 1956). Delegate White was then engaged in a colloquy about the appropriation of funds collected through licenses to agencies which had collected them: Delegate Gray: "It doesn't earmark it but the talking point that these organizations have for the use of this money that is rightfully theirs, why, they haven't been precluded, they just have to sell their viewpoint to the legislature and if they need the money, why they probably could get it if they could talk them into it." Delegate White: "They have to sell their viewpoint along with everybody else." Id. at 2367. The principle on which the act is based, that the administrators of the Alaska Marine Highway System and the legislature will treat the fund as if the Marine Highway System had a right to its proceeds, is inconsistent with the model contemplated by the anti-dedication clause, under which the disposition of all revenues will be decided anew on an annual basis. Nevertheless, the expectations created by the act are merely a "talking point" because they impose no legal restraint on the appropriation power of the legislature. The act clearly states that the fund is part of the general fund and it may not be spent until and unless it is appropriated by the legislature. AS 19.65.060(b). However, Sonneman argues that the act prohibits the legislature from appropriating money from the fund to government purposes other than the Marine Highway System. Although there is no explicit prohibition, Sonneman contends that there is an implicit one based on a maxim of statutory construction and on various expressions of intent found in the legislative history. The State contends that the act does not prohibit the legislature from using money in the fund for any purpose and, more generally, that the act is basically only an accounting tool designed to give a clear picture of Marine Highway System revenues to the legislature and to the Marine Highway System administrators. We turn first to Sonneman's statutory construction argument. Since the act states that "the legislature may appropriate amounts from the . fund to the . marine highway system," AS 19.65.080(a), Sonneman argues that by implication the legislature may not appropriate amounts from the fund for any other purpose. This argument is based on the maxim expressio unius est exclusio alterius, meaning the expression of one thing implies the exclusion of others. While this maxim is often a useful and logical guide to the meaning of an enactment, it does not always apply. We declined to apply it in Chevron USA, Inc. v. LeResche, 663 P.2d 923, 930-31 (Alaska 1983), finding that the limitation which would result if the maxim were utilized was contrary to the purpose of the statute. Similarly, in the present case it seems clear that the enactment was not intended to legally restrict the power of the legislature to appropriate money from the fund for any purpose. Such a restriction would amount to a dedication of the fund for a special purpose, and given the holding in Alex, the fund would be in violation of the anti-dedication clause. Alaska Statute 19.-65.060(b), however, states that nothing in the act "dedicates [Fund money] for a specific purpose." Therefore AS 19.65.080(a) is best read as not implying a prohibition on legislative appropriation of fund money to other than Marine Highway System purposes. This conclusion is bolstered by the rule of interpretation that statutes should be construed if reasonably possible so as to avoid a conclusion that they are unconstitutional. State v. Fairbanks North Star Borough, 736 P.2d 1140, 1142 (Alaska 1987). Sonneman also argues that various comments made by legislators in the process of enactment of the act indicate an intent to use fund revenues only for marine highway purposes. See AS 19.65.050(b)(1), infra note 1. While there are many such comments, there are also a number of statements that the fund would be legally unrestricted and could be appropriated by the legislature for any purpose. As noted, the act expressly states that it does not dedicate money for a specific purpose. The mixed legislative history is insufficiently persuasive to require a construction of the act at variance with its apparent plain meaning. See Alex, 646 P.2d at 208-09 n. 4 ("the plainer the language, the more convincing contrary legislative history must be"). While the act as we construe it does not restrict the authority of the legislature to appropriate money from the fund, the act is more than merely a legislatively mandated system of accounting. It does restrict executive authority to seek appropriations from the fund. See AS 19.65.080(b). This restriction on DOTPF's authority to request the appropriation of money for capital improvements violates article IX, section 7. One method of dedicating funds is to preclude the legislature from appropriating designated funds for any reason other than a designated purpose. Another less direct method would be to preclude agencies from requesting monies from designated funds or revenue sources. The constitutional clause prohibiting dedicated funds seeks to preserve an annual appropriation model which assumes that not only will the legislature remain free to appropriate all funds for any purpose on an annual basis, but that government departments will not be restricted in requesting funds from all sources. As the debates make clear, all departments were to be "in the same position" as competitors for funds with the need to "sell their viewpoint along with everyone else." 4 PACC 2364-67 (Jan. 17, 1956). We conclude therefore that the limitations on the ability of DOTPF to ask for funds from the Marine Highway System Fund expressed in AS 19.65.080(b) amount to a dedication in violation of article IX, section 7. The question which follows is whether the entire act should be declared unconstitutional or whether AS 19.65.080(b) may be severed from the rest of the act. The Alaska Statutes contain a general severability clause: Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language, "If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby." AS 01.10.030. This clause is said to create a weak presumption in favor of severability. Lynden Transport, Inc. v. State, 532 P.2d 700, 712 (Alaska 1975). "A provision will not be deemed severable 'unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.' " Id. at 713 (quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924). The key question is whether the portion remaining, once the offending portion of the statute is severed, is independent and complete in itself so that it may be presumed that the legislature would have enacted the valid parts without the invalid part. Jefferson v. State, 527 P.2d 37, 41 (Alaska 1974). In our view, the enactment in question clearly meets this test. After AS 19.65.080(b) is deleted, the remainder of the act still has the same meaning that it had with that subsection included. The deleted subsection is a minor part of the overall act and it is difficult to imagine any reason why the legislature which passed the act would not have also favored the act with .080(b) deleted. For the foregoing reasons, we affirm the judgment in part, reverse the judgment in part, and remand for entry of a judgment declaring that AS 19.65.080(b) violates article IX, section 7 of the Alaska Constitution, but the remainder of the act does not. . AS 19.65.050 provides in part: (b) It is the purpose of AS 19.65.050-19.65.-100 to (1) enable the Alaska marine highway system to manage and operate in a manner that will enhance performance and accountability by allowing the system to account for and spend its generated revenue; (2) provide the management tools necessary to efficiently operate the Alaska marine highway system; (3) within constitutional constraints, provide for a predictable funding base for system operations; and (4) provide for predictability and stability in the service level furnished to communities served by the system. AS 19.65.060 provides: (a) There is created, as a special account in the general fund, the Alaska marine highway system fund, into which shall be deposited (1) the gross revenue of the Alaska marine highway system; (2) money that is appropriated to the Alaska marine highway system fund by the legislature in an amount that is consistent from year to year and is the amount necessary . to provide stable services to the public .; and (3)any other money that is appropriated to the Alaska marine highway system fund by the legislature.... (b) Nothing in this chapter exempts money deposited into the Alaska marine highway system fund from the requirements of AS 37.07 (Executive Budget Act) or dedicates that money for a specific purpose. AS 19.65.080 provides: [0]n an annual basis and under AS 37.07 (Executive Budget Act), the legislature may appropriate amounts from the Alaska marine highway system fund to the Alaska marine highway system. (b) The Department of Transportation and Public Facilities may request the legislature to appropriate money from the Alaska marine highway system fund to the marine highway system for capital improvements, if (1) the appropriation under (a) of this section has been made; (2) the amount in the fund, without regard to the appropriation under (a) of this section, exceeds the total of gross revenue deposited in the fund and the general fund appropriations under AS 19.65.060(a)(2) by 10 percent; and (3) the amount requested for appropriation under this subsection does not exceed 50 per cent of the balance remaining after the appropriation for annual management and operations is made under (a) of this section. (c) The unexpended and unobligated balance of money appropriated from the Alaska marine highway system fund lapses into the Alaska marine highway system fund at the end of the fiscal year for which it was appropriated. . The section proceeds: "except as provided in section 15 of this article [creating the Permanent Fund] or when required by the federal government for state participation, in federal programs. This provision shall not prohibit the continuance of any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska." Alaska Const. art. IX, § 7. . Even though the revenues generated by the Marine Highway System are derived from the transportation of passengers and freight and not from state taxes or licenses as those terms are usually understood, the State does not argue that section 7 does not apply to the Marine Highway Fund. This is doubtlessly because this court in State v. Alex, 646 P.2d 203 (Alaska 1982), construed section 7 to prohibit the dedication of "any source of revenue." Id. at 210. We have no occasion to question this construction in the present case. . AS 37.07.030, which is part of the Executive Budget Act referred to in AS 19.65.060(b), requires that the legislature annually adopt a budget authorizing all proposed expenditures of the state government. Expenditures by the Marine Highway System from the Marine Highway System Fund are within this requirement. . The bill's prime sponsor testified that "[t]he intent of the bill is to allow the Marine Highway System to use the revenues it generates...." Sen. Jim Duncan, Senate Transp. Comm. Hearings on Senate Bill (SB) 428, Feb. 20, 1990, Legislative Storage and Information Retrieval System (STAIRS) No. STRA90022013 at 11. Chairman of the Senate Transportation Committee Lloyd Jones commented that he felt better about the fact that the legislature would be able to earmark the program receipts. Sen. Lloyd Jones, id. at 20. The House Finance Co-Chairman noted that the purpose of the legislation would be to create a restricted fund within the general fund. The restricted fund would originate from proceeds of the program receipts earned by the state ferry system in order to be used the following year. Rep. Ron Larson, House Fin. Comm. Hearings on House Bill (HB) 439 & SB 428, April 29, 1990, STAIRS No. HFIN90042912 at 4. . Sen. Jim Duncan, Senate Fin. Comm. Hearings on SB 428, March 8, 1990, STAIRS No. SFIN90030809 at 29; Alaska Marine Highway System Director Jim Ayers, id. at 19; Gov. Cowper's Transmittal Letter to Legislature, Jan. 24, 1990. . The other points raised on appeal by Sonne-man, including his claim under 42 U.S.C. 1983, clearly lack merit.

10361607

Gary GORDON and Melinda Gordon, Appellants, v. Ann Stoloff BROWN, Gary Brewster and Leslie Torrence, Appellees

Gordon v. Brown

1992-07-10

No. S-4351

354

358

836 P.2d 354

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:26:32.809147+00:00

CAP

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

Gary GORDON and Melinda Gordon, Appellants, v. Ann Stoloff BROWN, Gary Brewster and Leslie Torrence, Appellees.

Gary GORDON and Melinda Gordon, Appellants, v. Ann Stoloff BROWN, Gary Brewster and Leslie Torrence, Appellees. No. S-4351. Supreme Court of Alaska. July 10, 1992. Rehearing Denied Aug. 13, 1992. James A. Parrish, Parrish Law Office, APC, Fairbanks, for appellants. Fred G. Brown, Fairbanks, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2413

14607

OPINION RABINOWITZ, Chief Justice. INTRODUCTION This case concerns the interpretation of a University Heights Subdivision covenant requiring a downhill landowner to cut trees to preserve the view for the benefit of uphill neighbors. FACTS AND PROCEEDINGS The University Heights Subdivision was developed by the B.B.P. Corporation, and Joe Vogler and Doris Vogler, the corporation's sole shareholders. In approximately 1972, the original plat for the subdivision was set out. The subdivision is currently composed of eight additions which have a total of 60 or 70 lots of two to three acres in size. At purchase, each lot owner signed a deed containing twelve protective covenants. This case concerns covenants 5 and 6. In August 1984, Gary Brewster and Leslie Torrence sought to compel Gary Gordon and Melinda Gordon to cut trees on the Gordon property, based on restrictive covenants 5 and 6. Brewster and Torrence (Torrence) owned Lot 22 in the University Heights 6th addition, while the Gordons own Lot 10 in the University Heights 5th addition. Lot 10 is situated downhill to the south and west of Lot 22. At the time the parties bought their respective parcels, they signed a copy of the restrictive covenants, with which they agreed to comply. The relevant restrictive covenants provide: The following covenants are expressly agreed and accepted as a contractual consideration for this property transfer by all parties: 5. To cut and destroy all Poplar, Cottonwood, and Aspen trees. 6. To cut and or trim any tree or growth which may, by virtue of its height or its inclusion in a dense grove, unreasonably obstruct the view from the dwelling on another lot when that dwelling is situated in the North 1/3 of its lot. The slope of the lot from which the view is involved shall be considered in that the view intended by this covenant is approximately 90 degrees downhill from the general contour elevation lines of said lot. In an order dated July 3, 1986, Superior Court Judge Blair found that the protective covenants applied to all additions of the University Heights subdivision. In that same order, the court denied both parties' motions for summary judgment, reserving the issue of whether a recent attempt to repeal the restrictive covenants requiring the removal of trees was effective. The parties stipulated to a continuance of the case to allow the superior court, and later this court, to resolve the remaining issue concerning the repeal of the covenants in the related case, B.B.P. Corporation v. Carroll, 760 P.2d 519 (Alaska 1988). In B.B.P. Corporation, we held that a recent attempt to repeal the covenants was invalid because proper election procedures were not followed. Id. at 523. We further held that covenant 5 was abandoned. Id. at 524. Viewing the facts in the light most favorable to the developer, we observed that there were clearly disputed facts as to the abandonment of covenant 6 and remanded for further findings. Id. . After the decision in B.B.P. Corporation, Torrence moved again for summary judgment. Superior Court Judge Stein-kruger found that Torrence no longer owned the property and therefore under the terms of the covenant, only Ann Stoloff Brown, the new owner as of April 28, 1988, had standing to enforce the covenant. Accordingly, the superior court entered summary judgment against Torrence. Brown was made a party plaintiff given her status as the new owner of lot 22 and the litigation continued. Brown then moved for summary judgment "so as to require Defendants GORDON to cut or trim all trees which interfere with her view in looking directly out on the horizontal plane at 90 degrees from the elevation contour lines of the upper third of her lot." The Gordons opposed the motion and filed a cross-motion, arguing that Brown could not enforce the covenant because her house was not on the north one-third of her lot. The Gordons also argued that Brown's view from a horizontal plane was not obstructed and that the view at 90 degrees downhill from the contour lines was not obstructed. After a bench trial, the superior court entered a decision requiring Brown to bear the costs of establishing which trees obstruct Brown's 90 degree downhill covenant view and requiring the Gordons to cut those trees. This appeal followed. DISCUSSION Was the covenant enforceable? Covenant 6 allows the owner of an uphill lot to require a downhill lot owner to cut trees which unreasonably obstruct the view from the uphill owner's dwelling when the uphill owner's dwelling is "situated in the North 1/3 of its lot." The superior court stated that "the parties agree the dwelling is not entirely in the north one-third of its lot." The superior court found, despite the fact that Brown's house was not entirely in the northern one-third of the lot, that the covenant was enforceable because the house was built "primarily in the uphill portion or the north one-third." The in terpretation of covenant 6 is a question of law in which the court may exercise its "independent judgment to determine whether the relief granted by the superior court was proper under the established facts." Lamoreux v. Langlotz, 757 P.2d 584, 585 n. 3 (Alaska 1988) (citing Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980)). The Gordons ask the court to interpret "situated in the North 1/3 of its lot" to mean situated entirely in the north one-third. Alternatively, they argue that at least the viewing area must be situated in the north one-third. The Gordons rely on Webster's Dictionary for the following definition of "in": contained or enclosed by, inside; within; as in the room, in the envelope. Webster's New Universal Unabridged Dictionary, (2d ed. 1983). We find that the language of covenant 6 requiring the downhill lot owner to cut trees obscuring the view from the uphill dwelling "when that dwelling is situated in the north one-third of its lot" is clear and unambiguous. In Lamoreux v. Langlotz, this court summarized the principles applicable to the construction of covenants as follows: Covenants are construed to effectuate the parties' intent. Clear and unambiguous language should be accorded its plain meaning. Because restrictions are in derogation of the common law, they should not be extended by implication and doubts should be resolved in favor of the free use of land. (Citations omitted.) 757 P.2d 584, 587 (Alaska 1988). See also Lenhoff v. Birch Bay Real Estate, Inc., 22 Wash.App. 70, 587 P.2d 1087, 1089 (1978) ("in determining intent, clear and unambiguous language will be given its manifest meaning.... Restrictions being in derogation of the common-law right to use land for all lawful purposes, will not be extended by implication to include any use not clearly expressed. Doubts must be resolved in favor of the free use of land."); Greenbrier-Cloverdale Homeowners Ass'n v. Baca, 763 P.2d 1, 2 (Colo.App.1988) ("A restrictive covenant that is clear on its face should be enforced as written. Any doubts as to the meaning of a covenant should be resolved against restricting the use of the land and in favor of its free and unrestricted use."); 5 Powell on Real Property ¶ 674 n. 1 (1991) ("Words are given their plain meaning and unambiguous covenants are enforced as written.") (citations omitted). Applying these principles governing the interpretation of covenants, we hold that the Brown dwelling is not "situated in the north one-third of its lot" and, therefore, the covenant is unenforceable in this instance. Relying on B.B.P. Corporation, Brown contends that the north one-third means the upper one-third of the lot in terms of elevation. 760 P.2d at 521. Although it is undisputed that the elevation of the portion of Brown's house in the middle one-third of the lot is the same as the elevation of the portion in the upper one third, we believe this argument is without merit. In B.B.P. Corporation, this court introduced the "upper one-third" language merely to summarize covenant 6. 760 P.2d at 521. We neither reached the issue of whether "north one-third" means acreage or elevation nor intended to introduce a new requirement to covenant 6. Therefore we agree with the superior court's conclusion that the "north one-third" language applies to acreage and not to elevation. The covenant requires that the house be situated in the "north one-third" of the lot. In this context, north does not describe elevation, but rather direction. The testimony of expert witnesses Fitzgerald and Scarborough regarding surveyors' interpretations of "north one-third" buttresses the trial court's conclusion. Clearly, the house is not situated within the north one-third of the lot's acreage. Thus, we reverse the superior court's holding that this requirement was satisfied and conclude that the covenant is not enforceable by Brown. Accordingly, the decision of the superior court is REVERSED. . At trial, the parties agreed that plaintiffs Exhibit 2, drawn by expert witness Fitzgerald, was a reasonable representation of the division of the lot into thirds. . In its Decision and Order, the superior court stated: The question then arises as to whether plaintiff Ann S. Brown's house is "situated on the North one-third of its lot." The parties agree the dwelling is not entirely in the north one-third. The house is slightly over half in the north one-third. The "viewing area" of the house, which is along the front of the house facing the valley, is just outside of the north one-third, and is in the middle one-third of the lot. Applying a common meaning to the word "situated", it means site, location or place. See, e.g., Webster's New 20th Century Dictionary, Unabridged 2nd Edition (1964), Webster's New International Dictionary, Unabridged 2nd Edition (1959), and Webster's Third New International Dictionary, Unabridged (1966). This court finds a reasonable interpretation of "situated" should be applied to the facts set forth in Exhibit 2. This court finds a reasonable interpretation of "situated" as applied to the location of the house depicted in Exhibit 2 is that Brown's house is sufficiently located in the north one-third of Lot 22 to invoke covenant 6. In other words, the house is situated primarily, if not wholly, within the north one-third of the lot. Reading the entire instrument along with the surrounding circumstances described by Mr. Vogler convinces this court, by a preponderance of the evidence, of an intent to provide uphill land owners with a view, so long as they build primarily in the uphill portion or the north one-third or the upper one-third of their lot. Ann Brown's house is primarily on the north or upper one-third of her lot. Accordingly, Ms. Brown is entitled to enforce the covenant. Nevertheless, the court makes a clear finding that the house if [sic.] not entirely in the north one-third of her lot. Should a higher court find that "situated in the North one-third" means entirely within the north one-third, then, Brown has no right to enforce the covenant. . Alternatively, Brown submits that she is entitled to a view from her den because it is undisputed that a portion of the den is located within the north one-third of the lot, although the viewing windows are in the middle one-third. This claim is without merit because the covenant clearly requires the dwelling, not just a portion of the viewing area, to be situated in the north one-third of the lot. . The Gordons argue that the covenant is not enforceable by Brown because she and the Gor-dons live in different additions of the University West Subdivision. They also submit that the trial court erred in admitting evidence of subjective intent, particularly in the testimony of Joe Vogler. Both parties challenge the superior court's interpretation of the view provided by the covenant. Our holding that the house is not situated in the north one-third of the lot makes it unnecessary to address the other arguments which have been raised by the parties in this appeal.

10373484

Joseph J. HAZELWOOD, Appellant, v. STATE of Alaska, Appellee

Hazelwood v. State

1992-07-10

No. 1232

943

954

836 P.2d 943

836

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:26:32.809147+00:00

CAP

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

Joseph J. HAZELWOOD, Appellant, v. STATE of Alaska, Appellee.

Joseph J. HAZELWOOD, Appellant, v. STATE of Alaska, Appellee. No. 1232. Court of Appeals of Alaska. July 10, 1992. Rehearing Denied Aug. 25, 1992. Richard H. Friedman and Jeffrey K. Rubin, Friedman and Rubin, Anchorage, Michael G. Chalos and Thomas Russo, Cha-los, English & Brown, New York City and Dick L. Madson, Fairbanks, for appellant. Samuel D. Adams, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS, J. and HODGES, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

7266

45563

OPINION BRYNER, Chief Judge. Joseph J. Hazelwood was convicted by a jury of negligent discharge of oil, a misdemeanor. See AS 46.03.740 and .790(a)(1). Superior Court Judge Karl S. Johnstone sentenced Hazelwood to ninety days in jail and a $1000 fine, suspending both on condition that Hazelwood complete one year of probation, perform 1000 hours of community work, and pay $50,000 in restitution. Hazelwood appeals, contending that the trial court erred in denying his motion to dismiss on grounds of immunity, in failing to suppress certain evidence of intoxication, and in instructing the jury on the applicable culpable mental state for his offense. Hazelwood also appeals his sentence. Because we find Hazelwood's prosecution to have been barred by immunity, we reverse his conviction. FACTS Shortly after midnight on March 24, 1989, the Exxon Valdez, an oil tanker operated by the Exxon Shipping Company, ran aground on Bligh Reef, spilling eleven million gallons of oil into Prince William Sound. Hazelwood, the vessel's captain, was in his cabin; he had turned the helm over to Third Mate Gregory Cousins a short time earlier. Cousins immediately summoned Hazelwood to the bridge. Approximately twenty minutes after the grounding, Hazelwood reported the incident by radio to the Coast Guard Traffic Center in Valdez, stating: Ah, it's Valdez back. Ah, we've — ah, should be on your radar there — we've fetched up, ah, hard aground north of,' ah, Goose Island off Bligh Reef. And, ah, evidently, ah, leaking some oil, and, ah, we're going to be here for awhile. And, ah, if you want, ah, so you re notified. Over. Hazelwood's report sparked an immediate investigation by federal and state officials; the investigation yielded evidence that eventually led the state to indict Ha-zelwood for reckless endangerment, operating a watercraft while intoxicated, and negligent discharge of oil. Hazelwood moved to dismiss the charges, contending, among other things, that he was immune from prosecution because he had immediately reported the Exxon Valdez's grounding and its discharge of oil to the Coast Guard, in compliance with Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1321. Paragraph (b)(5) of this statute requires "Any person in charge of a vessel" such as the Exxon Valdez to notify the government immediately of "any discharge of oil or a hazardous substance from such vessel"; the paragraph goes on to confer immunity on any person who complies with this requirement: Notification 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. Id. In moving to dismiss on grounds of immunity, Hazelwood argued that he had complied with the federal statute's immediate notice requirement by calling the Coast Guard on the radio to report that the Exxon Valdez was aground and leaking oil. Hazelwood asserted that the statutory grant of immunity was applicable to his case because his report to the Coast Guard had directly triggered the government's investigation of the spill, and because the state had gathered its evidence against him in the course of that investigation. Hazel-wood maintained that his prosecution was therefore based on "information obtained by the exploitation of such notification," in violation of 33 U.S.C. § 1321(b)(5). To support his motion to dismiss, Hazelwood submitted an affidavit stating that, when he called the Coast Guard to notify it of the spill, he was aware such notice was required under 33 U.S.C. § 1321(b)(5), and he believed that he could not be prosecuted for the spill if he reported it. The state did not dispute Hazelwood's claim of compliance with the immediate notice requirement of 33 U.S.C. § 1321(b)(5), nor did the state dispute that its evidence derived from the investigation triggered by Hazelwood's call to the Coast Guard. The state nevertheless asserted two alternative grounds for rejection of Hazelwood's claim of immunity: the independent source rule and the inevitable discovery doctrine. Following an evidentiary hearing, Judge Johnstone adopted the state's immunity argument, finding both the independent source rule and the inevitable discovery doctrine applicable to Ha-zelwood's case. Accordingly, Judge John-stone denied Hazelwood's motion to dismiss. DISCUSSION On appeal, Hazelwood argues that Judge Johnstone erred in invoking the independent source rule and the inevitable discovery doctrine to nullify the grant of im munity set out in 33 U.S.C. § 1321(b)(5). Renewing the arguments it raised below, the state contends that Judge Johnstone properly decided the issue. In resolving the parties' arguments, we will separately consider the two theories relied on by the superior court, turning first to the independent source rule and then to the inevitable discovery doctrine. A. Independent Source Rule The independent source rule is intrinsically related to the concept of use and derivative use immunity. The fifth amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." Despite this constitutional command, it is well-settled that the government may compel a person to furnish potentially incriminatory testimony or information in exchange for immunity from future prosecution. See State v. Gonzalez, 825 P.2d 920, 923 (Alaska App.1992). In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the United States Supreme Court held that the demands of the fifth amendment can be satisfied by "use and derivative use immunity" — a form of immunity prohibiting the use of immunized testimony or any information derived therefrom against the witness from whom it was compelled. Since this form of immunity protects only against the use of compelled testimony and information derived therefrom, it does not categorically bar the state from prosecuting an immunized witness for crimes as to which the witness was compelled to testify; the state remains free to prosecute if it possesses evidence from an "independent source," that is, a source entirely untainted by the compelled testimony. To protect against any infringement of the accused's constitutional privilege against self-incrimination in such cases, however, the law imposes on the state the burden of proving the source of its evidence. Under the independent source rule, "[o]nce immunity is shown, the prosecutor has the burden of demonstrating that its use of the immunized testimony has not tainted any aspect of the case." United States v. De Diego, 511 F.2d 818, 821 (D.C.Cir.1975), quoted in United States v. North, 910 F.2d 843, 865 (D.C.Cir.1990). To meet its burden, "the State must prove that [its] . evidence was developed or obtained from sources or by means entirely independent of and unrelated to the earlier compelled testimony." State v. Strong, 110 N.J. 583, 542 A.2d 866, 872 (1988). This burden of proof . is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Kastigar v. United States, 406 U.S. at 460, 92 S.Ct. at 1665. Because the government always bears the burden of affirmatively proving a wholly independent source, courts "may not infer findings favorable to the government." United States v. North, 910 F.2d at 867. See also United States v. Rinaldi, 808 F.2d 1579, 1583-84 (D.C.Cir.1987). We must assess the superior court's reliance on the independent source rule in light of these principles. It is undisputed here that the applicable federal statute, 33 U.S.C. § 1321(b)(5), confers use and derivative use immunity on any person who complies with its mandate to provide the government with immediate notice of any discharge of oil. It is further undisputed that Hazelwood, as captain of the Exxon Valdez, became obligated to provide notice under this statute when his ship ran aground and began to discharge oil into the waters of Prince William Sound. Additionally, as we have previously indicated, the state has acknowledged that Hazelwood's radio communication to the Coast Guard complied with the immediate notice requirement and that virtually all of its evidence against Hazelwood actually derived from Hazelwood's report. Under the circumstances, Hazelwood plainly made a threshold showing that his report to the Coast Guard fell within the federal statute's immunity provision; the state thus bore the burden of affirmatively proving an independent source for its evidence. In advancing its independent source theory, the state relied primarily on a regulation dealing with the reporting of marine casualties. Under 46 CFR § 4.05-1, "The owner, agent, master or person in charge of a vessel involved in a marine casualty" must "give notice as soon as possible" to the Coast Guard if the casualty creates an environmental hazard (46 CFR § 4.05-l(a)), adversely affects the vessel's seaworthiness (46 CFR § 4.05 — 1(c)), or results in property damage of more than $25,000 (46 CFR § 4.05-l(f)). This regulation is part of a larger regulatory scheme promulgated "to increase the likelihood of timely assistance to vessels in distress." 46 CFR § 4.01-1. Its immediate notice provision deals only with marine casualties and is unrelated to the statutory provision upon which Hazelwood bases his claim of immunity — 33 U.S.C. § 1321(b)(5) — which deals with reports of oil spills. Unlike the immediate notice provision of the oil spill statute, the marine casualty regulation does not build in a grant of immunity. Based on the marine casualty regulation, the state argued below that, upon grounding the Exxon Valdez, Hazelwood incurred two separate legal duties. According to the state, the first duty arose under the oil spill statute, 33 U.S.C. § 1321(b)(5). The state asserted that Hazelwood's only duty under this provision was to report that the Exxon Valdez was discharging oil into the water; he was under no obligation to report the grounding of his vessel. In the state's view, a second, separate duty arose under the marine casualty regulation, 46 CFR § 4.05-1, which, according to the state, was the only provision requiring Ha-zelwood to report that his vessel had run aground and was damaged. Having erected this dichotomy between the requirements of the oil spill statute and the marine casualty regulation, the state focused on the words Hazelwood spoke to the Coast Guard immediately following the grounding of his vessel: "[W]e've fetched up . hard aground north of . Goose Island off Bligh Reef. And, . evidently, . [we're] leaking some oil, and . we're going to be here for awhile." The state urged Judge Johnstone to construe this radio message as embodying two distinct and wholly independent reports — one providing notice of the oil spill, in compliance with 83 U.S.C. § 1321(b)(5), and the other giving notice of the grounding of the Exxon Valdez, as required by 46 CFR § 4.05-1. The state argued that, since Hazelwood's obligation to report the grounding of his vessel had arisen only under the marine casualty regulation, which did not provide for immunity, his statement, "we've fetched up hard aground," amounted to a source of evidence that was wholly independent of his statement, "evidently, [we're] leaking some oil," which the state conceded to be covered by the immunity clause of the oil spill reporting statute. At the evidentiary hearing before the superior court, the state supported its independent source argument by presenting testimony indicating that the official investigation of the Exxon Valdez incident was prompted by the vessel's grounding as well as by its discharge of oil. According to the state's witnesses, the investigation would have been no different had Hazelwood reported only the grounding. On this basis, the state asserted that its evidence against Hazelwood actually derived from two wholly independent sources, one of which — the report of the grounding — was not subject to any claim of immunity. Judge Johnstone accepted the state's argument, finding, in relevant part: [T]he defendant's initial report of a grounding constitutes an independent source for the information-gathering process and that all information gathered, except for the defendant's report of the spill itself, is otherwise from a source wholly independent from his protected report. On appeal, the state argues that this finding should be upheld. However, the state's independent source argument is both legally and factually flawed. In the abstract, the legal theory underlying the state's independent source argument is plausible. One who reports information to the government gratuitously, being under no obligation to do so, cannot later claim that the information was compelled in violation of the privilege against self-incrimination. For precisely this reason, this court has previously recognized that a person who submits a report to the state in response to a statutory reporting requirement cannot later invoke the privilege against self-incrimination to the extent that the facts included in the report went beyond the scope required by the statute. Creary v. State, 663 P.2d 226, 229-30 (Alaska App.1983). In the present case, if 33 U.S.C. § 1321(b)(5) required Hazelwood to report only the fact that the Exxon Valdez was discharging oil, then his statement that the vessel was grounded might be viewed as a gratuitous one. To the extent this statement went beyond the scope of the reporting requirement, the statutory promise of immunity arguably did not attach to it. While this legal theory is potentially meritorious in the abstract, its viability depends entirely on the premise that, under the oil spill notice statute, Hazelwood had no duty to report his ship's grounding but was required only to report its discharge of oil. This premise, which the state convinced the superior court to accept, is incorrect as a matter of law. The language of 33 U.S.C. § 1321(b)(5) does not itself specify what information the captain of a vessel must give in providing notice of a discharge of oil. However, the Department of Transportation has implemented the statutory reporting requirement through regulations commanding notice of details beyond the mere fact of a discharge. The provisions of 33 CFR § 153.203 were specifically promulgated to deal with spills covered under 33 U.S.C. § 1321(b)(5). The regulation echoes the statute's notice requirement, providing that the captain of a vessel discharging oil must immediately notify the Coast Guard. A related regulation, 33 CFR § 151.15, spells out the information that must be reported for spills involving several categories of noxious liquid substances. This regulation requires the captain of a vessel such as the Exxon Valdez to notify the Coast Guard of an incident involving the unauthorized discharge of a noxious liquid substance. Paragraph (a) of the regulation requires the report to include "the particulars of such incident . to the fullest extent possible in accordance with the provisions of this section." Paragraph (f) goes further, specifying the particulars that a report must contain: (f) Each report shall contain— (1) The identity of the ship; (2) The time and date of the occurrence of the incident; (3) The geographic position of the ship when the incident occurred; (4) The wind and sea condition prevailing at the time of the incident; (5) Relevant details respecting the condition of the ship; and (6) A statement or estimate of the quantity of oil or oily mixtures discharged or likely to be discharged into the sea. [Emphasis added.] Then, in paragraph (h), the regulation makes it clear that its reporting requirements apply specifically to reports of oil spills filed in accordance with 33 CFR § 153.203 — the regulation implementing the oil spill notice requirement of 33 U.S.C. § 1321(b)(5): "A report made under this section will satisfy the reporting requirement of § 153.203 of this chapter." Given this provision, the conclusion seems inescapable that 33 CFR § 151.15 applied to Hazelwood's report of an oil spill. In seeking to comply with the immediate notice requirement of 33 U.S.C. § 1321(b)(5) by informing the Coast Guard that the Exxon Valdez was discharging oil, Hazelwood had a duty, under 33 CFR § 151.15(f)(5), to report all "[rjelevant details respecting the condition of the ship." His obligation thus went beyond the mere duty to report a discharge of oil; it also included the duty to report that his ship was grounded. Because information concerning the grounding constituted an integral part of the notice required under 33 U.S.C. § 1321(b)(5), Hazelwood's report of the grounding fell within that statute's immunity provision, just as his report of the spill itself did. From the record it appears that the regulations implementing 33 U.S.C. § 1321(b)(5) were never called to Judge Johnstone's attention. In light of these regulations, the superior court's finding of an independent source must be deemed incorrect as a matter of law. Hazelwood may well have been legally obligated to report the grounding of the Exxon Valdez under two distinct regulatory schemes, one providing for immunity (33 U.S.C. § 1321(b)(5) and 33 CFR § 151.15(f)(5)), and the other, not (46 CFR § 4.05-1). Given the coextensive nature of these two reporting requirements, however, the most that can be said is that they amounted to wholly interdependent, not wholly independent, sources of the state's evidence. Under the circumstances, the trial court was clearly erroneous in finding that the state had met its burden of proving the existence of an independent source. B. Inevitable Discovery Doctrine Since we conclude that the superior court's application of the independent source rule cannot be sustained, we must next turn to its reliance on the inevitable discovery doctrine. This doctrine, fashioned by courts as an exception to the exclusionary rule in cases involving illegally obtained evidence, is in effect a hypothetical variation upon the independent source rule: courts have applied the doctrine to avoid suppressing illegally obtained evidence when the prosecution has demonstrated that, although its evidence actually derived from a source tainted by illegality, the same evidence would inevitably have been discovered through lawful, untainted means had the illegality not occurred. See generally W.R. LaFave, Search and Seizure, § 11.-4(a) at 378-88 (2d ed. 1987). The inevitable discovery doctrine was formally recognized by the United States Supreme Court under federal constitutional law in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Although most jurisdictions considering the doctrine have adopted it, Nix v. Williams, 467 U.S. at 440-41, 104 S.Ct. at 2507-08, courts differ as to its precise implementation. Compare, e.g., United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), with United States v. Ramirez-Sandoval, 872 F.2d 1392 (9th Cir.1989). In several previous decisions, we have noted the doctrine, but we have never been called upon to adopt it as a matter of Alaska law. See, e.g., State v. Lewis, 809 P.2d 925, 930 n. 3 (Alaska App.1991); Ricks v. State, 771 P.2d 1364, 1369 n. 3 (Alaska App.1989), modified on other grounds, State v. Ricks, 816 P.2d 125 (Alaska 1991); Krukoff v. State, 702 P.2d 664, 666 n. 2 (Alaska App.1985). 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 Hazelwood 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. For present purposes, we may assume that the inevitable discovery doctrine would be adopted in Alaska in appropriate cases and that Judge Johnstone's factual findings concerning the inevitability of the Exxon Valdez's discovery are supported by the record. Application of the inevitable discovery doctrine in this case is nevertheless problematic. In its original context — situations involving police misconduct — the inevitable discovery doctrine serves the salutary purpose of tempering the exclusionary rule. The exclusionary rule requires suppression of illegally obtained evidence and all fruits thereof; its primary purpose is to deter official lawlessness: As the Supreme Court explained in Nix v. Williams, the inevitable discovery doctrine is . intended to ensure that suppression does not outrun the deterrence objective [of the exclusionary rule]: the prosecution is neither "put in a better position than it would have been if no illegality had transpired" nor "put in a worse position simply because of some earlier police error or misconduct." W.R. LaFave, Search and Seizure § 11.-4(a), at 381 (2d ed. 1987) (footnotes omitted). The exclusionary rule and the inevitable discovery doctrine work in tandem to strike a balance between the need for deterrence of official misconduct, on the one hand, and the need to protect the state's legitimate interest in using reliable evidence of crime, on the other; the purpose of this balance is "to mark 'the point of diminishing returns of the deterrence principle.'" Id. at 373, quoting Amsterdam, Search, Seizure, and Section 2255: a Comment, 112 U.Pa. L.Rev. 378, 389 (1964). By contrast, a different principle is at work in the immunity context. Evidence is not unlawfully obtained when an individual provides information to the government under a grant of immunity. Hence, the exclusion of information that derives from immunized testimony is unrelated to deterrence of official misconduct; rather, exclusion occurs for the direct purpose of enforcing the government's assurance that no statement given under immunity, and no evidence derived therefrom (or, in the words of 33 U.S.C. § 1321(b)(5), no "information obtained by exploitation of" an immunized report) will be used against the person who was compelled to give the statement. The manner in which a promise of immunity operates reflects the dual nature of the privilege against self-incrimination: The constitutional privilege against self-incrimination has two primary inter related facets: The Government may not use compulsion to elicit self-incriminating statements, . and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 57 n. 6, 84 S.Ct. 1594, 1598 n. 6, 12 L.Ed.2d 678 (1964). Because the ultimate aim of the constitutional privilege is to assure that no compelled statement will be used against the accused in a criminal case, the Supreme Court has long recognized that the first facet of the privilege — its protection against compulsory elicitation of potentially incriminating statements — may be properly invaded by the government, but only in exchange for a guarantee that the second facet of the privilege — the use of compelled statements or evidence derived therefrom — will not be breached. See Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). Thus, the exclusion of evidence in the immunity context is directly necessary to uphold the second facet of the constitutional privilege, a facet the government specifically promises to enforce in exchange for the opportunity to compel the disclosure of potentially incriminating information. The differing roles played by the exclusionary rule in cases involving illegally obtained evidence and cases of immunity— deterrence, on the one hand, and enforcement of the constitutional privilege itself, on the other — are of critical importance in determining whether the inevitable discovery doctrine should apply in the immunity context: Evidence obtained through a coercive interrogation, like evidence obtained through an illegal search, is excluded at trial because the Constitution prohibits such methods of gathering evidence. The exclusionary rules provide a partial and inadequate remedy to some victims of illegal police conduct, and a similarly partial and inadequate deterrent to police officers. An immunity statute, on the other hand, is much more ambitious than any exclusionary rule. It does not merely attempt to provide a remedy for past police misconduct, which never should have occurred. An immunity statute operates in advance of the event, and it authorizes — even encourages — interrogation that would otherwise be prohibited by the Fifth Amendment.... [BJecause an immunity statute gives constitutional approval to the resulting interrogation, the government is under an obligation . to remove the danger of incrimination completely and absolutely, whereas in the case of the exclusionary rules it may be sufficient to shield the witness from the fruits of the illegal search or interrogation in a partial and reasonably adequate manner.... The Constitution does not authorize police officers to coerce confessions or to invade privacy without cause, so long as no use is made of the evidence they obtain. But . the Constitution does authorize the government to compel a witness to give potentially incriminating testimony, so long as no incriminating use is made of the resulting evidence. Before the government puts its seal of approval on such an interrogation, it must provide an absolutely reliable guarantee that it will not use the testimony in any way at all in aid of prosecution of the witness. Kastigar v. United States, 406 U.S. at 470-71, 92 S.Ct. at 1669-70 (Marshall, J., dissenting). In view of these differences, the United States Supreme Court has been careful to distinguish between the "balancing of interests . thought to be necessary . when the attempt to deter unlawful police conduct" is involved, New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979), and the less flexible approach toward excluding evidence that is necessary in immunity cases: Testimony given in response to a grant of legislative immunity is the essence of coerced testimony_ Here, . we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible. Id. (emphasis added). Cf. United States v. North, 910 F.2d at 868-71 (distinguishing, on similar grounds, the rule prohibiting challenge to federal indictments based on use of illegally obtained evidence before the grand jury from the rule allowing challenges to indictments obtained through use of immunized testimony or the fruits thereof). These fundamental differences between the exclusion of evidence in cases of illegally obtained evidence and cases of evidence derived from immunized information lead us to conclude 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. The use of inevitable discovery in this context would be directly contrary to the express protection of the privilege against self-incrimination. Such use of the doctrine would also be virtually unprecedented. Although courts applying the inevitable discovery doctrine in cases involving police misconduct have not distinguished between evidence obtained in violation of the fourth, fifth and sixth amendments, see, e.g., United States v. Martinez-Gallegos, 807 F.2d 868 (9th Cir.1987), the state has cited no case in which the doctrine has been applied in the immunity context; after independent effort, we have found none. There is, moreover, an element of basic fairness to be considered in determining whether the inevitable discovery doctrine should apply in the context of immunity. A grant of immunity is essentially a contract in which the government bargains for information in return for an assurance of future protection. Here, the superior court found, and the state has effectively conceded, that the evidence against Hazelwood was in fact obtained "by the exploitation of" Hazelwood's report that the Exxon Valdez ran aground and was leaking oil. 33 U.S.C. § 1321(b)(5). Although the state, by invoking the inevitable discovery doctrine, seeks dispensation from the promise of immunity expressly made in the federal statute, it is difficult to see how such dispensation can be justified. Having gained its evidence from the exploitation of information it obtained by a promise of immunity, the state should not be free to renege merely because, in retrospect, the promise appears to have been unnecessary. Cf. Closson v. State, 812 P.2d 966, 974-75 (Alaska 1991). On a more practical level, applying the inevitable discovery doctrine in this context would also run afoul of Congress' determination that public policy justifies the granting of immunity in cases such as this. The congressional purpose in granting immunity for the immediate report of a spill was to encourage prompt notice in as many eases as possible, so that abatement efforts could be undertaken without unnecessary delay, and so that the government would become aware of smaller spills that might otherwise go undetected. See, e.g., United States v. Mobil Oil Corporation, 464 F.2d 1124 (5th Cir.1972). Adding an exception to the congressional grant of immunity for cases in which a finding of inevitable discovery could eventually be made would unquestionably frustrate the congressional purpose of encouraging prompt notice in all cases. Such an exception would discourage compliance by persons who potentially stood to incriminate themselves, particularly in cases where the size of the discharge made it predictable at the outset that the inevitable discovery doctrine would preclude any subsequent claim of immunity. Finally, assuming the doctrine of inevitable discovery could be applied in the immunity context without violence to the constitutional privilege against self-incrimination, the question would still remain as to who should apply the doctrine. In cases involving illegally obtained evidence, the inevitable discovery doctrine operates as a judicially created exception to the judicially created exclusionary rule. In the context of a judicially created rule, the appropriateness of a judicially fashioned limitation seems self-evident. In contrast, we deal here with a congressionally enacted grant of immunity which, on its face, seems unconditional. While Congress could have readily carved out an exception to the immunity clause of the oil spill notice statute for cases in which spills would inevitably have been discovered, it did not do so. The power of a court, especially a state court, to engraft such an exception onto a federal statute that provides for none is open to serious doubt, particularly in the immunity context. If an exception to the congressional grant of immunity is to be made in this case, we think it clear that Congress is the only body to make it. "It is not for us to add to the legislation what Congress pretermitted." United States v. Monia, 317 U.S. 424, 430, 63 S.Ct. 409, 412, 87 L.Ed. 376 (1943). We conclude that the inevitable discovery doctrine, like the independent source rule, is inapplicable in this case. Because the superior court erred in applying both the independent source rule and the inevitable discovery doctrine, Hazelwood's conviction must be reversed. Lest our insistence on this outcome be mistaken for enthusiasm, we add several words. The unparalleled environmental devastation wrought by the grounding of the Exxon Valdez is hardly lost upon this court. But while we may feel sorely tempted, as individuals, to recast the law in a mold better suited to our personal sense of justice, we are bound, as judges, to resist this temptation: our sworn duty is to uphold the law as it is, not as we would have it be. We are free to question the wisdom of Congress; we are not free to change the laws it enacts. What the law requires in this case is clear, and leaves little room for our own personal preferences. Congress has barred prosecution in this case because the state obtained its evidence by the exploitation of Hazelwood's report of an oil spill. The federal statute's prescription of immunity will undoubtedly be a bitter pill for many Alaskans to swallow; dismissing the charges in this case in order to protect Hazelwood from conviction based on the use of tainted evidence may seem a cure far worse than the disease. Yet, by requiring immunity today, the federal statute encourages immediate reporting in the event of a spill tomorrow. If this encouragement averts catastrophic environmental losses in future incidents, then Congress' decision to favor immunity over prosecution may, in the long run, prove to be a wise one. It is not for this court to say otherwise. The judgment of conviction in this case must be REVERSED. MANNHEIMER, J., not participating. . Our holding on the immunity issue makes it unnecessary to address the other issues Hazel-wood has raised on appeal. . In its entirety, 33 U.S.C. § 1321(b)(5) states: 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 (A) in charge of a vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of this subsection, or (B) in charge of a vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(ii) of this subsection and who is otherwise subject to the jurisdiction of the United States at the time of the discharge, or (C) in charge of an onshore facility or an offshore facility, 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. Notification 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 cáse, except a prosecution for perjury or for giving a false statement. . In State v. Gonzalez, 825 P.2d 920 (Alaska App.1992), we held a broader form of immunity — transactional immunity — to be the minimal level of protection necessary to satisfy the requirements of the Alaska Constitution's privilege against self-incrimination. Alaska Const., art. I, § 9. In the present case, 33 U.S.C. § 1321(b)(5) conferred use and derivative use immunity rather than transactional immunity. Notwithstanding the limited scope of immunity offered under the federal statute, Hazelwood complied with its immediate notice requirement and did not attempt to invoke his privilege against self-incrimination. On appeal, Hazelwood has not argued that the statutory grant of immunity was deficient. Given these circumstances, we need not consider or decide any issue involving the adequacy of use and derivative use immunity in this case. . The full text of 46 CFR § 4.05-1 is as follows: Notice of marine casualty. The owner, agent, master or person in charge of a vessel involved in a marine casualty shall give notice as soon as possible to the nearest Coast Guard Marine Safety or Marine Inspection Office whenever the casualty involves any of the following: (a) All accidental groundings and any intentional grounding which also meets any of the other reporting criteria or creates a hazard to navigation, the environment, or the safety of the vessel; (b) Loss of main propulsion or primary steering, or any associated component or control system, the loss of which causes a reduction of the maneuvering capabilities of the vessel. Loss means that systems, component parts, sub-systems, or control systems do not perform the specified or required function; (c) An occurrence materially and adversely affecting the vessel's seaworthiness or fitness for service or route, including but not limited to fire, flooding, or failure or damage to fixed fire extinguishing systems, lifesaving equipment, auxiliary power generating equipment, or bilge pumping systems; (d) Loss of life; (e) Injury which requires professional medical treatment beyond first aid and, in the case of a person engaged or employed on board a vessel in commercial service, which renders the individual unfit to perform routine vessel duties; (f) An occurrence not meeting any of the above criteria but resulting in damage to property in excess of $25,000. Damage cost includes the cost of labor and material to restore the property to the service condition which existed prior to the casualty, but does not include the cost of salvage, cleaning, gas freeing, drydocking or demurrage. . 33 CFR § 153.203 states: Procedure for the notice of discharge. Any person in charge of a vessel or of an onshore or offshore facility shall, as soon as they have knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of section 311(b)(3) of the Act, immediately notify the National Response Center (NRC), U.S. Coast Guard, 2100 Second Street, SW., Washington, DC 20593, toll free telephone number 800-424-8802 (in Washington, DC metropolitan area, (202) 267-2675). If direct reporting to the NRC is not practicable, reports may be made to the Coast Guard or EPA predesignated OSC for the geographic area where the discharge occurs. All such reports shall be promptly relayed to the NRC. If it is not possible to notify the NRC or the predesignated OSC immediately, reports may be made immediately to the nearest Coast' Guard unit, provided that the person in charge of the vessel or onshore or offshore facility notifies the NRC as soon as possible. . The full text of 33 CFR § 151.15 is as follows: Reporting Requirements. (a) The Master or other person having charge of a ship involved in an incident referred to in paragraph (e) of this section, shall report the particulars of such incident without delay and to the fullest extent possible in accordance with the provisions of this section. (b) In the event of the ship referred to in paragraph (a) of this section being abandoned, or in the event of a report from such ship being incomplete or unobtainable, the owner, charterer, manager or operator of the ship, or their agents shall, to the fullest extent possible assume the obligations placed upon the Master or other person having charge of the ship under the provisions of this section. (c) Each report shall be made by radio whenever possible, but in any case by the fastest available means at the time the report is made. (d) Reports shall be directed to the appropriate officer or agency of the government of the country in whose waters the incident occurs. Additionally, for incidents involving U.S. ships, the reports shall be directed to either the nearest Coast Guard Captain of the Port (COTP) or to the National Response Center (NRC), toll free telephone number 800-424-8802, telex number 892427. (e) The report shall be made whenever an incident involves— (1) A discharge other than as permitted under this part; or (2) A discharge permitted under this part by virtue of the fact that— (i) It is for the purpose of securing the safety of a ship or saving life at sea; or (ii) It results from damage to the ship or its equipment; or (3) The probability of a discharge referred to in paragraphs (e)(1) or (e)(2) of this section. (f) Each report shall contain— (1) The identity of the ship; (2) The time and date of the occurrence of the incident; (3) The geographic position of the ship when the incident occurred; (4) The wind and sea condition prevailing at the time of the incident; (5) Relevant details respecting the condition of the ship; and (6) A statement or estimate of the quantity of oil or oily mixtures discharged or likely to be discharged into the sea. (g) Each person who is obligated under the provisions of this section to send a report shall— (1) Supplement the initial report, as necessary, with information concerning further developments; and (2) Comply as fully as possible with requests from affected countries for additional information concerning the incident. (h) A report made under this section will satisfy the reporting requirement of § 153.203 of this chapter. . Furthermore, even if the state were not mistaken in asserting that the marine casualty regulation and the oil spill statute embody two mutually exclusive reporting requirements, the record in the present case would still fail to support application of the independent source rule. As we have already indicated, to comply with the requirements of the independent source rule, the state bore the burden of proving that its evidence was actually — not theoretically — derived from a source wholly independent of Hazelwood's immunized report that his vessel was discharging oil. This burden could be satisfied only by affirmative proof establishing the legitimate source from which the state actually obtained its evidence. Kastigar v. United States, 406 U.S. 441, 461-62, 92 S.Ct. 1653, 1665-66, 32 L.Ed.2d 212 (1972). It could not be met by proof of a hypothetical source from which untainted information might have been gained. The superior court was not permitted to infer facts favorable to the prosecution. United States v. Rinaldi, 808 F.2d 1579, 1583-84 (D.C.Cir.1987). Here, the only evidence in the record tending to establish Hazelwood's purpose in contacting the Coast Guard is his own, uncontroverted affidavit. In the affidavit, Hazelwood swore that he reported that the Exxon Valdez was aground and leaking oil in order to comply with the requirements of 33 U.S.C. § 1321(b)(5); he indicated that he believed this report would entitle him to immunity. There is simply no evidence in the record to support a factual finding that Hazelwood actually reported the grounding to comply with the marine casualty regulation; consequently, there is no evidentiary basis for finding the actual existence of an independent source for the state's evidence. . In this regard, it is worth mentioning that the superior court appears to have been under the impression that section 311(b) of the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1321(b), was meant to apply primarily to spills involving small quantities of oil and hazardous substances. The legislative history of the provision belies this interpretation. Although the provision was unquestionably meant to apply to small spills of hazardous substances that might otherwise go undetected, it was also unquestionably meant to apply to large spills, the immediate notice of which was deemed necessary to assure that abatement efforts could begin promptly. See Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, Senate Report 92-414, 1972 U.S.C.C.A.N. 3668, 3731-33. . A conclusion that the inevitable discovery doctrine would be constitutionally permissible in the immunity context would not be determinative of whether the doctrine should in fact be applied to statutory grants of immunity, since Congress may elect to confer immunity in exchange for information even when that immunity is not strictly necessary. Because 33 U.S.C. § 1321(b)(5) is congressionally enacted, its grant of immunity is not necessarily limited in scope to cases in which the constitutional privilege against self-incrimination would attach. Federal cases have held that, given the statute's underlying purpose of fostering compliance with the requirement of immediate notice, its provision for immunity extends even when a corporate entity, to which the fifth amendment privilege does not extend, complies. See United States v. Republic Steel Corp., 491 F.2d 315 (6th Cir.1974); United States v. Mobil Oil Corp., 464 F.2d 1124 (5th Cir.1972). These cases make it clear that the issue of whether the inevitable discovery doctrine should be applied in the case of a statutory grant of immunity is distinct from the issue of whether the doctrine is constitutionally permissible in such a case.

10582222

STATE of Alaska, DEPARTMENT OF HIGHWAYS, Appellant, v. Warren CROSBY and Kathryn Crosby, Appellees

State, Department of Highways v. Crosby

1966-02-03

No. 584

724

731

410 P.2d 724

410

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:28:50.649849+00:00

CAP

Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

STATE of Alaska, DEPARTMENT OF HIGHWAYS, Appellant, v. Warren CROSBY and Kathryn Crosby, Appellees.

STATE of Alaska, DEPARTMENT OF HIGHWAYS, Appellant, v. Warren CROSBY and Kathryn Crosby, Appellees. No. 584. Supreme Court of Alaska. Feb. 3, 1966. Warren C. Clover, Atty. Gen., Juneau, Mary Frank LaFollette and Donald E. Strouse, Asst. Attys. Gen., Anchorage, for appellant. M. Ashley Dickerson, Anchorage, for appellees. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

4551

27280

DIMOND, Justice. The appellees own real property which their grantor obtained by patent from the United States. The patent provided that the grant of the property was subject to [ T]he reservation of a right-of-way for roads, roadways, highways, tramways, trails, bridges, and appurtenant structures constructed or to be constructed by or under authority of the United States or by any State created out of the Territory of Alaska, in accordance with the act of July 24, 1947 (61 Stat., 418, 48 U.S.C. sec. 321d). By virtue of the foregoing reservation, the state claimed a right-of-way for highway purposes across a portion of appellees' land. The trial court held that such reservation in the patent was invalid and of no effect, and at the instance of appellees, entered judgment for appellees and enjoined the state from entering on or ap- propriating the portion of appellees' land in question. The state has appealed. The state's first point is that the United States was an indispensable party to this action, and since it was not made a party the action ought to have been dismissed. Civil Rule 19, which was adopted from Rule 19, Federal Rules of Civil Procedure, deals with the compulsory joinder of parties. It recognizes the classes of indispensable, necessary and proper parties that were first developed in the equity courts. An indispensable party is one whose interest in the controversy before the court is such that the court cannot render an equitable judgment without having jurisdiction over such party. The determination of indispensability or lack of it involves a discretionary balancing of interests. On the one hand, consideration must be given to the possibility of rendering a judgment that will have an adverse factual effect on the interests of persons not before the court, and to the danger of inconsistent decisions, the desire to avoid a multiplicity of actions, and a reluctance to enter a judgment that will not end the litigation. On the other hand, considéra- tion must be given to the desirability of having some adjudication if at all possible rather than none, leaving the parties before the court without a remedy because of an "ideal desire to have all interested persons before the court." Courts exist for the determination of disputes, and they have an obligation in particular litigation to make meaningful determinations if at all possible. The fundamental issue here is whether the state may take appellees' land for highway purposes without payment of just compensation. It may if the reservation in the patent for a highway right-of-way is valid; it may not if the reservation is invalid. If that issue may not be decided without joining the United States as a party to the action, then it is unlikely that the issue could be decided at all since the United States could not be made a party without its consent. This would mean — assuming that the reservation is invalid — that appellees would be deprived of their right to be awarded just compensation for the taking of or damage to their property for a public use. They would be unable to challenge the asserted right of the state to utilize the reservation for highway purposes contained in the patent to the property. To hold that the United States is an indispensable party in this suit would be to interpret and apply procedural rules in such a way that appellees could not avail themselves of a constitutional safeguard against the taking of their property without the awarding of just compensation. It is not apparent that die United States has an interest in the matter in controversy which would be adversely affected by the judgment entered by the court below. It is the state, and not the United States, which is constructing the highway and seeking to utilize an asserted right-of-way across appellees' land. Conceivably, the United States could have an interest in effectuating the reservation of a right-of-way in the patent to appellees' land for the benefit of the state, since the United States was the grantor of the land and inserted the right-of-way wording in the patent. This may possibly lead to future litigation by the United States in seeking a judicial declaration that the reservation of the right-of-way is valid and subsisting. But as undesirable as it may be to have the possibility of another suit involving the same issue, it is less desirable to leave the ap-pellees without any remedy at all. We hold that the United States is not an indispensable party to this action. Appellant's next point is that the reservation for highway purposes was properly included in the patent by reason of the provisions of the Act of July 24, 1947, 61 Stat.. 418, 48 U.S.C.A. § 321d (1952). That act. provides: In all patents for lands hereafter taken up, entered, or located in the Territory of Alaska, and in all deeds by the United States hereafter conveying any lands to which it may have reacquired title in said Territory not included within the limits of any organized municipality, there shall be expressed that' there is reserved, from the lands described in said patent or deed, a right-of-way thereon for roads, roadways,. highways, tramways, trails, bridges, and appurtenant structures constructed or to he constructed by or under the authority of the United States or of any State created out of the Terrritory of Alaska. The land involved in this action was acquired under the federal Small Tract Act of June 1,1938 which was made applicable to Alaska in 1945. That statute provides .in part: The Secretary of the Interior, in his discretion, is authorized to sell or lease to any person or organization a tract of not exceeding five acres under such rules and regulations as he may prescribe, . The trial court held that public lands that are leased or sold under the Small Tract Act are not lands that have been "taken up, entered, or located" within the meaning of the act of July 24, 1947, and therefore that the reservation for highway purposes under the 1947 act was not applicable to appellees' land and was improperly inserted in the patent. The purpose of the act of July 24, 1947, was stated by the House Committee on Public Lands as follows: This bill is designed to facilitate the work of the Alaska Road Commission. As the population of Alaska increases and the Territory develops, the road commission will find it increasingly difficult to obtain desirable highway lands unless legislative provision is made for rights-of-way. The Committee on Public Lands unanimously agree that passage of this legislation will help to eliminate unnecessary negotiations and litigations in obtaining proper rights-of-way throughout Alaska. From such statement of purpose it is apparent that under the various land laws applicable in Alaska whereby persons could acquire portions of the public domain, an executive agency or officer of the government did not have the discretionary authority to reserve rights-of-way for highway purposes. If such authority had existed, then the legislation would have been unnecessary. It is logical to conclude, then, that the 1947 Act, in speaking of lands "taken up, entered, or located", had reference only to those public land laws where discretionary authority on the part of a government officer or agency to impose reservations for rights-of-way was absent, and was not intended to apply to those laws where such authority existed. Under the Small Tract Act the Secretary of the Interior has the discretionary authority, first of all, to sell or lease small tracts and secondly, to do so under "such rules and regulations as he may prescribe." That such grant of authority was considered broad enough to authorize the Secretary to impose reservations for rights-of-way is apparent from the fact that in 1953 the Secretary made effective the following regulation : Unless otherwise provided in the classification order, the leased land will be subject to a right-of-way of not to exceed 33 feet in width along the boundaries of the tract for street and road purposes and for public utilities. This was the only reservation for a right-of-way that the Secretary, by regulation, prescribed as to small tracts. He did not by rule or regulation provide that land leased or sold under the Small Tract Act would be subject to the general reservation of a highway right-of-way as prescribed by the act of July 24, 1947. In the light of the legislative purpose of the 1947 Act and the discretionary authority of the Secretary of the Interior under the Small Tract Act to sell or lease lands under such rules and regulations as he may prescribe, we are of the opinion that the 1947 Act has no application to public lands acquired under the Small Tract Act, and therefore, that the reservation for highway purposes included in the patent to appellees' property under the 1947 Act was ineffective. The state's third point is that the court erred in dismissing its counterclaim against appellees, which stated that [ 5]hould the provisions of the act of July 24, 1947, 48 USCA 321d, be determined not to apply to these premises, then, in such event, the entry of plaintiff pursuant thereto was an act of inverse condemnation. A pre-trial order reflects that the state and appellees had entered into a stipulation which provided in part as follows : 2. That on October 23, 1962 the State, through its Department of Highways, appropriated, without instituting an eminent domain proceedings or without filing a declaration of taking, a strip of land 42 feet in width along the south side of the 33 foot right-of-way along the northerly boundary of the tract in question. The area taken then is 42 feet by 297 feet and contains -. 3. That the total area of the parcel from which the property was appropriated is 2.5 acres. 4. The interest taken is a perpetual easement and rights-of-way for all road and highway purposes. 5. The time of just compensation will be as of the date of appropriate taking, October 23, 1962. The above stipulations and agreements are made only for the purpose of trying the issue of just compensation and are not: made for any other purpose and are received subject to the qualification that such stipulations or agreements will not prejudice any of the parties' claims or-contentions. Subsequently, the court allowed the ap-pellees to file a fourth amended complaint: which asked that the state be enjoined from, appropriating appellees' property and which, also asked for damages for trespass. The-court permitted appellees to proceed on the-trespass theory, rather than limiting the action to one of determining just compensation for lands taken or damaged for public-use by the state under its power of eminent domain. An injunction was issued against: the state and its counterclaim was dismissed. Trial of appellees' claim of trespass was-, deferred until a later time. When the state appropriated ap-pellees' land for the constructon of a highway, it was exercising the power of eminent: domain. It is true that the state did not. utilize condemnation proceedings prescribed by law and by rule. That was because the state mistakenly, but in good faith believed that it could rely upon the reservation of a right-of-way for highway purposes-contained in the patent to appellees' land. But neither the failure to institute a condemnation action nor appellees' assertion of a claim based on the theory of trespass • changed the essential nature of the state's, action in appropriating appellees' property. Such action was still the exercise of the-power of eminent domain because private-property was being taken by the state for a. public use. Since under Art. I, § 18 of the Alaska Constitution private property may-not be taken or damaged for public use without just - compensation, the fundamental' basis of appellees' claim for damages is the-constitutional provision mentioned, and the acts of the state in appropriating appellees'" land are in the nature of inverse condemna "tion. This appears to have been recognized by appellees when they entered into .a stipulation with the state to the effect that on a certain date the state had appropriated, without institution of condemnation proceedings, a portion of appellees' land, and that "the time of just compensation will be as of the date of appropriate taking, October 23, 1962." The trial court was in error in failing to recognize the essential nature of this action as one in condemnation and to proceed accordingly. The state's final point is that the court erred in granting a permanent injunction prohibiting the state from entering upon or appropriating a certain portion of ap-pellees' land. In speaking of the injunction the trial court said: I didn't intend this injunction to preclude them from any action to otherwise acquire the land, other than to go on the land and continue to take it without some sort of legal process. This statement might be construed as meaning that the state must first institute condemnation proceedings in accordance with statute and rule before it may enter upon and utilize the property that it has already appropriated. We believe that such a requirement is unrealistic. The property has already been taken. It would serve no useful purpose to insist now that the state must initiate a condemnation action and take the initial steps required by law and rule as •a condition to the exercise of its power of eminent domain. What is at issue here is the matter of awarding appellees just compensation. Such compensation may be determined in this proceeding, utilizing so far as practicable the statutory requirements and procedural steps relating to the condemnation action, as well as it could be determined in a separate condemnation action to be instituted by the state. Since the evident purpose of the injunction was to require the state, if it chose to utilize appel-lees' property, to institute a separate condemnation action to acquire such property, and since we have held that such action is unnecessary, the injunction was not appropriate and should be dissolved. The judgment is reversed and the case is remanded to the superior court for further proceedings consistent with the views expressed in this opinion. .Civ.it. 19 provides: (a) Necessary Joinder. Subject to the provisions of Rule 23 and of subdivision (b) of this rule, persons having a joint interest shall bo made parties and be joined on the same side as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff. (b) Effect of Failure to Join. When persons who are not indispensable, but who ought to be made parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them summoned to appear in the action. If jurisdiction over them cannot be acquired except by their consent •or voluntary appearance, the court in its discretion may proceed in the action without making them parties, but the judgment rendered therein does not affect the rights or liabilities of absent persons. le) Same — Naanes of Omitted Persons and Reasons for Non-Joinder to Be Pleaded. In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted. . 2 Barron & Holtzoff, Federal Practice and Procedure § 511, at S5 (rules cd. 1961). . Commercial State Bank of Roseville v. Gidney, 174 F.Supp. 770, 780-781 (D.D.C.1959), aff'd, 108 U.S.App.D.C. 37, 278 F.2d 871, 872 (1960). . 2 Barron & Holtzoff, Federal Practice and Procedure § 512 (Supp.1964). . Ward v. Louisiana Wild Life and Fisheries Comm'n, 224 F.Supp. 252, 256 (E.D.La.1963); Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, at 338 (1957). . 3 Moore, Federal Practice § 19.07, at 215^-55 (2d ed. 1964); Gauss v. Kirk, 91 U.S.App.D.C. 80, 198 F.2d 83, 85, 33 A.L.R.2d 1085 (1952); Reed, Compulsory Joinder of Parties in Civil Actions, supra note 5. . Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 337 (1957). . Article I, § 18 of the Alaska Constitution provides: Eminent Domain. Private property shall not be taken or damaged for public use without just compensation. . Bourdieu v. Pacific Western Oil Co., 299 U.S. 65, 70-71, 57 S.Ct. 51, 81 L.Ed. 42, 45-46 (1936); Zwack v. Kraus Bros. & Co., 237 F.2d 255, 259 (2d Cir. 1956); Black River Regulating Dist. v. Adirondack League Club, 282 App.Div. 161, 121 N.Y.S.2d 893, 904 (1953), rev'd on other grounds, 307 N.Y. 475, 121 N.E.2d 428 (1954), appeal dismissed, 351 U.S. 922, 76 S.Ct. 780, 100 L.Ed. 1453 (1956). . Act of June 1, 1938, 52 Stat. 609, 43 U.S.C.A. § 682a (1964). . Act of July 14, 1945, 59 Stat. 467. . 1947 U.S.Code Oong.Serv. 1353. . 15 Fed.Reg. 6222 (1950) (codified as 43 CJAR. § 257.16(c) (1954), superseded Jan. 15, 1955). . Such a reservation was included in the patent to appellees' property in addition to the reservation under the act of July 24, 1947. . The trial court directed the entry of final judgments as to the injunction and the dismissal of the state's counterclaim, stating in accordance with Civ.R. 54(b) that there was no just reason for delay. . AS 09.55.240-09.55.460; Civ.R. 72. . Myers v. United States, 323 F.2d 580, 583 (9th Cir. 1963)

11760138

Leo Albert BRUEGGEMAN, Appellant, v. The Honorable Peter J. ASHMAN, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees; William Francis Attwood, Appellant, v. The Honorable Peter J. Ashman, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees

Brueggeman v. Ashman

1999-01-29

Nos. S-8388, S-8477

569

570

973 P.2d 569

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:29:10.600360+00:00

CAP

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

Leo Albert BRUEGGEMAN, Appellant, v. The Honorable Peter J. ASHMAN, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees. William Francis Attwood, Appellant, v. The Honorable Peter J. Ashman, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees.

Leo Albert BRUEGGEMAN, Appellant, v. The Honorable Peter J. ASHMAN, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees. William Francis Attwood, Appellant, v. The Honorable Peter J. Ashman, District Court Judge, and the District Court for the State of Alaska, Third Judicial District, Appellees. Nos. S-8388, S-8477. Supreme Court of Alaska. Jan. 29, 1999. Leo Albert Brueggeman, pro se, Big Lake. William Francis Attwood, pro se, Wasilla. William F. Morse, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before MATTHEWS, Chief Justice, and EASTAUGH, FABE, and BRYNER, Justices.

532

3378

OPINION PER CURIAM. I. INTRODUCTION Criminal defendants cannot assert collaterally, by petition for writ of prohibition, jurisdictional and venue defenses that they can assert directly in pending criminal cases. II. FACTS AND PROCEEDINGS Leo Albert Brueggeman and William Francis Attwood were each cited for moving violations and ordered to appear in district court. They each filed in the superior court a petition for writ of prohibition objecting to venue and jurisdiction, and asserted that a district court of the State of Alaska could not try them for driving with canceled licenses. The superior court dismissed their petitions following motion practice. Bruegge-man and Attwood appeal. III. DISCUSSION We review de novo an order dismissing a complaint for failure to state a claim. A writ of prohibition will be granted only "sparingly and only where there is no adequate remedy by appeal." In the course of the criminal proceedings against them, Brueggeman and Att-wood were or will be able to raise the same jurisdiction and venue issues which their petitions attempted to raise. Participation in the criminal proceedings does not waive those defenses. In the event of conviction, they will be able to raise those defenses on appeal. Therefore they have adequate appellate remedies in the criminal proceedings, and, accordingly, the superior court did not err in dismissing their petitions. Brueggeman and Attwood also argue that in denying their respective petitions the superior court improperly considered matters outside the pleadings. There is no indication that the superior court did so. But in any event we can affirm on the ground that there was no legal merit to them petitions for writ of prohibition, given their opportunity to raise these issues in the context of their criminal prosecutions. IV. CONCLUSION We AFFIRM. CARPENETI, Justice, not participating. . See Kollodge v. State, 757 P.2d 1024, 1026 n. 4 (Alaska 1988). . Davis v. O'Keefe, 283 N.W.2d 73 76 (N.D.1979). See also Yohn v. Love, 76 F.3d 508, 521 (3d Cir.1996) ("A petitioner must show that (1) there is no adequate remedy at law which would afford relief, and (2) there is an extreme necessity for the relief requested to secure order and regularity in judicial proceedings." (citation omitted)). . See Anderson v. State, Dep't of Highways, 584 P.2d 537, 539 (Alaska 1978). . See 1 Charles Alan Wright, Federal Practice and Procedure § 193, at 692-94 (2d ed. 1982) ("The objection is timely though first raised in a motion for new trial, a motion for arrest of judgment, on appeal, or by collateral attack." (citations omitted)). . See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90 (Alaska 1994).

11768252

Patrick J. CHURCH, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee

Church v. State, Department of Revenue

1999-02-12

No. S-7606

1125

1132

973 P.2d 1125

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:29:10.600360+00:00

CAP

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

Patrick J. CHURCH, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.

Patrick J. CHURCH, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee. No. S-7606. Supreme Court of Alaska. Feb. 12, 1999. Rehearing Denied March 8, 1999. Patrick J. Church, pro se, Homer. Linda M. O’Bannon, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3616

22150

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Appellant Patrick Church was denied a 1993 Permanent Fund Dividend (PFD) because he-was absent from the state for 274 days in 1992 while caring for his dying mother. At the time of his absence, caring for a terminally-ill relative was not an excusable absence for PFD purposes. Church challenges the denial of his PFD, arguing that the Department of Revenue did not have authority to adopt certain PFD regulations, that the regulations and statutes defining a resident for PFD purposes were unreasonable and arbitrary, and that the Department of Revenue violated his procedural and substantive due process rights, his equal protection rights, his right to travel, and his rights to privacy and family relationships. We conclude that Church's rights were not violated and that the denial was appropriate. II. FACTS AND PROCEEDINGS Patrick J. Church, an Alaska resident since 1975, was absent from Alaska from December 19, 1991, to September 30, 1992, while caring for his dying mother. The Alaska Department of Revenue (DOR), Permanent Fund Dividend Division (the Division), denied his application for a 1993 PFD because he was absent from the state for more than 180 days during 1992, and his absence did not fit into one of the allowable absences enumerated in AS 43.23.095(8)(A)-(G) or 15 Alaska Administrative Code (AAC) 23.163(c) (1997). The Division denied Church's appeal for a PFD in an informal conference decision on February 28, 1994, and Church moved for a formal hearing. Revenue Hearing Officer Diane Colvin denied Church's motion for a formal hearing because there were no genuine issues of material fact in dispute and granted the State's motion for summary adjudication because Church did not "meet the requirements established by law for PFD eligibility during the 1993 eligibility year." This denial was upheld by Superior Court Judge Charles K. Cranston. Church appeals. III.DISCUSSION A. Standard of Review We review administrative determinations independently. See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Church does not dispute any factual findings; instead, he disputes the reasonableness and constitutionality of the applicable regulations and statutes. We apply the substitution of judgment standard to issues of law not involving agency expertise, such as statutory interpretation and constitutional claims. See Madison v. Alaska Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska 1985). However, this court "will not substitute [its] judgment for that of the agency with respect to the efficacy of [a] regulation nor review the 'wisdom' of a particular regulation." State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624 (Alaska 1993) (citing Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1245 n. 9 (Alaska 1979)). B. The Regulations under Which Church Was Denied a 1993 PFD Were Reasonable and Not beyond the Authority of the Commissioner to Adopt. Church was denied a 1993 PFD because he was absent from Alaska for more than 180 days during 1992 — the qualifying year for the 1993 PFD — and his absence was not "specifically allowed under AS 43.23.095(8)(A)-(G) or 15 AAC 23.163(c)." Alaska Statute 43.23.095(8) defines "state resident" for PFD purposes, and at the time of this action listed seven excusable absences for residents who were not in the state but intended to return. Subsection (F) of AS 43.23.095(8) allows for excusable absences for "other reasons which the commissioner may establish by regulation." Pursuant to this grant, the DOR promulgated 15 AAC 23.163 — Allowable Absences. Subsection (c) of this regulation lists sixteen excusable absences, the last one of which provides in relevant part: (16) any other reason or reasons consistent with the individual's intent to remain a resident provided the absence or cumulative absences do not exceed (A) 180 days if the individual is not claiming any of the absences listed in (1) through (15) of this subsection.... 15 AAC 23.163(c)(16) (emphasis added). Since neither the statute nor the regulation specifically listed the reason for Church's absence, and he was gone longer than 180 days, the Division was required to deny him a PFD. The regulation is clear and Church does not allege that the Division misinterpreted it; instead, he asserts that the regulation itself is invalid because it circumvents the legislative intent of AS 43.23. We have held that AS 43.23.015(a), the statute concerning proof of eligibility for PFDs, authorizes "and require[s] the Commissioner of the Department of Revenue to promulgate regulations defining substantive eligibility requirements for PFDs." State, Dep't of Revenue v. Bradley, 896 P.2d 237, 239 (Alaska 1995) (citing Cosio, 858 P.2d at 624-25). Cosio held that a regulation can "exclud[e] permanent fund dividend applicants who arguably fall within the statutory definition of eligible applicants," as long as the exclusion is consistent with the statutory purpose and is not unreasonable or arbitrary. Id. at 625. In Brodigan v. Alaska Dep't of Revenue, 900 P.2d 728, 732 (Alaska 1995), we held that 15 AAC 23.42.175(c)(6), which denies PFDs to seasonal residents; was not beyond the authority of the commissioner to promulgate and that the regulation was consistent with the purpose of AS 43.23.095(8), which is "to limit payment of dividends to permanent residents." Id. The Brodigan opinion also stated that a legitimate purpose of the regulation was to "ease[ ] the administrative burden of attempting to determine what treatment level is sufficient to merit eligibility for a PFD." Id. The court reasoned that if seasonal residents were allowed PFD consideration on the mere showing that a physician thought a change of climate was beneficial, any person "could qualify for a PFD simply by visiting Alaska every year and establishing paper connections to Alaska...." Id. Church argues that 15 AAC 23.163(c)(16) creates a bright line 180-day cut-off for discretionary review of absences that are not listed in the statute or regulation and is thus unreasonable and beyond the authority of the commissioner to promulgate. This argument is similar to the challenge in Brodigan and the same reasoning serves to answer it. The Brodigans claimed that they should have been eligible for PFDs, even though the time they spent in the state was less than the time they spent out of the state, because they had ties to Alaska and had not established a permanent residence outside of Alaska. 900 P.2d at 733. The Brodigans argued that 15 AAC 23.175(d) (1990), which at the time allowed for discretionary approval of temporary absences not listed, should have allowed them to receive a dividend. Id. However, the Brodigan court, citing to State, Dep't of Revenue v. Gazaway, 793 P.2d 1025, 1027 (Alaska 1990), held that temporary absences only include those that "are not longer in duration than the time spent in Alaska." Id. This ruling thus allows the state to limit discretionary review of non-listed absences to those that are less than a defined period; in Brodigan half a year or less, here 180 days or less. Church argues, generally, that any temporal restriction on PFD eligibility is unreasonable; he argues that consideration of residency for PFD purposes should be the same as consideration of state residency under AS 01.10.055, which focuses on one's subjective intent to remain. However, this court has recognized that "the residency requirement for PFD eligibility may differ from other residency requirements." Brodigan, 900 P.2d at 733 n. 12. Since the purpose of AS 43.23.095(8) is to ensure that PFDs are only given to permanent residents and a legitimate function of corresponding regulations is to ease the administrative burdens of determining eligibility, see id. at 732, 15 AAC 23.163(c)(16) is consistent with its statutory purpose. • Additionally, since this court has ruled that limiting discretionary review of absences not for purposes listed in the statutes or regulations to absences shorter than half a year is not an abuse of discretion, see id. at 733; Gazaway, 793 P.2d at 1027, and that a regulation can be more restrictive than its authorizing statute, see Cosio, 858 P.2d at 625, 15 AAC 23.163(c)(16) is not unreasonable or arbitrary. The purpose of the requirement that applicants fall into one of the enumerated excusable absences listed in AS 43.23.095(8) and 15 AAC 23.163(c) is to limit eligibility for PFDs to permanent residents. The legislature has given broad discretion to the commissioner to determine the factors which define a permanent resident. See Cosio, 858 P.2d at 624. Requiring those not otherwise defined as permanent residents in the statute or regulation to be present in the state for at least 180 days in the year in question is a reasonable interpretation of AS 43.23.095(8)'s objectives. C. Church Was Not Denied Procedural Due Process When His Dividend Appeal Was Decided in a Summary Adjudication. Church argues that his procedural due process rights were violated when the Division denied his appeal in a summary adjudication. "There is no right to an evi-dentiary hearing in the absence of a factual dispute." Human Resources Co. v. Alaska Comm'n on Post-Secondary Educ., 946 P.2d 441, 445 n. 7 (Alaska 1997); see also Douglas v. State, Dep't of Revenue, 880 P.2d 113, 117 (Alaska 1994); Smith v. State, Dep't of Revenue, 790 P.2d 1352, 1353 (Aaska 1990). In Smith we held that a hearing officer's summary adjudication of a child support award did not violate the appellant's statutory right to a hearing "because there were no material facts in dispute, and the hearing on the motion for summary judgment afforded [the appellant] a fair opportunity to contest legal issues raised by his appeal." Id. at 1353. Since Church did not challenge the facts, there was no factual dispute and Church was not entitled to an evidentiary hearing. Church admits that he was absent from Alaska for 274 days during 1992 and that he was absent to care for his terminally-ill mother, which was not an excusable absence under AS 43.23.095(8) or 15 AAC 23.63(c) at that time. According to the statu tory and regulatory system in place at the time, Church was ineligible for a PFD as a matter of law because he was out of the state for more than 180 days and did not fit into one of the excusable absences. See AS 43.23.095(8); 15 AAC 23.163(c)(16). "The crux of due process is an opportunity to be heard and the right to adequately represent one's interests." Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988) (citations omitted). Since there were no issues of fact presented and the law was clear, summary adjudication offered Church sufficient opportunity to be heard and to represent his interests. See Smith, 790 P.2d at 1353. D. The Statutory and Regulatory Scheme Denying Church a PFD Did Not Violate Substantive Due Process. Church argues that the list of excusable absences in AS 43.23.095(8) and 15 AAC 23.163(c) is unreasonable and arbitrary and should focus on subjective intent to return, instead of listing some excusable absences. He also contends that he has a property interest in the PFD and perhaps a liberty interest. The standard for establishing a substantive due process violation is rigorous. A 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." Application of Obermeyer, 717 P.2d 382, 386-87 (Alaska 1986) (citation omitted). In our view the dividend eligibility requirements do not reach the level of unfairness necessary to support a due process violation. The requirements are a reasonable way to ensure that only legitimate permanent residents receive PFDs. See Brodigan, 900 P.2d at 732. Some bright line rules are necessary to allow for the efficient distribution of dividends and to "ease[] the administrative burden of . determin[ing] . eligibility for a PFD." Id. Requiring an applicant to be present for at least 185 days if he or she does not fit into one of the listed excusable absences is not unreasonable. See id. at 733. E. Church's Equal Protection Rights Were Not Violated. Church argues that he was not provided the same benefits as the members of groups who were absent for one of the listed excusable absences, and as such his equal protection rights were violated. He further argues that minimum scrutiny is not the appropriate standard of review for PFD matters because the right to travel is implicated. PFDs represent an economic interest. Equal protection claims concerning their denial are reviewed under minimum scrutiny. See State v. Anthony, 810 P.2d 155, 158 (Alaska 1991). Under the minimum level of scrutiny, the state only needs to show that the "challenged enactment was designed to achieve a legitimate governmental objective, and that the means bear a 'fair and substantial' relationship to the accomplishment of that objective." Underwood v. State, 881 P.2d 322, 325 (Alaska 1994) (citing Cosio, 858 P.2d at 629). Despite Church's argument to the contrary, his equal protection claim should only receive minimum scrutiny. In Brodigan we held that even though an equal protection claim to a PFD involved the right to travel, it did not necessarily trigger heightened scrutiny. 900 P.2d at 734 n. 13. As discussed previously, the challenge in Brodigan was similar to the present situation, and this court only applied minimum scrutiny. Additionally, as discussed infra, we conclude that Church's right to travel is not violated in this case. The objective of the challenged statutes and regulations is to ensure that only permanent residents receive dividends. See Brodigan, 900 P.2d at 732. In Cosio, we held that this goal was legitimate given that the purpose of the dividend program is to distribute equitably a portion of the state's wealth to Alaskans, to encourage people to stay in Alaska, and to increase citizen involvement in the management of the fund. 858 P.2d at 627. It remains so. Further, allowing only enumerated excusable absences unless a person has been in the state more than half a year bears a fair and substantial relationship to ensuring that the dividend goes only to permanent residents. The fair and substantial relationship test does not mean that there has to be a perfect fit between the government's actions and its objectives. See State v. Anthony, 810 P.2d at 159. In Underwood this court held that legislation aimed at improving the efficiency of and simplifying the PFD program was legitimate. 881 P.2d at 325. Cutting off discretionary review of applicants who do not fit into an excusable absence category and who have been outside the state more than 180 days in a year is a reasonable and efficient way to limit PFD eligibility to permanent residents. F. Church's Rights to Travel and to Family Relationships Were Not Infringed. Church argues that his right to travel was infringed because receipt of a PFD was conditioned on his being in the state more than 185 days out of the year. Further, he argues that his familial relations rights were violated because he could not leave the state for more than 180 days to be with his dying mother without losing his dividend. Both this court and the United States Supreme Court have recognized that not all durational residency requirements necessarily trigger heightened scrutiny. In Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264 (Alaska 1984), this court explained that challenges concerning durational residency requirements would be addressed using a test that "balance[s] the nature and extent of the infringement on this right caused by the classification against the state's purpose in enacting the statute and the fairness and substantiality of the relationship between that purpose and the classification." Id. at 271 n. 10 (citation omitted). We utilized this test in Brodigan to conclude that a regulation disallowing PFDs to seasonal residents with medical problems did not infringe travel rights because "the State's purpose in awarding PFDs only to permanent residents outweighs the minor infringement on the Brodi-gans' choice of seasonal residences." 900 P.2d at 734 n. 13. There is no violation of Church's right to travel when the Brown balancing test is applied to the present case. The infringement on Church's right to travel is relatively small and would not be likely to deter a person from traveling. See Brown, 687 P.2d at 273. An applicant has no vested property right in a permanent fund dividend and should not expect to receive a dividend if he doesn't meet the qualifications. See Underwood, 881 P.2d at 325. Additionally, as discussed supra in the equal protection analysis, the regulations and statutes in question bear a fair and substantial relationship to the state's legitimate objective of efficiently awarding PFDs only to permanent residents. In Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), the Supreme Court held that a statute which gave employment preference points only to veterans who had entered the military in New York and not to veterans who had entered the military elsewhere violated the constitutional right to travel. Id. at 911, 106 S.Ct. 2317. However, the Court noted that bona fide residence requirements that distinguish only between residents and non-residents and do not treat residents differently based solely on the time when they became residents will not generally violate the right to travel. Id. at 904 n. 3, 106 S.Ct. 2317. The Supreme Court explained that "[a] bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for residents are enjoyed only by residents." Id. (quoting Martinez v. Bynum, 461 U.S. 321, 328-29, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983)). As previously explained, the PFD regulations and statutes in question are bona fide requirements which ensure that benefits "provided for residents are enjoyed only by residents," and as such do not violate the constitutional right of interstate travel. Church also argues that because he could not receive a PFD if he stayed with his mother out of the state for more than 180 days, his right to receive a PFD was conditioned on his not spending time with his mother. This argument is essentially a corollary of the right to travel argument. The only reason Church's familial rights were infringed is because he had to travel out of the state to see his mother. Had his mother lived in the state there would have been no violation. Because we conclude that the PFD eligibility requirement did not violate Church's right to travel, Church's familial rights, which were contingent on his right to travel, were also not violated. IV. CONCLUSION The regulations denying Church a PFD were valid, none of his rights were violated, and the denial of his PFD was appropriate. The judgment of the superior court is AFFIRMED. . Effective January 1, 1997, the statute defining "state resident" for PFD purposes was amended to allow for absences to care for an "individual's terminally ill parent, spouse, sibling, child or stepchild," AS 43.23.095(8)(H). . At the time of this action, AS 43.23.095(8) provided in relevant part: (8) "state resident" means an individual who is physically present in the state with the intent to remain permanently in the state under the requirements of AS 01.10.055 or, if the individual is not physically present in the state, intends to return to the state and remain permanently in the state under the requirements of AS 01.10.055, and is absent only for any of the following reasons: (A) vocational, professional, or other specific education for which a comparable program was not reasonably available in the state; (B) secondary or postsecondary education; (C) military service; . (D) medical treatment; (E) service in Congress; (F) other reasons which the commissioner may establish by regulation; or (G) service in the Peace Corps).] Effective January 1, 1997, this section was amended to add the following excusable absences: (H) to care for the individual's tenninally ill parent, spouse, sibling, child, or stepchild; (I) for up to 220 days to settle the estate of the individual's deceased parent, spouse, sibling, child, or stepchild; or (J) to care for a parent, spouse, sibling, child or stepchild with a critical life-threatening illness whose treatment plan, as recommended by the attending physician, requires travel outside the state for treatment at a medical specialty complex. AS 43.23.095(8) (emphasis added). . In deciding the validity of a regulation, this court considers "whether the regulation is consistent with the statutory purpose and is reasonable and not arbitrary." Brodigan, 900 P.2d at 732 (citations omitted). Administrative regulations are presumed to be valid and a legislative type of regulation such as 15 AAC 23.163(c)(16) will be reviewed with "considerable deference." Id. at n. 9 (citing Cosio, 858 P.2d at 624). . Church argues that recently enacted subsections of AS 43.23.095(8), which allow for absences to care for ailing relatives, see AS 43.23.095(8)(H)(I) and (J), show that the Alaska legislature now favors such absences as a matter of policy. Church recognizes that these provisions do not apply to him because they did not become effective until January 1, 1997; however, he asserts that they show the state's policy concerning this issue. Since the new provisions did not apply to Church's case and the DOR did not abuse its discretion in adopting the regulations used to deny Church's dividend, it makes no difference that the law has now changed.

8989489

POLAR SUPPLY COMPANY, INC., Appellant, v. STEELMASTER INDUSTRIES, INC., Appellee

Polar Supply Co. v. Steelmaster Industries, Inc.

2005-12-23

No. S-11664

52

58

127 P.3d 52

127

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:30:21.526361+00:00

CAP

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

POLAR SUPPLY COMPANY, INC., Appellant, v. STEELMASTER INDUSTRIES, INC., Appellee.

POLAR SUPPLY COMPANY, INC., Appellant, v. STEELMASTER INDUSTRIES, INC., Appellee. No. S-11664. Supreme Court of Alaska. Dec. 23, 2005. Rehearing Denied Feb. 9, 2006. Lea E. Filippi and William M. Bankston, Bankston, Gronning, O’Hara, Sedor, Mills, Givens & Heaphey, P.C., Anchorage, for Appellant. James N. Leik, Perkins Coie LLP, Anchorage, for Appellee. Before: BRYNER, Chief Justicé, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3322

21184

OPINION FABE, Justice. I. INTRODUCTION An Alaskan company, Polar Supply Company, Inc. (Polar), purchased a telescopic trolley boom from Steelmaster Industries, Inc. (Steelmaster), a Canadian corporation located in Ontario. Polar had a number of problems with the boom and brought suit against Steelmaster in the Alaska superior court. Steelmaster-argued that it was entitled to dismissal for lack of personal jurisdiction, and the superior court agreed, dismissing Polar's suit. We .reverse because we conclude .that an exercise of personal jurisdiction over Steelmaster is appropriate under Alaska's long-arm statute and conforms to the requirements of due process. II. FAgTS AND PROCEEDINGS - Polar Supply Company, Inc. is an Alaskan corporation. Steelmaster Industries, Inc. is a Canadian corporation located in Mississauga, Ontario. Presidents from both companies met for the first time in Nevada at a National Concrete Masonry Association convention. Steelmaster provided brochures and sales information about its products dur ing the convention. Following the convention, Polar contacted Steelmaster to request a price quotation for a telescopic trolley boom. Steelmaster sent a sales proposal to Polar on January 20, 2000, quoting a price of $44,950 for a 120-35TC telescopic boom. Polar accepted this proposal in April 2000. Polar discussed the possibility of becoming a dealer for Steelmaster in Alaska and requested an eighteen percent "dealer discount," but there is no evidence that the parties entered into a dealership agreement or that the proposed discount was accepted by Steelmaster. Steelmaster's contract of sale includes a one-year warranty covering product defects. Steelmaster manufactured the boom in Ontario. Polar purchased and shipped the boom free on board (F.O.B.) from Steelmas-ter's manufacturing facility in Ontario to a company in Washington where the boom was mounted onto a truck. Polar then had the truck and boom shipped from Washington to Alaska, where it was load tested. The boom failed to sustain the radius load represented by Steelmaster and was deemed unsuitable for the truck on which it was mounted. On May 1, 2003, Polar filed suit against Steelmaster in Alaska, seeking consequential damages for loss of production, loss of use, loss of jobs, and loss of profits. Steelmaster immediately moved for dismissal for lack of personal jurisdiction and insufficient service of process. Polar then cured any defect in service of process with service of a supplemental summons and moved for permission to conduct jurisdictional discovery as to whether Steelmaster had sufficient ongoing contacts with Alaska to support an exercise of specific jurisdiction. On July 30, 2004, the superior court ordered the matter dismissed without prejudice but did not reference Polar's request for discovery. On August 25, 2004, a final judgment was entered awarding $2,166.45 in attorney's fees and costs to Steelmaster. Polar appeals. III. DISCUSSION A. Standard of Review We review questions regarding personal jurisdiction de novo because "[jjurisdic-tional issues are questions of law subject to this court's independent judgment." We adopt "the rule of law that is most persuasive in light of precedent, reason, and policy" when it comes to jurisdictional questions. B. The Exercise of Personal Jurisdiction over Steelmaster Is Proper. Alaska's long-arm statute, AS 09.05.015, is broad and refers to several specific circumstances under which personal jurisdiction may be exercised. These circumstances are not meant to be exclusive but rather provide "an authoritative basis for simplifying most jurisdictional questions. By furnishing a list of specific grounds providing jurisdiction, the statute avoids converting every jurisdictional issue into a constitutional question." For those circumstances that do not fit within the terms of the statutory provisions, AS 09.05.015(c) states that "[t]he jurisdictional grounds stated in (a)(2) — (10) of this section are cumulative and in addition to any grounds provided by the common law." The insertion of this language into the statute manifests the legislature's "intent to have the long-arm statute co-extensive with the Fourteenth Amendment." As we recently explained in Cramer v. Wade, "even if they had merit, [the defendant's] specific long-arm challenges would not be determinative" be cause "our long-arm statute's catch-all subsection (c) extends to any case falling outside the statute's other subsections in which the exercise of jurisdiction is permissible under the Fourteenth Amendment." Thus, we need not determine whether this case fits perfectly within subsections (a)(4) or (a)(5) if we conclude that due process permits the exercise of jurisdiction over Steelmaster. Arguably, jurisdiction over Steelmaster is specifically authorized in this case by two subsections of AS 09.05.015(a). Subsection (a)(4) provides jurisdiction in an action "claiming injury to person or property in [Alaska] arising out of-an act or omission out of [Alaska]." This provision is applicable if (a) at the time of injury, solicitation or service activities were carried on in Alaska by or on behalf of the defendant or (b) products, materials, or things processed, serviced, or manufactured by the defendant were used or consumed in Alaska in the ordinary course of trade. Polar claims that economic losses are sufficient to constitute injury under subsection (a)(4) of the long-arm statute. The additional requirements of subsection (a)(4) are satisfied by Steelmaster having sold a product to Polar, an Alaskan company. Steelmaster's contention that subsection (a)(4)(B) is inapplicable where only a single product is sold because the statutory language refers in the plural to "products, materials, or things" manufactured by the out-of-state defendant is not an argument in keeping with the reach of the long-arm statute or with our previous cases. Nevertheless, it does remain unclear whether monetary damages stemming from breach of contract actions, rather than tort actions, can constitute "injury to property," as required by the statutory provision and this case therefore fits uneasily into the requirements of subsection (a)(4). Subsection (a)(5) of the long-arm statute specifies an array of contract actions that provide a basis for jurisdiction, including an action "that relates to goods . actually received by the plaintiff in this state from the defendant without regard to where delivery to the carrier occurred." Subsection (a)(5)(C) further provides for jurisdiction in an action that "arises out of a promise, made anywhere to the plaintiff . by the defendant to deliver or receive in this state or to ship from this state goods, documents of title or other things of value." At oral argument, Steelmaster disputed subsection (a)(5)'s applicability, relying on the fact that Steelmaster itself never shipped the boom to Alaska but instead arranged for Polar to ship it from Steelmaster's manufacturing facility to Washington, where it was then mounted onto the truck and subsequently shipped to Alaska. Solely because of the nature of the shipping arrangements, then, the case does not fall easily within the requirements of subsection (a)(5) of the long-arm statute. Since the unique nature of this contract makes this case difficult to categorize within the enumerated provisions of the statute, we find it more appropriate to examine jurisdiction using the standards set by AS 09.05.015(c), which authorizes Alaska's courts "to assert jurisdiction to the maximum extent permitted by due process." We traditionally analyze personal jurisdiction under the long-arm statute by examining the requirements of due process. As the United States Supreme Court explained in International Shoe Co. v. Washington, due process requires that a defendant have "minimum contacts" with the forum state such that maintaining a suit in the forum state "does not offend 'traditional notions of fair play and substantial justice.' " "When a controversy is 'related to' or 'arises out of a defendant's contacts with the forum, the exercise of jurisdiction is said to be 'specific' and is justified on the basis of the relationship among the defendant, the forum, and the litigation." An out-of-state defendant who has not consented to suit in the forum state is said to have "fair warning" that his conduct will render him liable to suit if he has "purposefully directed" his activities at residents of the forum and the litigation arises out of or relates to those activities. The United States Supreme Court has further emphasized that "parties who 'reach out beyond one state and create continuing relationships and obligations with citizens of another state' are subject to regulation and sanctions in the other State for the consequences of their activities." And we have recognized that "[t]he contract along with such other factors as 'prior negotiations and future consequences . and the parties' actual course of dealing . must be evaluated in determining whether the defendant purposefully established minimum contacts with the forum.' " We have found it particularly significant when an out-of-state defendant solicited, initiated, or directly contacted the Alaskan resident. In this instance, Steelmaster traveled to Nevada to a trade show of the National Concrete Masonry Association in order to market its equipment. Steelmaster sought purchasers for its products at this Nevada convention, where prospective buyers from throughout the United States were presumably present. Steelmaster relies on the fact that Polar initiated contact with Steelmaster in Ontario, but it is undisputed that Polar learned ^ about Steelmaster's product and availability at the trade show in the United States. Although Steelmaster does not advertise specifically in Alaska, it does buy advertisements in national trade journals published by the National Concrete Masonry Association. Steelmaster also has five dealers in the eastern and central regions of the United States. Moreover, the record indicates that Steelmaster held itself out on its website as a company that "offer[s] complete, factory backed local distribution to service the masonry, precast and building industries throughout North America." Because Steel-master holds itself out to buyers throughout the United States, it therefore should reasonably have anticipated that its products would be purchased by Alaskan companies. Moreover, at the time Steelmaster entered into a contract for the sale of the trolley boom to Polar, Steelmaster was aware that Polar was an Alaskan corporation that planned to use the trolley boom in Alaska. Polar maintains that apart from the contract itself, Steelmaster had other contacts with Alaska, including negotiations about the contract, discussions about the possibility of Polar becoming a dealer for Steelmaster's operations in Alaska, and provision of an express warranty in the contract that created an ongoing obligation to service and repair the boom for a year after sale. Steelmaster guaranteed Polar that any "[d]efeets developing in any part of a machine . will be replaced or repaired free of charge at our option within one year." This warranty clause is an example of a party purposefully creating "continuing relationships and obligations with citizens of another state" and thereby subjecting that party to regulations and sanctions in that other state as a consequence. We have previously explained that emphasis should be placed on "the quality rather than the quantity of the contacts." As the Ninth Circuit reasoned, "[t]he purposeful availment requirement is met if the defendant 'performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.' " We conclude that Steelmaster made the affirmative choice to contract with an Alaskan corporation that planned to use its product in Alaska and hence conclude that Steelmaster "purposefully availed itself of the privilege of conducting business activities within Alaska." The final inquiry required by due process is whether the assertion of personal jurisdiction comports with "fair play and substantial justice." Once it has been determined that a defendant purposefully established minimum contacts with Alaska, " 'he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable' in order to defeat personal jurisdiction." In making this determination, we evaluate several factors, including: the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the states in furthering fundamental social policies. Steelmaster argues that as a small Canadian corporation with only eighteen employees, it would face a tremendous burden defending litigation in Alaska because its employees would be forced "to travel thousands of miles from their residence in Ontario, at considerable expense, inconvenience, and loss of time." Polar does not dispute this, but rather argues that because Steelmaster does not limit its business activities or advertising to Canada, it should be required to litigate where its products fail. First, we agree with the Ninth Circuit that the existence of an ongoing relationship with the United States is relevant when considering sovereignty concerns, and find it significant that Steelmaster has dealers in Illinois, New York, New Jersey, Maryland, and Florida. We are unconvinced that Steelmaster would be more inconvenienced by a suit in Alaska than by a suit brought in one of these other states. Similarly, it seems reasonable for Steelmaster to anticipate a possible lawsuit in Alaska from the sale of a complicated piece of machinery valued at almost $45,000, which it has guaranteed against defects. Second, Steelmaster argues that Ontario would be a suitable alternative forum and contends that because the boom was assembled in Ontario any alleged defect will require testimony from Steelmaster employees involved in the assembly. But as we have previously explained, "[fjnconvenience to at least some parties will probably be associated with litigation in either this jurisdiction or the [foreign] forum which [the defendant] prefers." While it is true that the boom was manufactured in Ontario, it was tested by the American Bureau of Crane Inspection, Inc. in Alaska, where it failed to sustain the radius load represented by Steelmaster. Thus, both parties stand to be inconvenienced because testimony will be required from witnesses in Ontario and Alaska, and Steelmaster's inconvenience in this instance is not sufficient to constitute a denial of due process. We conclude that Steelmaster has sufficient minimum contacts with Alaska and that an exercise of personal jurisdiction in this case comports with fair play and substantial justice. IV. CONCLUSION For the foregoing reasons, we REVERSE the superior court's order dismissing the case for lack of personal jurisdiction and REMAND for proceedings consistent with this opinion. . In our review of the superior court's decision to grant Steelmaster's motion to dismiss, we accept as true those facts alleged by Polar Supply in its complaint. . Our resolution of this case does not require us to reach Polar's claim that the superior court abused its discretion when it refused to permit additional discovery as to whether Steelmaster was subject to general jurisdiction. . See S.B. v. Slate, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002) (quoting McCaffery v. Green, 931 P.2d 407, 408 n. 3 (Alaska 1997)). . Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . See McCaffery v. Green, 931 P.2d 407, 408 (Alaska 1997) (citing Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296, 1299 (Alaska 1995)). . Alaska Telecom, 888 P.2d at 1299. . Id. . 985 P.2d 467, 471 (Alaska 1999) (citing Glover v. Western Air Lines, Inc., 745 P.2d. 1365, 1367 (Alaska 1987) and Alaska Telecom, 888 P.2d at 1299). . AS 09.05.015(a)(4) provides: (a) A court of this state having jurisdiction over the subject matter has jurisdiction over a person served in an action according to the rules of civil procedure (4) in an action claiming injury to person or property in this state arising out of an act or omission out of this state by the defendant, provided, in addition, that at the time of the injury either (A) solicitation or service activities were carried on in this state by or on behalf of the defendant; or (B) products, materials, or things processed, serviced, or manufactured by the defendant were used or consumed in this state in the ordinary course of trade[.] . AS 09.05.015(a)(4)(A) & (B). . See, e.g., Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197, 1199 (Alaska 1971) (citing International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). . AS 09.05.015(a)(5) provides: (a) A court of this state having jurisdiction over the subject matter has jurisdiction over a person served in an action according to the rules of civil procedure (5) in an action that (A) arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services in this state or to pay for services to be performed in this state by the plaintiff; (B) arises out of services actually performed for the plaintiff by the defendant in this state, or services actually performed for the defendant by the plaintiff in this state if the performance in this state was authorized or ratified by the defendant; (C) arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive in this state or to ship from this state goods, documents of title, or things of value; (D) relates to goods, documents of title, or other things of value shipped from this state by the plaintiff to the defendant on the order or direction of the defendant; or (E) relates to goods, documents of title, or other things of value actually received by the plaintiff in this state from the defendant without regard to where delivery to the carrier occurred. .AS 09.05.015(a)(5)(E). . AS 09.05.015(a)(5)(C). . Am. Nat'l Bank & Trust Co. v. Int'l Seafoods of Alaska, Inc., 735 P.2d 747, 749 (Alaska 1987) (citing Jonz, 490 P.2d at 1199). . 326 U.S. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). . Glover, 745 P.2d at 1367 (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). . Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). . Id. at 472, 105 S.Ct. 2174 (citing Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868). . Id. at 473, 105 S.Ct. 2174 (citing McGee v. International Life Ins. Co., 355 U.S. 220, 222-23, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) and Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 94 L.Ed. 1154 (1950)). . Alaska Telecom, 888 P.2d at 1300 (quoting Burger King, 471 U.S. at 479, 105 S.Ct. 2174). . See, e.g., Cramer, 985 P.2d at 471; Alaska Telecom, 888 P.2d at 1301; Am. Nat'l Bank, 735 P.2d at 752-53 n. 10. . Am. Nat'l Bank, 735 P.2d at 752 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). . Jonz, 490 P.2d at 1199 (citing International Shoe, 326 U.S. at 319, 66 S.Ct. 154). . Harris Rutsky & Co. Ins. Svcs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1130 (9th Cir.2003) (quoting Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir.1990)). . Am. Nat'l Bank, 735 P.2d at 752. . Id. at 753. . Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1114 (9th Cir.2002) (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). . Am. Nat'l Bank, 735 P.2d at 753. . See Sinatra v. Nat'l Enquirer, 854 F.2d 1191, 1199 (9th Cir.1988) (recognizing that "continuing contacts between the [Swiss] Clinic's United States-based agent and California translate into less of a litigation burden than if the Clinic maintained no physical presence or agent with the United States"). . Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 502 (Alaska 1980) (rejecting two German corporations' claims that subjecting them to suit in Alaska would be unreasonable and explaining that "Alaska's jurisdictional power must be upheld despite claims of inconvenience and unreasonableness by [the nonresident defendant]'').

8992209

Rudy P. ONE, Appellant, v. STATE of Alaska, Appellee

One v. State

2006-01-13

No. A-8824

853

856

127 P.3d 853

127

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:21.526361+00:00

CAP

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

Rudy P. ONE, Appellant, v. STATE of Alaska, Appellee.

Rudy P. ONE, Appellant, v. STATE of Alaska, Appellee. No. A-8824. Court of Appeals of Alaska. Jan. 13, 2006. Averil Lerman, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1782

11216

OPINION MANNHEIMER, Judge. Rudy P. One entered a mid-trial plea of no contest to first-degree sexual assault. On May 3, 1996, he was convicted based on this plea and sentenced to 30 years' imprisonment. In July 2002, One filed a pro se petition for post-conviction relief. In this petition, One asserted that he had been denied a jury of his peers, apparently based on the assertion that he had been denied his right to venue in the district where the crime occurred. Because One was indigent, the superior court appointed an attorney to represent him in his post-conviction relief litigation. One's attorney, Avraham Zorea, concluded that One's petition was time-barred because more than two years had passed since the superior court entered the underlying criminal judgement against One. See AS 12.72.020(a)(3)(A). Having reached this conclusion, Zorea filed a certificate attesting to his belief that One had no arguable claims for post-conviction relief. See Alaska Criminal Rule 35.1(e)(2)(B). Mr. Zorea's certificate reads as follows: Counsel finds that petitioner's application is time-barred, and that his application presents no colorable claim upon which [the petitioner] could [obtain] relief. Though a complete certificate [of no arguable claims] normally requires an affidavit from the trial attorney, in this matter, the application is approximately four years late in being filed. [The trial attorney] is entitled to some measure of protection under [the] law, and [because] counsel [has found] the apparent time-bar issue, . [counsel now] files the certificate without obtaining the [trial attorney's] affidavit. Counsel has obtained the tapes and log notes[,] and [has] reviewed the notes and [the] application and [the] judgment to ensure that there was no mistake in Mr. One's application. It seems clearly time-barred . Superior Court Judge Dale O. Curda reviewed Zorea's certificate and gave One a chance to respond to it. See Alaska Criminal Rule 35.1(f)(2). One challenged Zorea's certificate because it "did not give a detailed explanation as to why the petitioner has no colorable claim for relief', but One did not specifically respond to Zorea's assertion that the petition was time-barred. After receiving One's response, Judge Cur-da concluded that Zorea was correct: One's petition for post-conviction relief was time-barred, and thus One had no arguable claims for post-conviction relief. Judge Curda therefore dismissed One's petition. One then procured a new attorney through the Office of Public Advocacy and filed the present appeal. In this appeal, One argues that Zorea's "no arguable claims" certificate was deficient (as a matter of law) because it contained no explanation of why Zorea concluded that One's petition was time-barred. We agree that if an attorney representing an indigent petitioner for post-conviction relief concludes that the petition is time-barred, the attorney's "no arguable claims" certificate must explain why the attorney has concluded that the facts of the petitioner's case present no arguable exception to the applicable statute of limitations. Why we conclude that Mr. Zorea's "no arguable claims" certificate was legally inadequate Under Criminal Rule 35.1(e)(2), as interpreted by this Court in Griffin v. State, 18 P.3d 71, 75 (Alaska App.2001), when an attorney is appointed to represent an indigent petitioner for post-conviction relief, the attorney has 60 days to do one of three things: (1) inform the superior court that the attorney will proceed on the grounds for relief already stated by the petitioner, or (2) file an amended petition for post-conviction relief, or (3) file a certificate attesting that the attorney has investigated the facts of the case and the applicable law, and that the attorney has concluded that the petitioner has no arguable (ie., non-frivolous) claims for post-conviction relief. In Griffin, we held that, in order to protect the petitioner's right to zealous and effective legal representation, a "no arguable claims" certificate filed under Criminal Rule 35.1(e) "must provide the [superior] court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous". Otherwise, the superior court would be unable to fulfill its own duty to "meaningfully assess and independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise". In the present case, One's pro se petition for post-conviction relief alleged a denial of his right to a jury of his peers, apparently based on the assertion that his trial was not held in the venue district where the crime occurred. Mr. Zorea concluded that One's petition was time-barred — and, thus, that there was no point in investigating One's underlying assertions. We do not fault Zorea for failing to provide the superior court with a full analysis of One's claims. If One's petition was indeed time-barred, then these claims would be moot. But since Zorea's analysis of the petition for post-conviction relief hinged on Zorea's conclusion that the petition was time-barred, it was Zorea's duty to provide the superior court with a full explanation of why he concluded that the petition was time-barred. This explanation would necessarily include the details of Zorea's investigation of potential exceptions to the limitations period. It might seem that, by imposing this requirement, we are requiring defense attorneys to engage in meaningless labor. But the facts of One's case demonstrate the importance of a full explanation. Under AS 12.72.020(a)(3)(A), One's petition had to be filed within two years of his conviction. One was convicted in 1996, and he did not file the present petition for post-conviction relief until 2002. Thus, on the face of it, One's petition was time-barred. But the investigation conducted by One's current attorney shows that One filed an earlier petition for post-conviction relief in early 1998 — within the time allowed by the statute. In this 1998 petition, One claimed that he had received ineffective assistance from his trial attorney. Judge Curda appointed a different attorney, Scott Sidell, to represent One in that post-conviction relief litigation. Mr. Sidell entered an appearance for One on February 23, 1998. But nothing further happened. Two years later, on January 28, 2000, the superior court notified Sidell (but apparently did not notify One) that the petition for post-conviction relief would be dismissed for failure to prosecute if no action was taken within 60 days. No further action was taken, and the superior court dismissed One's petition on April 15, 2000. According to the notations on this April 15th order of dismissal, copies of the order were sent to Sidell and the district attorney's office. There is no indication that a copy was sent to One himself. In May 2002 (ie., two years after his 1998 petition was dismissed for non-prosecution), One wrote a letter to the Area Court Administrator for the Fourth Judicial District, Ronald J. Wood. In his letter to Wood, One wrote: I have been having difficulty getting answers on my requests for copies of my court transcripts. I would be grateful if you would appoint an attorney who could help me with this problem. My 35.1 [petition] was back in 1996 [sic ] and I never had any response back yet. In other words, One was apparently unaware that his petition had been dismissed two years earlier. We do not have a copy of any reply that Mr. Wood may have sent to One. But on June 17, 2002, One sent a letter to the Bethel superior court clerk, requesting a post-conviction relief application. One month later, on July 17, 2002, One filed his present petition. In light of the foregoing, One has at least an arguable defense to the statute of limitations — ie., the assertion that he received ineffective assistance of counsel from Mr. Sidell, and that he exercised reasonable diligence in renewing his post-conviction relief litigation after he discovered that Sidell had not pursued the initial petition. But Mr. Zorea's "no arguable claims" certificate does not discuss any of the above circumstances. It may be that Zorea asked One why his petition was so late, that Zorea was apprised of the circumstances described above, and that Zorea then undertook an investigation of those circumstances — an investigation which ultimately showed that any attempt to defeat the statute of limitations would be frivolous. But the certificate that Zorea filed in the superior court does not explain any of this. Alternatively, it may be that Zorea asked One why his petition was so late and that, for reasons of his own, One decided not to tell Zorea about the above circumstances — so that a reasonable attorney in Zorea's position might not have known that there was a potential defense to the statute of limitations. But Zorea's certificate does not even state that he asked One why the petition for post-conviction relief was so late. Finally, Zorea may have simply compared the date of One's current petition (July 2002) with the date of his conviction (early 1996) and concluded, without further investigation, that One's petition was time-barred. Again, we can not know whether this is what occurred, because the certificate contains no explanation. When, as in the present case, an attorney appointed to represent an indigent petitioner for post-conviction relief concludes that the petition stands or falls on the issue of whether it is barred by one of the limitation periods codified in AS 12.72.020(a)(3), the attorney must investigate potential defenses to the limitation period. If, after that investigation, the attorney concludes that there is no colorable defense to the limitation period, the attorney's "no arguable claims" certificate must fully explain the attorney's investigation, and the results of that investigation, to the superior court. Conclusion The "no arguable claims" certificate filed by Mr. Zorea in this case was inadequate; it failed to fully explain why One had no arguable defense to the two-year limitations period codified in AS 12.72.020(a)(3)(A). Accordingly, the superior court should not have accepted that certificate and should not have dismissed One's petition for post-conviction relief in reliance on it. The judgement of the superior court is REVERSED, and this case is remanded to the superior court for further proceedings on One's petition for post-conviction relief. . Griffin, 18 P.3d at 77. . Id. . Cf. Grinols v. State, 10 P.3d 600, 618 (Alaska App.2000) (concluding that a defendant could present a claim of ineffective post-conviction counsel in a second post-conviction relief application, almost four years after final entry of judgement).

8992185

Timothy G. ALEX, Appellant, v. STATE of Alaska, Appellee

Alex v. State

2006-01-13

No. A-8839

847

853

127 P.3d 847

127

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:21.526361+00:00

CAP

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

Timothy G. ALEX, Appellant, v. STATE of Alaska, Appellee.

Timothy G. ALEX, Appellant, v. STATE of Alaska, Appellee. No. A-8839. Court of Appeals of Alaska. Jan. 13, 2006. Rehearing Denied Feb. 16, 2006. Carmen E. Clark, Law Offices of Pamela Dale, for the Appellant. John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3302

20106

OPINION MANNHEIMER, Judge. Timothy G. Alex was convicted of weapons offenses after the police recovered a pistol from under the passenger seat of the vehicle in which Alex was riding. At trial, Alex claimed that he had no idea that the pistol was there. Toward the close of the trial, Alex's trial judge proposed to instruct the jury that a person is in "constructive possession" of an item if the person has "the power to exercise dominion or control" over that item. Alex's defense attorney argued that proof of a person's power to exert dominion or control over an object was not enough — that the State was also obliged to prove that the person actually exercised this power, or at least intended to exercise it. After listening to the defense attorney's argument, the trial judge decided not to alter the wording of the jury instruction. In this appeal, Alex renews his contention that the instruction, as given, was an erroneous statement of the law. It is not clear that this ease even raises an issue of constructive possession. As we explain in more detail below, the item in question — a semi-automatic assault pistol- — was found underneath the passenger seat of the vehicle in which Alex was riding (as the passenger). It would therefore appear that, if Alex indeed possessed this pistol, he had actual possession of it, not "constructive" possession. The fact that the parties to this appeal have framed the issue in terms of "constructive possession" may stem from the fact that this concept suffers from a lack of precision. As the United States Supreme Court has noted, the two concepts of "actual" possession and "constructive" possession "often so shade into one another that it is difficult to say where one ends and the other begins". Indeed, some legal commentators have suggested that the words employed in Alex's case to define constructive possession — "dominion" and "control" — do not really provide a workable definition of this concept; rather, these words "are nothing more than labels used by courts to characterize given sets of facts". There is, in fact, some case law to support Alex's contention that a person should not be convicted of constructively possessing an object merely because the person could have exercised dominion or control over the object — that the government must also prove either that the person did exercise dominion or control over the object, or at least intended to do so. However, because of the way Alex's case was litigated, we are convinced that the jury's decision did not turn on this distinction. As we explain here, the jury's verdicts demonstrate that the jurors must have concluded, not only that Alex knew about the pistol under his seat, but also that Alex possessed that pistol for the purpose of fur thering a felony drug offense. Thus, even assuming that the jury instruction on "constructive possession" should have expressly required proof that Alex had already exercised dominion or control over the pistol, or that he intended to do so, this error had no effect on the jury's decision. We accordingly affirm Alex's conviction. Underlying facts On the afternoon of December 14, 2002, Anchorage Police Officer Leonard Torres made a traffic stop of a vehicle. When Torres asked to see the vehicle registration, the driver, Darryl Wilson, told the passenger, Timothy Alex, to retrieve the registration from the glove compartment. Torres moved to the passenger side of the vehicle so that he could "see . what [Alex] was reaching for in the glove compartment". When he did so, Torres observed that Alex had an open bottle of beer between his legs. Wilson, too, had apparently been drinking. Moreover, when Torres ran Wilson's and Alex's names through the computer, he learned that both men were on felony probation. Torres called for backup. Torres focused his attention on Wilson while two backup officers, Kevin Armstrong and Jeff Carson, asked Alex to step outside the vehicle. During their conversation with Alex, one of the officers asked if there were any firearms in the vehicle. Alex told the officers that there was a firearm under the passenger seat. Carson looked on the floor of the vehicle, underneath where Alex had been sitting, and discovered a "Tec 9" (i.e an Intratec DC-9, a 9-mm semi-automatic assault pistol). Because Alex was a convicted felon, he was prohibited from possessing a concealable firearm. See AS 11.61.200(a)(1). Alex was arrested for this offense. Later, during Alex's appearance in front of the committing magistrate, a bag of cocaine fell from his clothes. Based on these events, Alex was indicted for third-degree controlled substance misconduct (possession of cocaine with intent to distribute); as'well as two other charges that hinged on his possession of the Tec-9 pistol: second-degree weapons misconduct (possession of a firearm in furtherance of a felony drug offense), and third-degree weapons misconduct (possession of a concealable firearm by a felon). Alex did not testify at his trial. However, Alex's attorney elicited testimony (during cross-examination of the police officers) that (1) both Wilson and Alex told the police that the Tec-9 pistol belonged to the owner of the vehicle, a man named Earl Smith, and that (2) when the' police spoke to Earl Smith about this weapon, he confirmed that the Tee-9 pistol did, in fact, belong to him. Indeed, Smith declared that he had never told Wilson and Alex that there was a pistol in the vehicle. (This testimony was undercut somewhat by the testimony of Officer Carson, who stated that, following Alex's arrest, Earl Smith had come to the scene of the traffic stop at about the time that the police were loading the vehicle onto a tow truck, preparatory to its impoundment. According to Carson, Smith asked if he could retrieve his property from the vehicle before it was towed away. After checking with his superiors, Carson gave Smith permission to retrieve his property. Smith then removed some snow machine gear from the vehicle. Neither Carson nor Smith mentioned the Tec-9 pistol during their conversation. However, when Carson asked Smith if the snow machine gear was all of his property from the vehicle, Smith answered yes.) At the end of the trial, during the defense summation, Alex's attorney told the jury that Smith's account was truthful: that the pistol belonged to Smith, and that Alex had not known that the pistol was in the vehicle. The defense attorney acknowledged that two police officers (Armstrong and Carson) had testified that Alex did know about the pistol' — that, in fact, Alex told them that the weapon was present in the vehicle, and that he disclosed the weapon's location under the passenger seat. But the defense attorney told the jurors that the officers were lying— that the officers were saying this only because they knew that the State's "whole case" depended on the argument that Alex must have knowingly possessed the weapon "because he knew it was there". The defense attorney repeatedly declared that the jurors should disbelieve the officers' testimony on this point. She told the jurors: "Look at the foundation of [Alex's] alleged confession [that there was gun underneath the seat]. Look at the root of that information. It's tainted; it's skewed; it's biased; it's untrustworthy." A few moments later, she told the jurors: "We have the shadiest confession, completely untrustworthy." A little later in her summation, the defense attorney returned to this theme. She told the jurors that, because Alex was merely a passenger in the car (not the owner of the vehicle, and not the driver), the police must have known that they could not charge and convict Alex of the weapons offenses unless they had a confession — i.e., Alex's admission that he knew that the pistol was under his seat. Defense Attorney: So they [purportedly] get [the needed confession], [But] did they? I don't know. Do you know? I would think not. [The police] eall[ed] Mr. Earl Smith [to ask him about the gun]. And . what did Mr. Earl Smith say? "That's my gun. [Wilson and Alex] don't know that it's in there." These arguments proved unavailing; the jury convicted Alex of the two weapons offenses (and the drug offense as well). The discussion of the jury instruction regarding possession At the close of the evidence (that is, after both the prosecution and the defense had rested their cases), the parties and the trial judge, Superior Court Judge Larry D. Card, met outside the presence of the jury to discuss jury instructions. All three of the crimes charged against Alex — possession of cocaine with intent to distribute, possession of a firearm in furtherance of a felony drug offense, and possession of a concealable firearm by a felon — all required proof that Alex had possessed a particular object or substance. Thus, Judge Card's packet of proposed instructions contained an instruction defining the term "possess". Here are the four pertinent paragraphs of that instruction: "Possess" means having physical possession or the exercise of dominion or control over property. The law recognizes two kinds of possession: actual possession and constructive possession. Actual possession means to have direct physical control, care, and management of a thing. A person not in actual possession may have constructive possession of a thing. Constructive possession means to have the power to exercise dominion or control over a thing. This may be done either directly or through another person or persons. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Alex's attorney objected to the third paragraph of the instruction. Specifically, the defense attorney asked Judge Card to strike the words "have the power to" from the second sentence of that paragraph, so that it would read: "Constructive possession means to exercise dominion or control over a thing." Alex's attorney repeatedly asserted that the presence of the phrase "have the, power to" made a significant alteration to the meaning of constructive possession. However, the defense attorney never actually explained what this alteration was, or why the altered definition made any difference to the resolution of Alex's case. Judge Card decided to leave the wording unchanged. The potential problem with the definition of "constructive possession", and why we conclude that any error was harmless In retrospect (and after briefing), it is easier to see the potential problem caused by including the words "have the power to" in the definition of "constructive possession". This problem is illustrated by the facts of State v. Harvey, 463 So.2d 706 (La.App.1985). In Harvey, a woman was convicted of illegally possessing drugs after the drugs were found in her mother's house, where she was living. The Louisiana court noted that there was sufficient evidence to infer that Harvey knew of the presence of the drugs in the house, and knew that drug-dealing was taking place in the house, but the court nevertheless concluded that there was insufficient evidence that Harvey personally exercised any dominion and control over the drugs. Id. at 708. In other words, because Harvey lived in the house, and because the drugs were in locations that were accessible to her (the bedroom and the kitchen), Harvey may have had the physical power to exert control over the drugs if she had wished. But there was no evidence that she participated in the drug-dealing activities or that she had anything else to do with the drugs. Thus, the court concluded, the evidence was not sufficient to establish her possession of the drugs for purposes of the criminal law. Alaska cases have never directly addressed this point. In State v. Niedermeyer, 14 P.3d 264, 272 (Alaska 2000), the Alaska Supreme Court declared that "possession" was "a common term with a generally accepted meaning: having or holding property in one's power; the exercise of dominion over property." But the supreme court may have been overly optimistic when it declared that "possession" had a common, generally accepted meaning. There is an ambiguity in the word "power". This word can refer to a person's right or authority to exert control, but it can also refer to anything a person might be physically capable of doing if not impeded by countervailing force. Thus, if "constructive possession" is defined as the "power" to exercise dominion or control over an object, this definition potentially poses problems — because it suggests that a person could be convicted of possessing contraband merely because the person knew of the contraband and had physical access to it, even though the person had no intention or right to exercise control over it. For example, the children of a household might know that there is beer in the refrigerator or liquor in the cupboard. Assuming that it is within the children's physical power to gain access to these alcoholic beverages, one might argue that the children are in "constructive possession" of these beverages — and thus guilty of a crime under AS 04.16.050 (minor in possession of alcoholic beverages) — because the children have "the power to exercise dominion or control" over the beverages. To avoid results like this, some courts have worded their definitions of "constructive possession" in terms of a person's "authority" or "right" to exert control over the item in question. See, for example, State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005). Other courts have worded the test as the defendant's "power and intention" to exert control or dominion over the object. See, for example, United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970) (emphasis added). This same type of problem might have arisen in Alex's case if the case had been litigated differently. For example, given the facts of the case, one can imagine Alex conceding that he was aware of the pistol under his seat, but then asserting that he had no connection to the pistol and that he only became aware of its presence underneath his seat when, during his ride in the vehicle, the pistol bumped against his feet. But this was not the strategy that Alex's defense attorney adopted at trial. Instead of conceding that Alex knew that there was a pistol under his seat, Alex's attorney denied that Alex knew about the pistol, and further denied that Alex had ever said anything to the police about the weapon. The defense attorney relied on Earl Smith's statement that Alex and Wilson did not know that there was a firearm in the vehicle, and the attorney argued that the police officers had lied when they testified that Alex directed them to the weapon. On this point, it is important to note that the discussion about the wording of the jury instruction occurred after the defense attor ney had presented her case. Assumedly, the defense attorney had already formulated her summation to the jury. If she had been considering a defense such as the one described two paragraphs above, one would expect her to have highlighted this defense when she discussed the wording of the jury instruction with Judge Card, and to have explained how the disputed language might lead the jury to improperly reject this proposed defense. But the defense attorney's arguments to Judge Card were phrased in the abstract. Judge Card was never alerted that the wording of the jury instruction might pose a real-life problem in Alex's case. The defense attorney never told Judge Card that the wording of the instruction might either support or doom Alex's chosen defense. From this, it appears that Alex's attorney had already decided to argue that Alex did not even knew about the pistol under his seat. Given this defense, it is unlikely that the claimed ambiguity or error in the jury instruction defining "constructive possession" affected the jury's decision — because the alleged flaw in the jury instruction would make a difference only if Alex conceded that he was aware of the assault pistol under his seat. Even when a jury instruction contains an erroneous statement of law, the flawed instruction will require reversal of a conviction only if "it can be said that the verdict may have been different had the erroneous instruction not been given". Here, given the way that Alex litigated this case, there is no reason to believe that the verdict would have been different even if the jury instruction had been modified in the manner that Alex's defense attorney proposed. There is, moreover, a second reason for concluding that any error in the "constructive possession" instruction could not have affected the jury's decision: the jury convicted Alex of second-degree weapons misconduct. Alex was charged with second-degree weapons misconduct under the theory that he possessed a firearm in furtherance of a drug felony. As we explained in Collins v. State, 977 P.2d 741, 753 (Alaska App.1999), this crime "requires proof of a nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense". We elaborated this point in Murray v. State, 54 P.3d 821, 824 (Alaska App.2002): [T]o establish the [required] nexus ., the State must prove that the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense. Possession of drugs and a firearm alone is insufficient for such a finding— even if the drugs and firearm were located in close physical proximity. Alex's jury was instructed in accordance with Collins and Murray. The jury was told that, before they could convict Alex of second-degree weapons misconduct, the State had to prove that Alex's possession of the firearm "aided, advanced[,] or furthered the drug offense". Thus, when the jury found Alex guilty of this weapons offense, the jurors necessarily found that Alex did more than simply possess the assault pistol at the same time and place that he was committing the drug offense (possession of cocaine with intent to distribute). Alex was not simply a passenger in a vehicle who discovered, to his surprise, that he had physical access to a pistol under his seat. Rather, the jurors found that Alex knowingly possessed the pistol in aid or in furtherance of his drug offense. For this reason, too, we conclude that the jury's verdict was not influenced by any arguable error in the jury instruction defining "constructive possession". Conclusion As we have explained here, Alex's brief to this Court identifies a potential problem in the wording of the "constructive possession" instruction that was given at his trial. We doubt that the trial judge was adequately alerted to this problem. But in any event, we conclude that this potential problem in the wording of the jury instruction had no effect on the jury's verdicts. Accordingly, the judgement of the superior court is AFFIRMED. . National Safe Deposit Co. v. Stead, 232 U.S. 58, 67, 34 S.Ct. 209, 212, 58 L.Ed. 504 (1914), quoted in Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 6.1(e) ("crimes of possession"), Vol. 1, p. 433. . Charles H. Whitebread and Ronald Stevens, "Constructive Possession in Narcotics Cases: To Have and Have Not", 58 Va.L.Rev. 751, 759-760 (1972), quoted in Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 6.1(e), Vol. 1, p. 432. . AS 11.71.030(a)(1). . AS 11.61.195(a)(1) and AS 11.61.200(a)(1), respectively. . See Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002), quoting Beck v. Dept. of Transportation & Public Facilities, 837 P.2d 105, 114 (Alaska 1992).

10409838

ASSOCIATED GENERAL, INC., Appellant, v. LOURIE CONTRACTING, INC., and the Municipality of Anchorage, Appellees

Associated General, Inc. v. Lourie Contracting, Inc.

1987-06-19

No. S-1697

765

769

738 P.2d 765

738

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:30:26.267325+00:00

CAP

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

ASSOCIATED GENERAL, INC., Appellant, v. LOURIE CONTRACTING, INC., and the Municipality of Anchorage, Appellees.

ASSOCIATED GENERAL, INC., Appellant, v. LOURIE CONTRACTING, INC., and the Municipality of Anchorage, Appellees. No. S-1697. Supreme Court of Alaska. June 19, 1987. Andrew E. Hoge and David W. Ridenour, Hoge and Lekisch, Anchorage, for appellant. James A. Crary, Asst. Mun. Atty., Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2607

15692

OPINION PER CURIAM. The judgment is affirmed on the opinion of the superior court set forth in the appendix. APPENDIX IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE No. 3AN-86-8582 Civil DECISION AND ORDER (As Amended from Oral Ruling in Court) On July 9, 1986, pursuant to stipulation between the parties, a hearing for preliminary injunction was combined with a non-jury trial on the merits of this cause. Plaintiff seeks (1) a declaratory judgment that the Municipality of Anchorage's award of Chester Creek Improvements Project, Phase I contract, RFP # 84-E-34, Bid # 86-C38, to Lourie Contracting, Inc. is null and void; (2) an injunction restraining the municipality from awarding the Chester Creek Improvement Project Phase I contract to Lourie Contracting, Inc.; and (3) an order compelling the municipality to award the contract to plaintiff Associated General, Inc. Pertinent facts were stipulated to by the parties: (1) On or about May 10, 1986, the Municipality of Anchorage (hereinafter MOA), through its purchasing division, issued Request for Proposal # 84-E-34 for the Chester Creek Project Phase I contract. (2) Five (5) sealed bids were received and opened by the purchasing office on June 12, 1986. (3) At the time of the bid opening, the low bidders for the Chester Creek project appeared to be: ASSOCIATED GENERAL, INC. $537,580.00 LOURIE CONTRACTING, INC. $554,244.15 (4) After analyzing the bid documents, the MOA determined the "corrected" total bids for the five (5) sealed bids. Under the MOA's "corrected" bids, ASSOCIATED GENERAL, INC. (hereinafter Assoc. Gen'l) and LOURIE CONTRACTING, INC. (hereinafter Lourie) remained the two low bidders, but their positions had changed: LOURIE CONTRACTING, INC. $537,994.15 ASSOCIATED GENERAL, INC. $538,876.00 (5) The "corrected" total bid of Lourie resulted from the MOA's application of the "words over figures" rule of construction, section 10.02, art. 2.3 of Municipality of Anchorage Standard Specifications (hereinafter M.A.S.S.). (6) The "corrected" total bid of Assoc. Gen'l resulted from correction of addition errors. (7) It is further undisputed and Mr. Lourie, President of Lourie, testified in court that his intent on behalf of his company was that the bid of Lourie was to be $554,244.13 as stated in the figures that he had handwritten and initialed on his "Bid Summary" sheet. The court finds further that a preponderance of the evidence establishes that: (8) Mr. Lourie, as president on behalf of Lourie, prepared and signed the bid submitted. (9) Mr. Lourie, as president on behalf of Lourie, changed the numeric figures on items A7, B13, F18. He crossed out the numeric entry in the "Unit Bid Price" and the "Total Bid Price" columns on items A7, B13 and F18 and initialed each such change made by him. He did not change the number written in words and entered in the "Work Description Unit Bid Price in Words" column. (10) Mr. Lourie, as president on behalf of Lourie, also changed and initialed the subtotal numeric figures on pages 2, 5, and 17 and the total bid price on page 26 of Lour-ie's bid (11) Mr. Lourie admits that he made a mistake when he overlooked changing the words so they would state the same price as the numbers he had changed and initialed. (12) Mr. Lourie admits that he intended the changed and initialed figures to be the bid prices submitted on behalf of Lourie. (13) Mr. Lourie admits that he believed that initialing the changed numeric figures would manifest his intent that the changed and initialed figures were the bid prices that his company was submitting. (14) The bid of Lourie if calculated to include the changed numeric figures would not be the lowest bid submitted on the Chester Creek Project, Phase I. Assoc. Gen'l would be the lowest bidder on the project. (15) Mr. Lourie admits his company can perform the contract at the price which is determined by accepting the written word prices and rejecting his changed numeric figures. He can perform the contract because his profit margin on the bid was over five percent (5%) and the difference between his written words and his changed numeric figures is less than five percent (5%) of the total bid price. (16) The MOA Purchasing Office applied the "words over figures" rule of art. 2.3 of M.A.S.S. to conclude that Lourie had submitted the lowest bid. (17) As originally prepared, Lourie's bid contained no discrepancies between the written word and the numeric figure prices. The discrepancies resulted from the changed numeric figures initialed by Mr. Lourie. (18) In making changes and initialing them, Lourie was following the M.A.S.S. art. 2.3 requirement that "If erasures or other changes appear on the forms, each such erasure or change must be initialed by the person signing the bid". (19) The bid submitted by Lourie, on its face without reference to any extrinsic evidence, manifests Lourie's intent that the changed and initialed figures are the amounts, both for unit prices and for total bid price, that Lourie intended to bid on the project: The only initials on the bid appear beside changed numeric figures. The changed numeric figures are consistently initialed. The subtotal numeric figure for each of the schedules A, B & F affected by the changed numeric figures are also consistently changed and initialed by Mr. Lour-ie. No changes appear on the bid other than those initialed by Mr. Lourie. The subtotals for each schedule as well as the total bid price are mathematically correct and consistent only if the changed and initialed numeric figures are used. The figures which are changed are uniformly and consistently stricken by a line drawn through the original figure. (20) Assoc. Gen'l is ready and willing to perform the Chester Creek Project, Phase I contract if it receives the final award. CONCLUSIONS OF LAW (1) The standard of review to be applied by this court is abuse of discretion. Therefore, the task before the court is to determine whether the MOA had a reasonable basis for determining that Lourie was low bidder on the Chester Creek Project, Phase I contract. (2) From recent supreme court cases dealing with controversies concerning public contracting bidding, three (3) principles emerge: (a) the lowest bid price is preferred; (b) rules of construction expressed in specifications should be followed to resolve discrepancies; and (c) intent of the bidder when it is evident from the face of bid is significant. (3) In each of the four (4) recent Alaska Supreme Court cases relied upon by the parties and the court in this case, the supreme court applied these three principles in order to consistently obtain the result that the lowest bidder was awarded the contract. This result is necessary as it is one of the primary purposes and policies underlying the public contract bid process. (4) In reviewing a challenged bid award, the court must conclude that there is a reasonable basis for the MOA's action if the contract is awarded to the lowest bidder as a result of either (1) an application of the rules of construction to resolve discrepancies or (2) a determination of the intent of the bidder from the face of the bid submitted. (5) In this case, the MOA is going to award the bid to Lourie as the lowest bidder solely by applying the rule of construction which requires the MOA to accept words over figures to resolve any discrepancies between them. (6) However, the analysis cannot stop merely with a determination that application of the rules of construction results in a reasonable basis for awarding the bid to the lowest bidder because the competitive bidding process is also required to be open and fair in order to protect it from manipulation. (7) Thus, in order to ascertain whether application of the rules of construction by the MOA to determine the lowest bidder violates the open and fair policy, it must be determined whether (1) enforcement of the contract would be unconscionable, or (2) Lourie gained a competitive advantage as a result of the MOA's action. (8) Although in Vintage Construction v. State DOT, supra, the following analysis is used to determine only unconscionability, it is equally applicable both to the issue of unconscionability and to the issue of competitive advantage. The analysis begins with the issue of whether: (a) the bidder's intent is apparent from the bid as submitted. If the answer is no, the result reached from applying the three principles discussed above (item 2) should control, and no further analysis is appropriate. If the answer is yes, a second question must be considered which is: (b) whether awarding the bid to the lowest bidder would either be unconscionable or result in a competitive advantage. Such an analysis is appropriate because although the goal of the competitive bidding process is to award the contract for a public project to the lowest responsible bidder, it would not be appropriate to accept the lowest bid if it resulted either in an unconscionable contract that the bidder could not reasonably be expected to enter into outside the bidding process or if it resulted in giving the lowest bidder a competitive advantage over other bidders. As found above, the intent of Lourie is apparent from the face of the document: Lourie intended to bid the higher price as indicated by the initialed and changed numeric figures on items A7, B13, F18 and pages 2, 5, 17 and 26 of its bid. Thus, it is necessary to continue the analysis by determining first if the award to Lourie is unconscionable. Given the facts in this case, the contract is not unconscionable if Lourie is required to perform. Lourie can perform the contract without hardship to it. The profit margin on the job will simply be reduced somewhat. The analysis next requires a determination as to whether Lourie would have a competitive advantage if it is awarded the bid in spite of its clear intent to bid a higher price. In Jensen & Reynolds v. DOT, supra, the supreme court's analysis required a determination as to whether the lowest bidder could argue successfully that it should be able to obtain the bid on the basis of its higher price because although higher than its lowest figure, it is still the lowest bid submitted. If so, the lowest bidder would have a competitive advantage. The MOA has a reasonable basis for concluding that this result cannot be obtained in this case because if Lourie's intent to bid a higher price is honored, it is no longer the lowest bidder. The supreme court has also stated that competitive advantage exists when due to a clerical mistake, the lowest bidder can choose whether to withdraw its bid thereby effectively allowing the lowest bidder to decide whether to perform. In AIC v. Earth Movers, supra, the supreme court set out four (4) criteria whereby a bidder could withdraw its bid due to clerical mistake: (1) Mistake is of such consequence as to render enforcement unconscionable. (2) Mistake is material. Materiality for this purpose is defined in the Chris Berg decision, supra as giving a substantial advantage to the lowest bidder and thereby stifling competition. Criteria # 1 and # 2 are duplicative of the very analysis required in this case. As discussed above, the facts of this case establish that it is not unconscionable to require Lourie to perform the Chester Creek Project, Phase I contract. Criteria # 2 is circular in this case because it requires that competitive advantage be determined by whether there is competitive advantage. (3) Mistake occurred despite ordinary care by the bidder; and (4) It is possible to place the other party in the status quo. Criteria # 3 is not supported by the facts of this case because Mr. Lourie admits he simply overlooked changing the words. Criteria # 4 exists in this case in that plaintiff established by a preponderance of the evidence that it is ready to perform the contract if awarded it. Based upon application of the four criteria to the facts of this case, the conclusion must be that Lourie cannot withdraw its bid and, therefore, pursuant to these four criteria, there is no competitive advantage if it is awarded the bid in this case. No other competitive advantages have been considered by the Alaska Supreme Court nor are any other ones suggested either by the parties or the facts in this case. Therefore, this court must conclude that there is no competitive advantage to Lourie if it is awarded the contract as a result of the MOA's application of the rules of construction to reconcile the discrepancies in the bid Lourie submitted. In brief summary, there is a reasonable basis for the MOA to award the Chester Creek Project, Phase I contract to Lourie because application of the "words over figures" rule of construction in the M.A.S.S. results in the contract being performed at the lowest responsible bid. Further, awarding the contract to Lourie in spite of its intent (as clearly manifested on the face of its bid) to submit a higher price does not result in a contract that is either unconscionable to enforce or a contract which gives Lourie a competitive advantage in the bidding process. Consequently, there is no abuse of discretion by the MOA in awarding the contract for the Chester Creek Project, Phase I to Lourie on the basis that it is the lowest bidder. As has been noted in the dissenting opinions of the recent supreme court cases, the role given to the intent of the lowest bidder is troublesome because it is in sharp contrast to the role of intent under ordinary common law contract principles. However, unlike ordinary contract transactions, the bidding process has a specific purpose of securing the lowest responsible price for the performance of public contracts. That purpose, and the process through which it is achieved, compel a different role for intent which is that of safeguarding the fairness of the process itself. In that limited role, intent is significant. Based upon the above, the plaintiff's motion for injunction is denied and judgment should be entered against plaintiff and in favor of the defendants on the allegations of the complaint in this cause. DATED at Anchorage, Alaska, this 11th day of July, 1986. /s/Karen L. Hunt Karen L. Hunt Superior Court Judge . Berg, Inc. v. State, et al., 680 P.2d 93 (Alaska 1984); Alaska International Construction, Inc. v. Earth Movers of Fairbanks, Inc., 697 P.2d 626 (Alaska 1985); Vintage Construction v. State, 713 P.2d 1213 (Alaska 1986); and Jensen & Reynolds Construction Co. v. State, 717 P.2d 844 (Alaska 1986). . The issue of unconscionability of enforcement would appear not to be a necessary part of the analysis unless the lowest bidder is seeking to withdraw its bid. That it is not necessary in this case is further supported by the requirement under AIC v. Earth Movers, supra, to consider unconscionability in order to determine the materiality question raised by the issue of whether the lowest bidder can withdraw his bid and, thus, get a competitive advantage. . As indicated in fn. 2, in this case where the challenge to the bid award is made by another bidder, this second analysis may be the only one necessary because unconscionability is examined in the context of competitive advantage which is the concern of the unsuccessful bidder.

10344368

CH KELLY TRUST; Charles W. Coe; and Carolyn M. Coe; Appellants, v. MUNICIPALITY OF ANCHORAGE, BOARD OF EQUALIZATION, Appellee

CH Kelly Trust v. Municipality of Anchorage, Board of Equalization

1996-01-26

No. S-6237

1381

1383

909 P.2d 1381

909

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:30:38.468787+00:00

CAP

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

CH KELLY TRUST; Charles W. Coe; and Carolyn M. Coe; Appellants, v. MUNICIPALITY OF ANCHORAGE, BOARD OF EQUALIZATION, Appellee.

CH KELLY TRUST; Charles W. Coe; and Carolyn M. Coe; Appellants, v. MUNICIPALITY OF ANCHORAGE, BOARD OF EQUALIZATION, Appellee. No. S-6237. Supreme Court of Alaska. Jan. 26, 1996. Charles W. Coe, Anchorage, for Appellants. George M. Newsham, Assistant Municipal Attorney, and Ann Waller Resch, Acting Municipal Attorney, for Appellee. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1069

6702

OPINION EASTAUGH, Justice. Property owners argue that the superior court erred in affirming a denial of their property tax appraisal appeal. The property owners purchased four vacant residential lots in one subdivision at a Federal Deposit Insurance Corporation (FDIC) land liquidation auction in 1991. They paid $7,200 per lot. Seven months later the Municipality of Anchorage appraised the four lots at substantially higher values. The property owners appealed the appraisals to the Municipality's Board of Equalization (Board), which affirmed. The superior court affirmed the Board's decision. The property owners argue here that the municipal appraiser erroneously failed to consider the FDIC auction purchase prices paid for these properties, and also failed to adjust for topography and groundwater problems. The property owners also argue that the Board impermissibly shifted the burden of proof to them to show property value. We give no deference to the decision of the superior court because it acted as an intermediate court of appeal. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Because the Board's decision involves questions of fact and law that involve agency expertise, we will apply a reasonable basis standard of review. North Star Alaska Housing Corp. v. Fairbanks N. Star Borough Bd. of Equalization, 778 P.2d 1140, 1144 n. 7 (Alaska 1989). This court has specifically held that taxing authorities are to be given broad discretion in selecting valuation methods, and we are "concerned with nothing less than fraud or the clear adoption of a fundamentally wrong principle of valuation." Id. at 1143-44 (quoting Twentieth Century Inv. Co. v. City of Juneau, 359 P.2d 783, 788 (Alaska 1961) (emphasis added)). The 1992 appraisals of the four lots adopted "a fundamentally wrong principle of valuation" because they did not consider the 1991 subject sales. The objective of an appraisal is the determination of the property's market value. By failing to consider recent sales of the subject property the Municipality ignored directly relevant, albeit not conclusive, evidence of value. To arrive at a reliable indication of value, appraisers must evaluate a whole range of factors that influence value. See American Institute of Real Estate Appraisers, The Appraisal of Real Estate 167, 370 (10th ed. 1992). An important part of this evaluation is an analysis of the motivations of the buyers and sellers of the properties utilized as sales comparables. Id. at 405 ("An adjustment for conditions of sale is used to reflect the motivations of buyers or sellers in sales that are not arm's-length transactions due to duress or special relationships. Such an adjustment may also be required in transactions influenced by unusual tax considerations or a lack of market exposure."). Thorough analysis of the subject sales might well indicate that the auction prices paid did not represent true market value, but the appraiser's total failure even to consider the subject properties' prior sales was arbitrary. Consequently, we reverse the superi- or court's decision and remand to the Board with instructions to order new appraisals that consider the 1991 auction sales. We caution that if FDIC was concerned primarily or solely with recouping specific losses or liquidating its stock of properties rather than with receiving full market value, then these auction sales would not necessarily indicate "prevailing market conditions." AS 29.45.110(a), supra note 2. Because we find that the Municipality did consider topography and groundwater and adjusted for their effect on value, we affirm the superior court's decision with respect to those claims of error. Finally, we hold that the Board did not improperly shift the burden of proof to the appellants, as the burden is properly placed on the property owners in an assessment challenge. AS 29.45.210(b); AMC 12.05.050(F)(4) (1994). We REVERSE the decision of the superi- or court and REMAND for further proceedings consistent with this opinion. . The Municipality appraised two lots at $18,400, one at $22,500, and one at $30,400. The appraisals did not consider the auction prices. . Anchorage Municipal Code (AMC) 12.15.030(A) (1995) dictates that "assessor[s] shall assess real property at its full and true value." This value is defined by AS 29.45.110(a): The full and true value is the estimated price that the property would bring in an open market and under the then prevailing market conditions in a sale between a willing seller and a willing buyer both conversant with the property and with prevailing general price levels. . We note that the parties' arguments regarding the procedures and practices of the FDIC are either unsupported or supported only by their own testimony. For example, there is no evidence in the record to support the properly owners' contention that FDIC sets minimum bids; on the contrary, the written terms and conditions of FDIC Public Real Estate Auctions state that "[a]ll properties . are being offered at no minimum starting bid; however [FDIC] reserves the right to accept or reject any and all bids." (Emphasis added.) This reservation of the right to reject bids does not support the property owners' contention that FDIC has determined fair market value and will only sell for that amount; it merely indicates that FDIC may make a decision not to accept some bids. Additionally, the property owners' quotation of the FDIC definition of market value does not prove that FDIC only sells properties for market value at auction sales. .AS 29.45.210(b) states: The appellant bears the burden of proof. The only grounds for adjustment of assessment are proof of unequal, excessive, improper, or under valuation based on facts that are stated in a valid written appeal or proven at the appeal hearing. If a valuation is found to be too low, the board of equalization may raise the assessment. AMC 12.05.050(F)(4) (1994) states: The burden of proof rests with the appellant. The only grounds for adjustment of an assessment are unequal, excessive, improper or under valuation based on the facts that are stated in a valid written appeal or provided at the appeal hearing.... If the valuation is found to be too low, the Board of Equalization may raise the assessment.

11903000

Wayne Michael CRAYTON, Appellant, v. Shannon Sue CRAYTON, Appellee

Crayton v. Crayton

1997-09-12

No. S-7458

487

491

944 P.2d 487

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Wayne Michael CRAYTON, Appellant, v. Shannon Sue CRAYTON, Appellee.

Wayne Michael CRAYTON, Appellant, v. Shannon Sue CRAYTON, Appellee. No. S-7458. Supreme Court of Alaska. Sept. 12, 1997. Elizabeth Page Kennedy, Anchorage, for Appellant. Martha C. Shaddy, Anchorage, for Appel-lee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

2085

13020

OPINION FABE, Justice. I. INTRODUCTION Wayne Crayton appeals the superior court's denial of his motion for reimbursement of child support. Crayton argues that Shannon Riordan (formerly Crayton) owes support for approximately a one-year period when no support order for their two children was in effect. We reverse and remand for calculation of the amount owed by Riordan pursuant to Alaska Civil Rule 90.3. II. FACTS AND PROCEEDINGS Crayton and Riordan married in 1981 and had two children. Crayton filed for divorce in May 1993. Pursuant to a stipulation by the parties, the court appointed a guardian ad litem (GAL) for the children. Crayton and Riordan reached a settlement on property division, child custody, visitation, and support, and the court approved the settlement on January 6, 1994. Under its order, the children were to remain in Anchorage until the middle of July 1994 and then move to Kansas City, Kansas. The order specified that Crayton would pay child support after the children moved to Kansas City "pursuant to Civil Rule 90.3 with a 50 percent reduction for summer visitation." The January 1994 order also stated: [Riordan] will keep the children's 1993 permanent funds, and in addition [Crayton] will pay her $1000 in ten monthly installments, beginning in March 1994, to settle the disparity in the equity in the automobiles. [Riordan] is also relieved of the necessity to pay child support for the six months the children will reside in Alaska with [Crayton]. [Crayton] will keep the 1985 Suburban Sierra Classic, and [Rior-dan] will keep the 1983 Subaru station wagon. The order left open the possibility that the GAL could make further recommendations regarding custody and visitation. The children moved to Kansas City on July 19, 1994. On August 5 the GAL, after an investigation of conditions in Kansas City in July, filed a report and recommendation, moving that the children be returned to Alas ka. After a hearing, the court issued an interim custody order on August 19. The court ordered that the children live in Anchorage "until the [c]ourt has further opportunity to take additional evidence." The children returned to Alaska on August 24 to attend school. The August 1994 order did not address child support. After a hearing in December 1994, a master filed a report recommending that the parties continue to share legal custody, but that primary physical custody be transferred to Riordan on August 1, 1995. The master's report also recommended that Crayton have nine consecutive weeks of extended visitation each summer and some holiday visitation. The superior court issued an order based on the master's recommendations in March 1995, but again did not address the issue of child support. Soon after the children moved to Kansas City, Crayton moved for reimbursement for the expenditures he made supporting the children during the thirteen months between July 1, 1994 and August 1, 1995. He requested that the court offset the reimbursement against the child support payments he was to begin making to Riordan. Crayton also argued that the court should include gifts made to Riordan by her father in calculating the amount of support she owes. Riordan opposed the motion, and the superi- or court denied it. Crayton appeals. III. DISCUSSION Crayton contends that Riordan had a statutory and common law duty to reimburse him for her share of support while he had custody of their children. Riordan responds that Crayton's motion for reimbursement amounts to an attempt to modify the January 1994 order, which relieved her of any obligation to support her children before they came to live with her in Kansas City. She argues that the superior court properly denied Crayton's motion as untimely or, in the alternative, as an attempt to retroactively modify her child support obligations. The January 1994 order contradicts Riordan's contention that the court relieved her of all support obligation as the noncustodial parent. Rather, the order reflects that the trial court offset Riordan's child support obligations for six months against disparities in the property settlement, assuming that after this six-month period Rior-dan would become the custodial parent. When the children did not moye to Kansas City as anticipated, a gap arose in the order's provision for child support;' the trial court, in responding to the concerns and recommendations of the GÁL, failed to adjust the support obligation to match the shifting child custody arrangement. Thus, as. Crayton argues, no support order was in effect after the children moved back to Alaska and before they returned to live in Kansas City. In light of the absence of any provision for child support during this period, we conclude that the superior court erred in denying Crayton's motion for reimbursement. Whether a support order exists or not, "[a] parent is obligated both by statute and at common law to support his or her children." Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987). This obligation includes the duty "to reimburse other persons who provide the support the parent owes." Id. In this case, Riordan, as the non-custodial parent, had an obligation to help provide for her children, notwithstanding the flaws in the support order. The amount of Riordan's obligation must be calculated by the superior court on remand under Rule 90.3. Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996) (hold ing that "absent extraordinary circumstances, courts should apply the calculation methodology of Rule 90.3 to determine amounts to be reimbursed to custodial parents for support of children during periods not covered by support orders"). Contrary to Riordan's argument, this use of Rule 90.3 does not violate the prohibition against retroactive modification of arrearages. As in Va-chon, because there was no child support order in place for the relevant period, "applying Rule 90.3 under these circumstances does not modify any existing arrearage." Id. Nor, for the same reason, is Riordan correct in characterizing Crayton's motion as an untimely attempt to modify an existing support order. On remand, the superior court must also determine the precise dates when the children lived with Crayton. While Crayton's motion sought reimbursement for "the thirteen months from July 1, 1994, to August 1, 1995," the parties do not dispute that the children lived with Riordan from July 19, 1994, to August 24, 1994. The children's move to Kansas City "after the middle of July" was specifically contemplated by the January 1994 order, and the assessment against Riordan should accordingly be offset against any child support owed by Crayton. Finally, we address whether the superior court should include money given to Riordan by her father in calculating her income under Rule 90.3. In Nass v. Seaton, 904 P.2d 412 (Alaska 1995), we concluded that the trial court should not consider gifts when "determining the level of the obligor's adjusted gross income for purposes of calculating a child support obligation." Id. at 416. Crayton argues that this rule does not apply to calculations of Riordan's income under Rule 90.3 for the purpose of reimbursing him. In eases such as Nass, where the court must establish a child support obligation for the future, the inclusion as income of a onetime gift or an inheritance would unfairly inflate that obligation beyond the obligor's reliable future resources. See id. at 415-16 & n. 5. However, in this case, Riordan's future payments are not at issue and no question exists as to whether she will continue to receive the gifts. Cf. Yerrington v. Yerrington, 933 P.2d 555, 557 (Alaska 1997) (holding that court may average variable income to determine child support when variation likely to continue in future). Because the superior court will determine Riordan's income only in retrospect for the period in 1994 and 1995 when the children lived with Crayton, it is fair for the court to base the amount of reimbursement on the actual resources available to Riordan during that period. Therefore, on remand, the superior court should consider the money given to Riordan by her father in calculating her income under Rule 90.3. IV. CONCLUSION Therefore, we REVERSE the superior court's denial of Crayton's motion and REMAND for further proceedings consistent with this opinion. EASTAUGH, J., concurring. . Although we "generally review decisions on motions to modify child support for abuse of discretion," the superior court's denial of Cray-ton's motion turns on the interpretation, of the January 1994 order and we therefore review it de novo. Karpuleon v. Karpuleon, 881 P.2d 318, 320 n. 3 (Alaska 1994). . The superior court failed to specify in the January 1994 order, as required by Rule 90.3(c)(1), the amount of child support Riordan would have paid but for the offset against the property settlement. Riordan's argument that the order relieved her of all obligations, aside from finding no support in, the order itself, contradicts the requirement under Rule 90.3(c)(1)(B) that the court assess the non-custodial parent at least $50 a month in child support.

11902950

Bohdan Jan SZEJNER, Appellant, v. UNIVERSITY OF ALASKA, Appellee

Szejner v. University of Alaska

1997-09-12

Nos. S-7707, S-7708

481

487

944 P.2d 481

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Bohdan Jan SZEJNER, Appellant, v. UNIVERSITY OF ALASKA, Appellee.

Bohdan Jan SZEJNER, Appellant, v. UNIVERSITY OF ALASKA, Appellee. Nos. S-7707, S-7708. Supreme Court of Alaska. Sept. 12, 1997. Rehearing Denied Nov. 14, 1997. Bohdan Jan Szejner, pro se, Anchorage, Appellant. Mark E. Ashburn, Ashburn & Mason, Anchorage, for Appellee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

3010

19215

OPINION FABE, Justice. I. INTRODUCTION These consolidated appeals involve decisions by the University of Alaska, Anchorage, to deny Bohdan J. Szejner admission to a graduate program and to sanction him for a violation of the Student Code of Conduct. The superior court upheld the university's decisions. We affirm. II. FACTS AND PROCEEDINGS Bohdan J. Szejner was admitted to graduate study at the University of Alaska, Anchorage (UAA), on September 22, 1987. In August 1988 his thesis committee approved his candidacy for a Master of Arts degree in English. On April 25, 1989, the thesis committee reviewed Szejner's draft thesis and concluded that it did "not indicate satisfactory progress toward the degree." While one committee member apparently believed that the draft deserved a grade of "F", another member thought that Szejner should be al lowed a second chance. The committee, after consulting with Professor Michael Turner of UAA's .Advising and Counseling Center, agreed on May 3 to allow Szejner until May 18 to submit an outline of chapters, a sample chapter analyzing plays by Shakespeare, and a bibliography. Szejner submitted the requested materials to the committee, and the committee, after considerable discussion, agreed on a grade of "C" for Szejner's thesis and independent research for the semester. As a consequence of receiving this grade, the state student .loan program determined that Szejner's grade point average for the semester made him ineligible to continue to receive student loans. On May 30 Szejner sought Turner's help. The meeting quickly deteriorated, and security officers eventually restrained Szejner and escorted him from the campus. Although the parties dispute the details, it is clear that Szejner became upset and lost his composure. UAA summarily suspended Szejner on May 31 pending a hearing. The vice chancellor for student services, Larry K. Kingry, held a disciplinary hearing to give Szejner the chance to explain and comment on the incident in Turner's office. Kingry concluded that Szejner had violated the Student Code of Conduct and wrote to him that his "threatening behavior to the faculty and staff of the University and their refusal to continue to work with [him]" made it impossible for him to continue with his academic program at that time. Kingry expelled Szejner until at least May 1, 1990. Szejner filed a grievance, and a hearing panel, after an adversarial hearing, affirmed Kingry's decision. The hearing panel's decision was affirmed by UAA Chancellor Donald Behrend and UAA President Donald D. O'Dowd. Szejner applied for readmission on October 12, 1990, and a hearing was held to consider the application. The hearing committee recommended that Szejner not be readmitted to UAA. Jerome B. Komisar, the president of the University of Alaska, adopted this recommendation and placed conditions upon any future request by Szejner for readmission, including a request that Szejner "demonstrate by objective evidence that [he] successfully maintained an ongoing psychological counseling program along the lines recommended by [his psychiatrist]." A hearing was held on June 26, 1991, to consider Szejner's second readmission request. The hearing committee recommended that UAA readmit him on a probationary status to complete his graduate program on the condition that he continue his psychotherapy. President Komisar adopted this recommendation. Szejner received his degree in August 1994. After receiving his degree, Szejner applied to the Teacher Certification Program in English at UAA. The graduate admissions committee of the school of education denied his application. Alexander McNeill, the dean of the school, cited two reasons for this decision: 1.0 President Komisar's letter to you of July 16, 1991 clearly states that "You are readmitted to the Master of Arts in English program for the sole purpose of completing your graduate degree program under thé non-thesis (directed readings) option on page 193 of the 1991-92 UAA catalog." The President's letter essentially prohibits your admission to other programs at UAA. 2.0 The committee has carefully weighed your student record at UAA. On the basis of that record, it is the committee's professional judgment that you have not demonstrated the socially responsible behaviors that are necessary for admission into a teacher certification program. McNeill stated that the decision was "an academic decision and, as such, is subject to the academic appeals process." Szejner appealed the decision to Dr. Doug Hammer, associate vice chancellor for research and graduate programs. Hammer met with Szejner and others, reviewed Szejner's academic record, and upheld McNeill's decision. He also noted in his letter to Szejner that in his own professional judgment Szejner "would not be well served by being admitted into a program" because of his doubts as to whether Szejner could complete the program and receive the recom mendation required for certification. However, President Komisar allowed Szejner to enroll in classes at UAA for which he qualified "on the same basis as any other student in good standing." In November 1994, soon after Hammer affirmed the decision to deny Szejner's application to the Teacher Certification Program, Szejner became involved in an incident with Dr. Roy Rowe. Szejner was enrolled in an education class taught by Rowe. After class on November 1 Szejner asked Rowe to write him a letter recommending that he be admitted into the Teacher Certification Program. Rowe told Szejner that he would not write the recommendation. On November 3 Szejner resigned from UAA. On November 4 Szejner called Rowe several times, leaving messages on an answering machine at Rowe's office and with Rowe's daughter at his home. Szejner finally reached Rowe and had a conversation with him at 5:30 in the afternoon. He again reached Rowe at his home at 8:30 in the evening. According to Rowe, Szejner accused Rowe of trying to slander him and allegedly said: "Do you have a family? If you slander my character, I will slander your character. I know where you live!" Szejner claims that he actually said to Rowe, "[Y]ou know where to find me." Szejner also sent Rowe a letter dated November 4,1994. The letter states: This is in reference to our today's conversation. You said that, quote, "you have to smear me because Mrs. Ada and your boss Dean MacNeill did." I tell you, you can smear your mother, your father, your daughter, your son, "because your boss did!" But if you smear my family or myself, quote, "because someone else did," you will be accountable to me, not to your boss! Why? Because I am a Polish-born American citizen — noble and free — not a conscienceless, morally-fossilized reptilian peon as you are! Rowe notified the director of public safety for UAA and the Anchorage Police Department of both the calls and letter. Rowe stated that he considered both the calls and the letter to be threats indicating "a pattern of escalating harassment by Mr. Szejner directed toward me and my daughter." Linda Lazell, the dean of students, informed Szejner on November 8 that she had received allegations that he had violated the Student Code of Conduct. She requested that Szejner contact her office within three days for a meeting to determine whether disciplinary action was required. After Szejner met with Lazell, Lazell made findings and conclusions regarding the incident with Rowe. She found that Szejner's "telephone calls . to Dr. Rowe's home and [his] subsequent letter to him . which contained a threat, created a threatening environment for Dr. Rowe." She concluded that Szejner had therefore violated the provision in the Student Code of Conduct prohibiting "endangerment." She placed him on disciplinary probation for one year to begin if and when he re-enrolled as a student at UAA. Szejner appealed to Vice Chancellor for Student Services Kingry, and Kingry denied the appeal on November 29,1994. Szejner appealed the decision not to admit him to the Teacher Certification Program and the violation of the Student Code of Conduct to the superior court. After denying Szejner's motion that he recuse himself, Judge Mark C. Rowland affirmed UAA's decisions and granted UAA partial attorney's fees totaling $8,927.25. Szejner appeals. III. DISCUSSION A. UAA Did Not Err by Denying Szejner Admission to the Teacher Certification Program. In challenging UAA's decision not to admit him to the Teacher Certification Program, Szejner first argues that UAA improperly based that decision on his expulsion from the university in 1989. However, subjective factors such as motivation, maturity, and demonstrated humanitarian qualities are valid considerations in academic admissions decisions. See, e.g., Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 842 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1099, 130 L.Ed.2d 1066 (1995) (holding that, in the context of a program to license teachers, concerns over a student's ethical standards and ability to cooperate with superiors "are valid academic matters, because they rank as important measures of an individual's ability to perform as a teacher"); McDonald v. Hogness, 92 Wash.2d 431, 598 P.2d 707, 717 (1979). UAA did not err in considering Szejner's expulsion when it evaluated and rejected his application. Szejner correctly argues that the admissions committee misread President Ko-misar's letter readmitting him to the English program. Komisar's letter stated that Szejner was "readmitted to the Master of Arts in English program for the sole purpose of completing [his] graduate degree program under the non-thesis (directed readings) option." The admissions committee interpreted this to mean that Komisar's letter prohibited his admission to other programs at UAA. However, after Szejner appealed the admissions committee's decision, Komisar clarified his 1991 readmission letter, stating that Szejner was eligible to enroll in classes at UAA for which he qualified "on the same basis as any other student in good standing." Thus, Szejner is correct that the admissions committee incorrectly relied on Komisar's 1991 readmission letter in denying his application. However, this error was harmless because the graduate committee and Hammer, who heard Szejner's appeal, properly based their decision on Szejner's student record in making their decision. B. UAA Did Not Err in Finding that Szejner Violated the Student Code of Conduct. Szejner argues that UAA erred in finding that his phone calls and letter to Rowe violated the prohibition in the Student Code of Conduct against "endangerment." The Student Code of Conduct defines "endangerment" as "[cjonduct including, but not limited to, physical abuse, sexual assault, ter-roristic threats, hazing and/or coercion which endangers or unreasonably threatens the health and/or safety of any person or group of persons, or which cause actual harm to a person or persons." The dean of students, Linda Lazell, specifically found that Szejner called Rowe twice, that he was angry and agitated during the second conversation, that he sent a letter to Rowe stating that "you will be accountable to me, not your boss," that the calls and letter "contained a threat," and that Rowe felt threatened by his actions. Szejner's chief argument is that Lazell improperly found that he had threatened Rowe. He contends that he had no intent to threaten Rowe physically and that his statements were simply "political hyperbole" or "metaphorical language, irony and sarcasm." Szejner acknowledges, however, that he was "deeply upset" by Rowe's failure to recommend him. He also states that in his letter he "vent[ed] his rightful frustration" at Rowe and "made it as crystal clear" as he could that "false accusations must have accountability," although he qualifies this last point by claiming that he "of course" meant only "legal and moral" accountability. A threat is defined as a "communicated intent to inflict physical or other harm on any person or property" and as "menace; especially, any menace of such a nature and extent as to unsettle the mind of the person on whom it operates." Black's Law Dictionary 1480 (6th ed.1990). Szejner is correct that there may be legitimate disagreement over the interpretation of the letter and the phone conversations. Lazell considered and could have chosen to accept Szejner's account and interpretation rather than Rowe's. However, we conclude that Lazell's finding that the letter and telephone calls "contained a threat" and thus constituted "endangerment" under the Student Code of Conduct was supported by both substantial evidence in the record and a reasonable interpretation of the Student Code of Conduct. The undisputed text of the letter, Rowe's statements about the incident, and Szejner's admitted intent to "vent[ ] his rightful frustration" and impress upon Rowe his "accountability" for refusing to write Szejner a recommendation, provide ample evidence to support Lazell's finding that Szejner threatened Rowe. Furthermore, La-zell had a reasonable basis for concluding that such a threat violated the Student Code of Conduct's "endangerment" provision as "[cjonduct, including but not limited to . terroristic threats, . which . unreasonably threatenf] the health and/or safety of any person or groups of persons." Thus, we hold that UAA did not err in determining that Szejner violated the Student Code of Conduct. C. UAA Did Not Violate Szejner's Right to Due Process. Szejner argues that UAA violated his right to due process when it denied him admission to the Teacher Certification Program. For due process to be implicated, there must be a liberty or property interest sufficient to warrant constitutional protection. Gates v. City of Tenakee Springs, 822 P.2d 455, 461-62 (Alaska 1991). A person does not have a property interest in admission to graduate school. Phelps v. Washburn Univ. of Topeka, 632 F.Supp. 455, 459 (D.Kan.1986). Moreover, the denial of admission to graduate school, "without an underlying charge of dishonesty or publication of reasons for such denial, does not rise to a liberty interest." Id. Therefore, Szejner was not due any constitutional process when UAA denied his application. Szejner also asserts that UAA did not provide him due process when it concluded that he violated the Student Code of Conduct and sanctioned him with one year of disciplinary probation. Again, Szejner does not identify any property or liberty interest sufficient to implicate due process concerns. While a school must provide minimal process before suspending or dismissing a student for disciplinary reasons, Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-89, 98 S.Ct. 948, 952-55, 55 L.Ed.2d 124 (1978), there is no requirement to provide process when the sanction does not interrupt the student's education. Yench v. Stockmar, 483 F.2d 820, 824 (10th Cir.1973) (indicating that probation without expulsion does not implicate constitutional due process). D. The Superior Court Did Not Err in Denying Szejner's Motion for Recusal or in Awarding Attorney's Fees. Szejner argues that Judge Rowland should have recused himself because the attorney representing UAA before the superior court sat on the Alaska Judicial Council in 1992 and voted to recommend the retention of Judge Rowland. This argument is merit-less. Judge Rowland did not abuse his discretion in determining that the attorney's position and actions as a member of the Judicial Council did not prevent or appear to prevent a fair and impartial decision in this matter. See AS 22.20.020(a)(9). Szejner also argues that the superior court erred in awarding attorney's fees. However, because he fails to offer any reason why the award in this ease was an abuse of the superior court's discretion, we reject his argument. IV. CONCLUSION For the above reasons, we hold that UAA did not act improperly in denying Szejner admission to the Teacher Certification Program or in finding that he had violated the Student Code of Conduct. We therefore AFFIRM the decision of the superior court. . As part of the "Certification Endorsement Requirements," the dean of the School of Education and the appropriate department chair must provide a positive recommendation to the commissioner of the Alaska Department of Education on behalf of the candidate. . Because UAA's denial of admission to Szejner was based on the application of its own regula tions, our scope of review is limited to determining if its decision was arbitrary, unreasonable or an abuse of discretion. Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982). This is similar to the standard of review applied in other jurisdictions, E.g., McDonald v. Hogness, 92 Wash.2d 431, 598 P.2d 707, 717 (1979) (reviewing decision to deny admission to an academic program for "arbitrary and capricious action"). . Szejner also contends that the expulsion was unwarranted and based on "secret" and "spoliat-ed" evidence. Szejner, however, never appealed the expulsion decision, and we will not now review it. . In his statement of the issues, Szejner asserts that UAA's denial of his application violated the American Disabilities Act. Szejner does not develop this argument in his brief and it is therefore waived. Weidner v. State, Dep't of Transp. & Pub. Facilities, 860 P.2d 1205, 1213 n. 9 (Alaska 1993). Szejner also relies on article I, section 1 of the Alaska Constitution to argue that UAA violated his "inherent constitutional rights." This argument was not raised during the administrative process nor set forth in Szejner's points on appeal, and is therefore waived. Tolstrup v. Miller, 726 P.2d 1304, 1307 n. 7 (Alaska 1986). .We review UAA's finding that Szejner violated the Student Code of Conduct under the reasonable basis standard because the finding involves an agency's interpretation of its own regulation, and we review UAA's application of the regulation to the facts to determine if its decision was arbitrary, unreasonable or an abuse of discretion. Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982). . Szejner also suggests that Lazell's decision was motivated not by his conduct toward Rowe but as retaliation for his religion, nationality, "political incorrectness", and vocal dissent. Szejner cites to no evidence, and we find none in the record, to support this claim. . Szejner also argues that a sanction of one year of probation is disproportionate to the violation. We disagree. Probation is a mild disciplinary sanction consisting merely of a "written reprimand" and the possibility that "more severe disciplinary sanctions" will be imposed for additional violations of "any institutional regulation." Furthermore, because Szejner withdrew from the university before being sanctioned, he only faces the sanction if he re-enrolls.

11902788

William QUINN, Petitioner, v. ALASKA STATE EMPLOYEES ASSOCIATION/AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 52, Respondent

Quinn v. Alaska State Employees Ass'n/American Federation of State, County & Municipal Employees, Local 52

1997-08-29

No. S-6929

468

473

944 P.2d 468

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

William QUINN, Petitioner, v. ALASKA STATE EMPLOYEES ASSOCIATION/AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 52, Respondent.

William QUINN, Petitioner, v. ALASKA STATE EMPLOYEES ASSOCIATION/AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 52, Respondent. No. S-6929. Supreme Court of Alaska. Aug. 29, 1997. Rehearing Denied Nov. 5, 1997. Kenneth W. Legacki, Kenneth W. Legacki, P.C., Anchorage, for Petitioner. Thomas R. Lucas, Law Office of Thomas R. Lucas, P.C., Anchorage, for Respondent. Before COMPTON, C.J., and MATTHEWS, EASTAUGH and FABE, JJ.

2703

16490

OPINION COMPTON, Chief Justice. I. INTRODUCTION William Quinn petitioned for review of the superior court's decision to uphold the district court's limitation of the period for which Quinn could seek unpaid overtime and penalties from his former employer. Alaska R.App.P. 402(a)(1). We granted the petition. Alaska R.App.P. 402(b). We vacate the order of the district court and remand for further proceedings. II. FACTS AND PROCEEDINGS Quinn was employed by the Alaska State Employees Association (ASEA) as a Business Agent from February 26, 1990, to August 14, 1993. On February 23, 1994, Quinn sued ASEA in district court for unpaid overtime and penalties under AS 23.05.140(b) and the Alaska Wage & Hour Act (AWHA), AS 23.10.050-.150. His claim for unpaid overtime covered a period running from sometime in 1990 to January 1993. The district court granted ASEA's motion for partial summary judgment, limiting Quinn's recovery to unpaid overtime going back two years before he filed suit, in accordance with AWHA's two-year statute of limitation. See AS 23.10.130. The court did not apply the Fair Labor Standards Act (FLSA) three-year statute of limitation. Quinn petitioned for superior court review of the district court's order. The superior court denied the petition. Quinn then filed with this court a petition for hearing from the superior court's decision. We granted Quinn's petition, limited to the following issues: a. Does the statute of limitations under FLSA as to willful violations preempt the limitations period in AS 23.10.130? b. Does the limitations period in AS 09.10.070(3) apply? If so, does it run from the date of the employer's alleged noncompliance with the termination payday requirement of AS 23.05.140(b)? c. Based on the employer's alleged breach of the collective bargaining agreement regarding overtime, does the six-year statute of limitations for contracts in AS 09.10.050(1) apply? III. DISCUSSION A. The Statute of Limitation for Willful Violations under FLSA Does Not Preempt the Limitation Period in AS 2S.10.1S0. Federal law can preempt state law in three ways: explicitly, if Congress declares that state law is preempted; implicitly, if Congress enacts comprehensive laws that leave no room for additional state regulation; or, if state law actually conflicts with Federal law. Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska 1993); see also To-temoff v. State, 905 P.2d 954, 958 (Alaska 1995), cert. denied, — U.S. -, 116 S.Ct. 2499, 135 L.Ed.2d 190 (1996). A conflict between state and federal law occurs where compliance with both laws is a "physical impossibility," or where "the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the federal law. Webster v. Bechtel, Inc., 621 P.2d 890, 900-01 (Alaska 1980) (quoting Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978)). This court addressed the issue of whether FLSA preempts AWHA in Webster. After comparing the history and purposes of the two Acts, we concluded that FLSA did not explicitly or implicitly preempt AWHA in its entirety. Id. at 894-900. We also determined that AWHA's more generous minimum wage, overtime pay, and liquidated damages provisions did not actually conflict with similar provisions in FLSA. Id. at 900-05. This holding was grounded on the principle that states "are given freedom of action to establish higher standards than those established by" FLSA. Eastern Sugar Assocs. v. Pena, 222 F.2d 934, 936 (1st Cir.1955); Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1246 (Alaska 1979) ("[I]t is only where state law is more restrictive or more favorable to the employee that it governs in lieu of' FLSA.). The two-year statute of limitation in AWHA does not explicitly or implicitly conflict with the three-year period contained in FLSA. The statute of limitation contained in FLSA applies only to actions brought under FLSA itself. Conversely, the shorter limitation period outlined in AWHA applies to a purely AWHA cause of action. Since the different limitation periods apply to different causes of action, with different applicable defenses and substantive provisions, they are not in tension with one another. In the absence of a conflict between the state measure and its federal counterpart, the state statute is not pre-empted. Quinn's AWHA claim therefore is governed by the two-year limitation period contained in AWHA itself. However, in view of the fact that the time between the filing of the complaint and the partial judgment on the pleadings was relatively short, Quinn should be permitted to amend his complaint to allege a claim under FLSA, which would be governed by the longer limitation period contained in that statute. See Webster, 621 P.2d at 901-02 (contemplating that suits for unpaid overtime may be filed under both federal and state statutes, reducing enforcement costs and permitting offset of state award by amount of federal award as appropriate). We remand the ease to afford Quinn an opportunity to do so. B. Alaska Statute 23.05.14.0(b) Offers Quinn an Alternative Form of Relief, but It Does Not Revive AWHA Claims Barred by AS 23.10.130. In addition to making a claim under AWHA, Quinn also asserted that ASEA violated AS 23.05.140(b) by failing to pay him all the overtime he was allegedly due within three days of his termination. See statutes cited supra note 1. In Reed v. Municipality of Anchorage, 741 P.2d 1181 (Alaska 1987), we held that the statute of limitation for "liability created by statute," AS 09.10.070(3), applied to claims made under AS 23.05.140(b), and that the combined effect of these two statutes was to give a terminated employee up to two years and three days after termination to file a claim for unpaid wages under AS 23.05.140(b). Reed, 741 P.2d at 1184-85. Quinn filed his complaint approximately six months after he was terminated. His claim for unpaid overtime and a penalty under AS 23.05.140(b) and (d), which provide for recovery of "all wages, salaries, or other compensation for labor or services" and for "a penalty in the amount of the employee's regular wage . from the time of demand to the time of payment, or for 90 working days, whichever is the lesser amount," was timely filed. Id. However, it is not the case, as Quinn implies, that his ' timely filing under AS 23.05.140(b) revives AWHA claims "forever barred" by AS 23.10.130. To hold otherwise would be to do violence to the plain language of that statute. C. The Six-Year Statute of Limitation for Contracts in AS 09.10.050(1) Applies to AREA'S Alleged Breach of the Collective Bargaining Agreement. In our decision in Reed, we construed Reed's cause of action to allege a breach of the collective bargaining agreement between the Municipality and Reed's union, as well as a cause of action under AS 23.05.140(b). We held that while the latter claim was governed by the limitation period contained in AS 09.10.070(3), the six-year statute of limitation for contract actions contained in AS 09.10.050 applied to Reed's claim for breach of contract. Id. at 1185. This case falls squarely under Reed. Quinn did not attach a copy of the collective bargaining agreement to his complaint, as did Reed. Id. However, he did attach a copy to his motion for summary judgment, and he argued below that the six-year statute of limitation applies. Also, as in Reed, "[b]oth parties agree that they are bound by the collective bargaining agreement." Id. Thus, it is fair to construe Quinn's complaint as alleging a breach of the collective bargaining agreement, and to hold that the six-year statute of limitation for contracts applies. Id. Quinn filed his complaint in February 1994. He seeks unpaid overtime dating back to 1990. Quinn's claim for unpaid overtime under a breach of contract theory is not barred by AS 09.10.050(1). However, as discussed supra, Quinn's timely filing under the contract statute of limitation does not rekindle unpaid liquidated damages claims "forever barred" by the statute of limitation in AWHA. Quinn incorrectly asserts that because he satisfied the contract statute of limitation, he may seek "all wages and penalties for up to six years." He may seek full recovery of all unpaid over- time, but whatever penalties he is entitled to under AWHA are subject to the statute of limitation in AS 23.10.130. There is no merit'to ASEA's argument that Quinn's breach of contract action is governed by the six-month statute of limitation in the National Labor Relations Act (NLRA). See 29 U.S.C. § 160(b). In Del-Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the United States Supreme Court held that the NLRA's six-month statute of limitation applies to "hybrid" claims in which the employee has a cause of action against the employer for breach of a collective bargaining agreement, and against his or her union for breach of its duty of fair representation. Id. at 169-70, 103 S.Ct. at 2293-94; see Cabarga Cruz v. Fundacion Educativa Ana G. Mendez Inc., 822 F.2d 188, 191 (1st Cir.1987) ("The typical hybrid action involves a claim that the employer violated the collective bargaining agreement and the union failed to handle properly the grievance of the plaintiff-employee who was injured as a result of the employer's action."). However, when an employee only sues the employer for breach of a collective bargaining agreement, the state statute of limitation for contract actions applies. See International Union v. Hoosier Cardinal Corp., 383 U.S. 696, 704-07, 86 S.Ct. 1107, 1112-14, 16 L.Ed.2d 192 (1966); Cabarga Cruz, 822 F.2d at 191 ("If a claim represents, in essence, purely a breach of contract action against the employer, the proper limitations period is not the six month period established by DelCostello, but rather that provided by state law for breach of contract actions."). Quinn is suing ASEA for breach of contract, and therefore AS 09.10.070(3) applies. IV. CONCLUSION Under either AS 23.05.140(b) or a breach of contract theory, Quinn is entitled to seek recovery of the entire amount of unpaid overtime allegedly due. In addition, under AS 23.05.140(d) Quinn may be entitled to receive a penalty not to exceed his regular wage for ninety days. Quinn's AWHA claims were properly limited by the district court, but he is entitled to amend his complaint to seek recovery of unpaid overtime and liquidated damages under FLSA. However, Quinn may not combine theories to seek double recovery of unpaid overtime. The district court's order is VACATED, and the case is REMANDED for further proceedings. RABINOWITZ, J., not participating. . AS 23.05.140(b) provides in part that if an employee is terminated, "all wages, salaries, or other compensation for labor or services become due immediately and shall be paid within three working days after the termination...." An employer who violates this provision "may be required to pay the employee a penalty in the amount of the employee's regular wage, salary, or other compensation from the time of demand to the time of payment, or for 90 working days, whichever is the lesser amount." AS 23.05.140(d). . Under AWHA, an employee working in excess of forty hours a week or eight hours a day must be paid for the overtime at the rate of one and one-half times the regular rate of pay. AS 23.10.060(b). An employer violating this provision "is liable to an employee affected in the amount of . unpaid overtime compensation . in an additional equal amount as liquidated damages." AS 23.10.110(a). . AS 23.10.130 provides in part: An action for . unpaid overtime compensation . under [AWHA] is forever barred unless it is started within two years after the cause of action accrues. For the purposes of this section an action is considered to be started on the date when the complaint is filed. The term "accrues" is not defined in AWHA. When AWHA does not define a term, the definition contained in the federal Fair Labor Standards Act controls. AS 23.10.145. When additional analysis is required, Alaska courts seek guidance from federal case law interpreting FLSA. See, e.g., Jeffcoat v. State, Dep't of Labor, 732 P.2d 1073, 1075 (Alaska 1987). In interpreting FLSA's statute of limitation, federal courts have held that a cause of action for unpaid overtime accrues at the end of each pay period in which overtime is due. See, e.g., Freeman v. National Broad. Co., Inc., 846 F.Supp. 1109, 1159 (S.D.N.Y.1993) ("A cause of action for overtime compensation accrues at each regular payday immediately following the work period during which services were rendered and for which overtime compensation is claimed."), rev'd on other grounds, Freeman v. National Broad. Co., Inc., 80 F.3d 78 (2d Cir.1996). The district court implicitly accepted this definition in limiting Quinn's recovery to unpaid overtime claims dating back two years before he filed suit. .Any action . to enforce any cause of action for . unpaid overtime compensation . under the Fair Labor Standards Act . shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.... 29 U.S.C. § 255(a) (1947) (emphasis added). . At the time Quinn brought the instant action, AWHA did not provide for a "good faith" defense to the liquidated damages provision, in contrast to FLSA. Compare former AS 23.10.110 with 29 U.S.C. § 260. . As noted, AWHA's provisions for minimum wage, overtime pay, and liquidated damages are more generous than those contained in FLSA. . We note that in order to prevail in an action under FLSA following remand, Quinn would have to demonstrate that ASEA's breach was "willful." The term "willful" is "a term of art as used in the F.L.S.A. context." Donovan v. Public Serv. Co. of New Mexico, 607 F.Supp. 784, 786 (D.N.M.1984). A "willful" violation does not require an intentional disregard of FLSA. Id.; see Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 85 (10th Cir.1983) ("A violation may be willful even if an employer does not have specific knowledge that his actions violate the Act."). Rather, "[a]n employer acts willfully and subjects himself to the three[-]year liability provision if he knows, or has reason to know, that his conduct is governed by the Fair Labor Standards Act." Brennan v. Heard, 491 F.2d 1, 3 (5th Cir.1974). There is evidence in the record that ASEA knew as of January 1993 that Quinn and other Business Agents were covered by FLSA. The record is silent as to whether ASEA knew or had reason to know FLSA governed Business Agents prior to January 1993. This issue therefore remains unresolved, and must be addressed on remand, assuming Quinn amends his complaint to allege a claim under FLSA. . Reed did not claim wages or penalties under AWHA. Reed, 741 P.2d at 1184-85. . Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085 (Alaska 1989), did not hold that the longer statute of limitation created by combining AS 09.10.070(3) and AS 23.05.140(b) applies to claims of unpaid overtime under AWHA. In fact, Dayhoff states that AS 23.10.130 governs unpaid overtime claims under AWHA. Id. at 1087 ("The employees' claims for unpaid overtime are subject to a two-year statute of limitations. AS 23.10.130."). The court in Dayhoff was not called upon to resolve the question presented by the facts of this case because the employees in Dayhoff filed their complaint after even the longer statute of limitation had run. Dayhoff speaks to the "latest" date the statutes of limitation may have begun to run, id., but does not address the "earliest" such date, which is the issue here. Dayhoff therefore does not dictate a result in the present case. . In addition, while Quinn may recover all actual unpaid overtime, he may not seek double recovery of such funds by attempting to recover unpaid wages multiple times under different theories.

9259416

Takehiro HIKITA and Alaska Foods, Inc., Appellants, v. NICHIRO GYOGYO KAISHA, LTD., and Nichiro Pacific, Ltd., Appellees

Hikita v. Nichiro Gyogyo Kaisha, Ltd.

2004-02-20

No. S-10612

458

463

85 P.3d 458

85

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:31:50.955736+00:00

CAP

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

Takehiro HIKITA and Alaska Foods, Inc., Appellants, v. NICHIRO GYOGYO KAISHA, LTD., and Nichiro Pacific, Ltd., Appellees.

Takehiro HIKITA and Alaska Foods, Inc., Appellants, v. NICHIRO GYOGYO KAISHA, LTD., and Nichiro Pacific, Ltd., Appellees. No. S-10612. Supreme Court of Alaska. Feb. 20, 2004. Douglas C. Perkins, Hartig Rhodes Hoge and Lekisch, P.C., Anchorage, for Appellants. John S. Hedland, Hedland, Brennan, Heideman and Cooke, Anchorage, for Appel-lees. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

2681

17530

OPINION PER CURIAM. I. INTRODUCTION The superior court imposed litigation-ending sanctions against Alaska Foods, Inc., and Takehiro Hikita (collectively Alaska Foods) for failing to produce pretrial discovery. We reversed the sanctions order because the superior court did not explicitly consider lesser alternative sanctions. After considering and rejecting lesser alternatives on remand, the superior court reimposed its original sanctions order. We affirm, concluding that the superior court did not abuse its discretion. II. FACTS AND PROCEEDINGS This is the fourth time this case has come before us and the seventh time we have addressed aspects of the underlying dispute. Our most recent decision, Hikita v. Nichiro Gyogyo Kaisha, Ltd. (Hikita II), described the case's lengthy procedural history, a story we need not retell here. In Hikita II we reversed a superior court summary judgment order entered in 1991 that dismissed Alaska Foods's claims against Nichiro for several alternative reasons: on the ground of issue preclusion, for lack of substantive merit, and as a sanction for Alaska Foods's failure to provide Nichiro with timely discovery. In appealing the 1991 order, Alaska Foods challenged the superior court's use of dismissal as a discovery sanction on two separate theories. Alaska Foods argued initially that a discovery sanction was unwarranted because Alaska Foods had adequately responded to Niehiro's diseoveiy x'equests. Second, Alaska Foods argued that the superior court lacked authority to impose a discovery sanction because Nichiro had never moved for an order compelling discovery. Our decision in Hikita II rejected both these arguments. We nonetheless observed that "a trial court may not issue litigation-ending sanctions without first exploring 'possible and meaningful alternatives to dismissal.' " Because the superior court had not explicitly considei'ed lesser alternatives, we remanded for further consideration of this point. In remanding the issue, however, we stressed that "[o]ur decision does not preclude the court from reinstating the original sanctions order if a careful consideration of lesser alternative sanctions convinces it that no sanction short of dismissal was appropriate and if the court fully explains its reasons for reaching this conclusion." On remand, after carefully considering and rejecting the possibility of imposing lesser sanctions, the superior court renewed its dismissal order: [Mjonetary sanctions against [Alaska Foods] would be of no value in bringing about compliance with the discovery requirements. [Alaska Foods] and its primary owner, Takehiro Hikita, are already subject to judgments in favor of defendants which, at the time of the dismissal order in 1991, were in the amount of millions of dollars, and had not been paid. Mr. Hikita had been held in contempt of court for failing to appear at a court ordered judgment debtor examination. Accordingly, the imposition of additional monetary sanctions or a contempt citation against [Alaska Foods] and/or Hikita would not result in compliance with the order. Additionally, an order compelling compliance would have been of no effect. [Alaska Foods] had repeatedly ignored its obligation to make discovery, and had deliberately disregarded its own promises to do so.... Finally Alaska Foods' failure to provide discovery in the over nine month peidod since the Supreme Court's opinion of November 17, 2000 reaffirms this court's conviction that no sanction other than dismissal is sufficient. Alaska Foods again appeals. III. DISCUSSION The superior court has broad authority to determine appropriate sanctions for discovery violations, and its decisions in this area are "subject only to review for abuse of discretion." We have nevertheless recognized that, before ordering a litigation-ending sanction, the trial court must expressly consider "possible and meaningful alternatives to dismissal." We have also pointed out that a court considering this issue should be mindful that the sanction it ultimately chooses must be "sufficiently related" to the violation it seeks to punish. Alaska Foods accuses the superior court of disregarding these principles in several ways. It first argues that, by the time the superior court considered the issue on remand, a discovery sanction was no longer warranted because our decision in Hikita II made Nichiro's outstanding discovery requests superfluous. Alaska Foods posits that Nichiro's discovery requests merely sought information to support its defense that Alaska Foods's claims were barred by the doctrine of issue preclusion; because Hikita II found as a matter of law that issue preclusion did not bar these claims, Alaska Foods reasons that the discovery requests are now moot. In Alaska Foods's view, then, dismissal as a sanction for failure to produce this information has no substantial relation to the discovery violation allegedly committed. But this argument relies on a mistaken premise: that "the only reason for propounding any of the requests . was to find support for Nichiro's planned summary judgment motion on the issues of res judicata/col-lateral estoppel." Here, since the record supports Nichiro's position that its requests for discovery sought information relating to the independent issues of damages and issue preclusion, Hikita II's ruling on the latter issue did not make Niehiro's requests for discovery superfluous. Moreover, in reversing the superior court's finding of res judiea-ta/collateral estoppel, Hikita II relied on Ni-chiro's failure to show that Alaska Foods had any incentive to pursue earlier litigation resulting in a judgment against Adak Alaska Processors, Inc. — its original joint venture with Nichiro — after Nichiro abandoned the venture. As Nichiro correctly points out, a response to its discovery requests might have produced information enabling Nichiro to present the record evidence of incentives that Hikita II specifically found to be lacking to support a finding of issue preclusion on summary judgment. Alaska Foods also argues that Nichiro's discovery requests were superfluous — and that Alaska Foods's failure to respond to. them should therefore have been excused— because the parties conducted extensive discovery covering the same information at an earlier stage of the litigation, in 1977-1980. Yet Alaska Foods failed to raise this issue in its earlier appeal challenging the superior court's discovery sanction — the appeal we addressed in Hikita II. As already noted above, the only arguments Alaska Foods raised concerning the discovery sanction in its earlier appeal were that it had submitted proper responses to Nichiro's discovery requests and that the superior court lacked authority to impose a discovery sanction because Nichi-ro had never filed a motion to compel discovery. Hikita II rejected these arguments and upheld the superior court's finding of an unexcused discovery violation, declaring the sanction order deficient only because the court had not explicitly considered lesser alternatives before selecting dismissal as the appropriate sanction. Hikita II's resolution of these points is now binding and precludes Alaska Foods from advancing a new theory suggesting that Nichiro's discovery requests were unjustified. Alaska Foods additionally claims that the superior court's refusal to find a meaningful lesser alternative sanction was based on the court's mistaken belief that Alaska Foods owed money to Niehiro under a previously entered final judgment. The procedural background for this claim is largely undisputed. In 1984 the superior court entered a final judgment encompassing all claims between Alaska Foods and Niehiro; the judgment dismissed all claims asserted by Alaska Foods and awarded Niehiro almost $700,000 on its counterclaims. An appeal was filed challenging the dismissal of Alaska Foods's claims against Niehiro, but no appeal was filed from the award to Niehiro on its counterclaims against Alaska Foods. In our 1986 decision in Hikita v. Nichiro Gyogyo Kaisha, Ltd. (Hikita I), we reversed the dismissal of some of Alaska Foods's claims, affirmed the dismissal of its other claims, and remanded the case to the superior court. Later that year, the superior court dismissed Alaska Foods's reinstated claims and again entered a final judgment. Alaska Foods appealed; the earlier award on Nichiro's counterclaims again remained unchallenged. In our 1989 decision in Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., we reversed the 1986 order of dismissal and remanded for further proceedings. That remand led to a renewed dismissal of the restored claims in 1990 and to a new final judgment entered in 1997, which, in turn, generated our decision in Hikita II — already discussed above. As the above-described litigation over Alaska Foods's claims proceeded, Niehiro made unsuccessful efforts to collect on the uncontested 1984 award for its counterclaims. Its efforts included repeated attempts to hold a judgment debtor examination of Alaska Foods's owner, Hikita, which Hikita opposed. After our 1989 decision reinstating Alaska Foods's claims, the superior court stayed Nichiro's further efforts to execute on its 1984 award pending completion of the proceedings on remand. Following the superior court's renewed dismissal of Alaska Foods's claims in 1990, a judgment debtor examination was scheduled in 1991; Hikita, who lives in Japan, failed to appear at the hearing and was eventually held in contempt. Almost a decade later, when we remanded yet again in Hikita II, the award on Nichi-ro's counterclaims remained uncollected. In entering its findings concerning the unavailability of meaningful lesser sanctions after our remand in Hikita II, the superior court relied in part on Alaska Foods's conduct after the court entered its 1990 order dismissing the case as a discovery sanction. Specifically, the superior court's findings referred to Hikita's contempt citation, Nichiro's inability to collect the award on its counterclaims, and Alaska Foods's continuing failure to provide discovery after our order remanding in Hikita II. Alaska Foods disputes the superior court's reliance on this post-dismissal conduct, insisting that its conduct is irrelevant to the issue of sanctions because Alaska Foods had no obligation to pay the 1984 award on Nichiro's counterclaim. Alaska Foods theorizes that the original 1984 judgment in favor of Nichi-ro was vacated in 1989, when we issued our decision in Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., which reversed the superior court's 1986 dismissal of Alaska Foods's claims. According to Alaska Foods, our decision in Alaska Foods had the effect of vacating the entire 1984 final judgment, causing its unchallenged award to Nichiro on its counterclaims to become a non-final order that Nichiro could not enforce without first obtaining a judgment under Civil Rule 54(b). Hence, Alaska Foods insists, it did no wrong by refusing to honor Nichiro's award and resisting its efforts to execute. But Alaska Foods's theory of lost finality fails for two independent reasons. First, Alaska Foods neglected to preserve the issue below. In resisting Nichiro's efforts to conduct a judgment debtor examination, Alaska Foods urged the superior court, as a matter of discretion, to stay execution on Nichiro's judgment because Alaska Foods expected to win an even larger, offsetting judgment when it prevailed on its reinstated claims. Alaska Foods cites no point in the record before we decided Hikita II when it claimed that Nichi-ro's judgment was non-final as a matter of law and that Nichiro was therefore barred from collecting it. Had Alaska Foods advanced this theory in opposition to Nichiro's efforts to conduct the judgment debtor examination, it seems reasonable to expect Nichiro might have .done precisely what Alaska Foods now accuses it of inexcusably failing to do — reduce its award to a formal judgment under Civil Rule 54(b). Given these circumstances, Alaska Foods cannot plausibly assert its freshly conceived theory to excuse its conduct. More important, Alaska Foods's theory of finality runs counter to settled law. Nichiro cites a body of cases recognizing that "any part of a judgment not appealed from continues in effect, regardless of the reversal of other parts of the judgment." As the Delaware Supreme Court recently stated the proposition, "unappealed portions of [a judgment] are deemed final, and thus 'due,' when the appeal period expires." Alaska Foods cites no contrary authority and makes no attempt to distinguish — or even acknowledge — the cases advanced by Nichiro. The rule espoused by these cases is sensible and appears to be uniformly followed. Thus, even if Alaska Foods had preserved the point, its theory would lack legal merit. Alaska Foods last argues that the superior court erred in basing its findings concerning lesser alternátive sanctions on conduct occurring after the sanction of dismissal had already been imposed. But in our view, the superior court could reasonably construe Hikita II's mandate as requiring a realistic appraisal of potentially meaningful alternative sanctions existing at the time of the remand. Moreover, our review of the superi- or court's findings convinces us that the court relied on post-1990 events primarily to confirm its original impression that no meaningful lesser alternatives to dismissal were available when the litigation-ending sanction was ordered. We thus find no error in the superior court's consideration of post-1990 events. IV. CONCLUSION Our decision in Hikita II authorized the superior court to reinstate its original sanctions order "if a careful consideration of lesser alternative sanctions convinces it that no sanction short of dismissal was appropriate and if the court fully explains its reasons for reaching this conclusion." On remand the superior court complied with this mandate, issuing a careful explanation of its reasons for concluding that no meaningful lesser sanctions remained available. Because Alaska Foods has failed to establish that the superior court erred in reaching this conclusion, we AFFIRM the judgment of dismissal. FABE, Justice, not participating. . Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1171-74 (Alaska 2000) (Hikita II). . Id. . Id. at 1180. . Id. at 1175. . Id. . Id. at 1175-76. . Id. at 1176 (quoting Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993)). . Id. . Id. at n. 21. . Id. at 1175 (quoting Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998)). . Id. at 1176 (quoting Underwriters at Lloyd's London, 846 P.2d at 119). . Underwriters at Lloyd's London, 846 P.2d at 119. . See Hikita II, 12 P.3d at 1177. . Hikita II, 12 P.3d at 1175. . Id. at 1176. . We reject Alaska Foods's contention that its failure to raise this argument before we decided Hikita II should be excused because its current attorney was new to the case in 1997, when the appeal that we decided in Hikita II was filed. Alaska Foods points to nothing in the record indicating that it raised the existence of previous discovery as a basis for opposing Nichiro's motion for discovery sanctions in the superior court before that court initially ordered dismissal as a sanction in 1990. Since the attorney who then represented Alaska Foods failed to raise the point before the superior court, Alaska Foods failed to preserve the point, even assuming that its current counsel excusably neglected to spot it before filing the 1997 appeal in Hikita II. .See Hikita v. Nichiro Gyogyo Kaisha, Ltd., 713 P.2d 1197 (Alaska 1986). . Id. . See Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117 (Alaska 1989). . Id. . Id. . Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1171-74 (Alaska 2000) (Hikita II). . Calistro v. Spokane Valley Irr. Dist. No. 10, 78 Wash.2d 234, 472 P.2d 539, 540 (1970) (en banc); see also Blue Hen Lines, Inc. v. Turbitt, 787 A.2d 74 (Del.Supr.2001); Edmison v. Clarke, 61 S.W.3d 302 (Mo.App.2001); State ex rel. Horridge v. Pratt, 563 S.W.3d 168, 170 (Mo.App.1978); Triton Coal Co. v. Husman, Inc., 846 P.2d 664, 669 (Wyo.1993); Smith v. West, United States Court of Appeals for Veterans Claims, April 14, 1999, 1999 WL 314092; see generally 5 Am Jur.2d Appellate Rev. § 861 (1995). . Blue Hen, 787 A.2d at 78. . Our conclusions on Nichiro's primary points — that , Nichiro's requests for discovery called for production of potentially important information concerning damages, that Alaska Foods failed to preserve its claim that this information had already been provided in prior discovery, and that the 1984 judgment on Nichiro's counterclaims remained final and enforceable— make it unnecessary to separately discuss Alaska Foods's wrap-up argument that the extreme sanction of dismissal was unwarranted because any discovery violation committed by Alaska Foods pertained only to moot/improper areas, to discovery that had previously been provided, or to issues that were merely collateral. . Hikita II, 12 P.3d at 1176. . Id. at n. 21.

8992237

Ben NOYAKUK, Appellant, v. STATE of Alaska, Appellee

Noyakuk v. State

2006-01-20

No. A-8442

856

872

127 P.3d 856

127

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:21.526361+00:00

CAP

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

Ben NOYAKUK, Appellant, v. STATE of Alaska, Appellee.

Ben NOYAKUK, Appellant, v. STATE of Alaska, Appellee. No. A-8442. Court of Appeals of Alaska. Jan. 20, 2006. Gregory S. Parvin and Robert D. Lewis of Lewis & Thomas, Nome, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

9635

59009

OPINION MANNHEIMER, Judge. In March 2001, Ben Noyakuk shot and killed his girlfriend, Martha Butler. A jury ultimately convicted him of first-degree murder for this homicide. At Noyakuk's trial, the State relied on various statements that Noyakuk made to the state troopers about the homicide. Noy-akuk made these statements during a series of interviews that took place at the Anvil Mountain Correctional Center. Noyakuk was incarcerated at this correctional center as a result of his arrest on April 12, 2001 for two misdemeanors and a probation violation, all unrelated to the homicide. The superior court found that the troopers had violated Noyakuk's Miranda rights at the first interview, so the superior court suppressed Noyakuk's statements from that interview. However, the superior court concluded that Noyakuk's statements from the subsequent interviews were not tainted by this Miranda violation — because, at these subsequent interviews, Noyakuk received proper Miranda warnings and waived his rights, and because Noyakuk's statements at these subsequent interviews were voluntary. The superior court thus ruled that the State could rely on Noyakuk's statements from these subsequent interviews. For the reasons explained here, we agree with the superior court's resolution of these questions, and we therefore affirm Noya-kuk's conviction. Underlying facts In early 2001, Ben Noyakuk and his girlfriend, Martha Butler, were living in Nome. On April 1, 2001, Butler's father contacted the Nome police to report that his daughter was missing. Eleven days later, on April 12th, Thomas Noyakuk (Ben Noyakuk's brother) informed the police that Ben had told him that he had accidentally shot and killed Butler, and that he had hidden her body near the Penny River. Based on this information, the Nome police called the Alaska State Troopers and, together, they began searching for Noyakuk. They found Noyakuk as he was traveling by snow-machine from Nome to Teller. Noyakuk was intoxicated, and he had a rifle with him. Noyakuk was arrested for driving while intoxicated, for possession of a firearm while intoxicated, and for violating the conditions of his probation from an earlier criminal conviction (by drinking alcoholic beverages). However, Noyakuk was not charged with any crime in connection with the homicide. At the time of his arrest, Noyakuk was advised of his Miranda rights, but he was not interrogated. He was taken to the Anvil Mountain Correctional Facility. Within an hour of his arrival at the correctional facility, Noyakuk was placed on "suicide watch" — ie., he was placed in administrative segregation, and corrections officers took away his clothing, so that he had only a mattress and a blanket in his cell. Prisoners on "suicide watch" are not allowed any visitors except for their attorney — and, because Noyakuk had no attorney yet, this meant that he was being held incommunicado. Noyakuk was still on suicide watch the next morning (April 13th), when two státe troopers — Jane Schied and Terry Shepherd — came to the correctional center to interview Noyakuk about Martha Butler's death. Corrections officers allowed Noyakuk to dress, and then they took Noyakuk to a small room adjacent to the correctional center's booking office, where the two troopers were waiting. The troopers informed Noyakuk that he did not have to talk to them, and that he was free to leave (ie., terminate the interview and return to his cell) at any time. In addition, when Noyakuk asked about getting an attorney, the troopers told him that he could have an attorney present during the interview if he wished, and that they would delay the interview in that case. However, the troopers did not give Noyakuk the full set of Miranda warnings before they began to question him. During this first interview, Noyakuk told the troopers that he had accidentally shot Butler and that, after she died, he wrapped her body in a blanket and buried her under a snowbank near the Penny River. On the afternoon of April 13th (ie., a few hours after Noyakuk's first interview with the state troopers), Noyakuk was brought to court and arraigned on the misdemeanor charges. An attorney was appointed to represent him on those charges (as well as the probation violation). Trooper Schied returned to the correctional center in the early evening of April 15th to conduct a second interview with Noyakuk. That is, this second interview took place a little over 48 hours after the initial interview and Noyakuk's ensuing court arraignment. This time, Schied gave Miranda warnings to Noyakuk, and he waived his rights. At this second interview, Noyakuk presented basically the same account of the shooting (ie., that it was an accident), but his description of events varied in some details, and Schied believed that some portions of Noyakuk's account were unlikely or did not make sense. When Schied tried to pin Noya-kuk down on some of these discrepancies, Noyakuk became "shook up". He told Schied that he was going to end the interview, and Schied responded that this was his right. But before Noyakuk left the interview room, he told Schied, 'You know where I am if you have any more questions." Schied understood this to mean that Noyakuk did not object to being interviewed again at a later time. Schied's third interview with Noyakuk took place in the mid-afternoon of April 16th. Schied testified that she went to the correctional center shortly after noon on the 16th, intending to interview Noyakuk, but when she arrived, she discovered that Noyakuk had just had an interview with a mental health worker and he was emotionally upset. Even though Noyakuk told Schied that he was willing to speak to her, Schied declined to interview Noyakuk at that time. Instead, she advised Noyakuk that it would be better if he got some rest first. Schied left the prison and returned two hours later, at which time she conducted her third interview with Noyakuk. Again, she Mirandized Noyakuk, and Noyakuk waived his rights. During this third interview, Noyakuk admitted that the shooting had not been an accident. Noyakuk told Schied that he shot Butler as she lay on a couch with her eyes closed (apparently unconscious). Noyakuk explained that he shot Butler because he believed that she was going to leave him. Noyakuk also informed Schied that he would be willing to help the troopers look for Martha Butler's body. Schied told Noyakuk that she would forward this offer to her superiors. Schied contacted Noyakuk again on the morning of April 17th (again, with Miranda warnings). She informed Noyakuk that the troopers did want Noyakuk's assistance in searching for Martha Butler's body, and that the troopers would return to the prison the following day (April 18th) to come get him. When the troopers returned the next day, they Mirandized Noyakuk, and then they transported him by helicopter to the Penny River, where they located the body. Two weeks later, the Nome grand jury indicted Noyakuk for first-degree murder. Noyakuk's motion to suppress his statements to the troopers Following his indictment, Noyakuk asked the superior court to suppress the statements he made at the initial interview on April 13th because Schied and Shepherd had not fully advised him of his Miranda rights. Noyakuk also asserted that the troopers had failed to honor his request for an attorney at the April 13th interview, and that this constituted an independent basis for suppressing his statements from that first interview under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Noyakuk also sought suppression of the statements he made at the subsequent interviews, arguing that these subsequent interviews were all tainted by the Miranda violation and the Edwards violation at the initial interview. And, finally, Noyakuk sought suppression of all physical evidence derived from these interviews. Following an evidentiary hearing, Superior Court Judge Ben J. Esch agreed with Noya-kuk that the troopers had interrogated him in violation of Miranda at the first interview. Judge Esch therefore suppressed the statements Noyakuk made at that initial interview. However, Judge Esch concluded that Noyakuk's statements from the subsequent interviews were admissible despite the initial Miranda violation. Judge Esch reached this conclusion because he found that (1) all of Noyakuk's statements were voluntary for Fifth Amendment purposes, and (2) Noyakuk was fully advised of his Miranda rights, and waived those rights, prior to each of the subsequent interviews. With regard to the asserted Edwards violation (¿a, failure to honor a suspect's request for an attorney), Judge Esch found that Noyakuk made only an equivocal request for an attorney when Noyakuk said, "Shouldn't I just have my attorney with me, or something?" Judge Esch further found that Noyakuk was aware (at that time) of his right to the assistance of an attorney, due to his "[prior] experience with both attorneys and the justice system". As Judge Esch noted, Noyakuk was convicted several times in the 1980's of minor consuming alcohol, and was convicted once of disorderly conduct in the 1990's. Moreover, in the year preceding his arrest in April 2001, Noyakuk was convicted three times of domestic assault. Judge Esch also found that the troopers had responded appropriately to Noyakuk's equivocal request for an attorney: they repeatedly explained to Noyakuk that it was up to him to decide whether he wished to speak to them without an attorney, and they asked Noyakuk to clarify whether he was willing to speak to them without an attorney. Only after Noyakuk expressly stated that he was willing to be interviewed without an attorney did the troopers commence their substantive questioning about the homicide. Under these facts, Judge Esch concluded, the troopers had not violated the rule of Edwards v. Arizona. A more detailed look at the first interview As explained above, Noyakuk was arrested and placed at the Anvil Mountain Correctional Center on April 12, 2001. However, he was not charged with any crime arising from the homicide of Martha Butler. Rather, Noyakuk was arrested on charges of driving while intoxicated and possession of a firearm while intoxicated, as well as for violating his probation (by drinking). Troopers Schied and Shepherd came to the correctional center the next day to interview Noyakuk about the homicide. At the beginning of this interview, the following colloquy took place between Trooper Shepherd and Noyakuk: Shepherd: Okay. Ben, you know we're here to talk to you today. Ah, we're not here to arrest you for anything else. Um, you know you — you don't have to talk to us if you don't want to. Um, you know, you— you can, you know, go tell the correctional officers any time that you want to go back to your cell, that you can. Okay, you understand that? Noyakuk: Uh-huh [yes]. A few moments later, Shepherd reiterated that Noyakuk could leave the interview any time he wished: Shepherd: Okay. Well, like I said, we're not here to talk to you about any of your charges from yesterday. Noyakuk: Uh-huh. Shepherd: You understand that. Noyakuk: Uh-huh. Shepherd: Okay. Like I said, you know, you — you're not under arrest for anything here. We're not here to charge you with anything. Um, and again, we're going to talk to you about some stuff, and at any time you don't want to talk about it, you can leave. That's up to you, okay? Noyakuk: Okay. Trooper Schied then informed Noyakuk that she and Shepherd wanted to speak to him about Martha Butler's death. The following colloquy ensued: Schied: So that's what we'd like to talk to you about. We know you've been through a lot with Martha. Noyakuk: Uh-huh. Schied: We know that, when she gets intoxicated, she can get very, very hostile — very, very mad and very mean. We understand those things. But [do] you suppose you can help us out with this situation, Ben? Noyakuk: Probably. Schied: Okay. Can you kind of tell us what happened, so [that] we can help her parents and you, too? Noyakuk: Shouldn't I just have my attorney with me, or something? Schied: Umh . Shepherd: Well, if, if that's what you feel [is] right — I mean, we can't make that decision for you. You have to make that • decision. Like I said, . we're not here to talk about the [pending] charges; we're here to talk about Martha.... Like I said, you know, you don't have to talk to us if you don't want [to]. But, ah, like Trooper Schied said, we're trying to figure out what happened so that we can help her parents, you know, get over this,' and adjust to it, and . Noyakuk: Uh-huh. Shepherd: . and try to find out, you know, what actually happened. Because we always know [that] there's two sides to the story.... There's your side, [and] we've been talking to a lot of people, and we've heard what they've been saying, and what you told them. But from our work, we know that there's two sides to the story, and the best place to always hear the story is from the person [who] actually . was there. So [you] know, like I said, you — you can talk to us if you want. If — if you want an attorney, that's fine, too. Noyakuk: Uh-huh. Shepherd: Ah, but that's up to you. You need to make that decision and let us know. Noyakuk: Uh-huh. Schied: Because that attorney can't help us find where Martha is, to help her parents. You know, he's not the one that can help you do that. He's not the one that can help us help [Martha's] parents. Noyakuk: Uh-huh. Schied: But if that's what you feel — like Investigator Shepherd says, that's your choice. Shepherd: So it, it's something for you to decide, before we go further with anything, [with] any questioning. Noyakuk: I don't know; I don't know how this (indiscernible). Schied: You don't know what to say, Ben? Noyakuk: Huh? Schied: Would it help if we just asked [our] questions? Would [that] make it easier for you? Noyakuk: I don't have to answer. Schied: So you don't have to just, just spell it out, would it help you if we just ask questions? Noyakuk Okay. Schied: Are you — are you willing to do that without an attorney, though? We need to know that. Noyakuk: Yeah. Schied: Okay. Um, were you up . by John Ahmasuk's camp when [Martha] was shot? Noyakuk: No, I was in my house. Schied: You were in your house? Noyakuk: Uh-huh [yes]. Schied: Okay. Would — okay. Noyakuk: It was accidental. Schied: Okay. Well, those things happen, Ben. Shepherd: Those [things] happen. Schied: Was, was this . Shepherd: Ben, would you even feel better, you know, if — if we read you your rights? Would you feel better if we did that first? Or . Noyakuk: Unh-uh [no]. Shepherd: No, it's okay? So you are willing to talk to us; it's okay? [Are] you willing to talk to us without an attorney? Noyakuk: Uh-huh [yes]. Shepherd: I'm sorry; I couldn't hear you. Noyakuk: Yes. [The troopers then resumed their substantive questioning.] Was Noyakuk in custody for Miranda purposes during the first interview (the interview on the morning of April ISth) ? When this case was first briefed, the State did not dispute that Noyakuk was in custody for Miranda purposes during the interview of April 13th and that troopers failed to give Noyakuk adequate Miranda warnings at that time. We nevertheless asked the parties for supplemental briefing on the issue of whether Noyakuk was truly in custody for Miranda purposes during that April 13th interview, given the troopers' repeated statements to Noyakuk that he was not obliged to speak to them, and that he could leave the interview at any time. The parties responded with well-written briefs on this question. Having considered the matter, we agree with Judge Esch that Noyakuk was in custody for Miranda purposes. In Beaver v. State, 933 P.2d 1178, 1185 (Alaska App.1997), we held that even when the police interrogate a prison inmate, a finding of "custody" for Miranda purposes still requires proof of coerciveness. And there is a significant body of case law from other jurisdictions supporting the view that a prison inmate who is interviewed by the police about an unrelated offense will not be deemed to be in Miranda custody if the interviewing officers make it clear that the inmate need not participate in the interview, that the inmate can choose to terminate the interview at any time, and that the inmate will suffer no adverse consequences if the inmate decides not to answer the officers' questions. But in all of these cases, the interrogated inmate had already been convicted and sentenced or, at the least, the inmate had already been incarcerated for weeks before being questioned by the police. In other words, the defendants in those cases were in their accustomed environment when the police approached them and asked them to submit to an interview — and the defendants knew that if they chose to end the interview, they would be returned to that accustomed environment. Noyakuk's case stands in sharp contrast. Noyakuk had been in jail for less than a day. He had been held incommunicado during that time. Naked in a solitary cell, and denied visitors, he had not yet appeared before a judicial officer, and he had received no legal advice. This was not a situation where a prison inmate was interviewed in their prison "home". Noyakuk was just as susceptible to the inherent coercive pressures of the interrogation process as any new arrestee. The troopers could not have interrogated Noyakuk following his arrest on the evening of April 12th without first obtaining a Miranda waiver. We conclude that the situation was no different at ten o'clock the next morning. Because Noyakuk was in custody when the troopers came to interview him on April 13th, and because Noyakuk did not receive the complete set of Miranda warnings at that time, we uphold the superior court's decision to suppress Noyakuk's statements from that interview. Why we conclude that the Miranda violar tion at the April 13th interview did not taint the statements that Noyakuk gave at the later interviews When Judge Esch ruled on Noya-kuk's suppression motion, he declared that he would have suppressed all of Noyakuk's statements if Noyakuk's case had been governed by the law as it existed before the United States Supreme Court issued its decision in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). However, Judge Esch concluded that, under post-,S7-stad law, Noyakuk's statements at the subsequent interviews were not tainted by the Miranda violation that occurred at the first interview. In both Halberg v. State and Crawford v. State, we described and examined the difference between pre- and post-Elstad law on the issue of whether a Miranda violation in one interrogation requires suppression of the statements the suspect makes in ensuing interrogations. As we explained in Crawford, [The] two competing analyses of this question [are] the [pre-Elstad] "dissipation of taint" analysis exemplified by the United States Supreme Court's decision in Brown v. Illinois,[ ] and the modified analysis announced in 1985 by the Supreme Court in Oregon v. Elstad. Under Brown, even though a suspect ultimately receives proper Miranda warnings, the statements that the suspect makes after receiving those Miranda warnings are still presumptively inadmissible; to rebut this presumption, the government must show that there was a "break in the chain of events" to insulate those later statements from the taint of the suspect's initial unwarned admissions. [Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62.] But under Elstad, the later administration of Miranda warnings presumptively negates the psychological pressures of custodial interrogation from that point forward, thus rendering the suspect's ensuing statements admissible despite the fact that the suspect had earlier made incriminating admissions. In the words of the Elstad Court, "a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the [earlier] unwarned statement inadmissible", even when there has been no significant break in the stream of events as required under Brown. [Elstad, 470 U.S. at 310-11, 105 S.Ct. at 1294.] Crawford, 100 P.3d at 441. Judge Esch recognized that neither this Court nor the Alaska Supreme Court has yet decided whether, as a matter of state law, Alaska should follow Elstad or should instead adhere to pr e-Elstad law. However, Judge Esch concluded that, because Alaska has not affirmatively adopted a contrary rule, he should follow the rule expounded in Elstad. We do not necessarily agree with Judge Esch's conclusion that, under pr e-Elstad law, Noyakuk's statements at the ensuing interviews were tainted by the Miranda violation at the first interview. The flaw in the first interview was not a total failure to warn Noyakuk, but rather the fact that the troopers did not give Noyakuk the complete set of Miranda warnings. The most prominent omissions were (1) the troopers' failure to expressly tell Noyakuk that anything he said to them could be used against him, (2) the troopers' failure to tell Noyakuk that he had the right to have an attorney present during the questioning, and (3) the troopers' failure to expressly tell Noy-akuk that, if he wanted an attorney but could not afford one, an attorney would be appointed to represent him before any questioning. On the other hand, the troopers did tell Noyakuk (a) that they had come to speak to him about Martha Butler's death, (b) that he did not have to talk to the troopers if he did not wish to, and (c) that he could terminate the interview and return to his cell at any time he wished. Moreover, before Noyakuk answered any substantive question about the homicide, he brought up the subject of an attorney (by asking, "Shouldn't I just have my attorney with me, or something?"). At that point, the troopers expressly informed Noyakuk (d) that it was up to Noyakuk to decide whether to talk to them without the assistance of an attorney. Judge Esch found that the troopers made a conscious decision not to give Noyakuk the complete Miranda warnings at this first interview, and this finding is supported by Trooper Schied's testimony to the grand jury. Schied testified that her (mistaken) understanding of the law was that law enforcement officers do not have to warn incarcerated suspects of their Miranda rights as long as the officers confine their questions to crimes other than the ones for which the suspect has been jailed. Judge Esch concluded that the troopers probably honestly believed that they were not obligated to Mirandize Noyakuk. However, Judge Esch also found that the troopers' decision to omit the full set of Miranda warnings was motivated by the troopers' "[fear] that if [Noyakuk] understood that he could stop [the] questioning at any time and/or consult with an attorney, they would not learn where [Martha Butler's] body was or what had happened." This latter finding, we conclude, is clearly erroneous. As we have explained, the troopers expressly told Noyakuk that he did not have to speak to them, that he could stop the questioning at any time, and that it was up to him to decide whether to seek the assistance of an attorney before proceeding with the interview. We further note that, even after Noyakuk seemingly manifested his willingness to speak to the troopers without an attorney, Trooper Shepherd offered to give Noyakuk the complete set of Miranda warnings — an offer that Noyakuk declined. For these reasons, we conclude that even though the troopers consciously decided not to give Noyakuk the complete set of Miranda warnings, their violation of Miranda was not flagrant or "purposeful" (in the sense that it stemmed from a desire to subvert Noyakuk's rights). We further note that, even though Noya-kuk remained incarcerated throughout the series of interviews, his first interview (the flawed one) was separated from his second interview by more than 48 hours. (The second interview took place in the early evening of April 15th.) At the beginning of that 48-hour interlude, on the afternoon of April 13th, Noyakuk was arraigned in court on the pending misdemeanor charges, and an attorney was appointed to represent him. Thus, Noyakuk had two days to consult with counsel before the second interview took place. At this second interview, Noyakuk was Mirandized, and he initially consented to speak to Trooper Schied. As the interview progressed, however, Noyakuk became emotional, and he exercised his right to end the conversation — although he told Schied that she could return later to talk to him again. We further note that, when Schied returned to the prison around noon the next day (April 16th) to interview Noyakuk for a third time, she declined to hold the interview because she discovered that Noyakuk was emotionally distraught — even though Noya-kuk told Schied that he was willing to talk to her at that time. Instead, Schied left the prison and returned two hours later. When we evaluate these circumstances in light of the factors listed in Halberg v. State, 903 P.2d at 1098, we are not sure that Noya-kuk's statements from the ensuing interviews should be suppressed even under pre-Elstad law. However, this point is moot. In Noya-kuk's brief to this Court, he does not ask us to reject Elstad and apply the pre-Elstad rule of suppression as a matter of state law. Instead, Noyakuk contends that his statements from the ensuing interviews should be suppressed even under the Elstad rule — and that Judge Esch misapplied Elstad when he came to the opposite conclusion. Noyakuk points out that, in the Elstad opinion, the Supreme Court stated that "absent deliberately coercive or improper tactics in obtaining the [suspect's] initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption [that the suspect's later statements were compelled]." Elstad, 470 U.S. at 314, 105 S.Ct. at 1296 (emphasis added). Noya-kuk argues that the troopers' approach to him in the first interview was the sort of deliberately coercive or improper tactic condemned in Elstad — and that, therefore, his statements during the later interviews should be suppressed even under the Elstad rule. But to support this contention, Noyakuk relies primarily on Judge Esch's finding that the troopers purposely violated Miranda at the first interview because they "were afraid that if [Noyakuk] understood that he could stop [the] questioning at any time and/or consult with an attorney, they would not learn where [Martha Butler's] body was or what had happened." As we explained above, this finding is clearly erroneous. The troopers repeatedly told Noyakuk that he did not have to speak to them, that he could stop the interview at any time, and that, if he wished, he could seek an attorney's assistance before speaking to them. It may be true, as Judge Esch found, that the troopers consciously decided not to give the full set of Miranda warnings to Noya-kuk, acting from the honest (but mistaken) belief that Noyakuk was not entitled to Miranda warnings as long as the troopers confined their questions to the as-yet-uncharged homicide. But the facts of Noyakuk's ease do not demonstrate flagrant misconduct or purposeful overreaching by the officers. Moreover, the federal courts have interpreted Elstad's reference to "coercive tactics" as relating to "situations in which the tactics used in the first, improper interrogation had a coercive effect that led to the [suspect's] later admissions". Brosius v. Warden, Lewisburg Penitentiary, 278 F.3d 239, 249 (3rd Cir.2002). Chief among the decisions on this point are the Supreme Court's own decision in Missouri v. Seibert, 542 U.S. 600, 615-17, 124 S.Ct. 2601, 2612-13, 159 L.Ed.2d 643 (2004), and this Court's decision in Crawford v. State, 100 P.3d 440, 450 (Alaska App.2004). In Noyakuk's case, there is little reason to think that the Miranda violation at the first interview, or the results of that violation, coerced Noyakuk into waiving his rights at the ensuing interviews. First, there was an interval of more than 48 hours between the flawed first interview and the second one. During that time, an attorney was appointed to represent Noyakuk on the pending misdemeanor and probation violation charges — an attorney who, assumedly, was also available to give Noyakuk advice on how to deal with the troopers who wished to question him about the homicide. Second, Noyakuk was given Miranda warnings before each of the subsequent interviews, and he does not claim that he failed to understand these warnings. In fact, the second interview (the one on April 15th) ended when Noyakuk invoked his right to terminate the interview. Finally, Noyakuk told the troopers at the first interview that the shooting had been an accident, and he continued to assert this version of events at the second interview. It was not until the third interview (i.e., the second properly Mirandized interview) on April 16th that Noyakuk confessed to having purposely shot Butler. For these reasons, we conclude that Noya-kuk's case does not present an exception to the standard Elstad analysis. Turning now to a standard Elstad analysis of this ease, Judge Esch found that all of Noyakuk's statements to the troopers (including his statements at the initial interview on April 13th) were voluntary. The record fully supports the judge's ruling. Judge Esch also found that each of Noya-kuk's ensuing interviews was preceded by a valid Miranda advisement and waiver, and Noyakuk does not dispute this. Moreover, as Judge Esch noted, the interval between Noyakuk's first flawed interview and his second interview was "a significant period"— more than 48 hours. We note that, toward the beginning of this 48-hour interval, Noya-kuk appeared in court and received an attorney. Judge Esch further found that Trooper Sehied was never overbearing toward Noya-kuk, nor did she ever use lies or trickery to influence Noyakuk's decisions to submit to the ensuing interviews. The record supports these findings. Applying the rule of Elstad, we agree with Judge Esch that, despite the Miranda violation at the first interview, Noyakuk's statements from his subsequent interviews were admissible. (We again note that we are not deciding whether to adopt the Elstad rule as a matter of state law. We are simply deciding the question of federal law that Noyakuk has raised.) Why we agree with Judge Esch that the troopers did not violate Edwards v. Arizona at the first interview Noyakuk argues in the alternative that, even if his statements from the subsequent interviews are admissible under El-stad, these statements should nevertheless be suppressed because, at the first interview, the troopers failed to honor his right to an attorney. In Edwards v. Arizona, the Supreme Court held that when a suspect in custody invokes their right to counsel, the police must stop questioning the suspect and must not re-initiate questioning until the suspect has had the opportunity to consult an attorney: [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused [who has] expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. See also our discussion of this rule in Kochutin v. State, 813 P.2d 298, 303 (Alaska App.1991). In the present case, Noyakuk did not expressly invoke his right to counsel at the first interview. However, as explained above, Noyakuk did ask the troopers whether he should have an attorney with him during the interview. Noyakuk contends that the troopers responded inappropriately to his question, by making remarks that were intended to discourage him from asserting his right to have an attorney present. To analyze Noyakuk's claim, we return to a detailed look at this portion of the first interview. After the troopers explained that they had come to interview Noyakuk about Martha Butler's death, and that Noyakuk did not have to talk to them (and that he could end the interview at any time), Trooper Schied asked Noyakuk to describe how Martha Butler met her death: Schied: Okay. Can you kind of tell us what happened, so that we can help her parents and you, too? Noyakuk: Shouldn't I just have my attorney with me, or something? Schied: Umh . Shepherd: Well, if, if that's what you feel [is] right — I mean, we can't make that decision for you. You have to make that decision. Like I said, . we're not here to talk about the [pending] charges; we're here to talk about Martha.... Like I said, you know, you don't have to talk to us if you don't want [to]. But, ah, like Trooper Schied said, we're trying to figure out what happened so that we can help her parents, you know, get over this, and adjust to it, and . Noyakuk: Uh-huh. Shepherd: . and try to find out, you know, what actually happened. Because we always know [that] there's two sides to the story.... There's your side, [and] we've been talking to a lot of people, and we've heard what they've been saying, and what you told them. But from our work, we know that there's two sides to the story, and the best place to always hear the story is from the person [who] actually . was there. So [you] know, like I said, you — you can talk to us if you want. If — if you want an attorney, that's fine, too. Noyakuk: Uh-huh. Shepherd: Ah, but that's up to you. You need to make that decision and let us know. Noyakuk: Uh-huh. Schied: Because that attorney can't help us find where Martha is, to help her parents. You know, he's not the one that can help you do that. He's not the one that can help us help [Martha's] parents. Noyakuk: Uh-huh. Schied: But if that's what you feel — like Investigator Shepherd says, that's your choice. Shepherd: So it, it's something for you to decide, before we go further with anything, [with] any questioning. Noyakuk: I don't know; I don't know how this (indiscernible). Schied: You don't know what to say, Ben? Noyakuk: Huh? Schied: Would it help if we just asked [our] questions? Would [that] make it easier for you? Noyakuk: I don't have to answer. Schied: So you don't have to just, just spell it out, would it help you if we just ask questions? Noyakuk: Okay. Schied: Are you — are you willing to do that without an attorney, though? We need to know that. Noyakuk: Yeah. Schied: Okay. Um, were you up . by John Ahmasuk's camp when [Martha] was shot? Noyakuk: No, I was in my house. Schied: You were in your house? Noyakuk: Uh-huh [yes]. Schied: Okay. Would — okay. Noyakuk: It was accidental. Schied: Okay. Well, those things happen, Ben. Shepherd: Those [things] happen. Schied: Was, was this . Shepherd: Ben, would you even feel better, you know, if — if we read you your rights? Would you feel better if we did that first? Or . Noyakuk: Unh-uh [no]. Shepherd: No, it's okay? So you are willing to talk to us; it's okay? [Are] you willing to talk to us without an attorney? Noyakuk: Uh-huh [yes]. Shepherd: I'm sorry; I couldn't hear you. Noyakuk: Yes. As can be seen from this quoted exchange, when Noyakuk asked, "Shouldn't I just have my attorney with me, or something?", the troopers responded by telling Noyakuk (1) that this was Noyakuk's decision to make; (2) that if Noyakuk wanted an attorney, "that [was] fine"; and (3) that Noyakuk needed to make this decision and "let [the troopers] know" before the interview proceeded further. When the troopers asked Noyakuk whether he was willing to speak to them without an attorney, Noyakuk stated (apparently three times) that he was. However, the troopers interspersed this conversation with comments suggesting that an attorney could not assist them in piecing together what had happened, or in locating Butler's body — both of which, the troopers asserted, would help Butler's parents deal with their loss. Shepherd: [Wje're trying to figure out what happened so that we can help [Martha Butler's] parents . get over this, and adjust to it, and . try to find out . what actually happened.... [W]e always know [that] there's two sides to the story. . [Wje've been talking to a lot of people, and we've heard what they've been saying, and what you told them. But from our work, we know that there's two sides to the story, and the best place to always hear the story is from the person [who] actually . was there. Schied: [An] attorney can't help us find where Martha is, to help her parents.... [An attorney] is not the one that can help you do that. He's not the one that can help us help [Martha's] parents. Noyakuk argues that these comments were intended to discourage him from asserting his right to counsel — and that, by making these comments, the troopers violated Noya-kuk's rights under Miranda and Edwards. In Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981), our supreme court held that when a suspect in custody makes an ambiguous or equivocal statement about wanting an attorney, the interrogating officers "may seek clarification of the suspect's desires", so long as the officers do not "utilize the guise of clarification as a subterfuge for coercfing] or intimidatfing]" the suspect into waiving this right. Later, in Hampel v. State, 706 P.2d 1173, 1180-81 (Alaska App.1985), this Court interpreted Giacomazzi as meaning that, in the face of a suspect's ambiguous or equivocal statement about wanting an attorney, the interrogating officers must clarify the suspect's wishes, and the officers can not proceed with substantive questioning until they have done so. Moreover, Hampel holds that the Edwards rule is violated "when an interrogating officer chooses to answer a [suspect's] question [concerning the right to counsel] in a way which the officer knows or should know will be reasonably likely to discourage the accused from asserting the right to counsel." Noyakuk asserts that the troopers violated Giacomazzi and Hampel when they made the above-quoted responses to Noyakuk's question about a lawyer. The State answers that the Hampel restriction on custodial interrogations is no longer good law, given the United States Supreme Court's decision in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The defendant in Davis, after receiving Miranda warnings, waived his rights and consented to be interviewed. However, about an hour and a half into the interview, the defendant said, "Maybe I should talk to a lawyer." The question presented in Davis was whether the defendant's statement obliged the interrogating officers to cease their substantive questioning. The Supreme Court recognized that many jurisdictions had adopted rules similar to the one announced in Giacomazzi and Hampel: that is, rules that obliged interrogating officers to cease their substantive questioning and to limit themselves to seeking clarification of the suspect's wishes. However, the Supreme Court declared that federal law did not impose such a restriction: [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.... The likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. Rather, the suspect must unambiguously request counsel[;] . he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. Davis, 512 U.S. at 459, 114 S.Ct. at 2355 (emphasis added) (citations omitted). The Court acknowledged that it was "good police practice" for interrogating officers to seek clarification of a suspect's ambiguous or equivocal statement. However, the Court "declinefd] to adopt a rule requiring officers to ask clarifying questions." Instead, the Court declared: "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning [the suspect]." The State contends that Davis changed the legal landscape and undermined the ra tionale of Giacomazzi and Hampel (both of which were apparently grounded on federal law). But as the Utah Supreme Court noted in State v. Leyva, 951 P.2d 738, 743 (Utah 1997), Davis involved an ambiguous or equivocal statement made in the middle of an interview by a suspect who had already received Miranda warnings and had already unambiguously waived his right to counsel. The United States Supreme Court explained its ruling this way: [T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves.... A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection — if a suspect subsequently requests an attorney, questioning must cease — it is one that must be affirmatively invoked by the suspect. Davis, 512 U.S. at 460-61, 114 S.Ct. at 2356. Thus, the Davis rule (that interrogating officers need not interrupt their questioning to clarify the suspect's wishes) applies only to a post-Mirawcto-waiver setting. This view of Davis is endorsed by one of the major texts on criminal procedure: Although [this] point is sometimes missed, . Davis is so limited; the Court's ruling was that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed.1999), § 6.9(g), Vol. 2, p. 615 n. 164 (emphasis added) (quoting Davis, 512 U.S. at 461, 114 S.Ct. at 2356, and citing Utah's Leyva decision in support of this interpretation of Davis). It may be true, as the State suggests, that the Giacomazzi and Hampel rule should no longer be applied when a suspect makes an ambiguous or equivocal post-waiver, mid-interview statement about an attorney. We leave that issue for another day. But the Davis decision has not changed the law that applies to cases like Noyakuk's — cases where the question is whether a suspect ever validly waived the right to counsel to begin with. We now return to the facts of Noyakuk's interrogation. As we have already explained, when Noya-kuk asked, "Shouldn't I just have my attorney with me, or something?", the troopers responded that stopping the interview to allow Noyakuk to obtain an attorney would not help Martha Butler's parents learn what had happened to their daughter and recover her body. On the other hand, the troopers repeatedly told Noyakuk (1) that it was his choice whether to have an attorney present, (2) that if he wanted an attorney, "that [was] fine", and (3) that he needed to make this decision before the troopers proceeded with the interview. After explaining this to Noya-kuk, the troopers expressly (and repeatedly) asked Noyakuk whether he was willing to speak to them without an attorney. Three times, Noyakuk stated that he was willing to proceed without an attorney. These facts are quite a bit different from the facts of Hampel — where the interrogating officer responded to Hampel's inquiry about an attorney by "emphasiz[ing] the obstacles to obtaining one", by "focusing on the evidence [against] Hampel", and by strongly implying that Hampel "would damage his case if he delayed talking until an attorney could be present", since the .police were just about to interview Hampel's cohorts. It is not surprising that this Court categorized the officer's response as a tactic that was "likely to discourage [Hampel] from asserting the right to counsel". [B]y emphasizing . the delay and bureaucratic complexity of procuring an attorney, while [at the same time] dwelling . on the evidence against Hampel, the progress of the [police] investigation, and the imminent interrogation of Hampel's companions, [the interrogating officer] created two unmistakable impressions: first, that Hampel was being given an "opportunity" to cooperate, but time was of the essence; [and] second, that if Hampel elected to request counsel, a substantial delay would inevitably result[,] and he would lose that opportunity. [The officer's] answers . thus worked more toward persuasion than clarification. Hampel, 706 P.2d at 1182. The troopers' statements in Noyakuk's case (the statements that an attorney could not help Martha's parents understand what had happened to their daughter or locate her body) might conceivably have worked to dissuade Noyakuk from demanding the immediate presence of counsel, but these statements were not coercive like the ones in Hampel. The troopers never stated or implied that Noyakuk's decision to request an attorney's presence would have adverse consequences for Noyakuk personally, or that any delay in the interview process would be unacceptable to the authorities or would hurt Noyakuk in any other fashion. In fact, the troopers told Noyakuk that it would be "fine" if he asked for an attorney. We conclude that the facts of Noyakuk's case are much closer to the facts presented in State v. Vane, 135 Idaho 848, 26 P.3d 31 (2001). The defendant in Varié was questioned concerning the disappearance of her husband. When Varié noted during the interview that she did not have a lawyer, the officers asked her if she wanted a lawyer before speaking to them. Varié replied, "[A]m I supposed to have a lawyer?" At this point, the officers explained that it was Var-ie's choice whether to have a lawyer. The officers told Varié that they did not know if having a lawyer "would make much difference", but that "this was her opportunity to move ahead and tell [the police] what happened." Upon hearing this, Varié began to speak about what had happened. The officers interrupted her to clarify her decision: "[We] guess it is your choice to go ahead and talk with us now without a lawyer?" Varié replied, "[T]hat's fine." The Idaho court noted that Varié "appeared upset and may have been vulnerable at the time of the questioning". The court further noted that the officers "[c]learly [engaged in] an effort to de-emphasize the importance of [Varie's] Constitutional rights and [to] stress Varie's opportunity to tell her story". Nevertheless, the court concluded that Varié understood her rights, and that she was not coerced into waiving those rights: Significantly, [the officers] broke the subtly persuasive atmosphere of the moment and asked very directly if Varié wished to proceed [with the interview]. She agreed to proceed. Varié, 26 P.3d at 36. A similar issue was presented in Mueller v. Angelone, 181 F.3d 557 (4th Cir.1999). The defendant in Mueller was being interrogated (following Miranda warnings and a waiver of rights) about a homicide. Midway through the interview, he asked the police officer, "Do you think I need an attorney here?" The officer responded by shaking his head slightly from side to side, moving his arms and hands in a "shrug-like manner", and then telling Mueller, "You're just talking to us." Six minutes later, Mueller began confessing to the murder. On appeal, Mueller argued that the officer should have ceased all questioning after Mueller inquired about an attorney. Mueller also argued that, even if his question about a lawyer did not require the officer to cease all interrogation, the officer's response to this question was improper, in that it discouraged Mueller from asserting his right to counsel. The court disagreed on both points: Mueller can only prevail by showing that[,] under the totality of the circumstances, [the officer's] response made Mueller's continuing waiver [of counsel] the product of other than a free and deliberate choice, or that[,] after [the officer's response,] Mueller no longer understood the nature of the right to an attorney or the consequences of abandoning it. Mueller, 181 F.3d at 575. The court noted that Mueller was in his forties, and that he had considerable prior experience with the criminal justice system and the Miranda warnings. The court concluded that it was "clear from the record that Mueller, with his extensive experience in such matters, understood both his rights and the consequences of their abandonment. [The officer's] expression of his opinion on the advisability of Mueller's consulting with counsel could not change that understanding." Like the defendant in Mueller, Noyakuk was an adult who had had extensive experience with the criminal justice system. Judge Esch found that, because of Noyakuk's "[pri- or] experience with both attorneys and the justice system", Noyakuk was well aware of his right to an attorney. As Judge Esch noted, Noyakuk had been convicted several times in the 1980's of minor consuming alcohol, and had been convicted once of disorderly conduct in the 1990's. Moreover, in the year preceding his arrest in April 2001, Noy-akuk was convicted three times of domestic assault. Judge Esch noted that the troopers "explained several times that the decision concerning [an attorney] was up to [Noyakuk]." Judge Esch further noted that the troopers refrained from substantive questioning until Noyakuk indicated his willingness to proceed without an attorney. Based on the exchange between Noyakuk and the troopers, and based on Noyakuk's prior experience with the justice system, Judge Esch concluded that "[i]f [Noyakuk] had wished to speak with an attorney prior to further questioning, he could have done so" — and that, therefore, there was no Edwards violation. We agree with Judge Esch. As we have explained here, the facts of Noyakuk's case are significantly different from the facts of Hampel. Noyakuk was not told that it was difficult or impossible to obtain an attorney, nor was he told that a request for an attorney would hurt him or prejudice his case. Rather, he was told that the choice was up to him, and that if he wanted an attorney, "that [was] fine". Conceivably, Noyakuk might have argued that he was so emotionally distraught over Martha Butler's death, and that he felt so compelled to remedy matters as much as possible with her parents, that the troopers exerted an unconscionable influence on Noy-akuk when they commented on the need to help Butler's parents understand what had happened and to recover their daughter's body. But this was never the focus of Noyakuk's suppression motion, and Judge Esch was never asked to make a finding on the issue of potential emotional overbearing. Rather, Noyakuk argued that it was improper for the troopers to say anything to Noyakuk, other than to ask questions that were strictly limited to ascertaining whether Noyakuk wanted an attorney before proceeding with the interview. As we have explained here, the rule is not so strict. The ultimate issue is not what the troopers said, but whether (given what the troopers said) Noyakuk knowingly and voluntarily waived his right to counsel. We agree with Judge Esch that he did. Noyakuk's sentence appeal We have rejected Noyakuk's challenges to the admission of the evidence against him. Accordingly, we affirm his conviction for murder. We now turn to the remaining issue in this case: Noyakuk's appeal of his sentence. Noyakuk was convicted of first-degree murder — intentionally killing another human being. This offense is an unclassified felony with a mandatory minimum sentence of 20 years' imprisonment and a maximum sentence of 99 years' imprisonment. Judge Esch sentenced Noyakuk to 99 years with 24 years suspended' — ie., 75 years to serve. Noyakuk argues that his conduct was more akin to second-degree murder (ie., an unintended homicide committed under circumstances where there is great risk of death). Thus, Noyakuk contends that he should have received a sentence more in line with the 20- to 30-year benchmark range that this Court has established for first felony offenders convicted of second-degree murder. In arguing that his conduct was similar to a second-degree murder, Noyakuk points out that the killing was not premeditated, that he did not kill his victim merely for the thrill of it, and that he did not torture or engage in deliberate cruelty toward his victim. But all of these are factors that aggravate a first-degree murder. That is, if one or more of these factors had been present, this would have shown that Noyakuk's crime was more serious than the typical first-degree murder. It does not follow that the absence of these factors establishes that Noyakuk's crime was less serious than a typical first-degree murder. Noyakuk's act of murdering Martha Butler was a crime of domestic violence, since Noya-kuk and Butler shared a household. Judge Esch found that Noyakuk had a history of repeated assaultive conduct, including two prior assaults against Butler. In addition, Judge Esch noted that Noyakuk engaged in a "significant and protracted" effort to conceal the murder and to avoid apprehension. Judge Esch could reasonably conclude that these factors called for a sentence within the upper range of the penalties for first-degree murder. (Compare Sakeagak v. State, 952 P.2d 278, 285 (Alaska App.1998), where we held that a defendant challenging the reasonableness of a 99-year sentence for first-degree murder was obliged to show some reason to believe that their offense was mitigated or that their background was atypically favorable.) After independently reviewing the record in Noyakuk's case, we conclude that Judge Esch was not clearly mistaken when he sentenced Noyakuk to serve 75 years in prison. Conclusion The judgement of the superior court is AFFIRMED. . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . AS 28.35.030(a). . AS 11.61.210(a)(1). . Federal courts: See United States v. Chamberlain, 163 F.3d 499, 501-02 (8th Cir.1998); United States v. Menzer, 29 F.3d 1223, 1231-32 (7th Cir.1994); United States v. Turner, 28 F.3d 981, 983-84 (9th Cir.1994); Garcia v. Singletary, 13 F.3d 1487, 1492 (11th Cir.1994); United States v. Lugo, 289 F.Supp.2d 790, 794-96 (S.D.Tex. 2003); Dallio v. Spitzer, 170 F.Supp.2d 327, 338-39 (E.D.N.Y.2001). State courts: See Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884, 890 (2002); People v. Denison, 918 P.2d 1114, 1116-17 (Colo.1996); State v. Peterson, 663 N.W.2d 417, 427-28 (Iowa 2003); State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994); Commonwealth v. Larkin, 429 Mass. 426, 708 N.E.2d 674, 681 (1999), and the cases cited in footnotes 6-8 of Larkin; State v, Tibiatowski, 590 N.W.2d 305, 308-09 (Minn.1999); State v. Ford, 144 N.H. 57, 738 A.2d 937, 943 (1999); State v. Conley, 574 N.W.2d 569, 573-74 (N.D.1998). See also Judge Bryner's dissenting opinion in Kochutin v. State, 813 P.2d 298, 309 & n. 2 (Alaska App.1991), where he cited the "wealth of authority . that a sentenced prisoner serving time in a correctional facility is not ipso facto in Miranda custody". . Halberg v. State, 903 P.2d 1090 (Alaska App.1995); Crawford v. State, 100 P.3d 440 (Alaska App.2004). . 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975). . A finding of fact is "clearly erroneous" when it "leaves the [reviewing court] with a definite and firm conviction . that a mistake has been made, although there may be evidence to support the finding." Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981), quoting Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978). . Compare Lewis v. State, 862 P.2d 181, 186-87 (Alaska App.1993), and Gustafson v. State, 854 P.2d 751, 756 (Alaska App.1993), where we held that, for purposes of applying the suppression rule announced in State v. Malkin, 722 P.2d 943 (Alaska 1986), a conscious misstatement or omission in a search warrant application is "intentional" only if it was done in a "deliberate attempt to mislead" the issuing magistrate. (See also Judge Singleton's concurrence in Davis v. State, 766 P.2d 41, 47 n. 3 (Alaska App.1988), where he advocated this same interpretation of "intentional" for Malkin purposes.) . 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). . Our original opinion in Kochutin was later vacated, see 875 P.2d 778 (Alaska App.1994), because our decision rested on the false factual premise that Kochutin had been continuously in custody between the time he invoked his right to counsel and the time the police re-interviewed him. However, our discussion of the Edwards rule remains good law. . Hampel, 706 P.2d at 1181. . Davis, 512 U.S. at 455, 114 S.Ct. at 2353. . Davis, 512 U.S. at 456, 114 S.Ct. at 2353-54. . Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356. . Hampel, 706 P.2d at 1181. . Id. . Varié, 26 P.3d at 34. . Id. . Id. at 36. . Mueller, 181 F.3d at 573-74. . Id. . Id. . AS 11.41.100(b); AS 12.55.125(a). . See Page v. State, 657 P.2d 850, 855 (Alaska App.1983). . See Hamilton v. State, 59 P.3d 760, 772 (Alaska App.2002): We have repeatedly held that premeditated murder is among the most serious conduct within Alaska's definition of first-degree murder — and that, in first-degree murder cases, a defendant's premeditation, standing alone, will support a sentence of 99 years' imprisonment. Moreover, even in cases of second-degree murder (i.e., cases in which the killing was unintended), we have repeatedly upheld sentences in the upper end of the penalty range for defendants who committed gratuitous or otherwise inexplicable acts of extreme violence. And see Harmon v. State, 908 P.2d 434, 444 (Alaska App.1995) (holding that a first-degree murder is aggravated when the defendant tortures or inflicts gratuitous pain on the victim). . Compare AS 12.55.155(c)(18)(A), which provides that crimes against household members are aggravated for purposes of presumptive sentencing. . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).

8992060

Merle G. WILSON, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee

Wilson v. State, Department of Corrections

2006-01-20

No. S-11120

826

835

127 P.3d 826

127

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:30:21.526361+00:00

CAP

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

Merle G. WILSON, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

Merle G. WILSON, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee. No. S-11120. Supreme Court of Alaska. Jan. 20, 2006. Merle G. Wilson, pro se, Palmer. Marilyn J. Kamm, Assistant Attorney General, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

4754

29739

OPINION EASTAUGH, Justice. I. INTRODUCTION Alaska Statute 33.30.081(b) and 22 Alaska Administrative Code (AAC) 05.585(a) require the State of Alaska to transport a released prisoner to the "place of arrest." Merle Wilson argues that, because he was arrested at his home, the statute and regulation required the state to return him to his home on Columbia Cove, 3.5 miles by footpath or skiff from Tenakee Springs, when it released him from prison in May 2002. We conclude that the state's policy of transporting released prisoners to the community nearest the exact location of their arrest is, under the particular circumstances of this case, a reasonable interpretation of the statute and regulation. Because it was not unreasonable for the state to conclude that Columbia Cove was within the community of Tenakee Springs, the statute and regulation were satisfied when the state offered to transport Wilson to the community of Tenakee Springs. We consequently affirm the superior court order denying Wilson's administrative appeal. II. FACTS AND PROCEEDINGS Merle Wilson was arrested at his home on Columbia Cove, about 3.5 miles from the community of Tenakee Springs, on Chichagof Island. Wilson was eventually convicted of assault in the second degree and imprisoned at the Lemon Creek Correctional Facility in Juneau. As his projected May 2002 release date neared, he asked the Department of Corrections (DOC) to pay for transportation to his home on Columbia Cove. There are no roads to Columbia Cove; it is accessible only by boat, footpath from Tenakee Springs, or floatplane. A chartered flight to Columbia Cove from Juneau would have cost about $350. DOC denied his request, agreeing to take him to Tenakee Springs on a regularly scheduled flight, at a cost that DOC says is about $79. There is a 3.5-mile footpath from Tenakee Springs to Wilson's home on Columbia Cove. The record does not reflect the condition of this footpath, but Wilson did not contend in the agency or superior court proceedings that it was impassable at the time of his projected May release, that he was physically incapable of traversing the footpath, or that other impediments or hazards might prevent him from walking to his home. Wilson filed an administrative grievance with DOC alleging that 22 AAC 05.585(a) requires DOC to provide return transportation to a prisoner's "place of arrest." Wilson argued that his "place of arrest" was his home in Columbia Cove. DOC denied his grievance, on the ground that "22 AAC 05.585 is intended to prevent inmates that have been transferred to other state institutions from being stranded in those cities upon their release." DOC informed Wilson that its policy was to "provide [inmates] with transportation to the city of their arrest." (Emphasis added.) Wilson administratively appealed this decision through the grievance process. DOC denied his appeal, claiming that it "has consistently interpreted 'place of arrest' as meaning the community closest to the place of arrest." Wilson was released from prison on May 17, 2002 without DOC-provided transportation. He seems to have arranged at his expense to have himself flown by floatplane to Columbia Cove. Wilson filed a post-release administrative appeal in the superior court seeking a declaratory judgment concerning the meaning of AS 33.30.081 and 22 AAC 05.585 and asking that DOC be required to pay damages equal to the cost of a chartered flight to Columbia Cove and appellate expenses. DOC filed no opposition. The superior court held that "DOC's interpretation of its regulation was not plainly erroneous or inconsistent with the language of the regulation." It denied Wilson's request for damages, reasoning that "the state could reasonably conclude that the regulation is intended to return released prisoners to the community in which they were arrested so as to protect them from being stranded in a city that is not their own." Wilson appeals. III.DISCUSSION A. Standard of Review When the superior court acts as an intermediate court of appeal in an adminis trative matter, we independently and directly review the agency decision. Alaska Statute 33.30.081(d) states: "The commissioner of corrections shall adopt regulations governing the furnishing of transportation, discharge payments, and clothing to prisoners upon release from a state correctional facility." The DOC commissioner adopted 22 AAC 05.585 under this authority. When an administrative regulation is adopted under statutory authority, we review the regulation to determine whether it is "consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency" and whether it is "reasonable and not arbitrary" considering the legislative purpose. Moreover, we have recognized that "an agency's interpretation of a law within its area of jurisdiction can help resolve lingering ambiguity" and that we should exercise restraint and look for "weighty reasons" before substituting our judgment for the agency's in interpreting a statute or regulation. B. Neither AS 33.30.081 nor 22 AAC 05.585 Requires DOC To Return Released Inmates to the Precise Location of Their Arrest. Wilson argues that AS 33.30.081 gives released prisoners a right to return transportation to the "exact site of the arrest" — in his case, his home on Columbia Cove. He alleges that 22 AAC 05.585 simply restates that right and also outlines the process if a prisoner chooses to be transported to an alternative destination. DOC argues in response that "place of arrest" means the community nearest the location of the arrest. Alaska Statute 33.30.081 states in pertinent part: (b) The commissioner of corrections shall make available return transportation to the place of arrest for a prisoner who is released from custody in a state correctional facility. (d) The commissioner of corrections shall adopt regulations governing the furnishing of transportation, discharge payments, and clothing to prisoners upon release from a state correctional facility at any stage of a criminal proceeding. 22 AAC 05.585(a) states in pertinent part: The department will bear the cost of transporting a prisoner to the place of arrest upon release, if the prisoner was admitted into a state facility. If a prisoner declines return transportation, or requests a destination different from the place of arrest, the prisoner must sign a written waiver. Transportation to an alternative site may be provided up to the actual cost of return transportation to the prisoner's place of arrest.... We interpret a statute according to reason, practicality, and common sense, considering the meaning of its language, its legislative history, and its purpose. "The goal of statutory construction is to give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others." We apply a similar analysis in interpreting a regulation. 1. The meaning of the phrase "place of arrest" is ambiguous in the statute and the regulation. We give popular or common words their ordinary meaning, if the words are not otherwise defined in the statute. We may also consider how we have interpreted the words in other cases or statutes or how administrative agencies have used the words. "[PJlace of arrest" is not defined in AS 33.30.081 or 22 AAC 05.585. Dictionary definitions for "place" support the conflicting-interpretations proposed by Wilson and DOC. Definitions supporting DOC's interpretation of "place" as meaning "community" include: "a portion of space; an area with definite or indefinite boundaries"; "a definite location.... A particular town or city"; "an indefinite region or expanse"; and "a particular region or center of population." Definitions supporting Wilson's view that "place" is a precise location include: "a definite location . A house, apartment, or other abode"; and "an individual dwelling or estate: house, homestead." Wilson argues that "place" was meant to be a precise location rather than a community because 22 AAC 05.585(a) offers released inmates transportation "to an alternative site" if they choose not to be returned to their "place" of arrest. (Emphasis added.) But DOC correctly argues that "site" has many possible definitions and could denote either an entire community or a specific building. Definitions of "site" include: "the spatial location of an actual or planned structure or set of structures (as a building, town, or monuments)"; "local position of a building, town, monument, or similar work either constructed or to be constructed, esp. in connection with its surroundings"; "scene of an action . or specified activity"; and "a place or location; esp., a piece of property set aside for a specific use." Wilson argues that we should look to the use of "place" in AS 12.70.070, which authorizes a police officer holding a valid warrant to "arrest the accused at any time and any place where the accused may be found within the state." But the meaning of "place" is no more specific in that statute. "Place" could mean either the precise location or, more broadly, the community encompassing the exact place of the arrest. DOC responds that AS 12.70.070 has no relevance here. It points to Alaska Criminal Rule 4(c)(2), which describes the territorial limits of an arrest warrant as "any place" within the jurisdiction of the State of Alaska. DOC points out that the arresting officer need only indicate the community where the offender was arrested as the "place of arrest." We do not find this use of "place of arrest" to be helpful in interpreting AS 33.30.081. Our prior opinions have used "place of arrest" almost exclusively to refer to the exact location of arrest, but those cases concerned search-and-seizure challenges for which the precise location was relevant to determining whether the search was incident to a lawful arrest. These cases do not help us interpret "place of arrest" in AS 33.30.081. 2. There is no helpful legislative or administrative history for the term "place of arrest" in AS 33.30.081 and 22 AAC 05.585. In the context of prisoner transportation in Alaska, the phrase "place of arrest" first appeared in the Alaska Administrative Code before it appeared in the Alaska Statutes. Until 1986, the pertinent statute was AS 33.30.160(a). It simply provided that "[t]he cost of transporting or transferring a prisoner, either inside or outside the state, after temporary or final commitment shall be paid from the appropriation to the Department of Public Safety." Alaska Statute 33.30.160(b) directed the Commissioner of Health and Human Services to "adopt regulations governing the furnishing of transportation, discharge payments, and clothing to prisoners upon release at any stage of criminal proceedings." Per this authority, the commissioner adopted 7 AAC 60.585, which introduced the concept of returning released prisoners to their "place of arrest" and which stated: The division shall bear the cost of transporting a person to the place of his arrest, within the State of Alaska, upon release, only after having been admitted into a state institution or contract facility. If a prisoner requests an alternate designation than his place of arrest, he must sign a waiver which so states. Transportation to alternative sites selected by him must be provided, or costs paid up to the amount which it would be necessary to pay for his return to the actual place of arrest. (Emphasis added.) This regulation became effective September 10, 1977. No administrative history brought to our attention reveals what the commissioner, meant by the term "place of arrest" in 7 AAC 60.585. On January 25, 1985 House Bill 114 was introduced at the request of the governor. The bill proposed a wholesale revision of Chapter 30 of Title 33 of the Alaska Statutes. The bill acknowledged that it would affect administrative regulations and allowed all regulations adopted under the now — repealed statutes to "continue in effect until amended or repealed by the commissioner of corrections." The bill was enacted and signed into law in 1986. As adopted, the bill repealed AS 33.30.160 and enacted AS 33.30.081. There was no discussion of the meaning of "place of arrest" during the legislative process. The only indication of the legislature's intent consists of testimony before the House Judiciary Committee by an assistant attorney general that the section's "intent was to get the prisoner back home." This statement of purpose is not helpful here because "home" might mean either the community in general or an exact location. And "home" is potentially inconsistent with "place of arrest" because the prisoner may not have been arrested at his actual residence or even in his home community. The language of 22 AAC 05.585 mirrors the language in AS 33.30.081 and former 7 AAC 60.585 without further explanation. We are unaware of any meaningful administrative history for 22 AAC 05.585. 3. DOC's interpretation of "place of arrest" is reasonable and not arbitrary and achieves the policy underlying AS 33.30.081. DOC argues that its interpretation of AS 33.30.081 is "consistent with the legislative intent to avoid having inmates released from prisons at great distances from their homes without the funds for transportation from the prison to the community nearest to the inmate's place of arrest." Where, as here, there is "lingering ambiguity" about the meaning of a statute or regulation, an agency's interpretation of a law within its area of jurisdiction is helpful. We believe that DOC's interpretation of AS 33.30.081 reasonably achieves the statute's purpose. Because there is evidence that Columbia Cove is within the Tenakee Springs community, DOC's decision to transport Wilson to Tenakee Springs instead of Columbia Cove was reasonable. DOC's policy of transporting released prisoners to the community nearest their place of arrest has historical support. States have paid for a released prisoner's transportation at least since the early twentieth century. Many early statutes provided transportation for the prisoner only to the community where the prisoner was convicted or to the prisoner's home community. DOC's policy better achieves the stated legislative purpose of getting "the prisoner back home" than the statutory language itself. DOC allows a prisoner the option of choosing transportation to a place other than the "place of arrest" so long as transportation to the alternative location is not more expensive than transportation to the "place of arrest." This option affords a prisoner who was not arrested in his home community the opportunity to be returned home rather than to the place of his arrest. DOC's interpretation of AS 33.30.081(b) is consistent with the underlying policy of AS 33.30.081. Other provisions in AS 33.30.081 balance the right of prisoners to appear in court proceedings against DOC's burden of paying the cost of transportation. For example, AS 33.30.081(f) allows a court to order a prisoner to appear only after the court determines that the prisoner's presence is "essential to the just disposition of the action." It also requires the court to provide the Commissioner of Corrections an opportunity to comment and to consider alternatives to a personal appearance, such as deposition and telephonic testimony. The cost of transporting the prisoner to court must be paid by the party requesting the appearance unless the prisoner is the party and is found to be indigent. If DOC is required to bear any cost and the prisoner receives a money judgment, the court can require the prisoner to repay DOC for his transportation costs. In interpreting AS 33.30.081(b), DOC has adopted a policy that "[rjeturn transportation shall be by the most cost-effective and available means." DOC's policy reasonably achieves the legislative purpose of getting "the prisoner home" in a cost-effective manner by providing transportation to the community nearest, or encompassing, the place of arrest rather than to the exact location of the arrest. DOC's interpretation is also more in line with "reason, practicality, and common sense" because it avoids absurd results. For example, it would not be practical to return a prisoner who was arrested at or near the scene of the crime back to that precise location, which might be the victim's house or office. DOC's decision to transport Wilson to the community of Tenakee Springs was reasonable given the undisputed facts in this case. It is undisputed that Columbia Cove is accessible from Tenakee Springs by a 3.5 mile footpath; there is no indication in the record that the path was impassable when Wilson was released or that Wilson was physically incapable of using the path. Wilson's sentencing statement, included by Wilson in his excerpt in this case, alleged that Tenakee Springs's regulations govern conduct in Columbia Cove. His sentencing statement also asserted that a community committee was formed in Tenakee Springs to assist with law enforcement issues in Columbia Cove. There may be circumstances in which it would be unreasonable for DOC to simply transport a releasee to the community nearest the locus of arrest. Indeed, even transporting a releasee to a transportation hub within the community encompassing the site of arrest might be circumstantially unreasonable, because in the larger communities, such hubs might be many miles from the site of the arrest. Consequently, factors such as distance, terrain, physical incapacity, hazardous conditions, and expense might have a bearing on the reasonableness of DOC's interpretation of the statute and regulation in a given case. The ultimate purpose of returning prisoners to their homes or home communities — to prevent "stranding" them— would not be served if they were transported to their home communities but were then prevented from completing the journey by circumstances such as terrain, weather, or expense. Because the facts in this case are undisputed, we need not consider these sorts of circumstances further here or attempt to list the factors that could be relevant. The undisputed facts in this ease support the conclusion that Columbia Cove was part of the Tenakee Springs community. It was therefore reasonable for DOC to provide Wilson with transportation to Tenakee Springs upon his release and it was not unreasonable for DOC to decline to return him to the Columbia Cove beach near his home. IV. CONCLUSION For the reasons discussed above, we AFFIRM. . Wilson states that his property is 3.25 miles from the core area of Tenakee Springs. . Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003). . Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). . Bartley v. State, Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 1261 (Alaska 2005). . Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003). . Nat'l Bank of Alaska v. Ketzler, 71 P.3d 333, 334 (Alaska 2003). . Alaskans for Efficient Gov't v. Knowles, 91 P.3d 273, 276 n. 4' (Alaska 2004) (citing Norman J. Singer, Sutherland Statutory Construction § 47.28 (6th ed.2000)). . See, e.g., id. at 276 (looking to usage in prior opinions to help define term "initiative"); Grimm, 77 P.3d at 430, 433-34 (stating agency's interpretation of statute, while not binding, can provide "useful guidance"). . DOC's brief quotes a definition from the fourth edition of Black's Law Dictionary. The more recent seventh edition does not define "place." . American Heritage Desk Dictionary 722 (1981). . Webster's Third New International Dictionary 1727 (1966). . American Heritage Desk Dictionary 722. . Webster's Third New International Dictionary 1727. .Webster's Ninth Collegiate Dictionary 1102 (1990). . Webster's Third New International Dictionary 2128. . Black's Law Dictionary 1392 (7th ed.1999). . Alaska Rule of Criminal Procedure 4(c)(2) states "[t]he warrant may be executed or the summons may be served at any place within the jurisdiction of the State of Alaska." . DOC alleges that an arresting officer must complete a "Return" form which states in part: "I received the above warrant on_, and executed it by arresting the defendant and serving the defendant with a copy of this warrant in -, Alaska on-" The March 2000 version of the same form contains similar language. . See, e.g., Zehrung v. State, 569 P.2d 189, 193 (Alaska 1977) (noting "place of arrest" as intersection of Boniface and Northern Lights); McCoy v. State, 491 P.2d 127, 131 (Alaska 1971) (upholding search conducted at police station rather than "place of arrest" as search incident to lawful arrest). But see Wortham v. State, 519 P.2d 797, 799 (Alaska 1974) (using broader meaning of "place of arrest" to note that due process requires preliminary hearing on parole revocation "at or reasonably near the place of the alleged parole violation or arrest"). .AS 33.30.160 made the Department of Public Safety responsible for transporting all prisoners. The Department of Public Safety and the Department of Health and Social Services entered into an agreement that made the Department of Health and Social Services responsible for transporting prisoners released from a state facility. See 1977 Formal Op. Att'y Gen. 39. The Department of Corrections was then a division in the Department of Health and Social Services. Executive Order No. 55 elevated the Division of Corrections to a department-level agency. Executive Order No. 55 § 1 (1984). . Register 63, October 1977. . House Bill (H.B.) 114, 14th Leg., 1st Sess. (1986). . Id. . H.B. 114, § 12; ch. 88, § 13, SLA 1986. . Ch. 88, § 6, SLA 1986. . Ch. 88, § 6, 12, SLA 1986. . Minutes of March 30, 1985, hearing before the House Judiciary Committee, 13th Legislature (1985-86) (statement of Michael Stark, assistant attorney general and DOC counsel). . Bartley v. State, Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 1261 (Alaska 2005). . In two affidavits filed in this court, Wilson referred three times to his "home in Tenakee Springs." . Amos W. Butler, Treatment of the Released Prisoner, 1 J. Am. Inst.Crim. L. & Criminology 403, 405 (May 1910 to March 1911). . See L.D. Weyand, A Study of Wage-Payment to Prisoners as a Penal Method, 10 J. Am. Inst.Crim. L. & Criminology 558 (May 1919 to February 1920) (collecting early state statutes regulating transportation of prisoners upon release from state facilities). . Dept of Corrections, Policies and Procedures, Transportation Upon Release, Index # 818.07, VI. A-C (Eff. Oct. 1, 1990). . AS 33.30.081(f). . AS 33.30.081(g). . AS 33.30.081(h). . Id. . Dept, of Corrections, Policies and Procedures, Transportation Upon Release, Index # 818.07, VI. B (Eff. Oct. 1, 1990). . Minutes of March 30, 1985, hearing before the House Judiciary Committee, 13th Legislature (1985-86) (statement of Michael Stark, assistant attorney general and DOC counsel, on Tape 63, Side One). . The DOC investigator responding to Wilson's grievance filed a report, which found: Mr. Wilson's interpretation of 22 AAC 05.585 is incorrect; the state does not provide an option to be returned to the exact place of arrest upon release. Just as a poacher is not returned to the bush or a bank robber returned to the bank, Mr. Wilson shall not be returned to the exact place of arrest. 22 AAC 05.585 is intended to prevent inmates that have been transferred to other state institutions from being stranded in those cities upon their release, but rather provide them with transportation to the city of their arrest.... Mr. Wilson will be returned to Tenakee upon his release, unless he declines or requests an alternative destination of equal value. . Grimm, 77 P.3d at 427. . Wilson implies in his reply brief that hiking the footpath without a rifle in May, when brown bears are "concentrated along the beaches," would be unsafe. He never raised this contention before the agency or in the superior court or in his opening brief in this court. Although undue hazard, such as from wildlife or weather, might be a factor relevant to the reasonableness of DOC's transportation decision in a given case, Wilson has waived any reliance on that factor here. See Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995) (holding that where pro se litigant "provided no substantive argument on point in his opening brief, and only mentioned the court's alleged failure to admit evidence in his reply brief," the issue was waived).

10336184

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

Waskey v. Municipality of Anchorage

1996-01-12

No. S-6549

342

345

909 P.2d 342

909

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:30:38.468787+00:00

CAP

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

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

John WASKEY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. S-6549. Supreme Court of Alaska. Jan. 12, 1996. Eric Chancy Croft, Hedland, Fleischer, Friedman, Brennan & Cooke, Anchorage, for Appellant. Stephanie Galbraith Moore, Assistant Municipal Attorney, Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ.

1540

9493

OPINION MATTHEWS, Justice. I. FACTS AND PROCEEDINGS Evan Waskey (Evan) was arrested and charged with assault after engaging in a street fight. He told the arresting officer that his name was John Evan Waskey, which is actually his brother's name. Evan then jumped bail and a bench warrant was issued requiring the arrest of "John Evan Waskey" for failing to appear. Appellant (John) was arrested on the warrant and detained for ten days. When the Municipality learned that it was Evan, not John, who was originally arrested and charged, the charges against John were dismissed. John filed a civil action in tort against the Municipality containing counts sounding in negligence, constitutional violations, and false arrest and false imprisonment. The Municipality moved for summary judgment on each count. The superior court granted the Municipality's motion. John appeals. On appeal, John argues that an arresting officer owes a duty of care enforceable in tort to ensure that people arrested are who they say they are, and that the arresting officer negligently failed to perform this duty. Second, John argues that his claim for false arrest should not have been dismissed as there is no municipal immunity for false arrest. In response, the Municipality argues that negligent police investigation into the identity of a person arrested violates no duty enforceable in tort. In addition, the Municipality argues that no suit for false arrest may be maintained against the Municipality because the arrest of John was made pursuant to a facially valid warrant. We agree with the Municipality on both points and thus affirm. II. DISCUSSION A. Duty of Care John argues that police officers owe a duty of care to properly ascertain and record an arrestee's identity. In his opening brief he suggests that this duty should be found to exist based on the factors articulated by this court in D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981). We have decided two cases more closely related to this case which make it unnecessary to resort to the D.S.W. approach. The first case is Zerbe v. State, 578 P.2d 597 (Alaska 1978). Zerbe was arrested, but the complaint against him was dismissed before his arraignment. On the day his arraignment was scheduled, the district judge issued a warrant for Zerbe's arrest, because no one had informed the judge that the complaint had been dismissed. Zerbe again was arrested and held for nine hours before the mistake was brought to light. Zerbe sued the State for negligence in failing to inform the judge of the fact that the complaint had been dismissed. The State claimed that it was immune from suit as the essence of the claim was the false arrest-imprisonment tort, for which the State is immune under AS 09.50.250(3). Id. at 598. This court accepted Zerbe's argument that the claim could be maintained, holding that it was negligent record keeping, rather than false imprisonment, which caused Zerbe's injuries. Zerbe's suit is therefore not barred by the false imprisonment exception to Alaska's government claims statute, but instead ought to have been treated in the same manner as any other negligence case against the state. Today, when various branches of government collect and keep copious records concerning numerous aspects of the fives of ordinary citizens, we are unwilling to deny recourse to those hapless people whose lives are disrupted because of careless record keeping or poorly programmed computers. We see no justification for immunizing the government from the damaging consequences of its clerical employees' failure to exercise due care. Zerbe, 578 P.2d at 601 (footnotes omitted). In reaching this conclusion we noted: "We express no opinion on the question of whether the state should be protected from suits arising out of mistakes made by law enforcement officers in pursuit of their official duties." Id. at 601 n. 7. The present case is the type of ease which this court excluded from its holding in Zerbe. When the arresting officer entered John's name rather than Evan's name, he made a mistake in pursuit of his official duty. Thus Zerbe does not directly control. Moreover, Zerbe has been overruled insofar as it established a tort of government negligence with respect to errors underlying the initiation or maintenance of legal actions. Stephens v. State, Dep't of Revenue, 746 P.2d 908 (Alaska 1987). In Stephens, the State wrongfully garnished Stephens' wages to recover back taxes after Stephens had obtained a discharge in bankruptcy which included the tax obligation. Id. at 908-09. When the State learned of its mistake it returned the money it had obtained plus interest. Stephens then sued the State for negligence and malicious prosecution. As claims for malicious prosecution are barred under the state tort claims act, AS 09.50.250(3), we focused on Stephens' claim for "negligence in executing on a judgment that it 'knew or should have known' was not valid." Id. at 910. We discussed the D.S.W. factors and found that the State owed Stephens no duty of care to determine whether the judgment was still valid before seeking to enforce it. Concerning Zerbe, we stated: We believe that, in general, the state does not owe its citizens a duty of care to proceed without error when it brings legal action against them. To the extent that this contradicts our decision in Zerbe v. State, 578 P.2d 597, that case is overruled. Id. at 912 n. 5. This statement is applicable to this case. The arresting officer owed John no duty of care to proceed without error when he initiated legal action against Evan. Because the arresting officer owed John no duty of care, no duty was breached, and no negligence claim can be maintained. This conclusion is in accordance with numerous cases from other jurisdictions which have declined to recognize the duty to conduct criminal investigations in a non-negfi-gent manner and have therefore refused to recognize a tort of negligent investigation of a crime. See, e.g., Smith v. State, 324 N.W.2d 299 (Iowa 1982). See also Rodriguez v. Ritchey, 556 F.2d 1185 (5th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978) (no federal common law tort of negligent investigation); Landeros v. City of Tucson, 171 Ariz. 474, 831 P.2d 850 (1992); Johnson v. City of Pacifica, 4 Cal.App.3d 82, 84 Cal.Rptr. 246 (1970); Montgomery Ward Co. v. Pherson, 129 Colo. 502, 272 P.2d 643 (1954); Wimer v. State, 122 Idaho 923, 841 P.2d 453 (1993); and Bromund v. Holt, 24 Wis.2d 336, 129 N.W.2d 149 (1964). Compare, City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985) (recognizing police duty to use reasonable care in responding to life threatening calls). B. False Arrest and False Imprisonment "False arrest and false imprisonment are not separate torts. A false arrest is one way to commit false imprisonment; since an arrest involves restraint, it always involves imprisonment." City of Nome v. Ailak, 570 P.2d 162, 168 (Alaska 1977). The elements of the false arrest-imprisonment tort are (1) a restraint upon the plaintiffs freedom, (2) without proper legal authority. Hazen v. Municipality of Anchorage, 718 P.2d 456, 461 (Alaska 1986). In the present ease the Municipality obtained a warrant for the arrest of John Waskey. Thus it had appropriate legal authority for the arrest. There can be no claim for false arrest and false imprisonment under these circumstances. See e.g., Rodriguez, 556 F.2d at 1193; Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 747 (1979); Higgins v. Redding, 34 Or.App. 1029, 580 P.2d 580, 582 (1977). Where a warrant mistakenly names the wrong individual based on a negligent investigation, all that might be available would be a negligent investigation claim. Since we have concluded that no such claim may be maintained, the judgment in this case should be AFFIRMED. MOORE, J., not participating. . In D.S.W. v. Fairbanks North Star Borough School District, this court articulated the factors to be considered in determining whether an "actionable duty of care" exists: 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 of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved. D.S.W., 628 P.2d 554, 555 (quoting Peter W. v. San Francisco Unified School District, 60 Cal. App.3d 814, 131 Cal.Rptr. 854, 859-60 (1976)). In this case John argues that "the harm to [him] is foreseeable, the injury is certain, the connection between the conduct and the injury is close, the policy of preventing future harm is important, the burden on defendant is relatively light, the consequences for the community are positive, and it is more feasible for the Municipality to procure insurance."

10344390

LOWER KUSKOKWIM SCHOOL DISTRICT and Alaska Department of Education, Appellants and Cross-Appellees, v. FOUNDATION SERVICES, INC., Appellee and Cross-Appellant

Lower Kuskokwim School District v. Foundation Services, Inc.

1996-02-02

Nos. S-6348, S-6458

1383

1390

909 P.2d 1383

909

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:30:38.468787+00:00

CAP

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

LOWER KUSKOKWIM SCHOOL DISTRICT and Alaska Department of Education, Appellants and Cross-Appellees, v. FOUNDATION SERVICES, INC., Appellee and Cross-Appellant.

LOWER KUSKOKWIM SCHOOL DISTRICT and Alaska Department of Education, Appellants and Cross-Appellees, v. FOUNDATION SERVICES, INC., Appellee and Cross-Appellant. Nos. S-6348, S-6458. Supreme Court of Alaska. Feb. 2, 1996. Saul R. Friedman, Hedland, Fleischer, Friedman, Brennan & Cooke, Anchorage, for Appellants and Cross-Appellees. Myron Angstman, Angstman Law Office, Bethel, for Appellee and Cross-Appellant, Foundation Services, Inc. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3999

26319

OPINION RABINOWITZ, Justice. I. INTRODUCTION In the spring of 1993, the Lower Kuskok-wim School District (LKSD or District) awarded, and the Alaska Department of Education (DOE or Department) subsequently-approved, a school transportation contract to Transnorth Corporation, the incumbent provider of bus service for children in the District's twenty-two villages. Foundation Services, Inc., an unsuccessful bidder for the contract, sought appellate review claiming, among other things, that Transnorth's proposal was fraudulent and that the Department abused its discretion in approving the contract. The superior court reversed the Department's decision and awarded the contract to Foundation Services. LKSD and the Department now appeal. We reverse the superior court's decision. II. FACTS AND PROCEEDINGS Anticipating the expiration of its then current student transportation contract, LKSD began the process of awarding a new contract in December 1992. On December 15, after receiving the Department's approval, LKSD solicited bids for a five year contract commencing July 1,1993. In response, only two proposals were submitted: one by Foundation Services and one by Transnorth. At the time, Transnorth held the contract and had provided the District with bus service since 1977, a span of fifteen years. Foundation Services' bid was $1,463.00 per school day while Transnorth's was $1,491.93, a difference of approximately two percent. LKSD determined that both proposals were "responsive." The LKSD Board of Education (Board) then met to consider the proposals. Though Foundation Services submitted the low bid, DOE regulations did not mandate that it be awarded the contract. 4 Alaska Administrative Code (AAC) 27.085(f)(1)(B) allows the LKSD Board to award the contract to a proposer whose responsive proposal is within five percent of the responsive proposal with the lowest dollar amount if the proposer agrees to match the responsive proposal with the lowest dollar amount and the board determines that the offer to other than the low proposer is in the best interests of the district. Thus, if it was in the "best interests of the district," the Board could award the contract to Transnorth since its bid was within five percent of the bid placed by Foundation Services. The Board exercised this option under 4 AAC 27.085(f)(1)(B) and awarded the contract to Transnorth, since Transnorth had agreed to match Foundation Services' offer of $1,463.00 per day. The Board based its decision on Trans-north's longstanding record of providing quality service. As David Shields, Business Manager for LKSD, stated in a letter to Harry Faulkner, Jr., President of Foundation Services: The School Board's decision hinged on the fact that, all other things being equal, Transnorth Inc[.] had the proven, demonstrated, experience to successfully perform the services with the least amount of oversight and problems for the school district, and therefore was in the best interests of the school district. Foundation Services subsequently petitioned the Board, pursuant to 4 AAC 27.085(g), to reconsider its decision. In its petition, Foundation Services asserted three grounds for reconsideration: (1) Trans- north's proposal was fraudulent and nonre-sponsive, (2) the Board abused its discretion in awarding the contract to Transnorth without making a full investigation into Trans-north's ability to perform the contract, and (3) 4 AAC 27.085(f)(1)(B) violates Alaska's procurement code. On April 6, 1993, the Board held a special meeting to address Foundation Services' petition for reconsideration. Board members were provided with packets of all the information that Foundation Services and Trans-north had presented to the District. After presentations by counsel for both parties, no motion for reconsideration was offered, and the award of the contract to Transnorth stood as originally granted. LKSD and Transnorth thereafter entered into a written contract. On June 1,1993, the Department approved the contract relying in part on a recommendation of a member of its staff which stated: After reviewing the documentation submitted by both proposers and the school district, I recommend that the department approve the proposal selected by the school district board and award the contract to Transnorth, Inc. The school board certified both proposals as responsive, heard testimony from both proposers in response to the petition for reconsideration and awarded the contract in compliance with regulations to the proposer that they felt would best serve the district. Although it appears that the principals of Transnorth may have had some financial problems in prior years, these matters have not affected pupil transportation services. Transnorth has a proven track record with the district, they have the necessary equipment on-site to perform the services and due to their experience they will be able to perform the contract with a minimum of oversight. The district school board has also taken these matters into consideration. I recommend approval of the district's request to award the pupil transportation contract for FY94-98 to Transnorth. Foundation Services then timely filed a Notice of Appeal with the superior court. The superior court reversed the LKSD Board and Department on two grounds: (1) Transnorth's proposal was nonresponsive, and (2) the Department abused its discretion in approving the contract. Relying heavily on the fact that Transnorth did not timely file its biennial report or pay its corporate tax, the superior court held that "Transnorth Corporation was not in compliance with state law. Therefore, its proposal is not responsive." The court reasoned: Simply stated the Department of Education approved a contract between LKSD and a corporation which is not in good standing with the state of Alaska. By ignoring Transnorth's failure to qualify as a corporation in good standing with the state, the Department of Education abused its discretion. The superior court then concluded that "the contract should be awarded to the lowest, responsive bidder, Foundation Services, Inc., subject to the approval of the Department of Education." LKSD and the Department now bring this appeal. III. DISCUSSION This appeal raises three issues: (A) whether Transnorth's proposal was "responsive," (B) whether the Department abused its discretion in approving the contract, and (C) whether the superior court erred when it awarded the contract to Foundation Services rather than remanding the case to the Department for additional findings. A. Transnorth's Proposal Was Responsive. In awarding the student transportation contract, the LKSD Board could "offer the contract only to a proposer whose proposal ha[d] been certified as responsive." According to Department regulations, The district shall certify a proposal as nonresponsive if (A) it does not materially conform to the request for proposals; (B) it contains a material alteration or erasure which has not been initialed by the proposer; or (C) the proposer omits or is unwilling to provide services specified in the request for proposals.[ ] The requirement that all bids be certified as responsive before being considered is well founded. "In order to promote honest competition on an equal basis, the [district] is required to reject bids which vary materially from the specifications set forth in the publicized request for proposal." McBirney & Assocs. v. State, 753 P.2d 1132, 1136 (Alaska 1988) (citations omitted). The quoted regulation reflects the directive that "[a] material variance from a bid specification requires rejection of the bid." Chris Berg, Inc. v. State, Dep't of Transp. & Pub. Facilities, 680 P.2d 93, 94 (Alaska 1984) (citation omitted). In regard to determining what constitutes a material variance, we have previously enunciated a qualitative standard: "A variance is material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Id. Further, our standard of review in this context is deferential. "The determination by a public agency of the responsiveness of a bid is within the agency's discretion, subject, on judicial review, to an ascertainment that there was a reasonable basis for the agency's action." Id. With this framework in mind, we now address the initial issue of whether Trans-north's proposal was "nonresponsive." Specifically, Foundation Services claimed that Transnorth's proposal was fraudulent and nonresponsive because it was submitted by Lela Brown as "President" of Transnorth, a designation contradicted by Transnorth's 1991 biennial report on file with the state. Relying on the 1991 biennial report, Foundation Services also claimed that Transnorth misrepresented the true identify of its owners in its proposal. Foundation Services similarly noted that Transnorth failed to file a later biennial corporate report and failed to pay its corporate taxes, both of which were due on January 2, 1993. Such failures, according to Foundation Services, demonstrated that Transnorth's proposal was nonre-sponsive insofar as it was not a corporation in "good standing." Additionally, Foundation Services asserted that the Browns, in their individual capacities, and Transnorth, in its corporate capacity, had failed to perform previous public contracts and that both indi viduals and the corporation were currently engaged in litigation — facts which, if true, were omitted or misrepresented in Trans-north's proposal. We now consider Foundation Services' assertions in turn. As already discussed, the superior court viewed as dispositive the fact that Trans-north had failed to timely file its biennial report and pay its corporate taxes and that its 1991 biennial report contradicted information contained in its proposal. Both the District and the Department acknowledge Transnorth's failure. However, both take the position that this failure does not render Transnorth's proposal nonresponsive. In short, Transnorth's failure raises two relevant inquiries: (1) was Transnorth's proposal fraudulent, and (2) did Transnorth gain a material advantage over Foundation Services by not filing its biennial report or paying its corporate tax? Transnorth's 1991 report listed an out-of-state trust as the sole owner of Transnorth; similarly, it did not list either of the Browns as officers of the corporation. However, it is entirely possible that during the interim period — 1991 to 1993 — the ownership and officer status of Transnorth changed. In support of its assertion that the Browns were not officers or owners of Transnorth, Foundation Services relies entirely on Trans-north's outdated 1991 biennial report. However, in its March 16,1993 response to Foundation Services' Petition for Reconsideration, Transnorth attached an affidavit from Lela Brown that confirmed under oath her status as "President" as well as Nathan Brown's status as "Secretary/Treasurer" of Trans-north. Furthermore, the record shows that on May 17, 1993, Transnorth paid its corporate tax and filed its 1993 biennial report, which contained information consistent with its proposal. (As noted previously, the Department approved the transportation contract entered into between LKSD and Trans-north on June 1, 1993.) Since Foundation Services' claim that the Browns were not officers of Transnorth rests entirely on an outdated document, Transnorth provided the only relevant evidence on this issue, evidence which is consistent with its proposal. Consequently, Foundation Services' claim of fraud has not, on this record, been made out. Even if not fraudulent, Transnorth's failure to file its report and pay its taxes could still render its proposal nonresponsive if it received a "substantial advantage" over Foundation Services as a result of these failures. Chris Berg, 680 P.2d at 94. The superior court focused on this aspect of the case. If one contractor asserting the status is allowed to ignore the requirements of law such as the payment of corporate taxes and the filing of documents indicating the officers, directors, and owners of the corporation, then such entity obtains an unfair advantage over its competitors. We conclude that the superior court erred: Transnorth's failure to pay its $100 corporate tax and file its biennial report did not provide it with a substantial advantage over Foundation Services. In essence, the biennial report is a filing requirement and the tax, by any measurement, is nominal. In King v. Alaska State Housing Authority, 512 P.2d 887 (Alaska 1973), this court affirmed a superior court's holding that a party's proposal was responsive notwithstanding its failure to timely file a $6,300 deposit. Id. at 892-93. Common sense suggests that Transnorth's failures to file the required biennial report and to pay the $100 tax did not provide it with a significant advantage over Foundation Services. In short, as the District argues, "there is . no authority to support the [s]uperior [c]ourt's premise that Transnorth could not be a responsive bidder or proposer on a public contract on January [15], 1993, because, at that time, it was [two weeks] late in filing its 1993 biennial report and paying its 1993 biennial corporation tax." Foundation Services additionally claims that Transnorth's proposal was fraudulent and nonresponsive for the following reasons: (1) the Browns and Transnorth had failed to perform on previous public contracts, and (2) the Browns and Transnorth were currently engaged in other litigation. However, the superior court did not rely on those arguments. Concerning the charge of a previous failure to perform on public contracts, the "failure" alleged was a breach of a lease agreement with the City of Bethel. Notwithstanding the question of whether the lease contract was a "public contract," the failure related to the Browns in their individual capacities, not to Transnorth. Foundation Services' claims regarding current litigation also fail. First, some of the litigation referred to involved the Browns individually. Foundation Services also referred to two mid-1980s judgments totaling approximately $6,000 against Transnorth. Again, any claim of fraud can be rejected on the basis that what we have is an accurate answer to a confusing question; that is, what constitutes "current litigation?" In any event, insofar as Transnorth's claims were detailed in its petition for reconsideration, both the District and the Department were fully aware of Transnorth's purportedly fraudulent responses. In summary, given the applicable standard of review — "reasonable basis" — we hold "that the superior court erred in substituting its judgment for that of the [District] as to the finding that the bids were nonresponsive." State v. Bowers Office Prod., Inc., 621 P.2d 11, 13 (Alaska 1980) ("Bowers I"). B. The Department Did Not Abuse Its Discretion in Approving the Contract between the District and Transnorth. Alternatively, Foundation Services argues that the Department abused its discretion in approving the contract. In agreeing with Foundation Services, the superior court stated: By ignoring Transnorth's failure to qualify as a corporation in good standing with the state, the Department of Education abused its discretion. Furthermore, the superior court held that the Department was required to, but did not, take a "hard look" at the "problems raised about Transnorth and its principals, the Browns" (citing Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1287 (Alaska 1986) (affirming the department's land lottery after holding that agency's review of new information was not arbitrary or unreasonable)). As the parties and superior court correctly note, we review the Department's approval of Transnorth's contract under an abuse of discretion standard. That is, "[w]here, as here, the question is as to the merits of agency action on matters committed to agency discretion, our scope of review is limited to whether the decision was arbitrary, unreasonable or an abuse of discretion." Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 548 (Alaska 1983) (citation omitted). To this effect, as the superior court noted, "[w]here an agency fails to consider an important factor in making its deei sion, the decision mil be regarded as arbitrary." Id. at 548-49 (citation omitted). We begin our analysis by noting that the applicable regulation provides the Department with little guidance in its review of contracts submitted by a school district. In fact, except for stating that the commissioner shall act within fifteen days after receipt of the proposed contract, the regulation, 4 AAC 27.085(h), merely states that the commissioner may require justification of rates and may require that a performance bond be posted. The regulation is silent as to what factors, if any, the commissioner should consider in evaluating a contract. The only regulatory directive the commissioner had was whether the proposal was "in the best interest[s] of the district." 4 AAC 27.085(f)(1)(B). Turning to the superior court's decision, it held that the Department's review of the contract was inadequate: Transnorth's failure to correct its corporate noncompliance in light of the other serious allegations of the Browns' financial difficulties should have caused the Department of Education, as a trustee of public money, to seriously investigate both Trans-north's corporate status and the Browns' financial entanglements. Nothing in the record indicates any effort on the part of the department to probe into the financial integrity of a corporation in non-compliance with the State law and its principals, the Browns, before approving the contract between LKSD and Transnorth. There is no evidence in the record that the department did anything more than review LKSD's decision making process. Our review of the record indicates otherwise. As previously mentioned, the Department's approval of Transnorth's proposal came after a project manager had reviewed copies of all pertinent documents. Additionally, since Transnorth's failure to file its biennial report and pay its corporate taxes do not render its bid nonresponsive, the Department could overlook these technical flaws. Furthermore, we have previously deferred to an agency's or district's oversight in analogous contexts. Finally, insofar as the record indicates that the Department's formal review may have been limited to a two-page memo, an absence of more detailed findings is not necessarily fatal. Given the District's, and the Department's review and the deferential standard employed when reviewing an agency's discretionary decision, we conclude that the Department had a reasonable basis for its determination that it should award the contract to Transnorth. Further, we conclude that the Department's actions were not arbitrary or capricious as to Foundation Services. IV. CONCLUSION In awarding the transportation contract to Foundation Services, the superior court erred in two respects: (1) it incorrectly held that Transnorth's proposal was nonrespon-sive, and (2) it incorrectly held that the Department of Education abused its discretion in approving the contract. For these reasons, the superior court's decision reversing the Department's contract award to Trans-north is REVERSED. . 4 AAC 27.085(g) states: Within five working days following the district school board's offering a contract, a proposer whose responsive proposal was not accepted may petition the board, in writing, for reconsideration of its action. Petitions for reconsideration are limited to the following grounds, which must be specified: (1) fraud or duress by the district school board or a proposer; or (2) error of the district school board in calculating dollar amounts. The aggrieved proposer shall deliver the petition to all other proposers. The district school board shall decide the scope and form the reconsideration will take, except that all responsive proposers must be given the opportunity to be heard on the petition. . These grounds comprise the basis of Foundations Services subsequent appeal to the superior court. As to ground three, the superior court held that the regulation does not violate the state • procurement code, and Foundation Services did not appeal this ruling. Thus, we do not address that issue. . Though the relevant standards of review are discussed within the context of each issue presented, we note at the outset that "because the superior court acted as an intermediate appellate court, we do not give deference to its decision." Lake and Peninsula Borough v. Local Boundary Comm'n, 885 P.2d 1059, 1062 (Alaska 1994) (citation omitted). . 4 AAC 27.085(f)(1). . 4 AAC 27.085(e)(2) (emphasis added). Additionally, 4 AAC 27.085(e)(3) provides: The district may certify a proposal as nonre-sponsive if (A) the proposer failed to render substantial performance of a pupil transportation contract with any school district within the state within the previous three years; or (B) the district cannot assure itself that the proposer will provide the specified service. (Emphasis added.) . Cf. Kelly v. Zamarello, 486 P.2d 906, 918 (Alaska 1971) ("[P]ublic policy requires carefully drawn public competitive bidding standards and strict compliance with those standards."). . See also Kelly, 486 P.2d at 918 ("Applying the reasonable basis standard, we cannot say that the finding of nonresponsiveness lacked either substantial support in the record or a reasonable basis in law."). . Transnorth's proposal listed Lela Brown as "President" and Nathan Brown as "Secre-taiy/Treasurer" of Transnorth. . See AS 10.06.805, 10.06.811, 10.06.815, 10.06.845(a). Together, these provisions required Transnorth, as a domestic corporation, to file a biennial report and to pay a $100 corporation tax by January 2, 1993. The penalty for failing to timely pay the tax is $25, and the penalty for failing to timely file the biennial report is ten percent of the amount of the corporation tax. Thus, by failing to file its biennial report and pay its $100 corporation tax, Trans-north's tax and penalty liabilities totaled $137.50 [($100 + $25 penalty) + (.10 x $125)], a $37.50 increase over its liability had it timely paid its corporation tax and filed its biennial report. . Foundation Services' claim that Transnorth misrepresented the identity of its true owners is unpersuasive. At issue is one of the questions contained in the district's bid proposal. It states: Provide the names and mailing addresses of the owners, or if applicable, principles of corporations of the proposers. Include resumes of key management personnel. (Emphasis added.) In response, Transnorth listed "Nelson & Lela Brown." Given the inartful wording of the question coupled with the Browns' status as "principals," Transnorth's failure to list the name of its out of state majority owner is not necessarily fraudulent. . In its original decision, the superior court indicated that Transnorth, as a corporation not in compliance with filing and tax requirements, was incapable of entering into contracts ("Nothing in the record indicates that Transnorth Corporation was a valid Alaska corporation at the time it signed the contract with LKSD or at the time the Department of Education approved the contract."). However, on reconsideration, the superior court retreated from this position and stated that "[t]he court did not intend to imply that Transnorfh lacked authority as a corporation to act as a corporation." . These allegations stem from answers given by Transnorth in its proposal. Specifically, Trans-north denied that it had "faded on one or more public contracts" and replied in the negative to the question whether it was "currently involved in any litigation." . King, 512 P.2d at 894 ("The parties agree that [the agency's] evaluation and selection of redevelopment proposals can be set aside for abuse of discretion.... Under this standard of review, this court should not second-guess reasonable evaluations of complex housing criteria with which the agency is intimately familiar."). . 4 AAC 27.085(h) states: After district school board action to offer a transportation contract, and following any board actions on petitions for reconsideration by proposers, the district school board shall forward a copy of the proposed contract, successful proposal, and minutes containing board actions to the commissioner_ The commissioner may require justification of rates. The commissioner shall act within 15 days after receipt. Upon approval by the commissioner, the district school hoard may award the contract. As a condition of his approval, the commissioner may require a performance bond of the contractor.... . See Fairbanks N. Star Borough Sch. Dist. v. Bowers, 851 P.2d 56, 59-60 (Alaska 1992) ("Bowers II") ("[Njotwithstanding some flaws, there is a reasonable basis for the school district's award_ In light of the broad discretion granted to school districts regarding procurement decisions under AS 14.14.060(h), we conclude that the superior court did not afford proper deference to the decisions of the school district."); State v. Northern Bus Co., 693 P.2d 319, 322 (Alaska 1984) ("Northern Bus argues that investing DOE with such broad discretion [under 4 AAC 27.085(e)(2) ] fails to recognize the necessity of considering non-monetary factors such as safety, facilities and equipment. We disagree."). .Bowers II, 851 P.2d at 60 (stating that a school district's implicit findings were acceptable in support of its determinations). . Given our disposition, we need not reach the question of whether the superior court should have remanded the case to the Department rather than award the contract to Foundation Services.

10409947

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

Clark v. State

1987-06-26

No. A-1840

772

774

738 P.2d 772

738

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:26.267325+00:00

CAP

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

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

James W. CLARK, Appellant, v. STATE of Alaska, Appellee. No. A-1840. Court of Appeals of Alaska. June 26, 1987. William A. Davies, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Alan J. Hooper, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1021

6481

OPINION COATS, Judge. Fairbanks Airport Police Officer David Atkins arrested James Clark for driving while intoxicated (DWI). AS 28.35.030. The arrest occurred beyond the airport's boundaries. An Intoximeter test indicated that Clark's blood contained .130 percent alcohol. Clark moved to suppress all evidence of the traffic stop, arrest, and Intox-imeter results. District Court Judge Christopher E. Zimmerman denied the motion. Clark pled no contest and preserved his right to appeal based on Cooksey v. State, 524 P.2d 1251 (Alaska 1974) and Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978). On appeal, Clark argues that the airport security police do not have authority to make stops and arrests for state traffic offenses committed outside the airport's territorial limits. He also maintains that there was no reasonable suspicion to effect the traffic stop underlying his arrest. We find no error and affirm Clark's conviction. At approximately 4:30 a.m., on July 10, 1986, Officer Atkins was proceeding eastbound on Airport Way in a marked patrol vehicle, approaching University Avenue. He was outside the airport jurisdiction on a personal errand. Atkins observed Clark's vehicle slide twelve to fifteen feet to a stop on the loose gravel at the intersection. Clark's vehicle then turned and proceeded at twenty-five miles per hour in a forty-five mile per hour zone. Atkins believed that Clark had observed the patrol car, and had reacted abnormally by slamming on the brakes, causing his car to slide to a stop. Atkins reasoned that the early morning hour, the slide, and the slow driving indicated an intoxicated driver. Atkins pulled Clark over and subsequently arrested him. Judge Zimmerman denied Clark's motions to suppress. He found that Atkins was a certified police officer but that Atkins was outside his normal patrol when he observed Clark. However, the judge held that under State v. Burke, 714 P.2d 374 (Alaska App.1986), an airport police officer has jurisdiction to enforce traffic laws outside of the airport. The court also concluded that Atkins had articulated a reasonable basis for his suspicion, justifying the traffic stop. Alaska Statute 28.35.225 provides: All law enforcement officers in this state and employees of the department designated by the commissioner shall enforce this title and regulations adopted under this title. The state troopers shall advise and instruct all other law enforcement officers in the state concerning the requirements of this title and regulations adopted under this title. In Burke we concluded that, by this statute, the legislature intended to confer on all law enforcement officers the authority to enforce violations of Title 28, and regulations promulgated under Title 28, throughout the state if the violation occurred in the officer's presence. Thus, a law enforcement officer is authorized to enforce Title 28 beyond the territorial limits of the jurisdiction which employed the officer. 714 P.2d at 376-77. The instant case raises the question of whether an airport police officer is a law enforcement officer for purposes of AS 28.35.225. In Burke we relied on AS 01.10.060(6) which defines "peace officer" as "any officer of the state troopers, members of the police force of any incorporated city or borough, United States marshals and their deputies, and other officers whose duty it is to enforce and preserve the public peace." 714 P.2d at 376. The term "police officer" is defined in AS 18.65.290(3) as: a full-time employee of the state or a local police department with the authority to arrest and issue citations; detain a person taken into custody until that person can be arraigned before a judge or magistrate; conduct investigations of violations and enforce criminal laws, regulations and traffic laws; search with or without a warrant persons, dwellings, and other forms of property for evidence of a crime; carry a concealed weapon; and take other action consistent with exercise of these enumerated powers when necessary to maintain the public peace. These definitions are helpful in defining "law enforcement officer" as used in AS 28.35.225. If anything, the term "law enforcement officer" is broader than "peace officer" or "police officer." It does not appear to be contested that airport police officers have general police powers on airport property. Airport police officers therefore appear to be law enforce ment officers within the definition of AS 28.35.225. We accordingly conclude that an airport police officer is a law enforcement officer who has the authority to enforce the provisions of Title 28 throughout the state. We find that Judge Zimmerman did not err in concluding that Atkins had authority to stop Clark. Clark also argues that Judge Zimmerman erred in finding that Atkins had sufficient information to form a reasonable suspicion that Clark was DWI. See State v. Moran, 667 P.2d 734 (Alaska App.1983). Given Atkins' testimony concerning the hour of the night and his observations of Clark's erratic driving, we conclude that Judge Zimmerman was not clearly erroneous in finding that there was sufficient information for Atkins to form a reasonable suspicion that Clark was DWI. Chilton v. State, 611 P.2d 53, 55 (Alaska 1980). The conviction is AFFIRMED. . AS 02.15.230 provides in pertinent part: Police Powers Vested, (a) The commissioner and those officers and employees of the department who the commissioner may designate have general police powers in aid of the enforcement of this chapter, and the regulations and orders issued under it and all other laws of the state relating to aeronautics. [Emphasis added.] AS 02.15.060 provides in pertinent part: "The department may . protect and police airports and air navigation facilities within the state." (Emphasis added).

11910694

Henry GEORGE, Appellant, v. STATE of Alaska, Appellee

George v. State

1997-09-05

No. A-5930

1181

1191

944 P.2d 1181

944

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Henry GEORGE, Appellant, v. STATE of Alaska, Appellee.

Henry GEORGE, Appellant, v. STATE of Alaska, Appellee. No. A-5930. Court of Appeals of Alaska. Sept. 5, 1997. Scott Jay Sidell, Anchorage, for Appellant. G. Blair McCune, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for the Alaska Public Defender Agency, amicus curiae. Cynthia M. Cooper and Timothy W. Terrell, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., MANNHEIMER, J., and JOANNIDES, District Court Judge. Sitting by assignment of the chief justice made pursuant to Article IV, Section 16 of the Alaska Constitution.

6043

37981

MANNHEIMER, Judge. Under Alaska law prior to July 1995, indigents who wished to commence litigation against the State could apply to the courts for a total waiver of the normal filing fee under Alaska Administrative Rules 9(f) and 10. In the 1995 legislative session, however, the Alaska legislature enacted a statute, AS 09.19.010, which limits the courts' authority to waive filing fees in lawsuits brought by prisoners against the state government. See 1995 SLA, ch. 79, § 1. Under this new law, a court must in all cases require the prisoner to pay a filing fee "equal to 20 percent . of the average monthly deposits made to the prisoner's [prison] account . or the average balance in that account", whichever is greater (unless this calculation yields a figure larger than the normal filing fee). See AS 09.10.010(d). Henry George is a prisoner who unsuccessfully sought post-conviction relief in the superior court and who now wishes to pursue an appeal to this court. Under Alaska Administrative Rule 9(a)(1), the filing fee for an appeal to this court is $100. Claiming indi-gency, George lodged his appellate pleadings with no filing fee. The State asked this court to dismiss George's appeal unless he paid a filing fee under AS 09.19.010. (According to the financial information George has submitted, his minimum filing fee under this statute would be $2.21.) George responded by asserting that AS 09.19.010 is unconstitutional and that he should be able to pursue this appeal without paying any fee. For the reasons explained in this opinion, we conclude that AS 09.19.010 is constitutional. Therefore, even though George is not able to pay the full $100 filing fee, he must apply for an exemption under AS 09.19.010, and he is subject to the minimum fee set by that statute. Explanation of the statute at issue here AS 09.19.010 governs the filing fees that prisoners must pay to commence litigation against the State. AS 09.19.010(a) declares that, with the exception of claims under AS 23.20 (the Alaska Employment Security Act), a prisoner who commences litigation against the state must pay the full prescribed filing fees unless "the court exempt[s][the] prisoner from paying part of those fees [upon a finding of] exceptional circumstances". A prisoner seeking this partial exemption must submit (A) complete information concerning his or her income, assets, and liabilities; (B) an explanation of the circumstances that prevent the prisoner from paying full filing fees; and (C) an explanation of the prisoner's claim against the State, including the underlying facts. AS 09.19.010(b)(1). The prisoner must also provide the court with a certified copy of the prisoner's prison account statement for the preceding six months. AS 09.19.010(b)(2). The court has the authority to require the prisoner to provide additional documentation or financial information. AS 09.19.010(b)(3). Based on this information, "the court may grant an exemption from part of the applicable filing fees if the court finds that exceptional circumstances prevent the prisoner from paying full filing fees". AS 09.19.010(c). The statute does not define "exceptional circumstances" except by exclusion: "Imprisonment and indigency do not constitute exceptional circumstances if the prisoner has available income or resources that can be applied to the filing fee." Id. If the court finds exceptional circumstances, the court can exempt the prisoner from paying the normal fee, but the court must require the prisoner to pay at least a minimum partial fee. This minimum fee is set at twenty percent of (1) the monthly average of the deposits made to the prisoner's account, or (2) the average monthly balance of that account, whichever is larger. AS 09.19.010(d). (Of course, if this calculation yields a figure greater than the normal filing fee, the prisoner need pay only the normal fee. Id.) After the court determines the amount of the filing fee that the prisoner must pay, the prisoner must normally pay this fee within 30 days or the prisoner's pleadings will not be accepted for filing. AS 09.19.010(e). However, the court has the authority to extend this 30-day deadline. Id. Procedural Due Process George asserts that AS 09.19.010 is too vague to satisfy the demands of due process. He points out that the statute authorizes courts to waive the normal filing fee if a prisoner proves "exceptional circumstances", but the statute then fails to define "exceptional circumstances" (except to declare that imprisonment and indigency do not,- by themselves, constitute exceptional circumstances). George contends that, without firm criteria for defining exceptional circumstances, "[u]n-even application [of the statute] is a virtual certainty". Reading AS 09.19.010 as a whole, it is obvious that the phrase "exceptional circumstances" refers to the circumstances other than imprisonment and indigency that "prevent the prisoner from paying full filing fees". AS 09.19.010(c). Under AS 09.19.010(b), a prisoner seeking exemption from the normal filing fee must provide the court with "the prisoner's complete financial situation, including the prisoner's income, assets, and court-ordered payments", as well as a description of "the circumstances that pre vent the prisoner from paying full filing fees". AS 09.19.010(b)(1). At first blush, it may seem strange for the legislature to declare that a prisoner's "indi-gency" does not constitute a sufficient reason to waive the normal filing fee. However, the definitions of "indigency" contained in the Alaska statutes and court rules focus on a person's ability to hire private counsel. Many people with regular incomes will be found "indigent" under these definitions, even though they could afford to pay a $100 filing fee if that were the only expense of litigation. We conclude that the legislature used the phrase "exceptional circumstances" in AS 09.19.010 to clarify that, for the purpose of granting filing fee exemptions, the focus of the inquiry should be on the person's ability to pay the filing fee, not their ability to pay for private counsel. George correctly notes that the statute does not prescribe a precise standard of how penniless a prisoner must be before a court should waive the normal filing fee. Because of this lack, George contends that "judges are free to decide, without any legally fixed standards, whether an exemption is warranted". We do not agree. The question to be decided is whether the prisoner, given his or her income, assets, and liabilities, can afford to pay the normal filing fee. This question will ultimately turn on the financial situation of the individual prisoner. In this respect, the filing fee determination is similar to the determination of eligibility for appointed counsel under AS 18.85.120(b) and AS 18.85.170(4). The same flexible approach is required: a court must examine a person's expenses, determine which ones are necessary, then compare those necessary expenses to the person's income and accumulated assets. Just as AS 18.85.170(4) defines "indi-gency" without specifying dollar amounts and without providing specific guidelines for income or expenses, we believe that the concept of "exceptional circumstances" can pass constitutional muster without these specifics. George contends that AS 09.19.010 contains another procedural flaw; he asserts that the statute makes no provision for a prisoner to be heard on the question of the fee exemption, or for the prisoner to dispute an adverse ruling of the court. George gleans this interpretation from the fact that AS 09.19.010(b) requires the prisoner to file a written application for fee exemption, and from the wording of AS 09.19.010(e), which appears to envision that the court will issue its decision in writing. The fact that the legislature has apparently required the prisoner's pleadings and the court's decision to be in writing does not mean that the legislature has prohibited the judge from holding hearings to aid in adjudicating the issue of fee exemption. For example, AS 18.85.120(b) requires a defendant who seeks appointed counsel to describe his or her financial condition "in writing or by other record", and the statute contains no specific provision for an in-court hearing to debate the defendant's eligibility for appointed counsel. Yet, to this court's knowledge, AS 18.85.120 has never been construed to forbid such a hearing. We likewise see nothing in AS 09.19.010 that forbids the superior court from holding a hearing to investigate a prisoner's eligibility for exemption from the normal filing fee. Next, George contends that AS 09.19.010 is unconstitutional because it requires prisoners to demonstrate the merit of their claim against the State before the superior court is authorized to exempt them from the normal filing fee. It .is true that, when a prisoner files for exemption from the normal filing fee, AS 09.19.010(b)(1)(C) requires the prisoner to include a statement describing "the nature of the action or appeal and specific facts that would, if proven, state a claim on which relief can be granted or [that would] entitle the prisoner to reversal on appeal". However, the court's decision whether to exempt the prisoner from the normal filing fee does not turn on or involve this information. AS 09.19.010(c) directs the court to decide whether "exceptional circumstances prevent the prisoner from paying full filing fees". This paragraph of the statute does not suggest that the filing fee decision involves the merits of the prisoner's underlying cause of action against the State. Instead, subsection (e) speaks only of the financial aspects of the prisoner's situation: the court is to determine "if the prisoner has available income or resources that can be applied to the filing fee". We agree with George that, if AS 09.19.010 conditioned a filing fee exemption ori the superior court's evaluation of the probable merits of the prisoner's contemplated lawsuit, the statute would potentially pose serious constitutional difficulties. Compare Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973) (holding that a person seeking post-conviction relief is entitled to the assistance of an attorney before responding to a motion for judgement on the pleadings); Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963) (striking down California's procedure of appointing appellate counsel for indigent defendants only after the appellate court independently examined the record and concluded that it would be helpful to the defendant or to the appellate court to have counsel appointed). However, we do not construe AS 09.19.010 to require prisoners to demonstrate the probable merit of their lawsuits. Similarly, we do not believe that the statute authorizes the superior court to deny a fee exemption on the basis that the prisoner's lawsuit, as preliminarily described, appears to lack merit. For these reasons, we reject George's various due process attacks on the procedures established in AS 09.19.010. We now turn to George's second main attack on the statute— his claim that it unconstitutionally discriminates against indigents who are prison inmates. Equal Protection As noted above, Alaska courts have traditionally been authorized to waive filing fees for all indigent litigants. Since the enactment of AS 09.19.010, indigent litigants have been divided into three groups for purposes of assessing filing fees. The first group is composed of indigents who are not pursuing "litigation against the state" as defined in AS 09.19.100(1). For these litigants who are suing someone other than the State, or who are suing the State about something unrelated to a criminal charge or their status or treatment as a prisoner, the law relating to filing-fee waivers remains unchanged. A court may waive' the filing fee in its entirety, regardless of whether the litigant is a prisoner. The second group is composed of indigents who wish to pursue "litigation against the state" but who are not prisoners. For indigent non-prisoners, the law relating to filing-fee waivers again remains unchanged; that is, a court may waive the fee in its entirety. The third group is composed of indigent prisoners who wish to pursue "litigation against the state". For these litigants, AS 09.19.010 limits a court's ability to grant an exemption from filing fees. George does not challenge the legislature's distinction between persons pursuing litigation against the state and persons pursuing other litigation. However, George challenges the distinction between indigent non-prisoners and indigent prisoners. When adjudicating an equal protection claim under Article I, Section 1 of the Alaska Constitution, the basic question is whether similarly situated people are being treated the same. Often (as in this case), it is clear that the legislature is treating one group of people differently from another, and the court's real task is to see whether there is in fact a relevant difference between the two groups. If there is a relevant difference, then the court's next task is to examine how the legislature's classification hurts the disadvantaged group of people, and then to judge the significance of this legislated disadvantage. If the legislature's action adversely affects important individual rights, then the legislature's goal must be correspondingly important, and the classification drawn by the statute must be closely tailored to achieving that goal. Conversely, if the legislation affects only lesser rights or interests, then the legislation can rest on a lesser goal, and the means chosen to achieve that goal can be less precise. Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-270 (Alaska 1984). George contends that there is no good reason for the legislature's decision to divide indigent people into two groups, treating prisoners differently from non-prisoners. To evaluate this claim, we first must examine what the legislature was trying to accomplish when it enacted AS 09.19. AS 09.19 was included as part of 1995 House Bill 201, a legislative proposal that was initiated by the governor under Article III, Section 18 of the Alaska Constitution. The governor's transmittal letter that accompanied HB 201 contains an explanation of the filing fee provisions: I am transmitting a bill that addresses many of the problems arising from prisoner litigation, sentence appeals, and frivolous or extremely tardy post-conviction relief motions. This bill is intended to ensure that offenders [desist from] endless "recreational" litigation. . Frivolous litigation filed by prisoners misallocates resources of the judiciary, the Department of Law, the Public Defender's Office, the Office of Public Advocacy, the Department of Corrections, and the public. 1995 House Journal 488-89. One could hardly dispute the propriety of the legislature's interest in limiting or discouraging frivolous lawsuits. The real question is whether it is fair to single out prisoners as a significant source of frivolous litigation. One of the axioms of economic theory is that people are generally more likely to purchase goods and services, or to purchase more of them, as the price of those goods or services goes down. World Book Encyclopedia (1985), "Supply and Demand" (author: Robert Dorfman), Vol. 18, p. 796. As many experienced lawyers might attest, this rule applies to lawsuits. Although some people can afford to litigate endlessly, and other people are by temperament inclined to litigate regardless of expense, most people will consider the cost of litigation (in terms of both their money and their time) when deciding whether to initiate or continue a lawsuit. In effect, the cost of litigation acts as a mechanism to screen out meritless lawsuits: people must weigh this cost against the importance of the dispute and the likelihood of success in court. When the price of litigation goes up, this increased cost will ordinarily deter people from filing lawsuits over matters of lesser importance and from pursuing lawsuits that have small chance of success. Thus, the expense of litigation actually benefits society — up to a point. The darker aspect of litigation expense is that, as litigation costs go higher, more and more people with meritorious claims are effectively denied redress in the legal system because they can not afford to litigate. Because access to the legal system is so important in our society, both federal and state governments have enacted measures to make sure that indigent people are able to litigate at a reduced cost. See, for instance, Alaska Administrative Rules 9(f) and 10 and the federal in forma pauperis statute, 28 U.S.C. § 1915. Allowing people to litigate at reduced cost obviously increases the risk that people will litigate with less reason. However, until recently, the federal and state legislatures viewed this trade-off as beneficial on the whole. This view has now changed, at least with regard to prisoners, because of the large impact that prisoners' lawsuits are having on the courts. The Alaska Legislature is not alone in deciding to increase litigation costs for prisoners. In 1996, Congress enacted the Prison Litigation Reform Act, 110 Statutes 1321, § 801-810. As described by the Fourth Circuit in Roller v. Gunn, 107 F.Bd 227 (4th Cir.1997), the federal Prison Litigation Reform Act was enacted to deal with a flood of civil litigation initiated by federal prisoners who were exempt from filing fees under 28 U.S.C. § 1915, the federal informa pauperis statute: The first federal in forma pauperis ("IFP") statute was enacted in 1892.... Congress proposed to "open the United States courts to . American citizens [who hitherto have been] excluded . for want of sufficient money or property[.]" H.R.Rep. No. 1709, 52nd Congress, 1st Sess. 1 (1892). [However,] the statute's noble purpose has been threatened by a flood of meritless lawsuits. Unsurprisingly, prisoners proved responsible for much of this litigation.... In 1995, prisoners brought over 25% of the civil eases filed in the federal district courts. [See ] Administrative Office of the United States Courts, 1995 Federal Court Management Statistics 167. In. this circuit alone, IFP filings accounted for almost half of the court's 1995 caseload, Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 954 n. 2 (4th Cir.1995) (en banc), and prisoners were responsible for 75% of those filings. Id. at 953-54 n. 1. Roller, 107 F.3d at 230. Congress was concerned that the effectiveness of the federal judiciary was being compromised by a flood of prisoner litigation. Congress also concluded that this proliferation of prisoner lawsuits was due, in significant part, to the fact that it was easy and essentially costless for prisoners to pursue meritless claims. For these reasons, Congress enacted the Prison Litigation Reform Act, which comprised a series of amendments to the in forma pauperis statute, 28 U.S.C. § 1915. Roller, 107 F.3d at 230-31. Like AS 09.19.010, the federal Prison Litigation Reform Act applies to prisoners who file civil suits or appeals. The Act requires the prisoner to supply the court with financial information and a certified copy of their prison account. 28 U.S.C. § 1915(a)(1)-(2). The Act also specifies that a prisoner must pay an initial filing fee equal to 20 percent of the average monthly deposits to the prisoner's account or the average monthly balance of the account over the previous six months, whichever is greater. 28 U.S.C. § 1915(b)(1)-(2). However, unlike the Alaska statute, which authorizes a court to waive the rest of the filing fee, the federal Act requires prisoners to make continuing monthly payments equal to 20 percent of their monthly income (each time their account balance exceeds $10) until the entire normal filing fee is paid. Id. According to the Congressional debate, the goal of the Act was to require prisoners to pay a very small share of the large. burden they place on the Federal judicial system by paying a small filing fee upon commencement of lawsuits. In doing so, the [new Act] will deter frivolous inmate lawsuits. The modest monetary outlay will force prisoners to think twice about the case and not just file reflexively. Prisoners will have to make the same decision that [other] Americans must make: Is the lawsuit worth the price? Statement of Senator Kyl, reported in 141 Congressional Record at S7526 (quoted in Roller, 107 F.3d at 231). The statistics quoted by the Fourth Circuit in Roller may explain the legislative desire to limit prisoner lawsuits, but these statistics alone do not fully answer George's equal protection attack on AS 09.19.010. In particular, why did the Alaska Legislature decide to establish a mandatory minimum filing fee for indigent prisoners who wish to sue the government over matters related to their "treatment as a prisoner" or related to "a criminal charge against [them]", but not establish a minimum fee for indigent former prisoners who, despite their release, wish to pursue the same types of claims? It might seem to make little difference whether an indigent litigant is still serving a prison sentence or, instead, has been released from prison (on bail pending appeal, on probation, or on parole) at the time the lawsuit is filed. However, the circumstances of an indigent prisoner are different from the circumstances of an indigent non-prisoner. As discussed above, the statutory definition of "indigent" in AS 18.85.170(4) focuses on a person's ability to hire a private attorney, pay the various associated costs of litigation, and still meet the basic needs of themselves and their dependents. This statutory definition of "indigent" obviously embraces a great many people who hold jobs, who take care of dependents, and who must spend many hours each week performing the other tasks required to maintain a household. For indigent non-prisoners, the litigation process itself will almost certainly represent a significant intrusion on the person's life. Apart from out-of-pocket expense, the litigation will generally require the person to spend hours away from their job, from their family, and from chores, errands, and social recreation. All of these potential costs, monetary and temporal, will normally influence an indigent non-prisoner's decision to initiate litigation against the government. For an indigent who is imprisoned, however, litigation offers a different prospect: Prisoners . have their basic material needs provided at state expense. They are further provided with free paper, postage, and legal assistance. They often have free time on their hands that other litigants do not possess. See Lumbert [v. Illinois Dept. of Corrections, 827 F.2d 257,] 259 [ (7th Cir.1987) ]. As a result, the federal courts have observed that prisoner litigation has assumed something of the nature of a "recreational activity." See, e.g., Gabel v. Lynaugh, 835 F.2d 124, 125 n. 1 (5th Cir.1988). Whether recreational or not, there has been a far greater opportunity for abuse of the federal judicial system in the prison setting. See 141 Cong. Rec. S7256 (May 25, 1995) (statement of Sen. Kyi) (noting that over one-fourth of civil cases filed in federal district courts were filed by prisoners, and that the vast majority of these cases ended in no relief for the prisoner). Roller v. Gunn, 107 F.3d at 234. Among indigents, prisoners often have the least income and the fewest assets; that is, they often have less at stake if they litigate and lose. Moreover, prisoners generally have the most free time to give over to litigation. For non-prisoners, time devoted to litigation must often be taken from the hours otherwise needed for employment, household, and recreation. For prisoners, on the other hand, the federal filing statistics suggest that litigation often constitutes a diversion from the monotony of prison life. Given the differing circumstances of indigent non-prisoners and indigent prisoners, federal courts have unanimously concluded that the filing fee requirements placed on prisoners by the Prison Litigation Reform Act do not violate the equal protection clause. As the Fourth Circuit observed: There is nothing unreasonable in requiring a prisoner . to make some contribution, however minimal, to ask him . to "put his money where his mouth is," it being all too easy [for prisoners] to file suits . if it costs nothing whatever to do so. Such a requirement . simply forc[es] the prisoner to confront the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it? Evans v. Croom, 650 F.2d 521, 524 (4th Cir.1981) (footnote and citations omitted) (quoted in Hampton v. Hobbs, 106 F.3d 1281, 1285-86 (6th Cir.1997)). Accord, Nicholas v. Tucker, 114 F.3d 17 (2nd Cir.1997); Mitchell v. Farcass, 112 F.3d 1483 (11th Cir.1997); Roller v. Gunn, 107 F.3d at 233-34. We agree with the reasoning of these federal decisions, and we therefore conclude that the Alaska Legislature had a reasoned basis for distinguishing between indigent prisoners and indigent non-prisoners when assessing filing fees in "litigation against the state" as defined in AS 09.19.100(1). Our next task, under Alaska's equal protection test, is to determine how the legislature's action has hurt the interests of indigent prisoners. George argues that AS 09.19.010 abridges one of a prisoner's most fundamental rights — the right to seek justice in the courts when the prisoner has been convicted unfairly. George contends that, because AS 09.19.010 applies to petitions for post-conviction relief and to appeals from the denial of post-conviction relief, the statute must be deemed to place a financial burden on an indigent prisoner's right of appeal. George bases his argument on the assertion that a post-conviction relief proceeding is really an extension of the original criminal proceeding, "a criminal action relating directly to the validity of a criminal conviction". George is mistaken in his attempt to equate post-conviction relief proceedings with direct appeals. As Alaska Criminal Rule 35.1(b) declares, 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, or . direct review of the sentence or conviction." That is, a petition for post-conviction relief is not the equivalent of an appeal. Rather, a petition for post-conviction relief is "a collateral attack on a final judgment [that] must be presumed valid"; it is a civil action that is "separate from the original criminal proceeding", Hensel v. State, 604 P.2d 222, 230 (Alaska 1979), and it is not intended "to take the place of a direct appeal." Higgins v. Briggs, 876 P.2d 539, 543 (Alaska App.1994). As we have already noted (see footnote 1), AS 09.19.010 does not burden a criminal defendant's right of appeal; the statutory definition of "litigation against the State" does not include direct appeals of criminal convictions. Even after the passage of this statute, an indigent prisoner may still seek and obtain a total waiver of the filing fee for a direct appeal of a criminal conviction (or sentence). However, it is hardly necessary for George to prove that petitions for post-conviction relief are equivalent to direct appeals of criminal convictions. The right to seek post-conviction relief is important enough by itself. If AS 09.19.010 had the effect of denying indigent prisoners the ability to seek post-conviction relief, the legislature would have a very difficult time justifying its action. The question, then, is-whether the minimum filing fee established by AS 09.19.010 effectively denies indigent prisoners access to the courts to pursue post-conviction relief? We conclude that the answer is no. For a truly penniless prisoner — one who has no income and no balance in their prison account — the minimum filing fee set by AS 09.19.010 is zero. For prisoners like George, with an average monthly income of approximately $10.00 a month and with account balances of under $10.00, the statutory minimum fee is quite modest. As previously mentioned, the minimum fee for George himself is $2.21. George points out, with some justice, that a prisoner of limited means might attach great importance to a sum this small. He cites federal cases that have struck down fee structures that effectively required prisoners to give up their last dollar, to "totally deprive themselves of [the] small amenities of life". Bullock v. Suomela, 710 F.2d 102, 103 (3rd Cir.1983). See also In re Epps, 888 F.2d 964, 967 (2nd Cir.1989). We do not believe, however, that AS 09.19.010 is such a draconian measure. For example, George's average monthly income is about $11.00. Paying a one-time filing fee of $2.21 may require him to re-budget, but it will not totally deprive him of the amenities of prison life. We note that, if George could show that paying this fee in one lump sum would cause hardship, the statute gives the court the authority to extend the deadline for payment. We acknowledge that, under certain circumstances, the minimum fee established by AS 09.19.010 may hypothetically equal or exceed a prisoner's total resources. For example, a prisoner with a meager monthly income might, through frugality, accumulate a sizeable balance in their prison account, only to be forced to spend the entire balance because of an emergency. For the next several months, the minimum filing fee set by AS 09.19.010 might be beyond the prisoner's means — because the 6-month average balance of the now-depleted account would still far exceed the prisoner's small monthly income. Alternatively, a prisoner might have a relatively high monthly income but be required to spend all of it each month to satisfy a child-support obligation — effectively leaving the prisoner with no disposable income. The federal Prison Litigation Reform Act has an explicit "safety-valve" clause to handle these contingencies — an explicit provision that prisoners will still be able to litigate despite their inability to make the minimum filing fee payments set by the federal statute. AS 09.19.010 does not contain a similar provision. Thus, eases may potentially arise under the Alaska statute in which prisoners are required to pay minimum fees that are completely beyond their reach. If such cases are presented to us, we will then have occasion to consider whether the operation of the statute is limited by constitutional considerations. However, the facts of George's case do not present this problem. For these reasons, we reject George's assertion that AS 09.19.010 denies indigent prisoners their right of access to the courts. The statute may require prisoners to make unwanted or unpleasant decisions about how they will allocate their resources. But the statute does not require prisoners to pay money they do not have; instead, it asks prisoners to set spending priorities. As the Fourth Circuit observed, Requiring prisoners to make economic decisions about filing lawsuits does not deny access to the courts; it merely places the indigent prisoner in a position similar to that faced by those whose basic costs of living are not paid by the state. Those living outside of prisons cannot file a lawsuit every time they suffer a real or imagined slight. Instead, they must weigh the importance of redress before resorting to the legal system. If a prisoner determines that his funds are better spent on other items rather than filing a civil rights lawsuit, "he has demonstrated an implied evaluation of that suit"[J Roller v. Gunn, 107 F.3d at 233 (quoting Lumbert v. Illinois Dep't of Corrections, 827 F.2d 257, 260 (7th Cir.1987)). We thus reject George's contention that AS 09.19.010 abridges indigent prisoners' right of access to the courts. The statute does restrict an indigent prisoner's ability to file a lawsuit at no personal cost, but indigent prisoners do not have a legally protected right to sue the government at no cost. Under these circumstances, AS 09.19.010 passes the equal protection test so long as the legislature had a rational basis for drawing a distinction between indigent prisoners and indigent non-prisoners. We have already concluded that the legislature had a valid reason to draw this distinction. We there fore uphold AS 09.19.010 against George's equal protection challenge. Conclusion We conclude that AS 09.19.010, as construed in this opinion, is constitutional. Therefore, within the next 30 days, George must either pay the normal $100 filing fee prescribed in Administrative Rule 9(a)(1) or, alternatively, apply to the Clerk of the Appellate Courts under AS 09.19.010 and pay whatever reduced filing fee is established under that statute. If George fails to comply, we will grant the State's pending motion to dismiss this appeal. . For purposes of AS 09.19.010, "litigation against the State" is defined as "a civil action or an appeal from a civil action or the final decision of an administrative agency that . [relates] to a person's status or treatment as a prisoner or to a criminal charge against or involving the person". See AS 09.19.100(1). Petitions for post-conviction relief are civil actions. Hensel v. State, 604 P.2d 222, 230-31 (Alaska 1979). Thus, AS 09.19.010 governs filing fees when a prisoner seeks post-conviction relief under AS 12.72, see Alaska Criminal Rule 35.1(e)(1), or when a prisoner appeals the denial of post-conviction relief. However, AS 09.19.010 does not govern the filing fees a prisoner must pay to pursue a direct appeal of his or her conviction. . The Alaska statutes contain only one definition of "indigency". That definition is found in AS 18.85.120(b) and AS 18.85.170(4), the provisions of law which define a person's eligibility for court-appointed counsel from the Public Defender Agency. Under this definition, a person is "indigent" if the person "does not have sufficient assets, credit, or other means to provide for payment of an attorney and all other necessary expenses of [legal] representation without depriving [the person] or [their] dependents of food, clothing, or shelter". AS 18.85.170(4). The Alaska court rules likewise contain only one definition of "indigency". That definition is found in Administrative Rule 12(c)(2), the rule that defines a person's eligibility for appointment of counsel from the Office of Public Advocacy for purposes other than acting as defense counsel in criminal cases. Under this definition, the main criterion of indigency is income level: a person is "indigent" if the person's income "does not exceed the maximum annual income level established to determine eligibility for representation by the Alaska Legal Services Corporation". Administrative Rule 12(c) gives a court the authority to declare a person "indigent" even when their income exceeds the maximum amount for legal services representation. In making a special determination of indigency, the judge must take into account: the funds necessary for the person to maintain employment, to provide shelter, and to clothe, feed and care for the person and the person's immediate family, the person's outstanding contractual indebtedness, the person's ability to afford representation based on the particular matter and the complexity of the case, the costs of living and attorneys fees in different regions of the state, and any liquid assets which could be counted as income. That is, the judge's main focus is whether the person can afford to hire a lawyer. . Regarding potential appellate review of the superior court's decision, we note that the Alaska Supreme Court has held that "[a]ny alleged violation of fundamental constitutional rights must be afforded judicial review", even when there is no specific statutory provision authorizing review. Owen v. Matsumoto, 859 P.2d 1308, 1310 (Alaska 1993) (recognizing inmates' right to judicial review of Department of Corrections' administrative decisions affecting fundamental constitutional rights). See also Brandon v. Department of Corrections, 938 P.2d 1029, 1031-32 (Alaska 1997). If a prisoner ever claims that the superi- or court has abused its fee-setting discretion under AS 09.19.010 so as to effectively deny the indigent prisoner his or her day in court, we do not doubt our authority to review the superior court's decision. . We thus reject George's claim that the legislature acted arbitrarily, in violation of the due process clause of the Alaska Constitution (Article I, Section 7), when it established a minimum filing fee for prisoners. . "In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee." 28 U.S.C.§ 1915(b)(4). . In fact, Alaska's statute (which requires payment of a reduced filing fee) is significantly more favorable to indigent prisoners than its federal counterpart, the Prison Litigation Reform Act, which allows federal prisoners to begin litigating upon payment of a reduced fee but then obliges them to continue paying (as funds permit) until the entire normal filing fee is paid.

8239288

Jori Lynn SKINNER, Appellant, v. Adam Eric HAGBERG, Appellee

Skinner v. Hagberg

2008-05-16

No. S-12504

486

493

183 P.3d 486

183

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:29:58.274747+00:00

CAP

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

Jori Lynn SKINNER, Appellant, v. Adam Eric HAGBERG, Appellee.

Jori Lynn SKINNER, Appellant, v. Adam Eric HAGBERG, Appellee. No. S-12504. Supreme Court of Alaska. May 16, 2008. Jori L. Skinner, pro se, Fairbanks. Adam E. Hagberg, pro se, Anchorage. Before: FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.

4118

26113

OPINION WINFREE, Justice. I. INTRODUCTION Jori Skinner gave birth to a son in January 2002. She and the child's biological father, Adam Hagberg, never married each other. Skinner filed for sole legal and primary physical custody; Hagberg counterclaimed for shared legal and physical custody. The trial court awarded the parties shared legal custody but awarded Skinner primary physical custody. It then determined Hagberg's child support arrearage from the date genetic testing results confirmed that he was the biological father; set up a twice-monthly visitation schedule and ordered each party to pay fifty percent of the visitation expenses; and conditionally awarded Hagberg the federal income tax dependency exemption for the child. Skinner appeals the rulings on child support arrearage, visitation and related expenses, and the tax exemption. For the reasons explained below, we reverse the trial court's determination that Hagberg's child support obligation began on the date genetic testing confirmed his paternity and remand for recalculation of the child support arrearage. We affirm the trial court's visitation schedule but remand regarding the calculation and allocation of visitation expenses. We also affirm the trial court's decision to award Hagberg the federal income tax dependency exemption. II. FACTS AND PROCEEDINGS A. Facts Jori Skinner gave birth to a son, Adison, on January 10, 2002, after a relationship with Adam Hagberg. Skinner told Hagberg during the pregnancy that he might be the father, but at the time neither of them attempted to confirm paternity. Skinner's husband was named as the father on Adison's birth certificate. Skinner and her husband separated in March 2008 and divorced in November 2004. Genetic testing conducted in May 2004 ultimately confirmed that Hagberg was Adison's biological father. Beginning in June 2004 and continuing through February 2005, Skinner, who lived in Fairbanks, arranged for Adison to visit Hagberg and his family in Anchorage. B. Proceedings In March 2005 Skinner filed for sole legal and primary physical custody of Adison and for child support. Hagberg, in turn, sought shared legal and physical custody of Adison. A paternity decree was entered in September 2005 based on the genetic testing results. Superior Court Judge Charles R. Pengilly issued verbal orders regarding visitation, child support arrearage, and the dependent tax exemption at a custody trial in March 2006. Judge Pengilly awarded the parties shared legal custody of Adison but awarded Skinner primary physical custody. He ruled that Hagberg's child support obligation began on June 1, 2004-when the genetic testing results finally confirmed Hagberg's paternity-rather than on January 10, 2002, Adison's date of birth. He also granted Hag-berg visitation rights that included one long weekend visit per month during the school year until Adison began kindergarten. Under this arrangement, Hagberg was entitled to pick up Adison in Fairbanks at noon on Thursdays and was required to return him to Skinner in Fairbanks by eight o'clock on Sunday evenings. Based on Haghberg's testimony, Judge Pengilly estimated that Hag-berg's visitation expenses totaled $480 per month. He ordered the parties to share visitation expenses equally, but required Hagberg to pay all the expenses and take a credit against his monthly child support for one-half the expenses actually incurred. Finally, Judge Pengilly awarded Hagberg the federal income tax dependency exemption for Adison, subject to certain conditions. The case was reassigned to Superior Court Judge Douglas L. Blankenship in April 2006 following Judge - Pengilly's - retirement. Judge Blankenship held a hearing in July 2006 and issued a written order in September 2006 based primarily on Judge Pengilly's oral rulings. Skinner moved for reconsideration on most issues. Judge Blankenship granted reconsideration on the school year visitation schedule and the mode of travel, but denied the motion in all other respects. He indicated an inclination to reduce the strain on Adison by requiring that one visit per month be by air. He ordered supplemental briefing but issued no further rulings until March 2007 when the parties were before him regarding a visitation dispute. Judge Blankenship then issued an order modifying the visitation schedule. He required that one visit per month be by air. He also set child support at $575 per month subject to court or Child Support Services Division (CSSD) modification, and changed the visitation expense framework to account for air travel and to provide that Hagberg's credit for his payment of Skinner's share of visitation expenses applied only to Hagberg's arrearage (and not to his ongoing monthly support payments). Skinner presents several arguments on appeal. She claims that the trial court erroneously: (1) found that Hagberg's child support obligation arose when genetic testing established his paternity, rather than at Adison's birth; (2) failed to consider Adison's age and the parties' financial capabilities when it set a visitation schedule that required extensive travel; (8) allocated visitation expenses equally between the parties and awarded Hagberg a monthly $240 credit against his child support arrearage; and (4) awarded Hagberg the federal tax exemption for Adi-son. Skinner also asserts that the trial court denied her equal protection under the law by treating Hagberg more favorably during the proceedings. III. STANDARD OF REVIEW We review de novo the trial court's determination of the inception date for a child support obligation. We also review constitutional questions de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy We review the "alleged inadequacy of a trial court's fact findings to determine whether they give a clear indication of the factors considered important by the trial court or allow us to determine from the record what considerations were involved." We review visitation awards, custody arrangements, and the accompanying best-interests determinations for abuse of discretion. Generally, we will conclude that a trial court abused its discretion only when we have a definite and firm conviction, after reviewing the whole record, that it erred in its ruling. IV. DISCUSSION A. Hagberg's Child Support Obligation Arose at Adison's Birth. The trial court acknowledged "the general law" that a parent's duty of support arises on the date the child is born, but stated that the Commentary to Alaska Civil Rule 90.8 directed it to consider "all relevant factors," including whether Hagberg knew he had a child support obligation, in determining when Hagberg's duty of support began. The trial court found that Hagberg did not know "in any meaningful sense" that he had a child support obligation until he received the paternity test results dated June 1, 2004, and chose that date for the inception of Hag-berg's support obligation. Settled law does not allow this approach. In State Department of Revenue, Child Support Enforcement Division, ex rel. Hawthorne v. Rios, we held that a biological parent's duty of support begins on the child's date of birth and not when paternity is adjudicated. We specifically noted that paternity adjudication may be a prerequisite to enforcement of a support duty where a child is born out of wedlock, but does not create that duty, and that "a custodial parent's conduct cannot amount to an estoppel or waiver" altering a duty to pay child support. These rules of law are based on the sound policy that fulfillment of statutory support obligations should be encouraged and incentives to avoid or delay such obligations should be discouraged. In Rubright v. Arnold, we faced facts very much like those now before us. There, a mother sued her child's biological father to establish paternity and to obtain past and future child support from him, even though she had been and still was married to another man who was listed as the father on the child's birth certificate. We noted that Rios's principles were well-established and held that the biological father's duty of support arose at the child's birth. We acknowledged potential unfairness in some cases, such as where a biological father has no notice of his paternity until many years after his child's birth and the ensuing support arrearage is economically crushing: The father may have no means, except avoiding conception, of protecting himself. Large and unexpected liabilities can be the logical consequence of the rule that a biological father is liable for the support of a child from birth, especially when past ar-rearages are based on the child support guidelines set out in Civil Rule 90.3, rather than on reimbursement of past expenses." [ ] We nonetheless emphasized that relief from the rule's potentially harsh consequences must come from the Legislature. No legislative relief has arrived, and our case law is clear: the duty of parental support begins on the date of the child's birth. Neither Civil Rule 90.3 nor the Commentary grants a trial court discretion to adjust the effective date of a parental child support obligation. Civil Rule 90.8(c)(1) permits the trial court discretion to "vary the child support award as calculated " under Rule 90.8 in "unusual cireumstances" when manifest injustice would result if the award were not varied. Read together with Civil Rule 90.3(c)(1), the Commentary relied on by the trial court refers only to limited cireum-stances in which the trial court may consider all relevant factors in deciding whether it is appropriate to deviate from the Civil Rule 90.3 calculation of the amownt of retroactive support due from the date of birth. Accordingly, we reverse the ruling that Hagberg's child support obligation began on June 1, 2004. As a matter of law, Hagberg's support obligation began on January 10, 2002. Absent written findings of "unusual cireumstances" not presently evident from the record, on remand the trial court should determine Hagberg's retroactive support obligation under Civil Rule 90.8. B. Visitation-Related Issues Skinner raises two primary objections to the trial court's rulings on visitation. First, she asserts the trial court abused its discretion by failing to consider Adison's age and the parties' financial capabilities when it set a visitation schedule that required extensive road and air travel. Second, she asserts the trial court abused its discretion when it allocated visitation expenses equally between the parties and awarded Hagberg a monthly $240 credit against his child support arrear-age. 1. The visitation schedule's effect on Adison Skinner argues that the trial court erred in ordering a visitation schedule requiring Adison, who was only four at the time of trial, to travel back and forth between Fairbanks and Anchorage twice a month. She asserts that the trial court failed to properly consider the "emotionally staggering" effects on Adison from the long and frequent travel, the extended periods away from Fairbanks, and the continual adjustments to be made by going back and forth between the families, especially when Adison hardly knew the Hagberg family. The record reflects that the trial court heard and considered the factors relevant to determining an appropriate visitation schedule. Judge Pengilly heard Skinner's concerns about the extent of road travel that the visitation schedule would involve. He also heard extensive testimony from a custody investigator about Adison's emotional, mental, and social needs and how visitation would affect those needs. After observing that all the adults involved in Adison's life were reasonable people who were capable of meeting Adison's best interests, Judge Pengilly determined that Hagberg and his family were willing to be flexible to make the visitation work smoothly for Adison. Judge Blankenship's March 2007 written order reflects that he further considered Adi-son's best interests when he ordered travel by air once per month. After expressing concern about "Adison driving up and down the highway twice a month," Judge Blankenship stated that flying onee per month "should be better for Adison." Judge Blankenship then explored whether other options might "keep Adison from doing the trek between Fairbanks and Anchorage." Judge Blankenship ultimately stated he would order that Adison fly one trip per month. Notwithstanding the daunting logistics of the visitation schedule and Adison's young age, the trial court did consider Adison's best interests, and after reviewing the whole record, we are unable to conclude that the trial court erred. We therefore affirm the trial court's visitation schedule. 2. The allocation of visitation expenses Skinner argues that the trial court erred when it: (1) ordered the parties to share visitation expenses equally without consideration for their respective financial cireum-stances; (2) arbitrarily found Hagberg's visitation expenses were $480 per month; and (3) required Hagberg to pay all of Adison's visitation expenses as long as Hagberg was in arrears, but then granted him a monthly $240 credit against his arrearage for half the expenses. The main thrust of Skinner's argument is that in light of the parties' respective financial positions and the significant visitation expenses, Hagberg's child support payments do little more than fund his visits with Adison. When Hagberg's arrearage ultimately is satisfied, Skinner will need to use a substantial portion of Hagberg's child support payments simply to pay her half of the visitation expenses. Skinner raises legitimate concerns about the trial court's treatment of visitation expenses. As she correctly points out, Civil Rule 90.3(g) provides that the trial court shall allocate reasonable travel expenses between the parties as may be just and proper only after it calculates child support payments under Rule 90.8. It appears here that the trial court allocated travel expenses equally between the parties even before CSSD calculated and instituted the final child support award. Even as late as the March 2007 hearing, Hagberg apparently was under a temporary child support order pending final determination by CSSD. Given the seant information in the record about the parties' respective financial positions and the ultimate amount of Hagberg's past and future child support payments, we are not in a position to determine whether the trial court's rulings on visitation expenses were appropriately within its discretion. We remand to the trial court to allocate the burden of Adison's visitation expenses after calculating the child support award under Civil Rule 90.8 to account for Hagherg's ar-rearage based on Adison's date of birth and considering the totality of the child support payments and the parties' respective financial positions. Skinner also raises legitimate concerns about the trial court's approach of granting Hagberg a specified per-visit credit against his arrears based only on estimated travel costs. Skinner argues that because nearly $5,000 was credited against Hagberg's support arrearage for travel expenses, "[dlue process would then dictate a separate hearing to be held on actual dates of travel and proof of costs, rather than an individual's 'best guess' or thought process of such travel." Skinner correctly points out that Adison is entitled to receive the full ordered amount of child support, and any excess credit against Hagberg's arrearage that results in an underpayment would violate Adison's right to support. Thus, any credit for payment of Skinner's share of visitation expenses must be on a dollar-for-dollar basis, although the court is free to cap the extent of the offset. Moreover, it should not be Skinner's responsibility to account for Hagberg's visitation expenses. While the March 2007 order modifying custody appropriately requires that Hagberg provide Skinner with proof of plane ticket expenses, it should not be Skinner's obligation to advise CSSD of the amount of Hagbherg's monthly expenses or whether Hagberg took advantage of all of his scheduled visits. It is unclear why Hagberg, who is responsible for the arrears and who is incurring the travel expenses, is not best suited to perform this accounting function. On remand, the trial court should ensure that all past credits against Hagberg's arrears for Skinner's portion of visitation costs were on a dollar-for-dollar basis, not based on a predetermined estimated credit, and that Hagberg in the future receive credit only for his actual expenditures upon sending receipts for such visitation to CSSD and Skinner. In this way, CSSD can ensure that Adison's right to child support is not compromised by an underpayment. C. It Was Not an Abuse of Discretion To Conditionally Allocate the Federal Tax Exemption to Hagberg. Skinner asserts that the trial court abused its discretion when it awarded Hag-berg the federal tax exemption for Adison because she has primary physical custody. Civil Rule 90.8(k) provides that consistent with AS 25.24.152 and federal law, the trial court may allocate the federal tax exemption for a child between the parties "as is just and proper and in the child's best interests." Here, the trial court allocated the exemption as follows: Father may claim Adison as a dependent for federal tax purposes if Father satisfies the requirements of federal law and is not in arrears at the end of the tax year in an amount more than four times his monthly child support obligation. If, in the future, Mother permanently reenters the workplace, the parties will alternate claiming Adison as a dependent for federal tax purposes. Mother will be entitled to take the federal tax deduction for the first calendar year in which she obtains permanent employment and works at least twenty-four weeks. For example, if she obtains permanent employment of at least twenty-four weeks in 2007, she would be able to take the deduction for Adison for tax year 2007. The allocation complies with the statute and the rule, and on the record before us, we conclude that the trial court did not err. The trial court nonetheless will have an opportunity on remand to determine whether this allocation remains appropriate after revisiting the child support and visitation expense issues discussed above. D. No Equal Protection Violation Occurred. Skinner claims that because the trial court found in favor of Hagberg on most of the issues at trial, her constitutional right to equal protection under the law was violated. Equal protection under the law does not mean that the trial court is obligated to come to some rough equivalency in the number of rulings favoring each side of a dispute. Our independent review of the record reveals no evidence of a deliberate plan to discriminate against Skinner on some unjustifiable basis or arbitrary classification, and there is no basis to reverse any of the trial court's rulings on equal protection grounds. We therefore conclude that her claim is without merit. Vv. CONCLUSION We REVERSE the trial court's determination that Hagberg's child support obligation began on the date genetic testing confirmed his paternity, hold as a matter of law that Hagberg's child support obligation began on January 10, 2002, the date of Adison's birth, and REMAND for recalculation of Hagberg's child support arrearage. We AFFIRM the trial court's visitation schedule but REMAND regarding the calculation and allocation of visitation expenses. Finally, we AP-FIRM the trial court's decision to award Hagberg the federal income tax dependency exemption. MATTHEWS, Justice, not participating. . In the meantime, Skinner appealed from the trial court's September 2006 order. . Judge Pengilly's original oral ruling and Judge Blankenship's September 2006 confirmatory written order provided that Hagberg would receive a reduction in his ongoing monthly child support obligation in the form of a credit for one-half the monthly visitation costs. This well may have been an improper support modification reducing Hagberg's monthly child support, a modification that was unsupported by any material change in circumstances. Cf. Alaska R. Civ. P. 90.3(h). Judge Blankenship corrected any such error by modifying the custody order to indicate that 'Father shall be responsible for payment of all the visitation travel expenses until his child support arrearage is satisfied, with [the Father] receiving a credit of $240 (for one-half of the estimated travel expenses per month) per month from September through May against his child support arrearage obligation |...." (Emphasis added.) This latter approach does not present a problem because any additional sums paid by Hagberg would only be credited to offset his arrears, not deducted from his ongoing monthly child support obligation. . See Rubright v. Arnold, 973 P.2d 580, 586 (Alaska 1999); State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Hawthorne v. Rios, 938 P.2d 1013, 1015 (Alaska 1997); Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987). . VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . Siekawitch v. Siekawitch, 956 P.2d 447, 451 (Alaska 1998) (citing Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997)) (concluding that the trial court's findings adequately revealed its reasoning even though the court did not expressly refer to AS 25.24.150(c), because they provided a clear indication of the factors the court found important). . Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987); see also C.R.B. v. C.C., 959 P.2d 375, 384 (Alaska 1998) (applying abuse of discretion standard to allocation of visitation expenses), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004). . Ginn-Williams v. Williams, 143 P.3d 949, 952 n. 3 (Alaska 2006). . Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007) (citing Sengupta v. Univ. of Alaska, 21 P.3d. 1240, 1248 (Alaska 2001)). . Comment VLE.1 to Alaska Civil Rule 90.3 states: It will sometimes be necessary for the court to establish support for a time when no complaint or petition for support had yet been served, and there was no other court or administrative order in effect. The court has determined that Civil Rule 90.3 applies to such calculations. Vachon v. Pugliese, 931 P.2d 371, 381-[8]2 (Alaska 1996). However, in some circumstances unfairness may result from rigid application of the rule. The court should consider all relevant factors in such a situation, including whether the obligor was aware of the support obligation, especially if the obligor had children subsequent to that child. . State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Hawthorne v. Rios, 938 P.2d 1013 (Alaska 1997). . Id. at 1015. . Id. , Id. at 1017 n. 8. . See id. at 1015. . Rubright v. Arnold, 973 P.2d 580 (Alaska 1999). . Id. at 581-82. . Id. at 586. . Id.; see also Vachon v. Pugliese, 931 P.2d at 381-82 (decided after Civil Rule 90.3 came into existence and holding that "absent extraordinary circumstances," the support calculations of Rule 90.3 should be used to determine past child support obligations). . Rubright, 973 P.2d at 586. . Id.; Rios, 938 P.2d at 1015; Matthews, 739 P.2d at 1299. . Alaska R. Civ. P. 90.3(c)(1) (emphasis added). Civil Rule 90.3(c)(1) provides: The court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied. The court must specify in writing the reason for the variation, the amount of support which would have been required but for the variation, and the estimated value of any property conveyed instead of support calculated under the other provisions of this rule. Good cause may include a finding that unusual circumstances exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute toward the nurture and education of their children. The court shall consider the custodial parent's income in this determination. . Alaska R. Civ. P. 90.3, cmt. VLE.1; see supra note 10. . Nevertheless, we note that Adison now is six years old. He likely will start kindergarten this year, at which time the court-ordered visitation schedule changes significantly. On remand regarding the child support calculation issues, the parties and the trial court will be in a good position to evaluate the current visitation schedule and determine whether adjustments in the upcoming schedule are appropriate. . State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144, 154 n. 14 (Alaska 1997) (''The right to support is that of the child and thus cannot be waived by CSED."). . AS 25.24.152(a) provides: (a) In an action for divorce, dissolution, or to declare a marriage void, the court may not unconditionally grant to a noncustodial parent the right to claim a child as a dependent under federal income tax laws. The court may grant a noncustodial parent the right to claim a child as a dependent under federal tax laws for a tax year if the noncustodial parent satisfies the requirements of federal law and was not in arrears at the end of the tax year in an amount more than four times the monthly obligation under (1) a support order applicable to the child in cases where a payment schedule has not been established for payment of continuing support and accumulated arrears under the support order; or (2) a payment schedule if a payment schedule has been established for payment of continuing support and accumulated arrears under a support order applicable to the child. (Emphasis added.) . See VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999).

10409891

Roger ENDELL, Commissioner, Alaska Dept. of Corrections, Appellant, v. James E. JOHNSON, Appellee

Endell v. Johnson

1987-06-26

No. A-1718

769

772

738 P.2d 769

738

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:26.267325+00:00

CAP

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

Roger ENDELL, Commissioner, Alaska Dept. of Corrections, Appellant, v. James E. JOHNSON, Appellee.

Roger ENDELL, Commissioner, Alaska Dept. of Corrections, Appellant, v. James E. JOHNSON, Appellee. No. A-1718. Court of Appeals of Alaska. June 26, 1987. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Ronald W. Lorensen, Acting Atty. Gen., Juneau, for appellant. Amy Spare, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ.

1339

8318

OPINION BRYNER, Chief Judge. James E. Johnson pled no contest and was convicted of driving while intoxicated (DWI) and driving while his license was suspended (DWLS). District Court Judge Michael L. Wolverton sentenced Johnson to 360 days in jail with 300 days suspended on the DWI charge and to 360 days with 270 days suspended on the DWLS charge. The sentences were to run concurrently. Johnson served the unsuspended portion of the sentences and was released on probation. Johnson was arrested on new charges of DWI and driving while his license was revoked (DWLR) on September 16, 1985, and eventually pled no contest. He remained in custody on the new charges from the date of his arrest through his sentencing date, on January 20,1986. On that date, District Court Judge Martha Beckwith sentenced Johnson to a term of 365 days with 90 days suspended for DWI and to a consecutive term of 365 days with 275 days suspended for DWLR. Because of the new DWI and DWLR charges, the state also filed a petition to revoke Johnson's probation on his earlier DWI and DWLS convictions. A warrant was served on Johnson in jail on December 5, 1985, in connection with the probation revocation action. On February 5, 1986, about two weeks after Judge Beckwith sentenced Johnson on the new DWI and DWLR charges, Judge Wolverton revoked Johnson's probation on the earlier charges and ordered him to serve 180 days of the previously suspended sentence. The 180-day term was made consecutive to the sentence Judge Beckwith imposed for the new charges. After serving the unsuspended portion of his sentence on the new DWI and DWLR charges, Johnson petitioned the superior court for a writ of habeas corpus. Johnson claimed that the time he had spent in jail prior to sentencing had only been credited against his sentence for the new DWI and DWLR convictions, and that he had been given no credit against his 180-day probation violation sentence for the time he had served between the date of his arrest on the probation violation charges — December 5, 1985, and the date of his sentencing on those charges — February 5,1986. Johnson claimed that, under AS 12.55.025(c), he was entitled to have this period of time credited against the sentences he received in both his new and old cases. In response to Johnson's argument, the state maintained that, because Johnson's sentences in the new and old cases had been imposed consecutively, he was precluded under AS 12.55.025(c) from receiving credit for time served in both cases. According to the state, Johnson was entitled to credit only against the aggregate of his sentences. Following a hearing, Superior Court Judge Karen L. Hunt granted Johnson's petition and ordered that he be credited in the probation revocation case with the time he had served from the date of his arrest in that case through the date of his sentencing on the new charges. The state has appealed Judge Hunt's ruling, arguing that AS 12.55.025(c) must be interpreted to allow credit only against the aggregate of Johnson's consecutive terms. Alaska Statute 12.55.025(c) provides: Except as provided in (d) and (e) of this section, when a defendant is sentenced to imprisonment, the term of confinement commences on the date of imposition of sentence. A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed. A defendant may not receive credit for more than the actual time spent in custody pending trial, sentencing, or appeal. The time during which a defendant is voluntarily absent from official detention after the defendant has been sentenced may not be credited toward service of the sentence. While the precise issue raised in the present case has never been addressed in Alaska, courts of other jurisdictions, construing similar credit-for-time-served statutes, have uniformly held that, when consecutive sentences are imposed for two or more offenses, periods of presentence incarceration may be credited only against the aggregate of all terms imposed: an offender who receives consecutive sentences is entitled to credit against only the first sentence imposed, while an offender sentenced to concurrent terms in effect receives credit against each sentence. See, e.g., United States ex rel. Derengowski v. United States Attorney General, 457 F.2d 812 (8th Cir.1972); State v. Cruz-Mata, 138 Ariz. 370, 674 P.2d 1368 (1983); State v. Hoch, 630 P.2d 143 (Idaho 1981); Simms v. State, 421 N.E.2d 698 (Ind.App.1981); Cox v. State, 522 P.2d 173 (Kan.1974); Commonwealth v. Carter, 10 Mass.App.Ct. 618, 411 N.E.2d 184 (1980); State v. Decker, 127 N.H. 468, 503 A.2d 796 (1985); State v. Aaron, 103 N.M. 138, 703 P.2d 915 (App. 1985); People ex rel. Bridges v. Malcolm, 44 N.Y.2d 875, 407 N.Y.S.2d 628, 379 N.E.2d 156 (1978); and Wilson v. State, 82 Wis.2d 657, 264 N.W.2d 234 (1978). A contrary interpretation of AS 12.55.-025(c) would be incompatible with the basic purpose of consecutive sentencing and might tend to defeat the intent of sentencing judges. Moreover, an interpretation contrary to that prevailing in other jurisdictions would lead to anomalous results. Offenders arrested on multiple charges who managed to secure release on bail and later received consecutive sentences would actually be penalized for posting bail; they would be required to serve the full length of their consecutive terms, whereas similarly situated offenders who did not post bail would be entitled to credit against each of their sentences. In our view, there is nothing in the language of AS 12.55.025(c) that is inconsistent with the view uniformly adopted in other jurisdictions. Nor do we find that our prior decisions construing other aspects of this statute require a different view. See, e.g., Coates v. State, 721 P.2d 655 (Alaska App.1986); Schwing v. State, 633 P.2d 311 (Alaska App.1981). We conclude that the superior court erred in finding that AS 12.55.025(c) entitled Johnson to credit against each of his consecutive terms. We nevertheless recognize that the statutory language is to some extent ambiguous and that it may have been interpreted differently by Judge Wolverton when he decided to impose a consecutive 180-day sentence for Johnson's probation violation. The record is silent as to Judge Wolverton's understanding of the statute and as to his belief concerning the amount of credit Johnson would receive for the time he had previously served. It is possible that the judge decided to impose the consecutive 180-day sentence believing that Johnson would receive credit for time served against that term, as well as against the term previously imposed for his new charges. Under the circumstances, we believe the interest of justice requires that Johnson be resentenced for the probation violation, in order to assure that his sentence reflects a correct understanding of the statute. On this narrow ground, we conclude that the superior court's order granting Johnson's petition for habeas corpus was appropriately entered. The order of the superior court, as modified by the views expressed herein, is AFFIRMED. This case is REMANDED to the superior court for further proceedings consistent herewith. . The substantial and uniform body of case law in other jurisdictions and the anomalous consequences of requiring separate credit against each of several consecutive sentences lead us to reject Johnson's argument to construe AS 12.55.-025(c) narrowly, in favor of the accused. In rejecting this argument, we further note that the statute in question is primarily administrative in nature and is not truly penal. It neither defines an offense nor prescribes a punishment. There can be no legitimate claim that our interpretation of this statute could violate any reasonable reliance interest on Johnson's part.

10347282

Dana Lee HILBISH, Appellant, v. STATE of Alaska, Appellee

Hilbish v. State

1995-03-10

No. A-4866

841

853

891 P.2d 841

891

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIME R, JJ.

Dana Lee HILBISH, Appellant, v. STATE of Alaska, Appellee.

Dana Lee HILBISH, Appellant, v. STATE of Alaska, Appellee. No. A-4866. Court of Appeals of Alaska. March 10, 1995. Mary P. Treiber, Chenhall & Treiber, Ket-chikan, and Brant McGee, Public Advocate, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIME R, JJ.

6950

41675

OPINION BRYNER, Chief Judge. Dana L. Hilbish appeals her conviction of first-degree murder and two counts of tampering with evidence. She argues that the superior court erred in denying her motion to suppress evidence, in allowing the victim's skull to be used as evidence at trial, in instructing the jury on reasonable doubt and failing to instruct on self-defense and heat of passion, and in denying a motion for judgment of acquittal based on insufficient evidence. We affirm. FACTS Charles Dalby disappeared from Ketchi-kan on or about June 3, 1991; approximately ten weeks later, on August 13, Dalby's decomposed body was found under a green tarp in the lower west yard of his house at 142 Austin Street. Dalby had been shot twice in the head. Hilbish was eventually charged and tried for the shooting. The evidence at her trial disclosed the following circumstances: In 1991, Dalby lived with Dana Hilbish and their four young daughters at 142 Austin Street in Ketchikan. Although Dalby and Hilbish had enjoyed a long relationship, they had never married. Dalby worked as a diesel mechanic at a logging camp in Thorne Bay. In the spring of 1991, while Dalby was at camp, Hilbish became involved with another man; Dalby found out about it. He flew from Thorne Bay to Ketchikan on May 30 to resolve the situation. Because Dalby did not have the money to pay for the flight from Thorne Bay, he told the gate agent at Ketchikan, Connie Smith, that he would return later that day with a cheek. After Dalby failed to return with the payment, Smith called Dalby the next day. Hilbish answered the phone. When Smith identified herself and asked for Dalby, Hil-bish told Smith, "The son-of-a-bitch is not here," and immediately hung up. On May 31, Dalby called Pastor Bill White and asked him to counsel Dalby and Hilbish, in order to strengthen their relationship and keep their family together. Dalby told the pastor that Hilbish was seeing someone else. When White suggested that marriage would give them something to build on, Dalby responded in a positive manner. Dalby called his mother on June 1, 1991, and asked her to talk to Hilbish about Hil-bish's affair. Dalby told his mother that he and Hilbish had spoken to a minister, who had suggested marriage. Upon telling his mother this, Dalby gave the telephone to Hilbish. While speaking with Dalby's mother, Hilbish said that she loved another man and did not want a commitment. Hilbish also said that she did not love Dalby; that she "hated him so much she didn't care what happened to him." The next day, June 2, Thomas Friesen, an employee at the Derby Room Tavern, saw Dalby come into the bar at around 4:30 in the afternoon, "very angry," looking for a man he claimed was spending a lot of time with his wife. Friesen, attempting to "defuse the situation," told Dalby that his behavior was inappropriate and suggested that Dalby leave. Dalby left, but returned a half hour later and apologized to Friesen and the bar patrons for his behavior. That same day, Benita See, a friend of Hilbish's, called Hilbish to confirm her plans to stay at the house for two weeks. Hilbish said that See could stay at the house beginning June 4, since Dalby would be returning to Thorne Bay on that day. Hilbish told See that she was seeing another man, had told Dalby about it, and had asked him to move out. At about 1:30 p.m. on June 3, 1991, Dalby returned to the Derby Bar; he again apologized for his conduct the previous day. He then had a soft drink. No other witness saw Dalby alive after that. Mike McColley lived within 100 feet of Dalby and Hilbish's house. In early June of 1991, McColley heard a loud argument at Dalby's house between two men who were in the yard: "[I]t was, 'stay away from my daughter or my wife.' One man was saying. And the other man said . something to the effect, 'You don't know me. I'll kill you.' " McColley said that fifteen to twenty minutes later he heard a gunshot. Smith, the airline gate agent, telephoned Dalby's house again on June 3 to ask about the airfare Dalby owed. She spoke with Hilbish, who, "at that time, . was screaming; she was very rude, vulgar. She said that the son-of-a-biteh had left town." Dalby never paid the airfare. Benita See arrived to stay at Hilbish's house on June 4, as she had previously arranged to do. Dalby was not there. Hilbish told See that Dalby had moved out the day before because See was arriving. Hilbish also told See to be careful about the carpet, because she and Dalby had just cleaned it. See stored some boxes on the porch at Hil-bish's house. During her visit, See noticed a smell coming from the porch and a large number of flies. Hilbish told See that she did not know where the odor was coming from, and that it might be a dead fish or cat. Sonja Powers, Dalby's adult daughter by a prior relationship, lived in Kasaan with her husband, Adrian Powers, and their children. Sonja and Adrian would stay at the house with Dalby and Hilbish when they came to Ketchikan. During the first week of June, Adrian visited the house. Hilbish told him that Dalby had moved to the YMCA or was fishing on the Bering Sea. Adrian noted that a .22 caliber handgun Dalby had kept above his bed was. gone. In mid-June, Sonja stayed at Hilbish's house for a night. Hilbish told Sonja that Dalby was fishing, either in Hawaii or on the Bering Sea. Sonja noticed a blanket on the end of the porch and that the end of the porch was blocked off. She commented on the stench coming from the area and the large number of flies. Hilbish told her that a cat or dog had crawled underneath the house and died. That evening, Sonja noticed that the .22 caliber handgun was no longer over the bed in Hilbish and Dalby's bedroom. On See's birthday, June 16, Donny Bell and his friend, Joe Kuharich, stopped by Hilbish's house and noted the smell of rotting fish. Kuharich told Hilbish that he and Bell would clean up the fish. Hilbish told them "it wasn't necessary, not to worry about it." On the Fourth-of-July weekend, Gary Lake went to Hilbish's residence to inquire where Dalby was, because Dalby was supposed to do some work on Lake's truck over the weekend. Hilbish told Lake that Dalby had been fired, "that she didn't know where he was, and that he was gone for good." Then one of Dalby and Hilbish's children asked, "Daddy coming home?," to which Hil-bish responded, "No, he [is] gone for good." Ketchikan Police Officer Andrea Jacobson stopped by Hilbish's house on July 17 and 29. Jacobson did not see Dalby; when she asked Hilbish where Dalby was, Hilbish replied that he was "probably in Hawaii." Jacobson recalled seeing a tarp in the yard on at least one of her visits. Brett Pearce, who lived across the street from Hilbish, noticed the tarp lying in Hil-bish's yard sometime in July because one night, at around 10:30, he looked out his window and saw Hilbish next to the tarp. Hilbish "looked up . kind of hysterically." As soon as Hilbish saw Pearce watching her, she "just started picking up sticks off the ground, like she was gardening." In late July, Pearce and his wife started to notice the smell. Steve Boehlert, paymaster of the mill that employed Dalby, stated that Hilbish came to the mill at the end of July to pick up Dalby's last paycheck. Boehlert told her that company policy required a signed authorization from the employee. Hilbish told him that Dalby was "south," and she left. On August 2, 1991, Hilbish spoke to Brett Pearce and his wife and asked Pearce to drive her back to the mill, so that she could pick up Dalby's paycheck. The Pearces asked where Dalby was; Hilbish answered that he had left and gone to Hawaii. Pearce drove Hilbish to the mill. On the way to the mill, Hilbish said that she and Dalby had argued because Dalby suspected her of having an affair with another man and that Dalby had then gone to Hawaii. Hilbish also told Pearce that she had forged a letter with Dalby's signature and was hoping to get his paycheck. Upon arrival, she told Boehlert that Dalby was still "south," and gave Boehlert a note stating: I, Charles Dalby, release my paycheck and belongings from Ketchikan Pulp Company to Dana Hilbish. Thank you. [Signed] Charles E. Dalby Boehlert referred Hilbish to Michael Barron, the personnel director for the mill; when Barron checked the signature against signatures on file in the personnel office, it did not appear to match Dalby's. Barron told Hil-bish that he could not release Dalby's check without a notarized signature. Hilbish told him that it was hard for her to contact Dalby and that she would have to go through a friend of a friend to get word to Dalby. She left without the money and did not return. Late in the day on August 12, 1991, the Powers family — Sonja, Adrian and their children- — stopped at Hilbish's house on their way from Kasaan to Oregon. The Powers asked Hilbish if they could camp in the front yard; Hilbish agreed, and she helped Sonja set up tents. Sonja noticed that a green tarp she had previously left at the house was on the ground near the basement in the lower west yard, covering a large item. She also noticed a strong odor coming from the direction of the tarp. That evening, Hilbish saw the children playing on the tarp and told them to get off. Sonja asked about the tarp, but Hilbish did not want to talk about it. The following day was hot; the odor from the tarp grew much worse. Sonja asked the children what was there, and they told her "something dead." Sonja told the children to stay away from it. She decided to call the police. Sonja told the dispatcher that she was Hilbish's neighbor and that "there's something in 142 Austin's lower yard in a tarp, it might be deer or fish or something. But it's big...." Officer Jacobson arrived at the house shortly after noon and spoke with Hil-bish. Hilbish walked Jacobson to the source of the smell, the green tarp in the lower west yard. Hilbish told the officer that the tarp belonged to her landlord, Victor Klose, who had taken some fish out of the basement .freezer and had left it in the yard and forgotten about it. After glancing under the edge of the tarp and seeing "a white goo, sort of jelly-like, and with maggots and worms and things crawling all through it," Jacobson asked how to contact Klose. Hilbish told her that Klose was out of town and could not be reached. Jacobson said that the tarp could not be left the way it was, and Hilbish volunteered to "bury it tonight when it's cooler." Later that day, as Sonja Powers drove her husband, Adrian, from town to Hilbish's house, Sonja mentioned the tarp and confided that she thought her father might be hidden underneath it. Adrian did not believe what Sonja was saying, and the couple became involved in an argument as they sat in their car in front of the house. A neighbor evidently heard the argument and called the police, reporting a domestic assault. Sonja and Adrian entered the house and Sonja asked Hilbish what was in the tarp. Hilbish told her, "It's nothing. None of your business." Sonja and Adrian went out to the yard, where Sonja tried to convince Adrian to look under the tarp. Adrian refused and they began arguing again. At 7:16 p.m., Sergeant Charles Mallott arrived in response to the reported domestic assault. After being assured by the Powers that there had been no assault, Mallott left. Angered that no one took her seriously, Sonja left Adrian, looked under the tarp and saw "[a] bunch of white slime stuff." She started trembling and decided to go to a local bar for some tequila. As she headed back to the house, Sonja resolved to look under the tarp more carefully. This time, she saw what looked like a pair of Levi's. Now convinced that her father was under the tarp, Sonja returned to the house and confronted Hilbish. Hilbish told Sonja that the tarp was "none of your fucking business." When Sonja threatened to call the police, a scuffle ensued: Hilbish bit Sonja's finger; Sonja bit Hilbish's cheek. Adrian intervened, attempting to grab Sonja; he received a scratch on the neck. Someone called 911. Corporal Jerry Seufert arrived at approximately 8:00 p.m. He encountered Sonja, who appeared to be moderately intoxicated and who made several comments about a tarp in the yard. She explained that Dalby had been missing for some time and that she suspected that he might be under the tarp. Sonja walked Seufert to the tarp, lifted up its corner, and began yelling, "Oh, my God. It's my daddy." Seufert looked under the tarp and saw "what appeared to be a cloth of some sort." He returned with Sonja to the main yard, in order to escape the odor. Meanwhile, Sergeant Mallott had also returned to the house; Seufert told Mallott what had happened. As Hilbish and Sonja attempted to explain the situation to Mallott, Mallott activated a portable tape recorder that he carried on his person. Hilbish insisted that Sonja had been "trying to trash my house again," and told Mallott, "This is not between me and her; this is between the two of them.... As far as I'm concerned, she didn't lay a hand on me, okay?" As Mallott began to collect information, Sonja said to Hilbish, "We're going to look in the tarp now, Dana." Hilbish replied, "Go ahead, why don't we?" Mallott accompanied Sonja back to the tarp and lifted the edge. Mallott recognized what he saw as human remains. After instructing Seufert to secure the area, Mallott returned to the house, completed his investigation of the domestic dispute, and arrested Sonja in connection with that incident. He then proceeded to have the tarp seized and removed from the yard. Later that night, he received a search warrant authorizing a complete examination of the tarp's contents. The following day, Mallott spoke with Hil-bish about Dalby. Hilbish said she did not know where Dalby was, but she thought that he may have gone to Hawaii. She told Mal-lott that she last saw Dalby around the first of June. At that time she had asked him to leave and he had done so. When asked if there were any firearms in her house, Hil-bish stated that there had never been any firearms in their residence. By comparing postmortem dental and skeletal x-rays of the remains in the tarp with Dalby's dental and medical records, the police subsequently confirmed that the remains were Dalby's. A forensic pathologist performed an autopsy on the remains. There were two bullet holes in the skull. Two .22 caliber bullets were discovered inside it. One bullet had entered just above the right brow, and the other "about where the sideburns would be." Another partially deformed bullet was discovered in the area of the torso; its point of entry could not be determined. From the generations of flies on Dalby's body, a forensic entomologist estimated that Dalby had been dead approximately ten weeks before his body was discovered and seized. The police conducted a thorough search of Hilbish's house and yard. Although the police found no gun, they did find nineteen .22 caliber bullets in a bathroom cabinet. In the living room, the police found "quite a bit" of blood spattered on the south wall, the stereo cabinet, the television cabinet, the lamp shade, and a drop on the windowsill of the south wall. Above the couch was a three-inch long elongated drop of blood that looked as if "it had dripped straight down on the wall." Someone had apparently attempted to wipe the wall clean. When questioned about the blood spatter, Hilbish explained that one of her daughters had cut her finger and that Hilbish had tried to clean it off the walls with "409" cleaner. Luminal testing on the living room carpet revealed the presence of blood; efforts had apparently been made to wash it from the carpet. There was also a very strong lumi-nal reaction on the couch. A stained area was visible on the couch; the foam cushion was examined and found to be blood soaked. Pooled blood was discovered on the underside of the couch. DNA testing established that the blood was Dalby's to "a certainty of over 99.5 percent." The state filed charges of murder and tampering with evidence against Hilbish in April of 1992. A month or two later, a carpenter working on Hilbish's house removed the bathtub and found a box of .22 caliber magnum shells hidden in the underlying plumbing. FBI testing revealed one of Hilbish's fingerprints on the inside of the ammunition box. Further testing established that the bullets recovered from Dal-by's skull either came from the box of ammunition found under the tub or from another box of ammunition manufactured by the same company on the same day. Hilbish and Dalby's seven-year-old daughter, Mary Dalby, confirmed that her father kept a handgun and bullets in the house. Mary knew the difference between a toy gun and a real gun and that her father's gun was real. She stated that the gun and bullets were kept on a shelf above her parents' bed and the bullets were in a plastic yellow box. Mary identified the box that had been found under the tub as her father's. SUPPRESSION Prior to trial, Hilbish filed a motion to suppress evidence stemming from Mallott's warrantless search of the tarp in her yard. The state responded, arguing that Mallott's lifting of the tarp and observation of its contents were permissible under a variety of theories. The superior court denied Hil-bish's motion, finding Mallott's warrantless inspection of the tarp sustainable on three alternative grounds: (1) that Mallott acted upon consent given by Sonja Powers; (2) that his actions were justified by exigent circumstances; and (3) that Dalby's body inevitably would have been discovered. On appeal, Hilbish challenges the superior court's ruling as to each of these grounds. Our review of the record convinces us- that the superior court correctly concluded that Mallott acted with Sonja Powers' consent; accordingly, we need consider no other theory. Trial court factual findings concerning the validity of a warrantless search are reversible only for clear error. Fox v. State, 825 P.2d 938, 939 (Alaska App.1992); State v. Bianchi, 761 P.2d 127, 129 (Alaska App.1988). Whether the facts, as found by the trial court, constitute an illegal warrantless search is a question of law upon which this court is entitled to make an independent evaluation. Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991). "A warrantless . [search] is per se unreasonable and violative of the state and federal constitutions unless it falls within one of the limited exceptions to the warrant requirement." Harrison v. State, 860 P.2d 1280, 1283 (Alaska App.1993) (citations omitted); see also Woods & Rohde, Inc. v. State Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977). Since no warrant was obtained prior to Mallott's looking under the tarp, the state bore the burden of proving that this search was reasonable. Bell v. State, 519 P.2d 804, 806 (Alaska 1974). Consent to search given by a person with authority to consent has long been recognized as one of the exceptions that can justify a warrantless search. Schikora v. State, 652 P.2d 473, 476 (Alaska App.1982). A person may consent to a search if that person has joint access to or control of the place to be searched. Phillips v. State, 625 P.2d 816, 817-18 n. 5 (Alaska 1980) (citing Robinson v. State, 578 P.2d 141, 144-45 (Alaska 1978)). Actual authority to consent is not required, so long as the person has the apparent authority to consent. Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981). The police cannot, however, proceed on apparent consent without inquiry in ambiguous circumstances. Nor can they proceed based on the consenting party's unreasonable assertions of authority. Id. at 1350. Nevertheless, when a "guest is more than a casual visitor and 'ha[s] the run of the house,' [the guest's] lesser interest in the premises is sufficient to render that limited consent effective." Id. at 1350 (quoting 2 Wayne R. LaFave, Search and Seizure § 8.5(e), at 759 (1978)). Here, it is undisputed that Mallott lifted and peered into the tarp with Sonja Powers' actual consent. The issue in dispute is whether Powers had either actual or apparent authority to give her consent. The record establishes that Hilbish kept the tarp in open view in her yard. As Dalby's daughter, Sonja frequently visited Hilbish and stayed at Hilbish's house. On August 13,1991, Sonja was staying there with her husband and children. The Powers family was camped in Hilbish's yard and had the run of the area. In fact, the children had earlier played on and about the tarp. The tarp itself belonged to Sonja; she had left it with Hilbish on an earlier visit. In speaking with the police, both Sonja and Adrian referred to the tarp as "my tarp." Given these circumstances, the superior court characterized Sonja Powers as a temporary occupant of Hilbish's residence who had actual authority over the portion of the yard examined by Mallott. In the superior court's view, the yard was "clearly not [Hil-bish's] 'exclusive personal domain.'" This finding is not clearly erroneous. Hilbish nevertheless maintains that, prior to the search, she had plainly revoked Sonja's authority to consent; Hilbish argues that, in the course of her altercation with Sonja and their ensuing contact with the police officers who had been summoned to the scene, Hilbish made it clear that Sonja was no longer a welcome visitor at her house. However, Hilbish's own recorded comments to the police belie this assertion. As Hilbish stated in Mallott's presence: You two are going to have to settle this somewhere else. Okay? This is not between me and her; this is between the two of them. She was trying to drive, okay? She would not give me the keys.... she would not listen. As far as I'm concerned, she didn't lay a hand on me, okay? That's not what it's all about. These comments establish that Hilbish viewed the altercation as one between Sonja and Adrian Powers, not one between Sonja and herself. At no point in Mallott's recording of the incident did Hilbish expressly or implicitly tell Sonja or Adrian that they would no longer be welcome as guests. Even more significant is the fact that, immediately prior to Mallott's warrantless inspection of the tarp, Hilbish appears to have expressly authorized Sonja to allow the inspection. When Sonja told Hilbish, "We're going to look in the tarp now, Dana," Hilbish promptly replied, "Go ahead, why don't we?" The superior court considered and rejected Hilbish's claim of revoked authority to consent, finding: "While [Sonja's] 'authority' to fight with her husband, within the confines of the house, may have been revoked by Hilbish, her authority to access common areas on the premises had not been revoked." Because this finding is not clearly erroneous, the superior court could properly conclude that Sonja Powers had actual authority to consent to Mallott's search. Cf. Loper v. State, 330 So.2d 265, 267 (Miss.1976) (person with access to the backyard "available for .the common use of every occupant" could consent to the yard's search). DISPLAY OF SKULL AT TRIAL Hilbish next argues that the trial court erred in permitting the state to display Dalby's skull during the trial. The skull— which had been cleaned of all tissue and was contained in a sealed and odorless plastic bag — was used to assist the jury in understanding the precise location of the gunshot wounds to Dalby's head. It did not go to the jury room during deliberations. Hilbish acknowledges that the skull was relevant on the issue for which it was admitted but claims that its probative value was out weighed by unfair prejudice. Although conceding that the vast majority of cases uphold the admission of similar exhibits under like circumstances, Hilbish proposes that we adopt the rigorous standard of admission articulated by the Pennsylvania Supreme Court in Commonwealth v. Chacko, 480 Pa. 504, 391 A.2d 999 (1978). There, the court indicated that evidence "likely to inflame the passions of the jury" should be admitted only if essential to the prosecution's case. Id. 391 A.2d at 1000-01. As the state correctly notes, however, the Chacho standard is at odds with Alaska Rule of Evidence 403, which specifies that relevant evidence is admissible when its probative value outweighs its potential for prejudice. This court has consistently applied A.R.E. 403 in passing on the admissibility of potentially gruesome exhibits. See, e.g., Miller v. State, 778 P.2d 593, 598 (Alaska App.1989); Ridgely v. State, 705 P.2d 924, 932 n. 5 (Alaska App.1985), rev'd on other grounds, 732 P.2d 550 (Alaska 1987); Skeakley v. State, 644 P.2d 864, 869-70 (Alaska App.1982). Hilbish has advanced no cogent basis for abandoning the rule. The trial court in this ease found that Dalby's skull, as presented at trial, was not particularly gruesome — arguably less gruesome than available photographs might have been. The state argued that the skull's three-dimensionality gave the skull an advantage over photographs and would assist the jurors in understanding and evaluating the testimony of prosecution witnesses. After carefully balancing probative value against potential prejudicial impact, the trial court ruled the evidence admissible. Our review of the record does not persuade us that the court abused its discretion in making this determination. INSTRUCTION ON REASONABLE DOUBT Hilbish further claims that the trial court erred in instructing the jury on the meaning of "reasonable doubt." In particular, Hilbish objects to language in the reasonable doubt instruction informing the jury that proof beyond a reasonable doubt requires "proof of such a convincing character that after careful consideration of all relevant facts and circumstances, you would be willing to rely and act upon it without hesitation in your important affairs." Hilbish protests that likening the decision on reasonable doubt in a criminal case to a decision a juror might make in ordinary life, even an important decision, unduly trivializes the reasonable doubt standard. Hilbish did not object to the reasonable doubt instruction below, however, and she advances this claim for the first time on appeal. We thus review only for plain error: error that is both obvious and obviously prejudicial. Martin v. State, 664 P.2d 612, 618 (Alaska App.1983). The challenged instruction appears to be a correct statement of the law. Davenport v. State, 519 P.2d 452, 456 (Alaska 1974) (reasonable doubt could perhaps best be defined as "a doubt that would cause prudent men to hesitate before acting in matters of importance to themselves.") (quoting 2 Charles A. Wright, Federal Practice and Procedure § 500, at 342-43 (1969)); see also 1 Edward S. Devitt et al., Federal Jury Practice and Instructions § 12.10, at 354 (4th ed. 1992) (defining reasonable doubt in the context of a person's "most important" affairs). Moreover, since the instruction was based on Alaska Criminal Pattern Jury Instruction 1.52 — an instruction regularly given in Alaska criminal cases — it is difficult to understand how the wording Hilbish complains of could be deemed obvious error, even if Hil-bish's argument persuaded us, in hindsight, that a more forcefully worded reasonable doubt instruction might have been appropriate. We find no plain error. INSTRUCTIONS ON HEAT OF PASSION AND SELF-DEFENSE In her next claim, Hilbish asserts that the trial court improperly denied her request for instructions on heat of passion and self-defense. Hilbish was entitled to heat of passion and self-defense instructions if there was some evidence to place these defenses in issue. See LaPierre v. State, 734 P.2d 997, 999 (Alaska App.1987). The "some evidence" requirement is not a stringent one: this standard is satisfied when [heat of passion or] self-defense has fairly been called into issue.... [A]n instruction [is] required if the evidence, when viewed in the light most favorable to the accused, might arguably lead a juror to entertain a reasonable doubt as to the defendant's guilt. Id. at 1000 (quoting Paul v. State, 655 P.2d 772, 775 (Alaska App.1982)). "In applying the some evidence test, neither the credibility of conflicting witnesses nor the plausibility of the accused's version is considered. So long as some evidence is presented to support the defense, matters of credibility are properly left for the jury." Id. (Citations omitted.) The use of deadly force in self-defense is permissible when a person reasonably believes such force to be necessary'to protect "against death, serious physical injury, kidnapping, [certain forms of] sexual assault ., or robbery[.]" AS 11.81.335(a)(2). Heat of passion is an affirmative defense reducing first- or second-degree murder to manslaughter. AS 11.41.115(a). The defense applies when the defendant acts "in a heat of passion, before there [has] been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation by the intended victim." Id. " '[S]erious provocation' means conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation," but does not include "insulting words, insulting gestures, or hearsay reports of conduct engaged in by the intended victim[.]" AS 11.41.115(f)(2). In the present case, the evidence did show that Dalby, having learned about Hilbish's affair with another man, was at times angry and threatening in the days before his death. Yet these pre-event occurrences suggest nothing more than motive and a possible willingness on Dalby's part to use deadly force at some future time. None of the evidence concerning the circumstances surrounding the shooting itself supports the conclusion that Dalby's prior expressions of anger culminated in an actual use or threat of deadly force by Dalby, or that Dalby's killer acted in the reasonable belief that the use of deadly force in self-defense was necessary to protect against Dalby. By the same token, Dalby's preexisting anger does not' in itself support a reasonable inference that Dalby's killer acted in a heat of passion after being seriously provoked by Dalby. The testimony of Mike McColley, Hilbish's neighbor, indicated that an angry argument occurred outside Hilbish's house and that McColley thought he heard a gunshot fifteen or twenty minutes later. Viewing this testimony in Hilbish's favor, the jury could reasonably have concluded that the argument McColley overheard involved Dalby and the man with whom Hilbish had recently become involved. The jury could also have inferred that the argument occurred not long before the shooting. Yet nothing McColley heard suggests that Dalby was shot in self-defense; to the contrary, the substance and context of the statements overheard by McColley suggest that it was the other man who threatened Dalby. Specifically, as we have previously noted, McColley testified that he heard one man — presumably Dalby — say something like, "Stay away from my daughter or my wife," to which the other replied, "You don't know me. I'll kill you." Nor did McColley's testimony describe any conduct suggesting heat of passion brought on by serious provocation; as we have already indicated, the statutory definition of serious provocation expressly excludes insulting words and gestures. Hilbish points out that Dalby's blood was spattered about the living room, "suggesting that he had traveled, while bleeding, around the room." She argues that this shows that Dalby was "in the presence of and engaged with his killer." Hilbish also points out that Dalby was much larger than she is and that no evidence shows that Dalby was alive when the head wounds were inflicted. Hilbish concludes that, viewing the evidence in her favor, the only logical inference is that "she acted in either self-defense or in fear, a recognized form of heat of passion." But this argument misses the mark. One can certainly conjure scenarios involving self-defense or heat of passion that would arguably be consistent with the evidence at trial; in this sense, Hilbish can plausibly maintain that the evidence at trial does not rule out the possibility of self-defense or heat of passion. Dalby's size and weight, his periodic anger, and the blood spatters on the wall are all arguably compatible with self-defense or heat of passion. But the state was under no obligation to assume the burden of disproving self-defense until there was some evidence affirmatively suggesting that what might have happened actually did happen; nor was Hilbish entitled to maintain that she had met her burden of establishing heat of passion as an affirmative defense merely because the evidence at trial did not disprove it. Here, much of the evidence Hilbish relies on to support her claims of self-defense and heat of passion- — such as Dalby's size and the blood spatters on the wall — is essentially neutral, that is, merely compatible with a theory of self-defense or heat of passion. Other evidence — such as Dalby's earlier expressions of anger or his possible involvement in an argument outside Hilbish's house shortly before the shooting — are so remote in time, removed in circumstance, or both, as to have no material bearing on the crucial issues involved in a claim of self-defense or heat of passion: whether Dalby actually used or threatened deadly force at the time of the shooting, whether he was shot in defense against such force or threat, or whether he engaged in any act of serious provocation. Allowing the jury to consider self-defense or heat of passion could only have invited speculation as to possibilities that find no reasonable support in the evidence, even when the totality of the evidence is viewed in the light most favorable to Hilbish. Under these circumstances, the trial court did not abuse its discretion in denying instructions on self-defense and heat of passion. SUFFICIENCY OF EVIDENCE Hilbish lastly contends that the circumstantial evidence presented at trial was insufficient to support her conviction for murder. However, the law "recognizes no categorical distinction between direct and circumstantial evidence." State v. McDonald, 872 P.2d 627, 653 (Alaska App.1994). We apply the same standard of sufficiency to circumstantial and direct evidence. Willett v. State, 836 P.2d 955, 957 (Alaska App.1992). Taking the evidence and inferences therefrom in the light most favorable to the state, we inquire whether fair-minded jurors exer cising reasonable judgment could find that the state met its burden of establishing the defendant's guilt beyond a reasonable doubt. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981). Applying this standard to the evidence in the present case, we find no deficiency. Though circumstantial, the evidence established that Hilbish had the motive, the means and the opportunity to commit the crime. Hilbish also had control over the premises where the crime was committed and over the murder weapon. Moreover, Hilbish's prediction to her friend Benita See that Dalby would be gone by June 4 could reasonably be interpreted as an indication of planning. In the aftermath of the shooting, Hilbish engaged in a pattern of conduct aimed at concealing the crime and made numerous statements arguably displaying her consciousness of guilt. Finally, the physical evidence gathered from Hilbish's home cemented a compelling link between Hilbish and the murder weapon. Viewing this evidence and the inferences to which it gives rise in the light most favorable to the state, a fair-minded juror could reasonably have concluded, beyond a reasonable doubt, that Hilbish had committed first-degree murder, either by intentionally shooting Dalby to death or by intentionally aiding another person in planning or commission of the murder. The convictions are AFFIRMED. . Mallott evidently did not actually hear Hilbish make this comment, a fact the superior court relied on in concluding that Mallott himself could not be deemed to have acted on the basis of Hilbish's consent. On appeal, the state disputes the correctness of the trial court's ruling on that issue. We need not decide the point. Assuming Mallott's failure to hear Hilbish's remark may be relevant on the issue of whether Mallott conducted the warrantless search pursuant to Hilbish's consent, Mallott's awareness of the remark (or, for that matter, Sonja's own awareness of it) can have no relevance on the issue of whether Sonja had actual authority to consent. . Hilbish raises a subsidiary claim that the superior court erred in ruling on her suppression motion without conducting an evidentiary hearing. We find no merit to this claim. The memorandum Hilbish filed in support of her motion to suppress did not request an evidentiary hearing. Although her reply memorandum noted the possibility that a hearing might prove necessary, it did not ask the court to schedule one. Subsequently, Hilbish's counsel appeared at oral argument on the suppression motion and neither requested a hearing nor mentioned the need to present further evidence or information. Nor did Hilbish object below when the superior court ruled on the suppression motion without a hearing having been conducted. An evidentiary hearing is required on a motion to suppress only "if the state and the defendant have opposing versions of the facts and the defendant's version is supportive of his allegation of an illegal search[.]" Mattem v. State, 500 P.2d 228, 231 (Alaska 1972). As evidenced by Hil-bish's own reliance on police reports to support her suppression argument, as well as by her failure to file an affidavit contesting the additional facts set forth in the state's response to her motion, the primary dispute in this case does not involve the facts underlying Mallott's warrantless search, but rather the proper characterization and legal significance of those facts. Given the totality of the circumstances in this case, we find no error in the superior court's failure to conduct an evidentiary hearing. . The reasonable doubt instruction given to Hil-bish's jury read: The presumption of innocence alone is sufficient to acquit a defendant unless and until you are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case. This last mentioned requirement that you be satisfied beyond a reasonable doubt of the defendant's guilt is what is called the burden of proof. It is not required that the prosecution prove guilt beyond all possible doubt; for it is rarely possible to prove anything to an absolute certainty. Rather, the test is one of reasonable doubt. A reasonable doubt is a doubt based on reason and common sense, the kind of doubt that would cause a reasonable person to continue to hesitate in decisions concerning his or her important affairs. Proof beyond a reasonable doubt must therefore be proof of such a convincing character that after careful consideration of all relevant facts and circumstances, you would be willing to rely and act upon it without hesitation in your important affairs. A defendant is never to be convicted on mere suspicion or conjecture. . Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977), which Hilbish cites in support of her argument, is inapposite. That case actually criticized the examples the trial judge used to illustrate "important decisions": whether to leave school or get a job, to get married or stay single, or to buy a house or continue to rent. Id. 364 N.E.2d at 1272-73. Likewise, neither Dunn v. Perrin, 570 F.2d 21 (1st Cir.1978), nor United States v. Colon-Pagan, 1 F.3d 80 (1st Cir.1993), supports Hilbish's argument. The former case approved a definition likening reasonable doubt to doubt causing hesitation in "some transaction of importance and seriousness," Dunn, 570 F.2d at 24, and the latter found plain error in an instruction that was not phrased in terms of only "important" affairs. Colon-Pagan, 1 F.3d at 81. In Dunn v. Perrin, the court merely noted that some cases had criticized instructions likening reasonable doubt to doubt causing hesitation in "some transaction of importance and seriousness," 570 F.2d at 24; in Colon-Pagan, the court found plain error in an instruction that was not phrased in terms of only "important" affairs. 1 F.3d at 81. . Hilbish objects that the jury was erroneously instructed on accomplice liability; in Hilbish's view, the evidence was insufficient to establish her guilt as an accomplice, even if it might have been sufficient to prove guilt as a principal. This argument lacks merit. Under the evidence, fair-minded jurors could reasonably have found beyond a reasonable doubt that if Hilbish was not a principal, then she must have been an accomplice — that is, that Dalby had been intentionally killed by Hilbish or by someone acting at her behest and with her active and intentional assistance. The distinction between an accomplice and a principal has long been abrogated, see Miller v. State, 866 P.2d 130, 137 (Alaska App. 1994), and when proof suffices to establish the defendant's guilt under either theory, the jury need not be unanimous in deciding whether the defendant acted as a principal or as an accomplice. McDonald, 872 P.2d at 655.

11902842

Gustavo ACEVEDO, Appellant, v. Denise BURLEY, Appellee

Acevedo v. Burley

1997-09-05

No. S-7479

473

476

944 P.2d 473

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Gustavo ACEVEDO, Appellant, v. Denise BURLEY, Appellee.

Gustavo ACEVEDO, Appellant, v. Denise BURLEY, Appellee. No. S-7479. Supreme Court of Alaska. Sept. 5, 1997. Gustavo Acevedo, Bethel, pro se. Christopher R. Cooke, Hedland, Brennan, Heideman & Cooke, Bethel, for Appellee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

1548

9643

OPINION FABE, Justice. I. INTRODUCTION Gustavo Acevedo seeks a modification of his child support obligation. He appeals the trial court's decision to deny his motion to modify, arguing that the trial court erroneously concluded that he failed to show a material change in his financial circumstances. We affirm. II. FACTS AND PROCEEDINGS Gustavo Acevedo and Denise Burley were married in October 1989 and divorced in 1991. The trial court awarded custody of the parties' child to Burley and ordered Acevedo to pay $300 per month in child support. Acevedo did not file a Child Support Guidelines Affidavit, which would have calculated his child support obligation based upon his income and expenses. Instead, the parties filed a stipulation regarding child support, which the trial court approved in March 1991. The stipulation provided in part: The parties acknowledge that since [Acevedo] is self-employed as a taxi driver in Bethel, his income is subject to some fluctuation. It is therefore difficult to precisely calculate the amount of child support that is appropriate under Rule 90.3. The stipulation also stated that "[f]or the past three years [Acevedo's] net income for purposes of Rule 90.3 has ranged between $10,000 and $20,000." Based upon this information, the parties agreed that "a present child support award of $300 per month is appropriate under Rule 90.3." However, the stipulation also noted that "[t]his child support award is subject to future modification if there is a change in circumstances." The trial court ordered Acevedo to make child support payments according to the stipulation. After the divorce, Acevedo failed to make regular child support payments, and Burley twice sought judicial assistance. In June 1993 the trial court reduced to judgment Acevedo's $4,830.46 child support ar- rearage. Despite this action, Acevedo continued to fall behind in his child support payments, and by March 1994 his arrearage exceeded $7,000. As a result, Burley moved the trial court for an order requiring Acevedo "to appear and show cause why he should not be held in contempt of court for his failure to pay child support." The trial court granted Burley's motion and ordered Acevedo to appear in court to attend a "show cause" hearing. In April 1994, shortly before the hearing, Acevedo filed a motion to modify his child support obligation. In his memorandum supporting that motion, Acevedo asserted that he had experienced a "significant and material change in circumstances as required by [Rule] 90.3" because his net income had fallen more than fifteen percent to a level "below the Federal Poverty Level Guidelines." In light of this change in income, he argued that his child support obligation should be fifty dollars per month. In May 1994 the trial court rejected Acevedo's motion, and Acevedo moved for reconsideration. The trial court denied Acevedo's request. In October 1995 Acevedo filed a second motion to modify his child support payments. As in the first motion, Acevedo argued that his child support obligation should be fifty dollars per month because (1) his income from his job as a self-employed taxi cab driver had fallen more than fifteen percent from the time when his child support obligation was initially set and (2) his income was below "the Federal Poverty Level Guidelines." The trial court concluded that "this motion is substantially similar to a motion filed by Mr. Acevedo in April, 1994 which was denied, and Mr. Acevedo ha[s] failed to show a material change in circumstances." Therefore, the court denied Acevedo's motion. Acevedo appeals the trial court's decision to deny his October 1995 motion to modify his child support payments. He asserts that the trial court erred because "the weight of the evidence" demonstrates that he is entitled to a modification. III. DISCUSSION Acevedo claims that his income has fallen to such an extent that he is entitled to a modification of his child support obligation. Burley responds by focusing on the stipulation and asserting that "the facts and circumstances which were the basis of the $300.00 per month child support stipulation have not changed." (Emphasis in original.) Burley also argues that even if "Acevedo's self-employment income could be verified and . a lower amount of child support would be provided under the Rule 90.3 formula," Acevedo should nevertheless be bound by his agreement to pay $300 per month. We conclude that the trial court did not err in denying Acevedo's motion to modify his child support obligation. A trial court must consider all motions for a modification of child support. Cf. Deivert v. Oseira, 628 P.2d 575, 578 (Alaska 1981) ("[A] trial court must consider all motions for a change in custody-"). However, the court may reject a motion to modify without an evidentiary hearing if it is plain that the facts alleged in the moving papers do not establish a prima facie case for a modification. Cf id. (stating that in a modification of custody proceeding, an evidentiary hearing is warranted only where there is a prima facie showing of a changed circumstance). Furthermore, even if the facts alleged in the moving papers might demonstrate a material change of circumstances if they were established, the superior court need not conduct a hearing where the moving party advances only "generalized allegations of factual issues" that other record evidence convincingly refutes. See Epperson v. Epperson, 835 P.2d 451, 453 & n. 4 (Alaska 1992) (affirming a trial court's decision to determine a party's child support obligation without an evidentiary hearing because the party's "bare claim" that the custodial parent had low living expenses did not create a genuine issue of material fact). "For the trial court to modify a support order, the movant must show by a preponderance of the evidence that, subsequent to the original order, there has been a material and substantial change in circumstances affecting the movant's ability to pay." Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988). "A material change of circumstances will be presumed if support as calculated under [Rule 90.3] is more than 15 percent greater or less than the outstanding support order." Alaska R. Civ. P. 90.3(h)(1). In this case, Acevedo's income does not appear to have changed since he signed the stipulation. The record contains Internal Revenue Service tax forms for Acevedo for 1987-89 and 1993-94. During those years, his reported pretax total income was: 1987 $12,436 1988 $ 4,772 1989 $ 6,239 1993 $ 9,641 1994 $ 7,836 As these figures demonstrate, prior to the March 1991 stipulation, Acevedo's income was not substantially different from his income in 1993 and 1994. Indeed, his income was higher in 1993 and 1994 than it was in 1988 and 1989. We note that Acevedo's adjusted income would have to be $18,000 per year before his support payments as calculated under Rule 90.3 would be $300 per month. However, our analysis is unaffected by the fact that the record contains no evidence that Acevedo ever earned more than $13,000 per year before taxes. Acevedo is a self-employed cab driver whose income appears to be almost entirely self-reported. He has the best information about his income, and based upon that information, he stipulated that $300 was the appropriate amount of child support for him to pay. Moreover, he does not argue that the stipulation was based upon an erroneous assessment of his income. He may not successfully seek to modify his child support obligation without reasonably explaining why he is entitled to a modification based upon his 1993-94 financial information when he stipulated, based upon similar financial information for the years 1987-89, that $300 per month was appropriate. Under these circumstances, Acevedo does not appear to have experienced a significant post-stipulation change that would entitle him to a modification. The evidence refuting Acevedo's allegation of a change in circumstances is so compelling that it was appropriate to conclude that there were no genuine issues of material fact. Therefore, the superior court did not err in denying his motion without an evidentiary hearing. IV. CONCLUSION We AFFIRM the trial court's conclusion that Acevedo failed to demonstrate that he had experienced a material change in circumstances. . Alaska Civil Rule 90.3(e) requires "[e]ach parent in a court proceeding at which child support is involved" to file an affidavit stating that parent's annual adjusted income. Burley filed such an affidavit. . For purposes of determining the standard of review applicable to deciding whether the superi- or court erred in denying Acevedo's motion without an evidentiary hearing, we draw analogy to review of summary judgment decisions. As discussed above, the question in this case is whether there is a genuine issue of material fact that, if established, would entitle Acevedo to the relief sought. This is similar to our focus in reviewing summary judgment cases. See Taranto v. North Slope Borough, 909 P.2d 354, 355 (Alaska 1996). Therefore, as with summary judgment decisions, we review the superior court's decision using our independent judgment. See id. . Between 1987 and 1989, Acevedo's pretax total income was equal to his adjusted gross income. In 1993 his adjusted gross income was $8,960, and in 1994 it was $7,225.

11903133

Michael L. RICE, Appellant, v. Kimberly L. DENLEY, Appellee

Rice v. Denley

1997-09-26

No. S-7342

497

502

944 P.2d 497

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Michael L. RICE, Appellant, v. Kimberly L. DENLEY, Appellee.

Michael L. RICE, Appellant, v. Kimberly L. DENLEY, Appellee. No. S-7342. Supreme Court of Alaska. Sept. 26, 1997. Clifford W. Holst, Law Offices of Clifford W. Holst, Anchorage, for Appellant. Lloyd I. Hoppner, Hoppner & Paskvan, P.C., Fairbanks, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

2802

17357

OPINION RABINOWITZ, Justice. I. INTRODUCTION Michael Rice appeals from a superior court order granting Kimberly Denley's motion to reduce a settlement agreement to judgment. We reverse and remand for further proceedings. II. FACTS AND PROCEEDINGS In January 1993 Kimberly Denley and Michael Rice were involved in an automobile accident. As a result of the accident Denley incurred medical expenses, $6,780 of which were paid by her first-party insurer, Colonial Insurance Company of California. Denley thereafter filed a complaint against Rice alleging negligence and seeking compensation for her medical expenses (without excluding medical expenses which had been paid by her insurer), lost wages, pain and suffering, and other damages. Rice was insured by Allstate Insurance Company. In April 1993, before Denley instituted suit against Rice, Colonial advised Lloyd Hoppner (Denley's attorney in the Rice litigation) that "we will pursue our own subrogation with Místate Insurance in this matter." Over the course of the next year, Colonial wrote Místate on three occasions, seeking reimbursement for the medical expenses it paid on behalf of Denley. Colonial's final letter in this series stated in part: "After your investigation, please let us hear from you concerning payment of our subro-gation claim. We do not want your settlement check issued jointly to our insured and Colonial Insurance Company of California." It also appears that Colonial and Allstate agreed to submit to arbitration Colonial's subrogation claim. Rice asserts that he was unaware of the communications between Mí-state and Colonial regarding the latter's efforts to have Allstate reimburse it for the Denley medical expenses it had paid. In 1994 Denley filed for voluntary bankruptcy. In her bankruptcy petition Denley listed Colonial as a potential creditor in connection with a "[pjossible claim" related to her automobile accident for an unknown and disputed amount. On April 14, 1995, a settlement conference was held before Superior Court Judge Richard Saveli. Denley and her attorney were present, as were Rice's attorney and a representative of Místate. The parties purported to reach a settlement in open court for "the full total sum of $20,000 full, normal releases." Just prior to the conclusion of the in-court proceedings, Rice's attorney (Clifford Holst) inquired: "I just want to make sure it's clear. This would include any and all liens and costs and fees incurred?" Judge Saveli replied "Yes," and Denley's attorney responded, 'Yeah. Well, those have all been discharged by the bankruptcy." Subsequently, on April 18, 1995, Rice's attorney wrote to Denley's attorney, stating that Denley "will have the responsibility to deal with Colonial on the first-party lien." Counsel for Denley responded, stating in part: We did not state on the record that my client would "have the responsibility to deal with Colonial on the first-party lien." We did state on the record that my client would be responsible for any "liens." Colonial does not have a "lien." Colonial asserted a right of subrogation under its policy.... Counsel for Rice responded with a letter and a check for $15,000.30, stating, "This is the sum owed your client, less the amount owed Colonial." Denley then moved for an order reducing the settlement agreement to judgment. Rice opposed the motion, contending that there was a material issue of fact as to settlement terms, and that the settlement was therefore unenforceable. After hearing oral argument, Superior Court Judge Mary E. Greene granted the motion to reduce the settlement to judgment, ruling that the settlement agreement included only liens, and that liens and subrogated claims were "two different things." The superior court then entered judgment on Denley's motion. The superior court's judgment also included prejudgment interest from April 18, 1995, and an award of $514.52 in attorney's fees. Rice now appeals from this judgment. III. STANDARD OF REVIEW In ruling upon a motion to enter judgment on a settlement agreement reached on the record, the superior court "has discretion to deny the motion if the court determines that material issues of fact exist as to the existence of the settlement agreement or to a material term of the settlement." Pavek v. Curran, 754 P.2d 1125, 1126 (Alaska 1988). Accordingly, we review the superior court's ruling for clear abuse of discretion. Barber v. Barber, 837 P.2d 714, 716 n. 2 (Alaska 1992). IV. DISCUSSION A. Did the Parties Enter Into a Settlement? In Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104, 106-07 (Alaska 1977), we said that where there is no dispute as to the material terms of a settlement, the provisions of Civil Rule 81(e) are met if both parties admit either in writing filed with the clerk or orally in open court that a settlement had been reached. Before this court, Rice contends that the superior court erred in holding that he had agreed to settle the Denley litigation on terms that excluded Colonial's interest. Rice further argues that his reasonable expectations were that the settlement would extinguish all claims arising out of the Denley litigation. In support of this contention, Rice asserts he was aware of Denley's pending bankruptcy case and the fact that in the bankruptcy court Denley had identified Colonial as a creditor. Rice additionally argues that the terms "lien" and "subrogation claim" have been used interchangeably, citing 3 Marilyn Minzer et ah, Damages in Tort Actions, '§ 17.21[2], at 17-77, -[3], at 17-82 (1991), and notes that Colonial would have a lien on any monies recovered by Denley. Rice asks that this court hold that no contract was formed, or if we conclude that a settlement agreement was reached that excluded Colonial's medical payment interest, that we grant him rescissionary relief on the basis of either Rice's unilateral mistake as to a material term, or void the agreement on the basis of the parties' mutual mistake. Alternatively, Rice argues that since there exists a disputed factual issue as to the parties' intent to form a contract on the terms stated by the superior court, the case should be remanded for trial. Denley, in turn, argues that the superior court's judgment should be sustained since no issue of material fact as to the terms of the settlement has been raised. Denley emphasizes that the term "lien" is a well-defined legal word of art and that Colonial never possessed either a statutory, equitable, or contractual lien. In this regard, Denley states that not only has she declined to sue for the subrogree's claim, but that Colonial has specifically advised both Denley and Allstate that it would prove its own subrogation claims, and is pursuing these claims against Allstate in arbitration proceedings. . Based on our study of the record, we think that Rice has made out a strong case for reversing the superior court's holding that the settlement agreement contemplated that Denley would not pay Colonial's claim from the settlement proceeds. We reach this conclusion for the following reasons. First, it is clear that the terms "lien" and "subrogation lien" are used interchangeably. Our own decisions reflect this usage. In Grow v. Ruggles, 860 P.2d 1225, 1226 (Alaska 1993), Grow drove his vehicle into Ruggles's vehicle, and Ruggles's insurer paid some of her medical bills out of her medical payment policy. We stated that Ruggles's insurer "thereafter claimed a lien and subrogation rights against Grow's liability policy." Id. In determining whether Ruggles owed Grow attorney's fees under Alaska Civil Rule 68(b)(1), we recognized that Grow's settlement offer required Ruggles to reimburse her insurer for the payments she had received for her medical bills. See id. at 1227-28. In Jaso v. McCarthy, 923 P.2d 795, 802 n. 11 (Alaska 1996), this court affirmed its characterization of Ruggles's insurer's interest as a "subrogation lien." We said, "Allstate Insurance . asserted a subrogation lien against the defendant's liability policy for payments made to cover the plaintiffs medical expenses." Id. Grow and Jaso demonstrate that "subrogation lien" has been used to refer to the type of interest Colonial possesses. Second, when Colonial paid Denley's medical expenses, it in effect received an assignment by operation of contract and law of Denley's claim (to the extent of payment) against Rice. In the event Rice or Allstate transferred funds in settlement of Denley's claim, including the portion which had been subrogated to Colonial, Colonial had a claim on these funds to the extent of its payment. Such a claim could be enforced either as a constructive trust or as an equitable hen. See Restatement of Restitution § 160-161 (1937). All of this demonstrates that there are circumstances in which a subrogated claim can accurately be described as imposing an encumbrance on the settlement funds; it thus falls within the "lien" language of the agreement. If it was clear that both parties intended that the settlement agreement was only for the nonassigned portion of Denley's claim, there would be no basis for Colonial to assert lien rights against the settlement proceeds. Whether the parties so intended is unclear. Rice's attorney used the lien language and, as noted above, subrogation rights can give rise to hens on settlement proceeds. Further, Denley's complaint included a request for medical expenses without excluding medical expenses which had been paid by her insurer. These facts are favorable to Rice's position. However, in Denley's favor, we note that Colonial asserted a claim against Allstate; this indicates that Colonial intended to pursue subrogation separate from Denley's complaint. It is possible that Rice knew, or should have known, that Denley's claim did not encompass Colonial's subrogated interest. We conclude that this possibility requires a remand to the superior court to determine whether the parties reached a meeting of the minds, rather than a ruling as a matter of law that the settlement included Colonial's subrogated claim. B. Prejudgment Interest, Costs, and Attorney's Fees Rice also challenges the superior court's award to Denley of prejudgment interest from April 18, 1995, the date of Rice's counsel's letter in which he wrote that Denley was responsible for the "first-party lien" of Colonial. In its order granting prejudgment interest the superior court determined that Denley "is entitled to prejudgment interest from the date of the letter written by Mr. Holst which breached the settlement agreement, April 18, 1995." Rice contends that this date is an inappropriate starting point for the running of prejudgment interest since he "was unaware of any dispute regarding the settlement agreement until Mr. Hoppner replied to this letter approximately six weeks later, denying any responsibility of the plaintiff to repay her insurer and rejecting several sections of the release." In opposition, Denley argues that the settlement agreement was breached by Rice when, on April 18, 1995, he refused to make full payment to Denley of the settlement amount. We conclude that Denley's position is correct. At what point prejudgment interest begins to accrue is a question of law subject to this court's independent judgment. Tookalook Sales and Serv. v. McGahan, 846 P.2d 127, 129 (Alaska 1993). In cases not involving personal injury, death, or property damage, "all damages 'should carry interest from the time the cause of action accrues, unless for some reason peculiar to an individual case such an award of interest would do an injustice.'" Id. (quoting State v. Phillips, 470 P.2d 266, 274 (Alaska 1970)). Assuming on remand that the superior court again determines there was a settlement contract entered into between Rice and Denley, and that it did not cover Colonial's claim, we note our agreement with the superior court's ruling that April 18, 1995, is the appropriate date for the commencement of prejudgment interest. April 18, 1995, marks both the time for performance under the settlement contract and the date that Denley's cause of action for breach of the settlement agreement accrued. The superior court also awarded Denley attorney's fees and costs associated with her motion to reduce the settlement agreement to judgment. Alaska Civil Rule 82(a) provides that "the prevailing party in a civil case shall be awarded attorney's fees.... " Alaska Civil Rule 54(d) authorizes the award of costs to the prevailing party. Because the money judgment in this ease merely represented enforcement of the prior settlement agreement, and because the attorney's efforts needed to obtain relief were minimal, the superior court varied the award of attorney's fees called for by Rule 82(b)(1) and awarded Denley $514.52, or thirty percent of her attorney's fees incurred after April 18, 1995. This court will reverse an award of attorney's fees only if the award is arbitrary, capricious, manifestly unreasonable, or the result of an improper motive. Mount Juneau Enter., Inc. v. Juneau Empire, 891 P.2d 829, 834 (Alaska 1995). If upon completion of the remand proceedings it is determined that Denley is the prevailing party, then Denley is entitled to an award of attorney's fees based on Denley's attorney's services subsequent to the date of the remand. (Such an award would be in addition to the $514.52 attorney's fee award that was originally granted to Denley.) V. CONCLUSION The judgment of the superior court is REVERSED and REMANDED for further proceedings not inconsistent with this opinion. . Denley's Schedule F listing of creditors filed in the bankruptcy case also listed Allstate for an unknown amount in regard to its "[p]ossible claim for attorney fees re auto accident," as well as Michael and Eileen Rice for an unknown amount for a potential claim if Denley lost her suit against Rice. . Judge Saveli's statement reads in full as follows: [W]e've conducted a settlement conference. We're on the record to put the settlement on the record. The case will settle, Counsel, as I understand it for the full total sum of $20,000 full, normal releases, and it is subject to approval by the Trustee in Bankruptcy, but that approval or disapproval will not reopen negotiations. Correct? . Judge Greene ruled as follows: I find that the parties reached an agreement for the payment of $20,000.00 for the full total sum, and that that was to include any and all liens and costs and fees. The fact of an agreement, I believe, is absolutely clear from the record, and there is no material fact as to what those terms are. What there is an issue as is to what those terms mean, and as I read Pavek and the other cases involving settlement agreements, what that means is that there is a dispute as to the meaning of the term as to whether or not it should — whether the term, "liens," includes a subrogated claim.... Clearly, whatever the plaintiffs owed someone else, which was what a lien would necessarily be, could have been discharged in that bankruptcy, and if it was what the plaintiffs owe the insurance company versus what the insurance company is owed by another insurance company, those are two different things, and that appears to me what was being discussed on the record and was agreed to by all parties. By virtue of that, I will grant the motion to reduce the settlement agreement to writing. . A settlement is a contract "provided that it meets minimal contractual requirements." Singh v. State Farm Mut. Auto. Ins. Co., 860 P.2d 1193, 1199 (Alaska 1993). . One commentator notes that there is "confusion of subrogation and liens." 3 Marilyn Min-zer et ah, Damages in Tort Actions § 17.24[5], at 17-145 (1991). The commentator states: [A]n insurer may exercise its right of subrogation through a variety of procedural devices, including a direct action against a tortfeasor, intervention on insured's third party action, exercise of a lien, or an action against the insured for reimbursement. Id. at § 17.21[2], at 17-77. . As a consequence of this holding, we conclude that it is unnecessary to address any other issue raised by the parties concerning the validity of the settlement agreement. . Rice additionally argues that if there was any breach of the settlement agreement, it did not occur until defense counsel sent Denley a check for $15,000.30 for full satisfaction of the settlement. .The superior court ruled as to attorney's fees and costs as follows: Plaintiff is entitled to attorney fees under Civil Rule 82. The court finds that an award of damages under Rule 82(b)(1) should be varied because it would not be equitable to do so since the money judgment resulting here is merely enforcement of the settlement and the attorney's work necessary to obtain the recovery is small. Accordingly, the court will award 30% of plaintiff's attorney fees incurred after April 18, 1995. Counsel must submit detailed information regarding the billings. Costs incurred after April 18, 1995, are to be awarded by the clerk of court.

11902595

MUNICIPALITY OF ANCHORAGE, Appellant/Cross-Appellee, v. Jack GALLION, John Young, Carroll Grant, Anthony Provost, Douglas K. Bohac, and Anchorage Police and Fire Retirees Association, Appellees/Cross-Appellants, v. BOARD OF TRUSTEES OF THE ANCHORAGE POLICE & FIRE RETIREMENT SYSTEM, Cross-Appellee

Municipality of Anchorage v. Gallion

1997-08-15

Nos. S-7331, S-7591

436

448

944 P.2d 436

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

MUNICIPALITY OF ANCHORAGE, Appellant/Cross-Appellee, v. Jack GALLION, John Young, Carroll Grant, Anthony Provost, Douglas K. Bohac, and Anchorage Police and Fire Retirees Association, Appellees/Cross-Appellants, v. BOARD OF TRUSTEES OF THE ANCHORAGE POLICE & FIRE RETIREMENT SYSTEM, Cross-Appellee.

MUNICIPALITY OF ANCHORAGE, Appellant/Cross-Appellee, v. Jack GALLION, John Young, Carroll Grant, Anthony Provost, Douglas K. Bohac, and Anchorage Police and Fire Retirees Association, Appellees/Cross-Appellants, v. BOARD OF TRUSTEES OF THE ANCHORAGE POLICE & FIRE RETIREMENT SYSTEM, Cross-Appellee. Nos. S-7331, S-7591. Supreme Court of Alaska. Aug. 15, 1997. Susan Wright Mason and Bruce E. Gag-non, Atkinson, Conway & Gagnon, Anchorage, and George M. Newsham, Assistant Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appel-lanVCross-Appellee Municipality of Anchorage. Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, and Peter Gruenstein, Gruenstein, Hickey & Stewart, Anchorage, for Appellees/Cross-Appellants. Robert D. Klausner, Klausner & Cohen, P.A., Hollywood, Florida, and Parry Grover, Davis, Wright, Tremaine, Anchorage, for Cross-Appellee, Board of Trustees of the Anchorage Police and Fire Retirement System. Before COMPTON, C.J., and RABINOWITZ and EASTAUGH, JJ.

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48696

OPINION EASTAUGH, Justice. I. INTRODUCTION Does Anchorage Ordinance (AO) 94-95, which amended the Anchorage Police and Fire Retirement System (APFRS), violate Alaska Constitution article XII, section 7 by diminishing or impairing "accrued benefits" of some APFRS members? The superior court concluded that it does, and granted summary judgment to APFRS members who brought a class action against the Municipality of-Anchorage. The superior court also awarded attorney's fees to the class. We agree that AO 94-95 violates article XII, section 7. We remand for further proceedings regarding the attorney's fees award. II. FACTS AND PROCEEDINGS A. Facts By ordinance adopted in 1968, the predecessor of the Municipality of Anchorage (MOA) created the APFRS to provide disability, retirement, and death benefits to MOA's police and fire department employees. The ordinance is codified in Anchorage Municipal Code (AMC) 03.85.010-.290 (1993). The APFRS presently consists of three plans; each has different benefits and eligibility requirements. See AMC 03.85.100-.150 (Plans I and II); AMC 03.85.200-.290 (Plan III). Plan I became effective July 1, 1968. Its enrollment closed when Plan II became effective July 1, 1977. Plan II enrollment closed when Plan III became effective April 17,1984. Except for a brief period in 1984 when members of Plans I and II could enroll in Plan III, a member of one plan could not enroll in a different plan. AMC 03.85.020. Each plan was funded by contributions from its members and MOA. An independent actuarial evaluation of Plans I and II must be made no less frequently than every two years to determine the contributions required to "maintain Plans I and II as actuarially sound...." AMC 03.85.100(G). For Plan III, an independent actuarial valuation must be conducted every year. AMC 03.85.210(A). Before passage of AO 94-95, AMC 03.85.100(C) required MOA to contribute "additional monies to [Plans I and II] in an amount to assure that the fund is at all times financially sound." In addition, AMC 03.85.210(B) states in part that "[i]f additional monies are necessary to assure that Plan III is financially sound at all times and the member's contribution rate has already been set at the maximum, then Anchorage shall be solely responsible for contribution of such additional monies." The APFRS is a defined benefit system, paying retired members monthly retirement benefits of a specified percentage of their monthly compensation, multiplied by the number of years of credited service. AMC 03.85.110(A). Members of Plans I and II will receive 2.5% of their highest average monthly compensation multiplied by the number of years they were plan members. AMC 03.85.110(A), AMC 03.85.015(A). Payments of these retirement benefits are guaranteed for life. AMC 03.85.110(F). The APFRS is administered by an eight-member Retirement Board; four members represent MOA, two members represent the Police Department, and two members represent the Fire Department. AMC 03.85.030-.040. The Board is the "final authority in all matters pertaining to the system" and is authorized to "recommend to the Assembly any changes to [the APFRS] that may become necessary to carry out the intent of [the APFRS]." AMC 03.85.040(A) & (F). In February 1993 the Board adopted a "Statement of Investment Policy" for the APFRS. The statement announced this "Investment Goal": The investment of assets shall be accomplished with a view towards safety of principle [sic], and income from investments will be utilized to either reduce contributions, increase benefits or both. The Board's statement adopted "Investment Objectives," one of which provided: "Maintain a maximum of 120% funding of the retirement systems pension benefit obligation over time." According to the APFRS executive director, since its inception all assets of APFRS "have been accounted for and invested as system assets. Actuarial valuations have been done to establish the liability for potential future benefits." A review of the entire system and its separate parts as of January 1,1994, showed that Plan I was funded at 135%, with Plan I assets exceeding Plan "projected liability" by approximately $29,277,000. It showed that Plan II was funded at 112%, with Plan II assets exceeding Plan II projected liability by approximately $6,175,000. It also showed that Plan III was 89% funded, with projected liabilities exceeding assets by approximately $15,660,000. Based upon this evaluation, the actuary recommended that no further contributions be made to Plans I and II, but that MOA continue funding Plan III. In May 1994 the Anchorage Assembly enacted AO 94-95 which amended two sections of the AMC governing the APFRS. Anchorage Ordinance 94-95 amended AMC 03.85.100(C) as follows: The Municipality of Anchorage, in addition to the payroll deductions of members, shall contribute additional monies to the [PLAN] system in an amount to ensure that the fund is at all times financially sound but in no event shall the Municipality, nor the members, be required to contribute to the system if the Board's actuary determines that the funds necessary to pay the actuarial liability for the benefits for system members contained herein are available from the total assets of the system. (Additions are emphasized; deletions are bracketed.) Anchorage Ordinance 94-95 also added a new section, codified as AMC 03.85.210(D), which governs Plan III and states: The Municipality of Anchorage, in addition to the payroll deductions of members, shall contribute additional monies to the system in an amount to assure that the fund is at all times financially sound, but in no event shall the Municipality, nor its members, be required to contribute to the system if the Board's actuary determines that the funds to pay the actuarial liability for benefits for system members contained herein are available from the total assets of the system. In the event that the Board's actuary determines that contributions are again required to meet the actuarial liability for benefits, then current employees who are members of Plan 3 of this system and the Municipality shall make contributions in the ratio as set forth in 03.85.210(B). In July 1994 MOA sent a memorandum to all APFRS members explaining that the Anchorage Assembly had amended AMC 03.85 to provide that "no employee or employer contributions to the Police and Fire Retirement System would be required if the actuary for the System determined that sufficient funds were available to pay the- actuarial liability for the benefits." The memorandum also stated that the actuary for the APFRS had determined that the system "when taken as a whole" was overfunded by "about" twenty million dollars. It concluded by stating that as of the pay period ending July 24, 1994, there would be no more employer or employee contributions to Plan III. Based on the actuarial soundness of Plans I and II, the Board had suspended employee and employer contributions to those plans before passage of AO 94-95. Although Plan III was only 89% funded, and its projected liability exceeded its assets by approximately $15,-660,000, the 1994 amendments to the AMC allowed MOA to suspend contributions to that plan, because the asset value of the entire system as a whole was projected to be 104% or 102% (depending on whether there were new Plan III entrants) of its projected liability. B. Proceedings Six APFRS members sued MOA on behalf of "a class" consisting of active and retired members of Plans I and II. The second amended complaint pled various causes of action against MOA, APFRS, and four unnamed APFRS Board members; it included claims based on federal and state constitutional violations and breach of contract. The class sought summary judgment on the theory that funds were diverted from Plans I and II, thus violating Alaska Constitution article XII, section 7 by impairing or diminishing the APFRS's ability to enhance benefits for Plan I and II members and by weakening the financial integrity of Plans I and II. The superior court granted the class summary judgment against MOA, but denied summary judgment against the Board. A judgment declared that AO 94-95 violated Alaska Constitution article XII, section 7, and that AO 94-95 was null and void to the extent it amended AMC 03.85.100(C). The superior court also ordered that all funds "transferred from Plans I and II of the [APFRS] be restored to those Plans." MOA appeals the superior court's grant of summary judgment, and asks that the trial court be instructed to enter summary judgment for MOA. MOA and the class both appeal from the court's award of full "actual" attorney's fees to the class. III. DISCUSSION A. The Constitutionality of AO 91-95 1. Constitutional standard Alaska Constitution article XII, section 7 protects "accrued benefits" of public employee retirement systems from diminution or impairment. In granting summary judgment to the class and finding AO 94-95 violated Alaska Constitution article XII, section 7, the superi- or court held that the members of Plans I and II had a vested interest in the surpluses generated by their plans. It reached that conclusion given the historically distinct structure of the plans, the lack of notice to members of Plans I and II that a surplus would "essentially be donated" to subsidize contributions to a successor plan covering "a distinct population of recent hires," and the APFRS Board's 1993 Statement of. Investment Goal in which each plan's respective membership could expect that "the benefits flowing from the increasing strength of each plan would be preserved for the benefit of the membership of that plan." The court further noted that even though Board recommendations are only advisory, it was "unlikely" the Assembly would ignore a recommendation to increase benefits. The court also recognized that "it cannot be denied that the retention of surplus assets enhances the integrity of a plan, a condition clearly more favorable to its members than the dilution effected by AO 94-95." MOA argues that the accumulated surpluses in Plans I and II gave the members of those plans no "accrued benefits," because the rights of plan members were determined when they enrolled, and the plans did not entitle the members to any distribution of accumulated surpluses. Instead, because Plans I and II were defined benefit plans whose benefits were guaranteed by MOA if employee contributions fell short, plan members could not reasonably expect to receive any portion of any accumulated surplus. MOA further argues that the superior court erred in relying upon the 1993 APFRS Statement of Investment Policy, which was not binding on MOA and created no rights beyond those specified in AMC 03.85. MOA asserts that the superior court's ruling that the class members had vested rights in "the surpluses generated by their plans" and the related "possibility of increased benefits" is inconsistent with the precedent established by this court. It concludes that AO 94r-95 does not diminish or impair any "accrued benefit." Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981), set out a framework for analyzing a claim alleging a violation of article XII, section 7 of the Alaska Constitution. In Hojfbeck, we held that the right to benefits vests when the employee enrolls in the retirement system, rather than when the em ployee is eligible to receive the benefits. Id. at 1056-57. Changes in a system that operate to an employee's disadvantage by diminishing or impairing vested rights must be offset by comparable new advantages, or the changes will run afoul of article XII, section 7. Id. at 1057 (citing Allen v. City of Long Beach, 45 Cal.2d 128, 287 P.2d 765, 767 (1955)). In Hojfbeck, amendments to the statutory scheme underlying the Alaska Public Employees' Retirement System (PERS) reduced members' occupational death and disability benefits, and excluded some persons who were previously eligible for disability benefits. Id. at 1053-54. We there held that the. vested benefits protected by article XII, section 7 include "not only the dollar amount of the benefits payable, but the requirements for eligibility [for benefits] as well." Id. at 1058. We next considered article XII, section 7 in Sheffield v. Alaska Public Employees' Ass'n, 732 P.2d 1083 (Alaska 1987). In Sheffield, members of the PERS retirement- system challenged the PERS Board's adoption of new actuarial tables, which reduced the benefits received by early retirees. Id. at 1084. In holding that using the new actuarial tables violated the employees' constitutional rights, we made it clear that the benefits in force at the time of enrollment in the system will be protected, stating: [A member] is entitled to have the level of rights and benefits then in force preserved in substance in his favor without any modification downwards. . When we speak of the level of rights and benefits protected by [this statute] we mean the practical effect of the whole complex of provisions.... Id. at 1087 (quoting Opinion of the Justices, 364 Mass. 847, 303 N.E.2d 320, 327 (1973) (emphasis added)). Citing the quoted language, the parties now before us disagree over what constitutes the "practical effect of the whole complex of provisions" regarding the APFRS. The class contends that prior to AO 94-95 the practical effect of the whole complex of provisions was "separate financial integrity" and "the prospect of increased benefits to each plan's membership from its own surplus generated from the investment of its own, separate, employer and employee contributions." In support, the class relies upon (1) the Board's 1993 investment goal of using income generated from investments of the funds to "reduce contributions, increase benefits or both" and (2) the "separateness" of the plans, i.e., their separate contribution rates, membership, and accounting. MOA, however, asserts that under Sheffield, benefits are defined as the "practical effect of the statutory provisions" in force at the time of enrollment and do not encompass "possibilities" that may exist. In support, MOA also cites Flisock v. State, Division of Retirement and Benefits, 818 P.2d 640 (Alaska 1991); Rice v. Rice, 757 P.2d 60 (Alaska 1988); and State v. Allen, 625 P.2d 844 (Alaska 1981). We held in Flisock that although an employee had the right to the benefits provided by statute when he enrolled in his retirement system, the employee had no vested right in the Retirement Division's mistaken application of the statutory provisions. 818 P.2d at 644 n. 5. We held in Rice that the use of a Qualified Domestic Relations Order (QDRO) to divide an employee spouse's pension benefits simply changed the method of distribution, and therefore did not impair vested rights because it did not reduce the dollar amount of monthly pension benefits. 757 P.2d at 62. The parties disagree about the effect of the discussion of "vested rights" in State v. Allen, 625 P.2d at 847-48 & n. 5 (quoting 3A A. Corbin, Corbin on Contracts § 626, at 10-11 (rev. ed. 1960)). Allen upheld the right of those enrolled in the Elected Public Officers' Retirement System (EPORS) to receive, upon retirement, the benefits promised under the EPORS statute although the statute was repealed by initiative only eight months after the statute was implemented. Id. at 849. Quoting Corbin, we distinguished between a "vested right" and an "expectancy": [T]he existence of a "contract right" is not denied merely because the money is payable in the future and only on the happening of an uncertain event or because some one has a power of termination or modification. If a right has to be "vested" in order to be recognized and protected, these rights are vested. It is immaterial whether the parties "expect" or "hope" that payment will take place. Id. at 847-48 n. 5 (quoting Corbin, § 626, at 10-11). Relying on Allen, MOA argues that the prospect of a future increase of benefits is only an "expectancy" rather than a vested right because no increase was ever promised. The class argues that an enforceable promise can be for something other than the payment of money; it asserts that the promise could be to invest wisely the retirement assets with the understanding that the proceeds, while presently undetermined, may only be used to benefit those who made the initial investment. These three cases reaffirm the principle espoused in Hoffbeck, that an employee's right to retirement benefits vests upon his or her enrollment in the retirement system. MOA argues that under Alaska law, not all changes in a retirement system unconstitutionally diminish "accrued benefits." We agree with that general proposition, but it does not resolve the question presented here. 2. Analysis Our review of AMC 03.85 leads us to conclude that the APFRS treated the plans (as they were successively adopted) as distinct for all significant purposes. They had distinct contribution requirements (which became less favorable to the members of each newly added plan). They provided distinct and different benefits to members of each plan. Further, AMC 03.85.100(G) required an independent actuarial evaluation of Plans I and II every two years. That provision cannot be read to allow a calculation of actuarial soundness including members of any other plan, including Plan III. A separate provision, AMC 03.85.210(A), required an annual "actuarial valuation of Plan III . to determine the contribution rate required to maintain the actuarial integrity of Plan III." Given these distinctions in contribution rates and benefits, and the explicit requirement for a separate actuarial evaluation for Plans I and II, it is not surprising that MOA and APFRS treated the plans as separate except for purposes of investing the assets: in the words of the consulting actuary, "The System has historically been funded as three separate plans." The separate treatment of plan funding confirms the apparent scheme originally created by the enabling ordinance. Nothing about the APFRS before 1994 would have alerted newly enrolled plan members that their contributions might be used prospectively or retrospectively to fund one of the other plans. For example, had the investments for Plan I been extremely unsuccessful, Plan III members would have had no reason to expect when they enrolled that any surplus in Plan III might be used to remedy any deficiency in Plan I. Anchorage Municipal Code 03.85.210(A), which requires "independent actuarial valuation of Plan III . in order to determine the contribution rate required to maintain the actuarial integrity of Plan III," strongly implies otherwise. MOA argues that because these are defined benefit plans, members have no right to share or reasonable expectation of sharing in any surplus created by overcontributions or investment success. The other side of that argument, however, is that before 1994, the enabling code provisions gave MOA no right to divert accumulations attributable to members of one plan for the benefit of members of a different plan. Likewise, members would have had no reason to think that the fruits of their own contributions might reduce the contributions of members of a different plan. Instead, a contrary expectation was reasonable: because the plans provided defined benefits, MOA was obliged to pay any deficiency. That obligation was inconsistent with requiring members of one plan to help remedy a funding deficiency in another plan. Similarly, provisions for separate valuations to calculate the contribution rates for each plan to maintain "the actuarial integrity of Plan III," AMC 03.85.210(A), and "Plans I and II as actuarially sound," AMC 03.85.100(G), render the defined benefit feature inconclusive. Consequently, whether or not members of Plans I and II expected when they enrolled to share in any surplus by an increase in benefits, they reasonably could have expected that the product of their contributions would be used for their ultimate benefit. Certainly they could not have expected that any surplus would be used for the benefit of non-plan members. To do what AO 94r-95 would require would squarely conflict with AMC 03.85.100(G) with respect to Plans I and II. It would also implicitly conflict with the separation inherent in plans which have different contribution rates, different benefits, and different obligations. At the least, as the superior court observed, maintaining the separation among the funds "enhances the integrity of a plan, a condition clearly more favorable to its members than the dilution effected by AO 94^95." Superior Court Order at 15 n. 14. MOA asserts that the surpluses contained in Plans I and II are excess to the needs of those plans. We note, however, that the actuaries' 1994 responses to an APFRS inquiry about the impact of combining the plans reveal that (depending upon assumptions regarding additional enrollments, suspension of Plan III contributions, and declines in investment returns) the funding for the combined system was reduced to either 102% or 99%. Consequently, combining the three plans clearly impaired the inherent integrity of Plans I and II. MOA argues that its obligation to guarantee the defined benefits makes any surplus irrelevant. MOA might as well argue that it could have altogether suspended its contributions, on the theory its probable future solvency would have permitted it to guarantee benefits even if the funds were not actuarially sound. We conclude that AO 94-95 unconstitutionally impairs the vested right of members of Plans I and II to have the actuarial soundness of those plans evaluated and maintained separately without being affected by the soundness of other plans. That failure impairs the ability of Plans I and II to withstand future contingencies, such as increases in plan obligations, declines in investment revenue and inability by MOA to fund any shortfall. It is therefore unconstitutional. Given that conclusion, we need not also consider whether the Board's 1993 Statement of Investment Policy gave rise to any rights which could be considered to have vested and which were impaired or diminished by AO 94-95. 3. Cases from other jurisdictions MOA, citing cases from other jurisdictions, asserts that employees under a defined benefit pension plan have no constitutional right to the surpluses in their plans; it argues that the only vested right which cannot constitutionally be diminished or impaired is the receipt of the statutorily defined benefits. See Poggi v. City of New York, 109 A.D.2d 265, 491 N.Y.S.2d 331 (1985), aff'd, 67 N.Y.2d 794, 501 N.Y.S.2d 324, 492 N.E.2d 397 (1986) (upholding constitutionality of supplemental benefits statute allowing certain investment earnings of retirees' defined benefit plan to be allocated as supplemental benefits because the statute did not impair or diminish the level of benefits provided under the pension statutes); Halstead v. City of Flint, 127 Mich.App. 148, 338 N.W.2d 903, 906 (1983) (upholding a supplemental benefits statute funded by the pension plan's surplus and only for the benefit of certain retirees, holding that "because there is no evidence that [the ordinance] diminishes or impairs the full payment of plaintiffs' accrued financial benefits, the ordinance does not violate the constitutional proscription against impairment of contracts."). MOA also relies on State ex rel. Dadisman v. Caperton, 186 W.Va. 627, 413 S.E.2d 684 (1991). The West Virginia Retirement System consisted of two retirement plans, one fully funded and the other underfunded, within a single system. Id., 413 S.E.2d at 686, 690. The monies of both plans had been accounted for on a system-wide basis and collectively invested. Id. at 690. A subsequently enacted statute allowed the two plans to be actuarially valued as one system to determine the amount of employer contributions required; this allowed contributions to be suspended because the system as a whole was actuarially sound although funds from the overfunded plan were diverted to cover losses in the underfunded plan. Id. Members of the overfunded plan alleged that the surplus in their plan belonged to them, and could not be diverted to cover liabilities in the other plan. Id. The court rejected this argument, finding that so long as the system remained actuarially sound there was no violation. Id. Whether or not these cases are distinguishable, as the class argues, we need not consider whether the class members had a right to receive increased benefits or share in the accumulated surplus, because we have held that AO 94-95 impairs the vested right of members of Plans I and II to have actuarial soundness of Plans I and II evaluated independently of any other plan. We are more persuaded by Valdes v. Cory, 139 Cal.App.3d 773, 189 Cal.Rptr. 212 (1983), cited by the class in support of its argument that members of Plans I and II had a vested interest. During a budget crisis the California legislature passed emergency legislation that allowed the state to suspend contributions to the public employees retirement system. Id., 189 Cal.Rptr. at 216-17. Although the state's action had not reduced employee benefits under the system, the court determined that the state could not suspend or reduce its statutorily defined contributions absent actuarial input to ensure that the system would remain actuarially sound. Id. at 223. The court stated that although an employee may not suffer out of pocket expenses, "the interest of the employee at issue here is in the security and integrity of the funds available to pay future benefits." Id. at 222. B. The Award of Attorney's Fees Pursuant to Civil Rule 82(b)(1), the class sought an attorney's fees award against MOA equal to 2% of the "judgment" or "corn-mon fund." The class asserted that the judgment or common fund equaled the amount, roughly $40 million, restored to Plans I and II. The class also asked the court to award class counsel compensation equal to the Rule 82 award plus an additional 6% of the common fund, for a total of 8% of the amount restored to Plans I and II. The .superior court imposed a Rule 82(b)(2) award against MOA for full hourly attorney's fees of $76,618.34 (the product of counsel's hours and an hourly rate of $225). The superior court declined to follow a common fund approach, citing "the lack of money judgment and the difficulty in determining the monetary value of the judgment." It also stated that "it would be inappropriate to significantly diminish the assets" of the plans to fund a fee award. The class argues that the award undercom-pensated class counsel and that it was error not to apply the Rule 82(b)(1) schedule to the judgment or common fund and .not to allow the class to bear the litigation cost by awarding counsel 6% of the surplus restored to the plans. The class's arguments depend in part on its assertion that restoration of the surplus funds created a common fund or money judgment. MOA argues that it was an abuse of discretion to award the class full actual fees absent a finding that MOA engaged in bad faith or vexatious conduct. The APFRS Board argues that the class created no common fund and that no award should be made from the APFRS assets. Two main questions are presented. The first relates to fee-sharing: What fees do class members owe class counsel? The second relates to fee-shifting: What fees should the class, as the prevailing party, recover from MOA under Rule 82? Given our recent approval of a two-step process for calculating attorney's fees in class actions, Municipality of Anchorage v. Gentile, 922 P.2d 248, 263-64 (Alaska 1996), the answer to the first question bears on the answer to the second. 1. Fees due class counsel The class retained counsel under an agreement obliging it to pay $5,000 for the initial consultation and analysis, up to $25,000 in hourly fees at a rate of $75 per hour, and not more than 10% of any common fund recovered. If the total of the Rule 82 award and common fund fees was less than 10% of the common fund, counsel would receive that total. If the total was more than 10% of the common fund, the class would receive the excess. The agreement did not squarely specify counsel's fees if there was a Rule 82 award but no common fund; it appears the parties assumed counsel would receive any Rule 82 fees awarded to the class, and up to $30,000 from the class members whether or not the class prevailed. When they asked the superior court to approve fees for counsel, the class and its attorneys reasoned that a common fund had been achieved, and that the agreement consequently governed counsel's fees. We have recently discussed the common fund doctrine. Gentile, 922 P.2d at 265; Edwards v. Alaska Pulp Corp., 920 P.2d 751 (Alaska 1996). The doctrine is "implicated any time one litigant's success releases well-defined benefits for a limited and identifiable group of others." Edwards, 920 P.2d at 755. Because Plans I and II are defined benefit plans, and because the enabling ordinance did not require that any surplus be paid out to members as increased benefits, members had no vested right to receive increased distributions funded by the surplus. As noted previously, the constitutional flaw in AO 94-95 is not that it takes some particular amount from the surplus for Plans I and II, but that it fails to respect the vested right of members of Plans I and II to have the actuarial soundness of those plans evaluated and maintained separately, without being affected by the soundness of any other plan. The quantitative value of this impairment cannot be directly measured by the amount of the restored surplus, because the value of the impairment is contingent. The record before us does not address the likelihood of those contingencies and does not permit quantitative valuation of the litigation benefit achieved. Further, the common fund doctrine is based on the principle of equitably spreading counsel's fees among the benefitted class members. Gentile, 922 P.2d at 267. It is impossible to calculate from the appellate record how the restored surplus financially benefits individual members. The contingent benefit may be more valuable to some members than others. (The value might turn, for example, on the projected duration and value of a member's benefits.) Absent any present right to share directly in the surplus, valuing the benefit achieved for each class member is difficult, if not impossible. Calculating the amount of litigation expense each member should bear is equally difficult. To be distinguished is Gentile, where the class successfully challenged a reduction of post-retirement medical benefits and the superior court restored the benefits to their previous level. Gentile, 922 P.2d at 252. Success in the instant case did not alter the benefits which MOA must pay per the plans. We conclude that counsel's success did not release "well-defined benefits" constituting a common fund. The superior court did not err in implicitly declining to award class counsel any part of the surplus restored to the plans. Citing Grein v. Cavano, 61 Wash.2d 498, 379 P.2d 209 (1963), the class appears to argue that the common benefit doctrine would justify a fees award funded by restored plan assets. It thus implicitly argues that references in the fee agreement to a "common fund" also encompass a common benefit. The superior court's findings dispose of this argument. In declining to follow a common fund approach, the superior court noted the lack of a money judgment and the difficulty in determining the value of the judgment. It also' found that it would be inappropriate to "significantly diminish" the plans' assets to fund a fee award. The superior court's observation about the difficulty of determining the value of the judgment remains relevant and valid; its conclusion that it would be inappropriate to diminish plan assets to fund an award is not erroneous. That conclusion controls, and dooms, a common benefit award funded by plan assets. 2. Rule 82 fees This does not end our inquiry. In Gentile, we adopted a two-step analysis for calculating the Rule 82 attorney's fees to be awarded the prevailing party in class actions. The trial court must "(1) determine the compensable value of the services the attorneys rendered to the class, and (2) apply Rule 82 to the amount calculated in Step 1 to decide how much [the non-prevailing party] should pay." Gentile, 922 P.2d at 263. The compensable value or actual fees are what the client has agreed to pay, and are not necessarily limited to the product of an attorney's hourly rate times the number of hours worked. Id. at 264. We also noted that "where the attorney charges no fee or a lower than usual fee, however, the proper approach is to value the attorney's services and to make a Rule 82 award which is some fraction of this value. Arctic Slope Native Ass'n v. Paul, 609 P.2d 32, 38 (Alaska 1980)." Gentile, 922 P.2d at 263 n. 20. In determining the compensable value of class .counsel's services, the court may consider such factors as "the need to promote the efficient use of court resources" through the use of class action litigation, and "the potential difficulty of attracting capable counsel." Id. at 264. We also held in Gentile that the absence of a traditional fund does not preclude application of the common fund rationale in an appropriate ease, when evaluating the attorney's services during Step 1. Id. at 266. We noted that counsel's fees might be calculated by either a lodestar or percentage of fund approach. Id. We recognized, however, that any difficulty in calculating the value of the common benefit may make the percentage approach "inappropriate." Id. In this case, it is appropriate to use the two-step model to calculate counsel's fees and the Rule 82 award. The fees the class agreed to pay-did not necessarily measure the fair value of the services provided. Although the superior court made its award before we decided Gentile, it calculated the value of counsel's services as $76,618.34. Under the two-step Gentile methodology, the superior court might then have calculated counsel's fees using a lodestar approach. That method considers various factors and considers whether to award some multiple of the incurred fees. That would have been an appropriate way to calculate the value of counsel's services based on the market value of the hours spent at a reasonable hourly rate. It appears that the superior court has already calculated the market value of counsel's services. Because a court might in its discretion choose to apply a multiplier in such a case, it is necessary to remand for consideration of the lodestar factors. On remand the trial court can decide whether to apply a lodestar multiplier, and, if so, the appropriate factor. After the trial court calculates the value of counsel's services in Step 1, it will be able to calculate the amount of fees to be assessed against the losing party under Rule 82. Rule 82(b)(2) initially applies here because the class recovered no money judgment. The presumed fee award is 20% of the fees "incurred" (as calculated in Step 1), subject to deviation upon consideration of the factors listed in Rule 82(b)(3). The superior court chose to deviate from the 20% standard to award full hourly fees. To some extent, the factors that led the court to award full hourly fees may duplicate considerations that will bear on any lodestar analysis. Because the gross value of counsel's fees if the superior court applies a lodestar factor on remand may differ from the value previously calculated by the superior court, and because the superior court may wish to reconsider the Rule 82(b)(3) factors given our recent adoption of the two-step methodology in Gentile, it is also necessary to remand for reconsideration of the Rule 82 award. 3. Full actual fees MOA argues that full actual fees should not have been granted because there was no finding that MOA litigated in bad faith. The purpose of shifting attorney's fees under Civil Rule 82 to the non-prevailing party is to "compensate a prevailing party partially, not fully, for attorney's fees incurred in litigation." Demoski v. New, 737 P.2d 780, 788 (Alaska 1987). The class, however, argues that full actual fees were reasonable since class counsel would otherwise be seriously undercompen-sated. The class asserts that Civil Rule 82 is designed to compensate a prevailing party, but is not intended to compensate a litigant's attorney, which in non-class action cases is a matter resolved between the attorney and client in their fee agreement. The class's counsel states that since the court must approve the amount of fees counsel receives, and the awarded fees are counsel's only source of compensation, MOA should be required to pay the class's full fees or counsel will be undercompensated. The issue of undercompensation in this case is properly addressed in the Step 1 analysis. Once the fair value of counsel's services to the class has been determined, the traditional Rule 82 analysis may be applied in Step 2. Because we remand for reconsideration of fee issues in light of the two-step Gentile methodology, and because the superior court on remand will be free to reconsider the Rule 82(b)(3) factors, we need not now decide whether it was error to award the class full hourly fees against MOA, and whether class counsel was undercompen-sated. 4. Fees against APFRS Because we conclude that the superior court did not err in deciding that it was inappropriate to fund an award from plan assets, we agree with APFRS's argument that no fees should be awarded against the APFRS Board members or payable from APFRS assets. IV.' CONCLUSION We AFFIRM the superior court judgment that held that AO 94-95 violates article XII, section 7 of the Alaska Constitution. We AFFIRM the denial of a fee award against APFRS. We REMAND the remaining attorney's fees issues for further proceedings consistent with this opinion. MATTHEWS and FABE, JJ., not participating. . Unless specifically noted, the provisions of AMC 03.85 are the same as when the pertinent events took place. . "System" is defined at AMC 03.85.015(R) as "the retirement program described in this chapter, and may refer to Plans I and/or II and/or III as defined in Section 03.85.020 depending upon the context and the enrollment status of each particular member." .The actuary explained that "projected liability" represented "the actuarial present value of all projected benefits to be paid . based on assumptions of future experience that represents our best estimate...." The report further explained that "the projections are inexact because they are based on assumptions which are themselves necessarily inexact, even though we consider them reasonable." . The Board filed a declaratory judgment action against the class and MOA. The Board's action was consolidated with the action brought by the class. . Article XII, section 7 of the Alaska Constitution states: Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired. . The constitutionality of a municipal ordinance is a question of law on which we exercise our independent judgment. Municipality of Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080, 1083 n. 7 (Alaska 1992). When possible, we must "construe statutory provisions in such a way as to avoid unconstitutionality rather than simply void them on the basis of an interpretation which renders them constitutionally infirm." Hammond v. Hoffbeck, 627 P.2d 1052, 1059 (Alaska 1981). . The phrase "accrued rights" in article XII, section 7 of the Alaska- Constitution is synonymous with "vested rights." Hoffbeck, 627 P.2d at 1055 n. 4 (citing Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960)). . We deal here only with the constitutionality of AO 94-95. We express no opinion about any of the other possible grounds for relief. . For Plan I, a member's monthly contribution may not exceed 6% of his or her gross monthly compensation. AMC 03.85.100(A). For Plan II, a member's monthly contribution is based on an actuary's evaluation of the percentage required to maintain the system as actuarially sound. AMC 03.85.100(A), (G) & (H). For its first year, the Plan II contribution rate was 6.89%. AMC 03.85.100(H). Under Plan III, a member's maximum contribution rate is set by the APFRS Retirement Board every five years, and the actual rate may be reduced or increased at any time during that five year period so long as the contribution requirement does not exceed the maximum rate set. AMC 03.85.210(B). At inception, the Plan III contribution rate was 12%. AMC 03.85.210(A). . Members of Plans I and II will receive 2.5% of their total compensation during three consecutive calendar years of credited service which yield the highest average monthly compensation multiplied by the number of years they were plan members. AMC 03.85.110(A), AMC 03.85.015(A). Payments of these retirement benefits are guaranteed for life. AMC 03.85.110(F). Apart from the payroll deductions, MOA must "contribute additional monies to the plan in an amount to assure that the fund is at all times financially sound." AMC 03.85.100(C). Members of Plans I and II are eligible for "voluntary normal" retirement benefits upon completion of twenty years of total credited service. AMC 03.85.110(A). Members are also eligible for "voluntary early" retirement benefits after attaining age fifty-five with a minimum of five years of credited service. AMC 03.85.110(B). Members of Plan III will receive 2.5% of their average compensation during the last fifty-two biweekly pay periods, or any two consecutive tax years, whichever results in the highest average amount, multiplied by the number of years of credited service. AMC 03.85.200(J), AMC 03.85.220(H). Plan III members are eligible for "normal service" retirement benefits after completing twenty years of total credited service. AMC 03.85.220(A). Unlike members of Plans I and II, Plan III members must complete at least fifteen years of total credited service to become eligible for "early service" retirement benefits. AMC 03.85.220(D). .AMC 03.85.100(G) provides: An independent actuarial evaluation of Plans I and II shall be made no less frequently than every two years. The actuary shall determine the percentage of gross monthly compensation required to maintain Plans I and II as actuarially sound and shall report to the board the percentage attributable to members and the percentage attributable to the Municipality of Anchorage. The required percentage contributions shall reflect an actuarially determined 2.5:1 municipality/ member contribution ratio for members of Plan II. . See also AMC 03.85.210(B), which provides: The member's maximum contribution rate shall be fixed by the board once every five years. The board may reduce or increase the contributions of both Anchorage and the member at any time so long as that action does not unreasonably jeopardize the actuarial integrity of the plan and so long as the member is never required to contribute more than the maximum contribution rate applicable at the time of such reduction or increase. At all times, the contribution ratio of Anchorage to member shall be maintained at a ratio of not less than 2.5:1. If additional monies are necessary to assure that Plan III is financially sound at all times and the member's contribution rate has already been set at the maximum, then Anchorage shall be solely responsible for contribution of such additional monies. . Under the federal Employee Retirement Income Security Act (ERISA), codified at 29 U.S.C. § 1001-1461 (1985), employees are entitled to receive any surpluses generated by their pension plans when a plan is terminated unless the plan document provides for a reversion of the excess assets to the employer. See 29 U.S.C. § 1344(d)(1) (Supp.1997). The plans at issue are not governed by ERISA because ERISA exempts "governmental plans" from its coverage. See 29 U.S.C. § 1321(b)(2). . In Poggi, the pension statute expressly stated that the pension benefits would not fluctuate with the fund's investment earnings. Poggi v. City of New York, 109 A.D.2d 265, 491 N.Y.S.2d 331, 333 (1985), aff'd, 67 N.Y.2d 794, 501 N.Y.S.2d 324, 492 N.E.2d 397 (1986). Dadis- man was not decided under a constitutional provision specifically addressed to retirement benefits like article XII, section 7 of the Alaska Constitution; Dadisman was decided under the contracts clause of the West Virginia Constitution. State ex rel. Dadisman v. Caperton, 186 W.Va. 627, 413 S.E.2d 684, 686 (1991). . A prevailing party is normally entitled to an attorney's fees award. Alaska R.Civ.P. 82(a). When a money judgment is recovered, the award is calculated per a sliding schedule in Civil Rule 82(b)(1), including 2% of that portion of a judgment over $500,000 in a contested case resolved without trial. . MOA argues that the superior court awarded full "actual" attorney's fees. The award did not precisely equal the fees the class agreed to pay counsel, but were instead the full reasonable fees calculated by the court on an hourly basis. We will refer interchangeably to actual and hourly fees for the remainder of this opinion. . Per Civil Rule 82(b)(2), when the prevailing party recovers no money judgment in a case resolved without trial, the award is 20% of the prevailing party's actual attorney's fees. After considering factors listed in Civil Rule 82(b)(3), a trial court may vary from the amounts awardable under Rule 82(b)(1) and (2). As justification for not limiting the award to 20% of actual fees per Rule 82(b)(2), the superior court considered the following Rule 82(b)(3) factors: the use of the class action procedure provided a substantial benefit to the plaintiffs who might not otherwise have had access to the courts; the plaintiffs litigated this matter efficiently and successfully which minimized the fees incurred; a partial award would not achieve the policy goal of providing a legitimate incentive for attorneys to represent a class; there was significant litigation risk and plaintiffs had difficulty retaining counsel; and the issues were unusually complex and the significance of the relief obtained was great. See Alaska R.Civ.P. 82(b)(3)(A)-(K). .Although the APFRS Board asserts that the class has "effectively disclaimed" fees based on a "common benefit" theory, we read the class's arguments regarding the common fund doctrine to encompass a claim based on the value of benefits received by the class. . We review a trial court's award of attorney's fees for an abuse of discretion. Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 1997). . Courts using the lodestar approach have either used a simple lodestar formula, see Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166-68 (3d Cir.1973), aff'd in part and vacated in part, 540 F.2d 102, 112-18 (3d Cir.1976), or hybrid or "blended" lodestar approaches examining several factors when determining the multiplier to be used, see In re Washington Public Power Supply System Securities Litigation, 19 F.3d 1291, 1294-95 & n. 2 (9th Cir.1994). In Edwards we noted the existence of different lodestar tests. 920 P.2d at 757. It is premature for us to decide which standard should apply here. We prefer to review this question in the context of an appeal in which the trial court has actually conducted an analysis of the lodestar factors as part of the dispute before it.

11903078

Edward E. ELLIS, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee

Ellis v. State, Department of Natural Resources

1997-09-26

No. S-7255

491

497

944 P.2d 491

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Edward E. ELLIS, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee.

Edward E. ELLIS, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee. No. S-7255. Supreme Court of Alaska. Sept. 26, 1997. Edward E. Ellis, Trapper Creek, pro se. Lawrence Z. Ostrovsky, Assistant Attorney General, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

2647

16338

OPINION EASTAUGH, Justice. I. INTRODUCTION Edward Ellis, a mineral prospector, challenged the validity of a Department of Natural Resources (DNR) Mineral Closing Order (MCO), claiming that the MCO violated the Alaska Constitution and the statutes governing the closure of state lands to mineral entry. The superior court granted DNR's motion for summary judgment. Ellis appeals. Because DNR acted within its constitutional and statutory authority when it issued the MCO, and because the MCO has a reasonable basis in the agency record,- we affirm. II. FACTS AND PROCEEDINGS Ellis first began mining for gold and other minerals in the Yentna basin in 1973. After making some discoveries along Lake Creek in the Matanuska-Susitna (Mat-Su) Valley, Ellis established a "fulltime prospecting program" there in 1983. He invested substantial time and money in furthering his discoveries by doing such things as constructing trails, camps, and helicopter pads. He and his wife raised six children on their mining claims. On August 7, 1985, DNR issued MCO 455, which closed to new mineral entry approximately 320,000 acres of state land in the Susitna and Willow subbasins in the Mal^Su Borough, including the area where Ellis was prospecting near Lake Creek. The land was closed subject to valid existing rights. MCO 455 was issued pursuant to AS 38.05.185(a), which provides that state land may be closed to mining or mineral location if the commissioner of DNR "makes a finding that mining would be incompatible with significant surface uses on the state land." AS 38.05.185(a). Ellis asserted that as a result of MCO 455, he was unable to proceed on many prior discoveries around Lake Creek that he had staked, but not filed. After 1985 he continued to develop the claims he had filed. Between 1986 and 1994 Ellis made numerous requests of DNR to perform a mineral assessment in the Lake Creek area; he formally petitioned DNR to reopen to mineral leasing a small portion of the area covered by MCO 455. DNR denied these requests. In 1994 Ellis filed a complaint in superior court challenging MCO 455 and claiming that the State illegally closed state lands, thereby depriving him of his "constitutionally protected mining interests, property and rights." The court granted DNR's motion for summary judgment. Ellis appeals. III.DISCUSSION A. Standard of Review The standard of review for an appeal from summary judgment is de novo. Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995). We "will uphold a summary judgment only if the record presents no genuine issues of material fact and 'the moving party was entitled to judgment on the law applicable to the established facts.' " Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994) (citation omitted). We must determine from the administrative record whether there was a reasonable basis for MCO 455. Kelly v. Zamarello, 486 P.2d 906, 917 (Alaska 1971). A reviewing court applies the "reasonable basis" test when reviewing administrative decisions involving complex issues that require agency expertise. Id. Under the "reasonable basis" standard of review, we give deference to the agency's determination "so long as it is reasonable, supported by the evidence in' the record as a whole, and there is no abuse of discretion." Kodiak W. Alaska Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200, 1203 n. 7 (Alaska 1979). We exercise "independent judgment" when determining whether an agency complied with procedural requirements. Moore v. State, 553 P.2d 8, 33 (Alaska 1976). B. Does DNR's Administrative Record Reflect a Reasonable Basis for MCO 155? Ellis has not raised any genuine issues of material fact that would justify reversal of the superior court's summary judgment for DNR. Instead, he challenges the adequacy and reasonableness of DNR's decision to close the Lake Creek area to new mineral entry. Ellis's action is essentially an appeal of an administrative decision. Thus the court's inquiry is limited to a review of the administrative record which was before the Board when it made its decision. Interi- or Paint Co. v. Rodgers, 522 P.2d 164, 169 n. 7 (Alaska 1974). Ellis argues that DNR acted arbitrarily and capriciously in issuing MCO 455. He is particularly troubled by the finding that the Lake Creek corridor has a low mineral value. He also challenges the reasonableness of DNR's decision to leave the area open to oil and gas leasing. DNR based the closure on the recommendation contained in a land use plan, the Susit-na Area Plan (SAP), which was developed in accordance with AS 38.04.065. The SAP was the product of a three-year study by an interagency planning team that worked in conjunction with the U.S. Department of Agriculture to prepare "reports describing resource values and identifying existing and potential land uses throughout the planning area." The planning team included, among others, representatives from various divisions of DNR, the Department of Fish and Game, the Department of Transportation and Public Facilities and the Mai^Su Borough. In entering MCO 455, the DNR commissioner found that certain stream systems in the area and their adjacent riparian uplands were "used extensively by the public for fishing, floating, boating, transportation to hunting, and public access corridors." The commissioner also found that the salmon and .other fish populations in these river systems not only supported substantial sport fishing, but were also major contributors to the Upper Cook Inlet commercial salmon fishery. The commissioner concluded that these activities constituted "significant surface uses" of state land under AS 38.05.185(a), and that mining was incompatible with these significant uses and thus threatened an important segment of the economy of the Susitna basin. The commissioner considered the mineral potential of the area, and found that "existing information indicates that the areas proposed for closure to mineral entry have low mineral value." The SAP notes, howev er, that there is "some potential for future oil and gas development." We conclude that the agency's determination was reasonable and supported by the evidence in the record. See Kodiak W. Alaska Airlines, 592 P.2d at 1203 n. 7. C. Did DNR Provide Adequate Notice to the Public before Issuing MCO 155? DNR gave notice of proposed MCO 455 during June 1985; it issued the order on August 7, 1985. Ellis asserts that the notice was not sufficient for prospectors, many of whom spend summers in the field. Assuming that the actual dates of publication of proposed agency action may affect whether potentially affected persons see the notice, the legal adequacy of notice nonetheless depends on whether statutory requirements are satisfied. DNR fulfilled the statutory mandate of AS 38.05.945 by providing notice by publication in a newspaper of statewide circulation and a newspaper of general circulation in the vicinity at least thirty days before the proposed action. AS 38.05.945(b). DNR was also required to provide notice by one or more of the following methods: (1) publication through public service announcements on the electronic media serving the area affected by the action, (2) posting in a conspicuous location in the vicinity of the action, (3) notification of parties known or likely to be affected by the action, or (4) another method calculated to reach affected persons.... AS 38.05.945(b)(1) — (4). DNR placed an advertisement in the Mat-Su Valley's newspaper, the Frontiersman, on June 15 and 19, 1985, announcing the proposed closing and the affected areas. It also placed an advertisement in the Anchorage Daily News on June 15 and 16, 1985. In addition, DNR sent notices in June to the Alaska Miners Association, the manager of the Mat-Su Borough, and the Talkeetna Postmaster, among others. The record reflects that DNR provided sufficient notice by newspaper, and also provided notice according to, at the very least, subsections (b)(2) and (b)(3). To the extent that Ellis's argument implies that even statutory notice did not meet due process standards where MCO 455 affected miners in the field when notice was given, we do not find that the statutory notice requirements were unreasonable or inadequate. There was no showing that even miners in the field would, as a class, not receive notice. There is no indication DNR selected a publication date with any intention to limit the efficacy of notice. D. Did MCO 155 Deprive Ellis of Any Property Rights? Ellis claims that the minerals contained within his staked claims, and the improvements he made on state land — such as the pack trails he built along Lake Creek — are interests or rights in property that are protected by the Alaska and federal constitutions. As DNR correctly points out, MCO 455 specifically exempts valid existing claims. The order states that it is "subject to valid existing rights." The superior court noted that if Ellis "truly has valid existing claims, MCO 455 does not bar him from developing them." We consequently reject his arguments that he was denied due process and that he is entitled to a trial at which he may offer evidence of his property rights. The issue whether Ellis has valid preexisting claims was not before the lower court, and is not an issue in this appeal. Ellis's contention that discovery alone gives rise to compensable property rights is without merit. "A person acquires the exclusive right to possess and extract minerals on state land by discovery, location, and recording." Welcome v. Jennings, 780 P.2d 1039, 1042 (Alaska 1989); AS 38.05.195. Absent discovery, location, and recording, no property rights exist to the minerals within an unperfected claim. E. Did MCO ⅛55 Violate the Alaska Constitution or the Statutes Governing Closure of Land to Mineral Entry ? Ellis argues that MCO 455 violates the resource development policy and public interest provisions contained in article VIII, sections 1, 11, and 16 of the Alaska Constitution. Ellis also argues that MCO 455 violates AS 38.05.185, AS 38.05.300 and AS 44.99.110. The superior court did not err in holding that the record supported the commissioner's determination that MCO 455 furthers the public interest, and that the order was therefore consistent with the Alaska Constitution. Ellis argues that the commissioner exceeded her statutory authority in issuing MCO 455. Alaska Statute 38.05.185 authorizes the commissioner to close state land to mining upon a finding that "mining would be incompatible with significant surface uses on the state land." AS 38.05.185(a). In addition, the commissioner must follow the procedures outlined in AS 38.05.300 before she may close state land to mining. Id. When DNR issued MCO 455 in 1985, AS 38.05.300 provided: (a) The commissioner shall classify for surface use land in areas considered necessary and proper.... State land, water, or land and water area may not, except by act of the state legislature, be closed to multi-pie purpose use if the area involved contains more than 640 acres. (Emphasis added.) "Multiple use" is defined in part as: the management of state land and its various resource values[,] . making the most judicious use of the land for some or all of these resources .; it includes (A) the use of some land for less than all of the resources.... AS 38.04.910(4)(emphasis added); see AS 38.05.965(11). MCO 455 closed more than 640 acres, but only to mineral entry and not to multiple use. The land covered by MCO 455 could still be used for its other resources; it therefore remained open to multiple use. Ellis incorrectly relies on AS 38.05.300(a) as it read following amendment in 1993. The 1993 amendments significantly restrict DNR's authority to preclude mining or mineral entry or to designate mining or mineral entry to be incompatible uses, when the area of land to be closed exceeds 640 acres. AS 38.05.300(a), as amended by Ch. 52, § 2, 3, SLA 1993. Unless one of the exceptions applies, an area exceeding 640 acres no longer may be closed to mineral entry except by act of the legislature. Id. These amendments were not in effect in 1985, and do not apply retrospectively. AS 01.10.090. IV. CONCLUSION Because issuance of MCO 455 was within DNR's constitutional and statutory authority as it existed when the order was signed in 1985, we AFFIRM the superior court's grant of summary judgment to DNR. . We have held that "[hjowever denominated, a claim is functionally an administrative appeal if it requires the court to consider the propriety of an agency determination." Haynes v. State, Commercial Fisheries Entry Comm'n, 746 P.2d 892, 893 (Alaska 1987). . For this reason, we reject Ellis's arguments that he was entitled to additional discovery and a trial and that he should be allowed to supplement the administrative record with expert testimony at a trial. See Interior Paint Co. v. Rodgers, 522 P.2d 164, 169 n. 7 (Alaska 1974) (judicial review of administrative agency decisions should be limited to the record before the agency). . Basing his assessment on his own sample tests, Ellis concludes that the mineral value of the land in the Lake Creek drainage exceeds $213,000,-000. . The commissioner, in issuing MCO 455, found that in 1982 more than 76,000 user days (and almost $11 million) were spent sport fishing on these river systems. The Upper Cook Inlet commercial salmon fishery was valued at $21.8 million annually from 1977-82. . AS 38.05.185(a) (1984) provided in part: State land may not be closed to mining or mineral location unless the commissioner makes a finding that mining would be incompatible with significant surface uses on the state land. This statute has since been amended. Ch. 52, § 1, SLA 1993. . AS 38.05.185(a) provides that DNR may not issue an MCO unless it is in compliance with a land use plan developed under AS 38.05.300. Ellis argues that the commissioner failed to follow the proper procedures when DNR issued MCO 455. DNR correctly points out that the SAP "is both consistent with and specifically referenced and incorporated in MCO 455." . Ellis had ample opportunity to communicate his assessment of the mineral value of the area to the drafters of the SAP during more than forty public meetings held throughout the Susitna basin as the SAP was being developed. . In his articulate and well-presented pro se oral argument, Ellis explained that he did not learn of the land closure until the fall of 1985, when he left his prospecting site and went to Anchorage. . DNR informed Ellis that he may have discovery rights protected by 11 Alaska Administrative Code (AAC) 86.105 and 11 AAC 86.135 in the mineral deposits he discovered along Lake Creek corridor. . Article VIII, section 1 of the Alaska Constitution states: It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest. Article VIII, section 11 of the Alaska Constitution provides, inter alia, that "[p]rior discovery, location, and filing, as prescribed by law, shall establish a prior right to these minerals." Article VIII, section 16 of the Alaska Constitution provides: No person'shallbe involuntarily divested of his right to the use of waters, his interests in lands, or improvements affecting either, except for a superior beneficial use or public purpose and then only with just compensation and by operation of law. .AS 44.99.110(1) declares state mineral policy and announces the general principle that the State must promote a sound economy through appropriate conservation and development of the State's mineral resources. That statute does not expressly provide for retrospective application, and was not enacted until 1988, three years after DNR issued MCO 455. The statute cannot be applied retroactively. See AS 01.10.090. Even if AS 44.99.110(1) were applicable, MCO 455 is not inconsistent with the general principle it declared.

9264537

William J. JACKSON, Appellant, v. STATE of Alaska, Appellee

Jackson v. State

2004-02-20

No. A-8306

1042

1044

85 P.3d 1042

85

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:31:50.955736+00:00

CAP

Before: MANNHEIMER and STEWART, Judges, and ANDREWS, Senior Superior Court Judge.

William J. JACKSON, Appellant, v. STATE of Alaska, Appellee.

William J. JACKSON, Appellant, v. STATE of Alaska, Appellee. No. A-8306. Court of Appeals of Alaska. Feb. 20, 2004. Kit Karjala, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. John R. Bandle, Assistant District Attorney, Leonard M. Linton, Jr., District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Before: MANNHEIMER and STEWART, Judges, and ANDREWS, Senior Superior Court Judge. Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

1526

9325

OPINION MANNHEIMER, Judge. In early 2001, William J. Jackson was charged with driving while his license was suspended. At his arraignment, the district court set two future court dates for Jackson: a pre-trial conference scheduled for March 21st, and a trial call scheduled for April 13th. Jackson failed to appear in court on these dates, and he was subsequently charged with two counts of misdemeanor failure to appear. At his trial, Jackson conceded that he had been notified of the two court dates. However, he asserted that he incorrectly recalled the date of his first court appearance (the pre-trial conference), and then, when he realized that he had missed his pre-trial conference, he did not understand that he was still obliged to appear for the trial call on April 13th. Jackson testified that he assumed that both hearings would be rescheduled, and that someone would notify him of the new dates. Jackson's attorney asked the trial judge to instruct the jury that the State was obliged to prove that Jackson's culpable mental state (his conscious choice not to appear- in court) coexisted simultaneously with his physical acts of failing to appear. That is, the defense attorney wanted the jury instructed that Jackson could not be found guilty unless the State proved that, on the very dates that Jackson was scheduled to appeal- in court (la, March 21 and April 13, 2001), Jackson consciously considered his obligation to appear in court and decided to ignore it. The trial judge (District Court Judge Natalie K. Finn) refused to give this proposed instruction, and Jackson now argues that this was error. He contends that, in the absence of the requested instruction, the jury may have convicted him based solely on his concession that he had received notice of his two court dates, without finding a "concurrence of . guilty act and . guilty mind." But even though Judge Finn declined to give Jackson's proposed instruction, she did not ignore these matters of law when she instructed the jury. Judge Finn informed the jurors that Jackson could be convicted of failure to appear only if he acted "knowingly", and she gave the jurors the statutory definition of this culpable mental state. Moreover, Judge Finn also instructed the jurors that Jackson could be convicted of failure to appear only if the State proved "a joint operation of [the] act or conduct and [the] culpable mental state". Under these instructions, Judge Finn allowed Jackson's attorney to argue to the jury that Jackson should be acquitted if the jury believed that there was a reasonable possibility that Jackson made an honest mistake about the first court date, and then, having missed that first court date, Jackson did not understand his continuing obligation to appear for the second date. Nevertheless, Jackson asserts that the jury instructions— and thus the jury's verdicts — were flawed. Jackson's appeal presents the question of what, precisely, is meant by the "joint operation" of conduct and culpable mental state when a defendant is charged with failure to appear. As explained above, Jackson contends that the State was obliged to prove that Jackson made two conscious decisions not to appear in court, and that these conscious decisions occurred on the very days of his two scheduled court appearances (March 21 and April 13, 2001). But this is not the law. The "joint operation" requirement— the requisite concurrence of the defendant's culpable mental state with the defendant's act or omission — is satisfied if the defendant's culpable mental state actuates the prohibited conduct, even though there may not be strict simultaneity between the two. As explained in Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed.1982), p. 933, One error to be avoided is the false notion that [the] "concurrence" [of culpable mental state and prohibited conduct] means . mere coincidence^] [T]he actual requirement is that the two elements of crime must be "brought together" in the sense of a causal relation between the mens rea and the actus reus. Stated in other words, the actus reus must be attributable to the mens rea, and if this relation is clearly shown[,] it is unimportant that the two were not present at the same time, whereas [temporal] coexistence is not sufficient if the causal relationship is lacking. Thus, Jackson would be guilty of "knowingly" failing to appear if he decided early on that he would not attend his scheduled court appearances, and he then dismissed the matter from his mind. Jackson's conscious decision not to attend court, combined with his subsequent failure to appear on the two specified days, would constitute a sufficient con currence of culpable mental state and prohibited act or omission — even if it were true that, on the two scheduled days, Jackson gave no conscious thought to his court appearances. Jackson's proposed instruction would have required the jury to find simultaneity of culpable mental state and prohibited conduct when, in fact, this was not required. Accordingly, Judge Finn properly rejected the proposed instruction. Jackson also argues that the jury may have convicted him based solely on the undisputed evidence that he was informed (at his arraignment) of his two future court dates. But we do not read the jury instructions to allow this. As explained above, the jury was told that Jackson could not be convicted unless the jurors were convinced beyond a reasonable doubt that Jackson's conduct (¿a, his failure to appear) was knowing, and they were further told that Jackson could not be convicted unless the jurors found a "joint operation" of culpable mental state and prohibited conduct. Jackson presented the defense that he made an honest mistake as to the date of his first scheduled court appearance and that, after he realized that he had missed this first court appearance, he honestly believed that his second court appearance would be canceled and that he would be notified of new court dates. If the jury had accepted these assertions, they would not have found that Jackson's non-appearance was "knowing" as defined in the instructions. Finally, Jackson contends that the prosecutor, in a portion of the State's summation, invited the jurors to find that Jackson acted "knowingly" based solely on the fact that Jackson was informed of his two court dates. But the prosecutor did not argue that Jackson's asserted defense of mistake was legally irrelevant so long as the jurors found that Jackson had received advance notice of the two court dates. Rather, the prosecutor argued that the jurors should consider all of the circumstances before deciding whether to credit Jackson's asserted defense of mistake: Prosecutor: State of mind. You don't have to rely on [Jackson's testimony on this subject]. You'll receive a jury instruction [on this point]. You know who determines his state of mind? You do. The jury decides [whether] what . he [was] saying [is] true[.] . [Quoting from a jury instruction:] "State of mind may be proved by circumstantial evidence. It rarely can be established by any other means.... [T]here can be no eyewitness to the state of mind with which the acts were done or omitted." You can't read minds.... But what a defendant does or fails to do may indicate his state [of] mind or lack thereof. So you get to look and weigh . his actions. [Again quoting from a jury instruction:] "In determining issues of state of mind, the jury is entitled to consider any statements made, acts done, or omitted by the accused, and all facts and circumstances in evidence which may aid determination of the defendant's state of mind" — you get to determine that. Was he telling the truth, or are his excuses reasonable? Did he know? You get to decide that, okay? We have considered and rejected all of Jackson's claims of error. Accordingly, the judgement of the district court is AFFIRMED. COATS, Chief Judge, not participating. . AS 12.30.060. .Jackson's proposed instruction read: I have instructed you that the required [culpable] mental state in this case is "knowingly." I have also instructed you that the State must prove that the alleged crimes occurred on or about March 21, 2001, and April 13, 2001. Therefore, the State must prove to you beyond a reasonable doubt that not only did Mr. Jackson fail to appear for required court hearings on or about March 21, 2001 and April 13, 2001, but that he knew[,] on or about those dates of March 21, 2001 and April 13, 2001, that he was failing to appear.... In other words, the required [culpable] mental [state] and the alleged conduct must occur simultaneously. . AS 11.81.900(a)(2). . See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 6.3(a), Vol. 1, p. 451.

10342887

Travis R. McRAE, Appellant, v. STATE of Alaska, Appellee

McRae v. State

1996-01-12

No. A-5606

1079

1083

909 P.2d 1079

909

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:30:38.468787+00:00

CAP

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

Travis R. McRAE, Appellant, v. STATE of Alaska, Appellee.

Travis R. McRAE, Appellant, v. STATE of Alaska, Appellee. No. A-5606. Court of Appeals of Alaska. Jan. 12, 1996. Allan R. Thielen, Assistant Public Defender, Kodiak, Herman G. Walker, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Appellant. Erie A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2346

15258

OPINION MANNHEIMER, Judge. Travis R. McRae appeals the order of the superior court revoking his probation from a 1991 felony conviction. We affirm. In 1990, McRae was prosecuted for third-degree misconduct involving a controlled substance. The State peremptorily challenged the resident superior court judge in Kodiak. An Anchorage judge was assigned to the case but, a few days later, McRae challenged this second judge. Ultimately, Superior Court Judge Milton M. Souter (another Anchorage judge) was assigned to McRae's case. In January 1991, following McRae's plea of no contest, Judge Souter traveled to Kodiak to conduct McRae's sentencing. Judge Souter sentenced McRae to 4 years' imprisonment with all but 18 months suspended. McRae served his term of imprisonment and was released on probation. On June 30, 1994, the Department of Corrections petitioned the superior court to revoke McRae's probation. The petition alleged that McRae had violated various game laws, that McRae had possessed (and used) a firearm (in commission of the hunting violations), that McRae had consumed alcoholic beverages, and that McRae had changed both his employment and his residence without obtaining his probation officer's permission. McRae denied these allegations. On August 9,1994, Presiding Superior Court Judge Karl S. Johnstone scheduled a hearing on the revocation petition in front of Judge Souter. When the parties assembled in the Kodiak courthouse on August 10th for the hearing, Superior Court Judge Donald D. Hopwood was present to preside over the hearing. McRae's attorney objected to Judge Hop-wood's participation: he declared that he had expected Judge Souter to preside, since Judge Souter had been the sentencing judge and since Judge Souter was the judge named in the calendaring order. Confronted with McRae's objection, Judge Hopwood recessed the hearing to consult Judge Souter and Judge Johnstone. When court reconvened, Judge Johnstone appeared telephonically and announced that Judge Hopwood would hear only the adjudicative (fact-finding) phase of the revocation hearing; if McRae were found to have violated the conditions of his probation, then Judge Souter would preside over the disposi-tive (sentencing) phase of the proceedings. After Judge Johnstone announced this ruling, McRae declared that he wished to peremptorily challenge Judge Hopwood. Judge Johnstone denied the challenge because McRae had already exercised a peremptory challenge earlier in the case (in 1990). A few days later, McRae sought reconsideration of Judge Johnstone's ruling. He asked that Judge Souter hear both the adjudicative and dispositive phases of the probation revocation hearing. In the alternative, if a judge other than Judge Souter were to hear the adjudicative phase of the proceeding, McRae asked to be allowed to exercise a peremptory challenge against this new judge. Judge Johnstone denied McRae's motion. Judge Hopwood conducted the adjudicative phase of the revocation hearing on August 10 and 11 and September 12 and 23, 1994. At the close of the hearing, Judge Hopwood found that the State had proved all but two of the allegations contained in the petition. Accordingly, a disposition hearing was scheduled in front of Judge Souter. On November 29, 1994, at the close of this hearing, Judge Souter revoked McRae's probation and sentenced him to serve 6 months of the imprisonment that he had originally suspended. He also extended McRae's probation by one year. McRae now appeals the revocation of his probation. McRae contends that, because Judge Souter was the judge who originally sentenced him, Judge Souter should have conducted both the adjudicative and the dis-positive phases of the revocation hearing. McRae asserts that Judge Johnstone acted unlawfully when he assigned Judge Hopwood to conduct the adjudicative phase of the revocation hearing. Alternatively, McRae argues that if Judge Johnstone acted properly when he assigned the adjudicative phase of the proceedings to a judge other than Judge Souter, then McRae should have been entitled to exercise a peremptory challenge against this new judge. McRae relies on Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975), for the proposition that the judge who sentenced a defendant should hear any probation revocation proceedings. In Kvasnikoff, the supreme court said: When a judge has entered an order placing a defendant on probation, any subsequent heaadng held to determine whether probation should be revoked is a supplemental proceeding.... We believe that justice is better served by preserving the jurisdiction of the original trial judge over the sentencing process. The goals of sentencing are best met when a judge who is familiar with a case is permitted to determine whether probation should be revoked and the sentence should be imposed. Kvasnikoff, 535 P.2d at 466. Based on Kvasnikoff, this court adopted the rule that a defendant's original sentencing judge should ordinarily preside over probation revocation proceedings unless there is good reason to assign another judge. Trenton v. State, 789 P.2d 178 (Alaska App.1990). While Kvasnikoff and Trenton appear at first blush to support McRae's , insistence on having Judge Souter conduct the entire probation revocation proceedings, McRae's case raises an issue that was not confronted in Kvasnikoff and Trenton: whether a different judge can preside over the adjudicative phase of the revocation proceedings so long as the original sentencing judge conducts the dis-positive phase. Probation revocation proceedings consist of two distinct phases. The proceedings begin with an adjudicative- (fact-finding) phase in which the parties litigate whether the defendant violated the terms of probation. If the court finds that the defendant violated the terms of probation, the proceedings then move to a dispositive (sentencing) phase in which the court decides (a) whether these violations require revocation of the defendant's probation, and, if so, (b) what adjustment should be made to the defendant's sentence (generally, imposition of previously suspended jail time, extension of the defendant's period of probation, or both). Holton v. State, 602 P.2d 1228, 1238 (Alaska 1979); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973). In Kvasnikoff, the supreme court concluded that "justice is better served" by having the original sentencing judge preside over any probation revocation proceedings. But the court reached this conclusion because it believed that such a rule would best serve the goals of sentencing: The goals of sentencing are best met when a judge who is familiar with a case is permitted to determine whether probation should be revoked and the [previously suspended] sentence should be imposed. Kvasnikoff, 535 P.2d at 466. The two determinations mentioned by the supreme court — whether to revoke the defendant's probation, and what sentence to impose if probation is revoked — are the two determinations made at the dispositive phase of the revocation proceedings. Like the original decision to suspend a term of imprisonment and place a defendant on probation, these two revocation decisions are entrusted to a judge's sentencing discretion. Alaska law recognizes that different judges may legitimately reach different sentencing conclusions based on the same set of facts. See Ephamka v. State, 878 P.2d 647, 652 (Alaska App.1994). Because of this, the sentencing goals of reasonable uniformity and predictability are enhanced by having the original judge exercise the required sentencing discretion at any probation revocation proceedings. But this policy of continuity is attenuated at the adjudicative phase of the revocation proceeding. At the adjudicative phase of the proceeding, the issues are confined to questions of historical fact: what were the defendant's conditions of probation, and did the defendant violate them? In our legal system, the task of fact-finding is often separated from the task of deciding what legal outcome is appropriate under the facts, and these tasks are frequently assigned to different judicial officers. For example, the appellate courts often remand factual issues to the trial courts, and the trial courts often appoint masters to make factual determinations necessary to the courts' ultimate legal rulings. Thus, the policy of having the same judicial officer hear all aspects of a proceeding applies less strongly when a proceeding is divided into adjudicative and dispositive halves. Accordingly, when the issue is whether another judge should be assigned to hear the fact-finding portion of a probation revocation proceeding, the "good cause" required for this judicial re-assignment need not be as compelling as it would need to be if all aspects of the proceeding (both adjudicative and dispositive) were to be transferred to a new judge. We recognize that there may be cases in which a sentencing judge crafts unusual conditions of probation to accomplish specific sentencing goals for a particular offender. In such cases, if the parties later disagree on the meaning of the defendant's conditions of probation, the input of the original sentencing judge might be valuable, thus providing more reason to favor having the original judge conduct the adjudicative phase of the revocation proceeding. However, the conditions of probation at issue in McRae's case were standard conditions: no further violations of the law, no drinking, no possession of firearms, and no change of residence or employment without notifying his probation officer. There was no dispute concerning the meaning of these conditions — only whether McRae had violated them. McRae argues that Judge Souter, to properly exercise his sentencing discretion at the dispositive phase of the proceeding, might wish or need to know more about the facts than can be gleaned from reading Judge Hopwood's findings. McRae notes that sentencing decisions are often based, not just on the bare plea or verdict, but on a much fuller evidentiary record that reveals the context of the defendant's behavior and sheds light on whether the defendant's violation of the law is typical, aggravated, or mitigated. We do not disagree with McRae's assertion. But if McRae believed that Judge Souter needed to be apprised of the full evidentiary record developed at the adjudicative hearing in order to understand Judge Hopwood's findings of fact, McRae was free to bring that record to Judge Souter's attention. Compare Alaska Criminal Rule 25(b). Likewise, if McRae had additional information to offer in explanation or mitigation of his violations of probation (information not presented at the adjudicative phase of the hearing), McRae was free to offer this information at the disposition hearing. Under the facts of McRae's case, we hold that Judge Johnstone did not abuse his discretion when he assigned the adjudicative phase of McRae's probation revocation proceedings to Judge Hopwood, the resident superior court judge in Kodiak. First, Judge Souter resided in Anchorage; presumably, he would have had to cancel his normal court calendar to travel to Kodiak for the adjudication hearing. Second, McRae was charged with violating standard conditions of probation. McRae has not suggested that Judge Souter, as the original sentencing judge, had special insight into the meaning of the probation conditions. Indeed, the meaning of these conditions was not disputed. And third, even though McRae argues that it is generally better for the same judge to conduct both phases of the revocation hearing, McRae has not shown or even suggested that he was prejudiced by having the two phases conducted by different judges. In particular, McRae has not shown that Judge John-stone's decision prejudiced his ability to defend against the allegations in the State's petition or prejudiced his ability to present relevant sentencing information to Judge Souter at the disposition hearing. We therefore uphold the assignment of Judge Hop-wood to conduct the adjudicative phase of the revocation proceedings. This brings us to McRae's second contention: that if Judge Johnstone could properly assign a different judge to conduct the adjudicative phase of the revocation proceedings, then McRae was entitled to exercise a peremptory challenge against this new judge. This contention is answered by Kvasnikoff, where the supreme court declared that "any subsequent hearing held to determine wheth er probation should be revoked is a supplemental proceeding" to the original criminal prosecution. 535 P.2d at 466. That is, a probation revocation hearing is a "continuation of the original [criminal] proceedings". Id. Probation revocation proceedings are initiated when the State alleges that the defendant has failed to live up to the terms of the judgement. To the extent that the terms of probation might be likened to a contract between the court and the defendant, the purpose of the revocation proceedings is to determine whether the defendant is in breach and whether the breach is material. As the supreme court stated in Kvasnikoff, justice is best served if the same judge who originally sentenced the defendant makes the sentencing decision at any subsequent probation revocation proceedings. To this end, probation revocation proceedings are viewed as the "same case" for peremptory challenge purposes. In any criminal case, both the government and the defendant have the right to peremptorily challenge one judge. AS 22.20.022(d); Alaska Criminal Rule 25(d)(1). McRae exercised this right of peremptory challenge in 1990, when he challenged the second judge assigned to his case. Thus, when Judge Hopwood was assigned to hear the adjudicative phase of the probation revocation hearing, McRae had no peremptory challenge left to exercise against Judge Hop-wood. For this reason, we uphold Judge Johnstone's decision to deny the peremptory challenge McRae filed against Judge Hop-wood. The judgement of the superior court is AFFIRMED. . The calendaring order states that the hearing was to be held "before Judge Milton M. Souter in Courtroom A". Given the facts that Judge Souter resides in Anchorage, that Judge Johnstone's order set the hearing for the very next day, and that Judge Souter's assigned courtroom in the Anchorage courthouse is Courtroom A, it appears that Judge Johnstone anticipated that the probation revocation hearing would be held in Anchorage. . "Reasonable people can differ regarding the proper sentence for a particular defendant; the supreme court's adoption of the 'clearly mistaken' standard of review in sentence appeals rests on the recognition that there is a 'range of reasonable sentences' for any given defendant. State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)."

10347280

A.M., Appellant, v. STATE of Alaska, Appellee

A.M. v. State

1995-03-10

No. S-5836

815

829

891 P.2d 815

891

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

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

A.M., Appellant, v. STATE of Alaska, Appellee.

A.M., Appellant, v. STATE of Alaska, Appellee. No. S-5836. Supreme Court of Alaska. March 10, 1995. Donna J. McCready, Asst. Public Defender, Juneau, and John B. Salemi, Public Defender, for appellant. Jan A. Rutherdale, Asst. Atty. Gen., and Charles E. Cole, Atty. Gen., Juneau, for ap-pellee. Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. Pro Tern. Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

7397

46257

OPINION BRYNER, Justice Pro Tern. A.M. appeals the termination of his parental rights to his two children, M.M. and S.M. We conclude that the superior court erred in finding that termination of A.M.'s parental rights was warranted by his physical abandonment of the children. I. FACTS AND PROCEEDINGS This appeal arises from the termination of A.M.'s parental rights to his minor son, M.M., and his minor daughter, S.M. The children were born in 1987 and 1989 to A.M. and S.L.S. The children are Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901-23, 1951 (1988). In 1990, A.M. was charged with, and later convicted of, sexually abusing S.S., a child of S.L.S. by a prior relationship who lived with A.M. and S.L.S. at the time. In March 1990, after the abuse was reported, the Division of Family and Youth Services (DFYS) arranged for S.L.S. and her three children to live in a women's shelter. Upon finding that S.L.S. had left the shelter and was not keeping S.S. from A.M., DFYS took emergency custody of S.S. S.L.S. entered an alcohol treatment program shortly thereafter; A.M. took custody of M.M. and S.M., with DFYS monitoring their situation. In September 1990, A.M. was formally charged with sexually abusing S.S. M.M. and S.M. were taken from A.M. upon his arrest and were temporarily placed in the home of a maternal great aunt in Juneau with whom S.L.S. was staying. Not long thereafter, S.L.S. left the children with a baby sitter and failed to return. On October 23, 1990, DFYS petitioned for adjudication of S.M. and M.M. as children in need of aid (CINA), alleging that "[t]he children having no one to care for them are in imminent danger of physical harm or damage." A.M. and S.L.S. both stipulated that the children were in need of aid and that DFYS should assume custody for up to two years. A.M. was subsequently convicted of sexually abusing S.S. and was eventually sentenced to serve a total of ten years in prison, with one year suspended. In June 1992, seventeen months after A.M. stipulated that M.M. and S.M. were children in need of aid, DFYS petitioned for termination of A.M.'s parental rights. Superior Court Judge Walter L. Carpeneti conducted a consolidated hearing on the adjudicative and dispositional aspects of the State's petition to terminate. On August 6, 1993, Judge Carpeneti entered an order ' terminating A.M.'s parental rights. A.M. then filed this appeal, challenging the termination order on numerous substantive and procedural grounds. II. TERMINATION OF PARENTAL RIGHTS BASED ON CINA STATUS UNDER AS 17.10.010(a)(2)(A) A. Statutory Frametvork and Standard of Review The State petitioned to terminate A.M.'s parental rights based on the allegation that S.M. and M.M. were children in need of aid. Under AS 47.10.080(c)(3), the court is authorized to terminate parental rights upon a showing . by clear and convincing evidence that there is a child in need of aid under AS 47.10.010(a)(2) as a result of parental conduct and upon a showing . by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights.... See also CINA Rule 15(c). In order to terminate parental rights under this statute, the court must initially find grounds sufficient to warrant a CINA adjudication. Nada A. v. State, 660 P.2d 436, 439-40 (Alaska 1983). The court must then undertake a two-step inquiry: first, whether the child is a child in need of aid "as a result of parental conduct;" second, whether that conduct "is likely to continue to exist." Id. at 440 (quoting AS 47.10.080(c)(3)). Alaska Statute 47.10.010(a)(2) specifies various substantive grounds for a CINA adjudication. Here, the State alleged that A.M.'s children were in need of aid on the alternative grounds specified in AS 47.10.010(a)(2)(A), (C), (D), and (F).' The only theory actively argued by the State at the termination trial, however, was abandonment under AS 47.10.010(a)(2)(A). Subsection (a)(2)(A) allows a CINA adjudication as to any "child . having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment. ." In the context of the abandonment provision, "conduct" means the willful act of a parent. Nada A, 660 P.2d at 439; In re B.J., 530 P.2d 747, 750 n. 12 (Alaska 1975). "Whether or not there has been an abandonment within the meaning of the statute is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well." D.M. v. State, 515 P.2d 1234,1236-37 (Alaska 1973). For purposes of termination, the State has the burden of proving both the CINA status of the child and the existence of grounds for termination by clear and convincing evidence. AS 47.10.080(c)(3); CINA Rule 15(c). In reviewing the trial court's factual findings on the issue of termination, we apply the "clearly erroneous" standard of review. E.J.S. v. State, 754 P.2d 749, 750 n. 2 (Alaska 1988). However, we must always bear in mind that "terminating parental rights [is] a drastic measure. The private interest of a parent whose parental rights may be terminated is of the highest order." In the Matter of J.L.F. and K.W.F., 828 P.2d 166, 170 (Alaska 1992). B. Abandonment On appeal, A.M. argues that the superior court erred in finding conduct constituting physical abandonment under AS 47.10.010(a)(2)(A). The test for abandonment under subsection (a)(2)(A) is two-pronged: the superior court must find (1) that the parent's conduct implied a conscious disregard for parental obligations; and (2) that the parent's conscious disregard led to the destruction of the relationship between the parent and the parent's children. E.g., E.J.S. 754 P.2d at 751. The superior court addressed both pi'ongs of this test in its findings and conclusions. A.M. challenges the adequacy of the court's findings as to both prongs. 1. Conscious Disregard for Parental Duties "The first prong of the abandonment test focuses on the objective conduct of the parents in discharging them parental responsibility. Thus, abandonment is not determined by the parent's subjective intent or on the 'parent's wishful thoughts and hopes for the child.' " Id. (quoting D.M., 515 P.2d at 1237). One's parental duty is "an 'affirmative duty . which requires [a] continuing interest in the child and a genuine effort to maintain communication and association with the child.' " E.J.S., 754 P.2d at 751 (alterations in original) (quoting In re Bums, 474 Pa. 615, 379 A.2d 535, 540 (1977)). In reaching the conclusion that A.M. had consciously disregarded his parental obligations to M.M. and S.M., the court focused on A.M.'s pre-incarceration conduct, which included his long history of severe drug and alcohol abuse, his long history of committing crimes (including sexual abuse of his stepdaughter), his inability to provide consistent support and nurture for his children, his constant moving of the children, his long history of physical attacks upon their mother, and numerous episodes of leaving the children for substantial periods. The superior court found that this conduct "evidence[d] . [A.M.'s] disregard for his parental obligations to care for his children, that is, his obligation to provide for them physical, emotional, mental and social needs." The record demonstrates that the superior coui't considered the totality of A.M.'s conduct prior to his incarceration. Although that conduct included the acts for which he was ultimately imprisoned, the court did not rely on the mere fact of A.M.'s incarceration in finding that he had consciously disregarded his parental duties. This accords with existing law. The State argues that the superior court was not clearly erroneous in finding that A.M.'s pre-incarceration conduct, including the acts of sexual abuse for which he was imprisoned, evidenced a conscious disregard for his parental duties. We agree. Ample evidence supports the superior court's finding that, objectively viewed, A.M.'s shiftless lifestyle, frequent absences from home, drug and alcohol abuse, physically assaultive conduct, and sexually abusive acts toward his stepdaughter manifested a disregard for his obligations as a parent. The superior court's finding of conscious disregard was not clearly erroneous. 2. Destruction of the Parent-Child Relationship The second prong of the abandonment test requires the State to show that the parent's disregard has caused a destruction of the parent-child relationship. In re B.J., 530 P.2d at 749. To support its claim that the parent-child relationship was destroyed, the State relied below, as it does here, on the testimony of Kathryn Donely Ziegler, an expert in child welfare placement work who had extensive experience in the placement of special needs children. Ziegler's testimony addressed the concept of a "psychological parent." Ziegler explained: There can be the parents who gave you birth, the parents who gave you early care, the parents who help you grow up and grow and develop and . are, in fact, in a relationship with you in an ongoing sort of way. The distinction I would always make with kids who are in an adoption or foster care status is over here are the parents who are responsible for you, for producing you ., but that is not always the same person who [is], in fact, going to help you get grown, who is going to stay connected with you through the rest of your life; and it's that parent, it's that, so to speak, that psychological parent that we really have to search out for kids and make sure that person is available to the kids. Ziegler went on to state her opinion that the current foster mother of A.M.'s children appeared to have become the children's psychological parent: I think [the children] have this fix on their present foster parent as being the significant and psychological parent in their lives because she's been there. I mean when these kids are sick in the middle of the night she's there. When these kids are crying, worried about something, she's the one that they turn to, you see, so she becomes the psychological parent and, of course, even [M.M.] was very young when he came to her as a small child still suffering what he had experienced in life. So— but I don't mean to diminish the role of the father in this case, he's important to these children, he will be important in their life span. I mean because people have these feelings about, well, that's my dad-But as far as being the psychological parent I think it's pretty clear . that [the foster mother] . is, indeed, the psychological parent of both of these kids. The superior court found Ziegler's testimony compelling and relied on it in concluding that A.M.'s conscious disregard of his parental duties had resulted in the destruction of the parent-child relationship. Specifically, the court determined that A.M. was no longer the psychological parent of his children, a role that, in the court's view, had been taken on since A.M.'s incarceration by the children's foster mother. The court believed the surviving relationship between A.M. and his children to be "akin to the relationship between a child and an uncle the child sees only occasionally: love and respect, but not a parental relationship." The State concedes that "[A.M.] was very much a part of his children's lives before he was incarcerated, and while incarcerated has continued to take an active interest in them." The State nevertheless contends that, even though A.M. did not abandon M.M. and S.M. "in the normal sense of the term," abandonment was established. We find this argument problematic in two respects. a. Psychological Parenthood as the Equivalent of an Adequate Parent-Child Relationship The superior court found that, despite the "love and affection" between A.M. and his children, A.M.'s parent-child relationship had been destroyed because the children's foster mother had become their psychological parent. This finding necessarily suggests that a complete destruction of the parent-child relationship need not be proved to establish abandonment. Instead, a qualitative diminution of the original parent-child relationship will suffice under certain circumstances — those circumstances being defined by the concept of psychological parenthood. However, use of the concept of psychological parenthood in this manner has troubling implications. For example, Ziegler's testimony, when applied in the context of a typical divorce, would seem to indicate that a parent who is awarded primary custody of the children will almost certainly assume the role of psychological parent, whereas the non-custodial parent, lacking the ability to "be there," will be relegated to some lesser form of bond. If, as the superior court appears to have found, being a psychological parent is a necessary ingredient for an adequate parent-child relationship, then termination might routinely be justified for the non-custodial parent in a divorce. This, of course, is not the law. As illustrated by the foregoing example, the absence of a "psychological parent" bond cannot, standing alone, be equated to the destruction of a parent-child relationship. This is not to say that the concept of psychological parenthood is invalid. However, concepts developed and applied within the spheres of social science do not always mesh neatly with rules traditionally applied within the spheres of the law — legal rules developed for the regulation of individual rights. It is one thing to say that psychological parenthood is a legitimate and useful concept in the placement of special needs foster children; it is quite another to conclude, as rigid legal doctrine, that psychological parenthood is the sole legal determinant of a viable parent-child relationship in termination of parental rights cases. Our own decisions have never ascribed to the latter proposition. The State cites no authority — legal or scientific — to support such a view, and we are aware of none. b. Disregard of Parental Obligations and Destruction of the Parent-Child Relationship The superior court's reliance on the foster mother's psychological parent role in finding the destruction of the parent-child relationship between A.M. and his children is problematic for another reason. As we have already indicated, under the second prong of the abandonment test, the court must determine that the parent's "conscious disregard . led to the destruction of the parent-child relationship." E.J.S., 754 P.2d at 751 (emphasis added). An integral part of this requirement is the existence of a causal connection between the parental disregard found under the first prong of the test and the destruction of the parent-child relationship found under the second. Thus, under the second prong of the abandonment test, it is insufficient to find parental disregard coupled with a destruction of the parent-child relationship brought about by some other cause. The destruction must be brought about by the acts of the parent, and in order to constitute abandonment, the acts of the parent must be willful. In re B.J., 530 P.2d at 750 n. 12; see also Nada A, 660 P.2d at 439. Here, the parental disregard relied on by the superior court in finding abandonment consisted of A.M.'s pre-incarceration conduct. Yet the court's conclusion that A.M.'s parent-child relationship had been destroyed was based on the existence of a psychological parent relationship between the children and their current foster mother, and the consequent absence of such a relationship between A.M. and his children. From the record, it seems clear that the relative distancing of A.M.'s relationship with his children and their formation of a close relationship with their foster mother resulted not from A.M.'s pre-incarceration conduct, but rather from the fact of his incarceration. Ziegler did express the opinion that A.M. was not a psychological parent to his children. However, Ziegler's opinion was based on the amount of time that had elapsed since the children had been removed'from A.M.'s custody, not on the nature or effect of A.M.'s conduct toward the children prior to his arrest. When asked whether A.M. was the psychological parent, Ziegler replied: Well, I couldn't believe that to be the case given the ages of the children at the last full parenting contacts that they've had. I'm sure that they recognize — certainly [M.M.] does recognize him as his dad, I'm sure of that. I'm not clear that [M.M.] understands what all of that means. I think he and [S.M.] have this fix on their present foster mother as being the significant and psychological parent in their lives because she's been there.[ ] The superior court made extensive and detailed findings concerning the harm' that A.M.'s criminal and anti-social conduct caused to his children. These findings are supported by the record. Nevertheless, the State did not attempt to prove, and the court did not purport to determine, the nature of the parent-child relationship that existed at the time A.M. was arrested and his children were removed from his custody. Despite the evidence indicating that A.M.'s disregard of his parental responsibilities had harmed his children, the superior court did not find that A.M.'s conduct had already destroyed the parent-child relationship when he was arrested and incarcerated for his current offenses; nor did the court find that A.M.'s anti-social conduct, rather than his post-arrest separation, was directly responsible for destroying the parent-child bond. In sum, to the extent the record supports the conclusion that A.M.'s parent-child relationship has been destroyed, that destruction appears to have resulted from the fact of his incarceration. However, A.M.'s incarceration could not serve as the proper basis for a finding of destruction of the parent-child relationship, since it was not the conduct upon which the court relied in finding that A.M. had consciously disregarded his parental obligations. Conversely, the conduct involved in A.M.'s conscious disregard of his parental obligations was not the conduct that "led to the destruction of the parent-child relationship." The superior court's conclusion that A.M.'s disregard of his parental responsibilities led to the destruction of his parent-child relationship is not supported by substantial evidence and is therefore clearly erroneous. C. Inability to Provide Care The State alternatively contends that the superior court's order terminating A.M.'s parental rights based on the CINA status of his children can be affirmed even if the court's finding of abandonment cannot be sustained. The State points out that, given A.M.'s disregard of his parental responsibilities, he clearly lacked the ability to provide his children with care. The State argues that, for this reason, A.M.'s children could properly be adjudicated children in need of aid under AS 47.10.010(a)(2)(A), regardless of whether A.M.'s conduct amounted to abandonment. The State's argument is to a certain extent plausible. Abandonment is but one way of establishing CINA status under AS 47.10.010(a)(2)(A) for purposes of terminating-parental rights. Subsection (a)(2)(A) also applies when no parent, guardian, custodian, or relative is willing and able to provide care. See In the Matter of J.L.F., 828 P.2d at 170. Unlike abandonment, proof of parental inability to provide care does not require a showing that the parent-child relationship has been destroyed. The superior court found that, in disregarding his parental responsibilities to his children, A.M., in effect, failed in "his obligation to provide for their physical, emotional, mental and social needs." This finding is arguably tantamount to a finding of A.M.'s inability to care for his children, since "care" has been defined as providing "for the physical, emotional, mental, and social needs of the child." AS 47.10.990(1); In the Matter of J.L.F., 828 P.2d at 169. As we have indicated in discussing the issue of parental disregard, there. is substantial evidence in the record to support this finding. Nevertheless, the superior court did not expressly conclude that A.M.'s children were in need of aid under AS 47.10.010(a)(2)(A) due to A.M.'s inability to provide for their care. Instead, the court based its finding of CINA status on the conclusion that A.M. had abandoned the children, a conclusion we have found to be clearly erroneous. More significantly, we have made it clear that, "[w]hile a finding of inability to care would be grounds for jurisdiction under subsection (a)(2)(A), that finding must also extend to any relatives who are in fact caring for or willing to assume care." In the Matter of J.L.F., 828 P.2d at 170. Here, even if we were to construe the finding of parental disregard that the superior court made in connection with the abandonment issue as an implied finding of inability to provide care, the superior court failed to enter findings on a material element of inability: the lack of any relatives caring or willing to provide care. See id. at 170 & n. 11. We accordingly conclude that the superior court's finding of CINA status cannot be affirmed on the alternative ground of inability to provide care. We therefore find it necessary to vacate the disputed termination order and to remand this case for further consideration of the issue of inability to provide care. D. Remaining Substantive Issues Although the challenged termination order must be vacated, we think it necessary to address the remaining substantive issues raised by A.M. in order to clarify the posture of the case on remand. 1. The Likelihood of AM.'s Conduct Continuing To justify, termination of parental rights following a child's CINA adjudication, the State must prove by clear and convincing evidence that the child is a child in need of aid "as a result of parental conduct" and that the conduct "is likely to continue to exist." AS 47.10.080(c)(3); see also CINA Rule 18(c)(1); Nada A., 660 P.2d at 440. In the present case, after concluding that M.M. and S.M. were children in need of aid as a result of AM.'s conduct, the superior court found that [A.M.] is highly likely to continue to abuse drugs and alcohol, to commit crimes (especially assaultive crimes in the context of domestic disputes and sexual offenses against children, but also property crimes given his extensive criminal record, his lack of success in substance abuse treatment, his poor prognosis for sexual offender treatment, his failure even to obtain anger management counseling, and his charaeterological problems). These express findings are supported by evidence in the record. Although A.M. points to contrary evidence that he presented, it is not this court's job to reweigh the evidence when the record provides clear support for the superior court's ruling. Our review of the record convinces us that the superior court's ruling is not clearly erroneous. We emphasize that just as incarceration is not conduct under a physical abandonment theory, see supra note 5, neither is incarceration itself "parental conduct" within the meaning of AS 47.10.080(c)(3). Thus, while long-term incarceration of a parent can result in a child becoming a child in need of aid under AS 47.10.010(a)(2)(A) under an inability to provide care theory, such incarceration is not a sufficient basis to justify termination of parental rights under AS 47.10.080(c)(3). In this case we understand that the trial court did not rely on AM.'s long-term incarceration, but on his continuing serious criminal and anti-social conduct. 2. Likelihood of Physical and Emotional Harm if AM.'s Rights are Not Terminated As a prerequisite to termination of parental rights under ICWA § 102(f), 25 U.S.C. § 1912(f) (1988), and Alaska Child in Need of Ad Rule 18(c)(2), the State must prove be-' yond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. a. Physical Harm The superior court specifically found, beyond a reasonable doubt, that A.M.'s daughter was likely to suffer sexual abuse if placed in his custody; that both children were likely to suffer physical abuse resulting from AM.'s domestic violence; and that both were likely to suffer physical deprivation due to A.M.'s inability to meet their needs on a consistent, ongoing basis. A.M. argues that the State failed to allege the likelihood of future physical harm and that the evidence it presented failed to prove such harm beyond a reasonable doubt. Ait's first argument is mistaken. The State's petition expressly alleged that the children would be "at risk of sexual abuse, physical harm, neglect or abandonment due to substance abuse or criminal behavior leading to further incarceration" unless A.M. completed a long-term treatment program for sexual offenders and reversed his longstanding personality traits and behavioral trends. A.M.'s second argument is unpersuasive. The superior court's findings on the issue of future physical harm are amply supported by the record. b. Emotional Harm AM. claims that it was error for the superior court to consider, in assessing the likelihood of emotional harm in the event of a return of custody to him, factors such as the prolonged separation that would inevitably occur before the restoration of custody and the need, in the interim, to assure the stability of the bonds the children had formed with their "psychological parent." A.M. contends that these considerations are irrelevant to whether the children would suffer emotional damage if they returned to him. It is true that mere evidence that a willing custodian other than the parent would do a better job than the parent does not in itself suffice to support a finding of likely emotional harm. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,593 (Bureau of Indian Affairs, Dep't of the Interior 1979). But the close ties the children enjoyed to their foster mother and the effects A.M.'s prolonged separation would likely have on their mental health if eventually returned could properly be considered as relevant evidence bearing on the issue of likely emotional harm. Three expert witnesses addressed this subject and their testimony supports the court's findings. The superior court was not clearly erroneous in finding that continued custody by A.M. would likely cause the children serious emotional harm. 3. Active Remedial Efforts by the State Under ICWA § 102(d), before parental rights may be terminated, the State has the burden of showing by a preponderance of the evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d) (1988); see also CINA Rule 18(c)(2); K.N. v. State, 856 P.2d 468, 476 (Alaska 1993). The superior court found that DFYS had "made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of this family but those efforts have proved unsuccessful.... " In the superior court's view, the State had done everything "feasible given [AM.'s] incarceration status_" In reaching this conclusion, the court observed that "[A.M.] has expressed a willingness and desire to undergo sex offender treatment while incarcerated, but substantial doubt on the motivation of that expressed willingness was raised by the State's expert witnesses. The court concludes that Mr. [A.M.] is not sincerely interested in changing his deviant sexual behavior...." The extent of active efforts the State must make on behalf of a parent whose access to remedial assistance is hampered by incarceration is an issue that remains largely unresolved. The State does not deny that the "reunification plan" it formulated for A.M. could not realistically be attained given his imprisonment and that DFYS personnel generally failed to intervene actively on A.M.'s behalf to assure that prison officials enrolled A.M. in suitable institutional programs. The State simply claims that, by preparing a reunification plan and encouraging A.M. to seek services available within the institution, it fulfilled its duty of making active efforts to provide remedial services. To the extent the State's argument suggests that this court create an exception to ICWA's requirement of active remedial efforts for eases in which rehabilitation is doubtful and in which active remedial efforts would be "unreasonably" costly or time-consuming, the suggestion seems unjustified. We have held that no judicial exception to ICWA can be created. A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982). Neither incarceration nor doubtful prospects for rehabilitation will relieve the State of its duty under ICWA to make active remedial efforts. This does not mean that a parent's incarceration is wholly irrelevant to the scope of active remedial efforts the State is required to undertake. The circumstances surrounding a parent's incarceration may have a direct bearing on what active remedial efforts are possible. In the present case, for example, it would be difficult to conclude that the practical obstacles posed by A.M.'s incarceration — the difficulty of providing resources to inmates generally, the unavailability of specific resources in A.M.'s ease, and the length of time A.M. will remain incarcerated — are factors that the superior court was barred from considering when it decided whether the State had made active remedial efforts. Likewise, we have recently noted that, for purposes of determining the sufficiency of the State's remedial efforts, the superior court may properly consider a parent's demonstrated lack of willingness to participate in treatment. See K.N., 856 P.2d at 477. Case law in other jurisdictions appears to be in accord with this general view. See Matter of Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1254 (App.1991); Matter of M.E.M., 209 Mont. 192, 679 P.2d 1241, 1244 (1984); State ex rel. Juvenile Dep't of Multnomah County v. Woodruff, 108 Or.App. 352, 816 P.2d 623, 626 (1991). In this regard, however, a note of caution is necessary. The foregoing cases involve parents who actively refused to participate in or cooperate with treatment efforts; these cases support the general proposition that, once active remedial efforts have been undertaken, a parent's actual resistance to or rejection of assistance may properly be .considered in determining whether additional efforts were required. We have never suggested that the scope of the State's duty to make active remedial efforts should be affected by a parent's motivation or prognosis before remedial efforts have commenced. To vary the scope of the State's ICWA duty based on subjective, pre-intervention criteria such as a parent's motivation or treatment prognosis might defeat the purpose of the active remedial effort requirement, for it would enable the State to argue, in all doubtful and difficult cases, that it had no duty to make active remedial efforts. In the present case, the superior court's finding of compliance with the ICWA requirement presents a close question, particularly because the court's assessment of the active efforts that the State should have made was apparently influenced by its perception that, despite his avowed willingness to participate in treatment, A.M. had made no genuine commitment to rehabilitation and his prospects for rehabilitation were poor. Since we must in any event remand this case for reconsideration on the issue of inability to provide care, we believe it appropriate to require that the superior court also reconsider the issue of ICWA compliance in light of the factors outlined in this opinion. In addressing the issue on remand, the court should allow the parties to present updated information concerning any treatment A.M. may have received since the court's initial ruling. III. PROCEDURAL ISSUES In addition to his substantive arguments, A.M. raises two procedural issues that call for only brief discussion. A. Denial of Bifurcation Prior to his hearing, A.M. moved for bifurcation, seeking to have the adjudicative phase, in which the court determines whether the children are in need of aid under AS 47.10.010, heard before the dispositional phase, in which the court determines whether the requirements for termination have been met under AS 47.10.080(c). The superi- or court denied this motion. A.M. contends that the failure to bifurcate amounted to an abuse of discretion and violated his right to due process. We find no merit to this argument. Although the adjudicative and dispositional phases of children's proceedings are typically-heard separately, CINA Rule 18(b) expressly makes joinder of the two phases a matter of discretion for the superior court: Upon a showing of good cause and with adequate notice to the parties, an adjudication hearing and a termination hearing may be consolidated. Here, a significant amount of the evidence presented below was relevant to, and could have been admitted at, both phases of the termination proceeding. Because A.M.'s children had been in foster care for a lengthy period of time prior to the filing of the petition for termination, the evidence on the issue of disposition was well developed prior to the CINA adjudication, and A.M. received ample notice of the State's claims. A.M. has failed to point to any specific circumstances indicating an abuse of discretion by the superior court. He has also failed to cite any authority supporting the proposition that bifurcation is per se necessary to satisfy the requirements of procedural due process. Finally, A.M. has failed to make a convincing showing of prejudice. The superior court did not abuse its discretion in failing to bifurcate the termination trial. B. Absence of the Guardian Ad Litem A.M. additionally claims error because the children's guardian ad litem did not attend the termination trial. A.M. failed to raise this issue below; consequently, we review only for plain error. Plain error exists when an error affects substantial rights and is obviously prejudicial. R.C. v. State, 760 P.2d 501, 505 n. 14 (Alaska 1988). Because the report of the guardian ad litem favored termination of parental rights and because the guardian's absence enabled A.M. to ensure that the report would not be admitted as evidence, there appears to be a strong possibility that A.M.'s failure to object below amounted to a sound tactical choice. In any event, given the guardian's position favoring termination, the guardian's absence cannot be characterized as "obviously prejudicial." Id. The record discloses no plain error. IV. CONCLUSION The superior court's finding of abandonment was clearly erroneous; this error requires that the order of August 6, 1993, terminating A.M.'s parental rights be vacated. A remand is necessary, however, for further proceedings to determine whether A.M.'s children should be adjudicated CINA due to A.M.'s inability to provide care and, if so, whether termination of parental rights is warranted under that theory. On remand, the superior court should also reconsider whether the State has complied with ICWA's requirement of active remedial efforts. Accordingly, the order terminating A.M.'s parental rights is VACATED, and this case is REMANDED for further proceedings consistent herewith. . DFYS did not seek to terminate S.L.S.'s parental rights at that time. . Although the State petitioned only to terminate A.M.'s parental rights and did not request termination of S.L.S.'s parental rights, Judge Carpene-ti's August 6, 1993, order purported to terminate the parental rights of both parents. S.L.S. did not contest Judge Carpeneti's order and, on November 23, 1993, executed a voluntary relinquishment of her parental rights. Hence, the propriety of the court's order with respect to S.L.S. is now moot. . In alleging that M.M. and S.M. were children in need of aid for purposes of termination, the State did not attempt to rely on A.M.'s stipulation to the original, October 23, 1990, CINA petition. . Alaska Statute 47.10.010(a)(2) specifies that the court may order the State to assume custody of a minor who is found to be a child in need of aid as a result of (A) the child . having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by (i) both parents!;] (C) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent . or the failure of the parent . adequately to supervise the child; (D) the child having been, or being in imminent and substantial danger of being, sexually abused . by the child's parent .; (F) the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent. . We have previously suggested that incarceration cannot in itself constitute physical abandonment because it does not involve willful conduct. See Nada A., 660 P.2d at 439; see also E.J.S., 754 P.2d at 752 n. 4; In re B.J., 530 P.2d at 750 n. 12. However, wc have never suggested that willful conduct that results in incarceration cannot be considered in determining disregard of parental obligations in the abandonment context. See E.J.S., 754 P.2d at 752 n. 4; Nada A., 660 P.2d at 441 (Compton, J., concurring). . By way of illustration, the present case stands in sharp contrast to the circumstances in which we recently found destruction of the parent-child relationship in E.J.S., 754 P.2d at 751. There, testimony showed that the child, L.M.S., had virtually no exposure to her natural father since infancy; that she considered her stepfather to be her natural father; that L.M.S. had only recently discovered that her stepfather was not her real father; that even then L.M.S. never asked for detail about her natural father; and that no psychological bond or familial relationship at all existed between L.M.S. and her natural father. . In this regard, the Findings and Conclusions entered by the superior court are somewhat ambiguous. As a conclusion of law, the court stated that "[t]he disregard shown by [A.M.] .for [his] parental obligations has led to the destruction of the parent-child relationship_" In reaching this conclusion, the court, recognizing the decision in Nada A., indicated that it had considered "all of the past conduct" of A.M., but not the "mere fact of his incarceration...." This legal conclusion suggests a predicate factual determination that A.M.'s pre-arrest conduct caused the destruction of the parent-child relationship. However, the superior court's findings of fact do not draw any specific connection between A.M.'s pre-incarceration conduct and the destruction of his parent-child relationship. On this issue, the findings of fact merely state that A.M. is not the psychological parent of M.M. and S.M. and that their current foster mother "fills the role in their lives of psychological foster parent. Accordingly, the parent-child relationship between [A.M.] and [M.M.] and between [A.M.] and [S.M.] has been destroyed." This finding suggests that, in the court's view, it was A.M.'s replacement by the foster parent rather than his pre-incarceration disregard of parental obligations that destroyed the parent-child relationship. As we have pointed out in the text of this opinion, this latter theory of destruction is the only one that finds substantial support in the evidence. . Indeed, A.M.'s incarceration is not the type of willful act upon which abandonment may be based. Nada A., 660 P.2d at 439. The State nevertheless invites us to hold that A.M. was incarcerated as a result of his voluntary acts, that his incarceration was a foreseeable consequence of his misconduct, that the inability to provide for his children resulting from A.M.'s incarceration is therefore a result of his voluntary conduct, and that, in this sense, A.M.'s parent-child relationship has been destroyed by his pre-incarceration disregard of his parental duties. In support of this theory, the State cites a number of cases that liken voluntary criminal acts to acts of abandonment. See, e.g., Hutson v. Haggard, 475 S.W.2d 330, 333 (Tex.App.1971); In re Dobbs, 12 Wash.App. 676, 531 P.2d 303 (1975). The State's theory is essentially the same theory addressed by Justice Compton's concurrence in Nada A., 660 P.2d at 441. The gist of Justice Compton's Nada A. concurrence, however, was that termination of parental rights under this theory was impermissible under the statutory framework then in existence. Justice Compton urged the legislature to amend Alaska law to allow termination under this theory. Id. The statutory framework in existence when Nada A. was decided remains essentially unchanged, despite the concurring opinion. We decline the State's invitation to adopt this theory in the absence of a statutory change. . The conduct that led the court to find parental disregard — and, arguably, by extension, inability to provide care — consisted of A.M.'s substance abuse, violence, excessive mobility, and criminal acts, including A.M.'s sexual abuse of his stepdaughter. Notably, in A.H. v. State, 779 P.2d 1229, 1232 (Alaska 1989), this court indicated that a continuation of CINA status could in part be justified by the children's unwillingness and inability to live with a parent who was imprisoned for sexual abuse. . It is the State's burden to prove that there are no suitable relatives. In the Matter of J.L.F., 828 P.2d at 170 n. 11. We note that the superior court's finding of abandonment and its order terminating A.M.'s parental rights also extended to S.L.S., the mother of the children. Hence, any implicit finding of inability to provide care obviously extended to S.L.S., who has not contested the court's ruling. . The court's findings enumerate DFYS's efforts. These included monitoring A.M.'s care of the children before he was incarcerated; facilitating monthly visits at jail (under the court's order); facilitating daily telephone contacts at first, eventually dropping to weekly telephone contacts; and promulgating a reunification plan in October 1991, while A.M. was imprisoned, which was "centered around completing whatever sex offender treatment was needed (and obtaining an in-depth psychological evaluation to determine appropriate treatment) and completing appropriate alcohol/drug abuse treatment." . The "active efforts" required by ICWA have not been defined. According to one authority, "[t]he distinguishing word in the remedial services and rehabilitative programs' section is the word 'active.'" Craig J. Dorsay, The Indian Child Welfare Act and Laws Affecting Indian Juveniles Manual 157 (1984). Dorsay quotes one of ICWA's drafters, who distinguishes between active and passive rehabilitative and remedial efforts: Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts, the intent of the drafters of the Act, is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rather than requiring that a client find a job, acquire new housing, and terminate a relationship with what is perceived to be a boyfriend who is a bad influence, the Indian Child Welfare Act would require that the caseworker help the client develop job and parenting skills necessary to retain custody of her child. Id. at 157-58.

10347281

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, Charles Keen, and Karen Keen, Appellants, v. JUNEAU EMPIRE, Appellee

Mount Juneau Enterprises, Inc. v. Juneau Empire

1995-03-17

No. S-5651

829

841

891 P.2d 829

891

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

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

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, Charles Keen, and Karen Keen, Appellants, v. JUNEAU EMPIRE, Appellee.

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, Charles Keen, and Karen Keen, Appellants, v. JUNEAU EMPIRE, Appellee. No. S-5651. Supreme Court of Alaska. March 17, 1995. Rehearing Denied April 18, 1995. Phillip Paul Weidner, Weidner & Associates, Inc., Anchorage, for appellants. L. Merrill Lowden and E. Budd Simpson, Birch, Horton, Bittner & Cherot, Juneau, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

7377

45794

OPINION RABINOWITZ, Justice. I. INTRODUCTION Mount Juneau Enterprises, Alaska Trams, Inc., Arnt I. Antonsen, Charles Keen and Karen Keen (collectively Mount Juneau Enterprises) sued the Juneau Empire, contending that two of the newspapers articles libeled them. Mount Juneau Enterprises challenges the superior court's dismissal of its libel action following the court's grant of the Juneau Empire's summary judgment motion as to whether Charles Keen was a public figure and whether the Juneau Empire acted with actual malice. Mount Juneau Enterprises also challenges the superior court's award of attorney's fees to the Juneau Empire. II. FACTS AND PROCEEDINGS Alaska Trams, Inc. (Alaska Trams) and Mount Juneau Enterprises joined together to build a tramway from downtown Juneau to the top of Mount Juneau. Charles Keen was president of Alaska Trams, and had financial interests in both Alaska Trams and Mount Juneau Enterprises. In 1989, Keen, his wife, and the two corporations purchased property for the tramway project from the City and Borough of Juneau (City). In addition, the corporations obtained a building permit from the City for construction of the tramway. As of September 1990, Alaska Trams was in bankruptcy but was seeking to reorganize and be taken out of bankruptcy, and to obtain financing for the project. On September 12, 1990, the Juneau Empire published an article by reporter Jeanine Pohl under the headline "Trustee Deals Blow to Tramway Project." Several statements from this article are at issue in this litigation: Another blow has been dealt to developer Chuck Keen's plans to build a tramway to the top of Mount Juneau. The trustee for the U.S. Bankruptcy Court in Anchorage has recommended that the assets of Keen's Alaska Trams Corp. be declared bankrupt and liquidated. The corporation filed for protection from creditors under bankruptcy laws in 1986. In a court filing last week, bankruptcy court adviser Barbara Franklin said, "There are no prospects for rehabilitation" of the corporation. Franklin said Keen has been unable to reorganize his company even with protection, and that he has not filed court-required financial statements or plans to reorganize and get out of bankruptcy. Efforts by Keen to conduct business through Mount Juneau Enterprises are another reason to force Alaska Trams into liquidation bankruptcy, Franklin said in her motion before the bankruptcy court. Franklin said Keen's effort to use Mount Juneau Enterprises for construction of the tramway terminal is a breach of trust to his creditors. In addition to lack of plans for financial reorganization, Franklin said "the assets of the estate continue to diminish while the expenses of administration continue to increase." Franklin's motion also alleges that Keen transferred property out of the bankruptcy estate without court approval. In an opposition filed against Franklin's motion, Keen denied transferring land on South Franklin Street to Reliable Transfer Corp. He said Alaska Trams was merely accommodating a neighboring property owner who was trying to clear a land title. According to Keen, progress other than construction has been made on the tram. "Continual efforts are being made to obtain financing for the entire project, with some apparent success," he told the court in his filing. His opposition to Franklin's motion includes a copy of a letter of intent for financing of up to $36 million from a Zurich, Switzerland-based investment company — if Alaska Trams comes up with $95,-000 for a feasibility study of the project. Pohl asserted that she relied upon several sources when preparing the bankruptcy article. She spoke with the City's municipal attorney. In addition, the municipal attorney gave her a copy of a liquidation motion which two insurance companies had filed in the bankruptcy proceedings. She also relied upon a joinder to the insurers' motion, filed by the attorney-advisor to the United States Trustee, for the material attributed to Barbara Franklin. The article contained some minor inaccuracies. The joinder motion identifies Barbara Franklin as the attorney-advisor to the United States Trustee, not a "bankruptcy court advisor" as the article identifies her. The article also stated that Keen had filed his opposition to Franklin's joinder motion, but actually this opposition was to the insurers' motion. On September 13, 1990, the Juneau Empire published another article by Pohl that discussed a charge by Keen's counsel that Franklin's joinder motion contained incorrect allegations. The article called Franklin the "trustee," but corrected the September 12 statement that Keen's opposition was to Franklin's report. On May 14, 1991, an article by Pohl was published under the headline "Goose's Gooey Death." The article discussed a goose that allegedly flew into an abandoned oil tank on Keen's property and landed in sticky fuel residue: An abandoned oil tank on South Franklin Street with more than 60,000 gallons of gooey fuel still inside has killed a young goose, and a state environmental official says property owner Chuck Keen has promised to begin cleaning up the site within a week. A collapsed roof over the fuel tank . allowed the bird to enter the tank and land in the sticky fuel.... Juneau Raptor Center volunteer Linda Kline said a neighbor told her about the goose Saturday after some children saw it fly into the tank.... She found the bird . and took it home to try to wash off some of the oil. She then took the bird to another raptor center volunteer, who washed it again Sunday afternoon. Later the goose tried to preen itself, "and oil just started pouring out." The bird died a short time later, Kline said today. Keen refused comment today on the tank. In the case of the goose death, Keen could be in violation of the federal Migratory Bird Treaty Act — a felony offense, said U.S. Fish and Wildlife Service biologist Deb Rudis. The act makes it a felony to kill migratory birds intentionally or accidentally by poisoning, hunting or an oil spill. This article also contained'some inaccuracies. As the Juneau Empire admits, any alleged violation of the Migratory Bird Treaty Act on Keen's part would only be a misdemeanor, not a felony. See 16 U.S.C. § 703, 707(a) (1988). In addition, Alaska Trams, and not Keen himself, owned the abandoned tank. And finally, though Keen refused to discuss the "gooey goose" matter with Pohl because he considered her biased against him and the tramway project, he was willing to talk with any other reporter from the Juneau Empire. In June 1991, Mount Juneau Enterprises filed a libel suit against the Juneau Empire. The complaint alleged that the accounts of Franklin's motion in the bankruptcy matter and the "gooey goose" incident defamed Mount Juneau Enterprises, Alaska Trams, and Keen himself, and that the newspaper acted with malice and negligence in publishing them. Count Fourteen of the complaint alleged that the newspaper "has on many occasions including but not limited to the newspaper articles dated September 12, 199[0] and May 14,1991 caused to be printed false stories with malicious intent to impede the tramway project and to defame the reputation of the tramway project, [its] financial supporters and the Keen family." The Juneau Empire subsequently moved for summary judgment. The Juneau Empire supported its motion with an affidavit from Pohl in which she stated that the articles accurately and fairly conveyed the statements in the documents that she researched and the persons whom she interviewed. In her affidavit Pohl also stated that she neither entertained any doubt that the interviewees for the "gooey goose" article were truthful nor intended to hinder the tramway project by publishing the articles. The superior court granted the Juneau Empire's motion. Determining that Keen was a public figure, the superior court applied the actual malice test as set out in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The superior court concluded that Mount Juneau Enterprises presented no genuine issue of material fact as to whether the Juneau Empire knew its publications to be false or acted with reckless disregard as to their truthfulness. Though the superior court stated that the articles of September 12, 1990 and May 14, 1991 were at issue, the only alleged inaccuracy that it discussed was the misidentifi-cation of the bankruptcy advisor in the September 12 article. The Juneau Empire then filed a motion for attorney's fees pursuant to Alaska Civil Rule 82. The Juneau Empire claimed that it had incurred a total of $52,084.50 in attorney's fees, and supported its motion with an extensive itemization of expenses. Mount Juneau Enterprises opposed the motion contending that it was a public interest litigant and should not be subject to an award of full fees. Mount Juneau Enterprises subsequently moved for an extension of time to file a further opposition as to the alleged inflated figures of the Juneau Empire's bill for attorney's fees. The superior court issued a memorandum opinion that denied the motion for additional time, rejected Mount Juneau Enterprises' public interest litigant arguments, and awarded the Juneau Empire 60% of its total claimed attorney's fees, or $31,250.70. Mount Juneau Enterprises subsequently moved for reconsideration, and thereby expanded upon its contention that counsel for the Juneau Empire had unreasonably inflated the billing in this case. In March 1993 the superior court issued a final judgment pursuant to Alaska Civil Rule 54(b) dismissing Mount Juneau Enterprises' complaint against the Juneau Empire with prejudice. In April 1993 the superior court issued a final attorney's fee order which sustained its original award to the Juneau Empire. This appeal followed. III. DISCUSSION Mount Juneau Enterprises raises three principal arguments on appeal: (1) that the superior court erred in granting the Juneau Empire's summary judgment motion as to whether Keen was a public figure; (2) that the superior court erred in granting the Juneau Empire's summary judgment motion as to whether the statements at issue were made with actual malice; and (3) that the superior court erred in basing its attorney's fee award on the inflated billings of the Juneau Empire's counsel. A. Standard of Review When reviewing a grant of summary judgment, this court determines whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Zeman v. Lufthansa German Airlines, 699 P.2d 1274,1280 (Alaska 1985). All reasonable inferences of fact from the proffered evidence must be drawn against the moving party and in favor of the non-moving party. Id. Because the actual malice test is subjective, this court must determine "whether there is a genuine issue of material fact on whether, [the defendant] entertained serious doubts as to the truth of the statements." Moffatt, 751 P.2d at 944; accord Beard v. Baum, 796 P.2d 1344, 1353 (Alaska 1990). As to the award of attorney's fees, this court will reverse an award of attorney's fees under Alaska Civil Rule 82 only if the superior court abused its discretion. Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 766 (Alaska 1992). An abuse of discretion exists only upon a showing that the award was arbitrary, capricious, manifestly unreasonable, or the result of an improper motive. Id. at 766-67. B. The Applicability of the Actual Malice Standard In New York Times Co. v. Sullivan, the Supreme Court held that the First Amendment of the U.S. Constitution restricts a state's power "to award damages for libel in actions brought by public officials against critics of their official conduct." 376 U.S. at 283, 84 S.Ct. at 727. In order to recover damages for a purportedly defamatory publication related to his official conduct, a public official must prove "that the statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80, 84 S.Ct. at 725-26. The Supreme Court emphasized the chilling effect that common law libel rules would have on the free exchange of ideas: A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.... Under such a rule, would-be critics of official conduct may be deterred from voicing then' criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. Id. at 279, 84 S.Ct. at 725. To this effect, the Supreme Court reasoned that "erroneous statement is inevitable in free debate, and . must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . to survive.' " Id. at 271-72, 84 S.Ct. at 721-22. In Curnis Publishing Co. v. Butts, the Supreme Court extended the New York Times protections to public figures as well as public officials. 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967). However, if the defamation plaintiff is a private individual, then states may apply their own standard of liability so long as they do not impose liability without fault. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974). Thus, if Keen is a public figure, he must prove actual malice in order to recover against the Juneau Empire for libel. This court must therefore determine whether the superior court erred in concluding that Keen was a public figure. 1. The Public Figure Test In Geytz, the Supreme Court described public figures as follows: For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Id. at 345, 94 S.Ct. at 3009. The Supreme Court further elaborated regarding public figures as follows: That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. Id. at 351, 94 S.Ct. at 3012. On several occasions, we have applied the Gertz public figure test to require application of the actual malice standard in Alaska defamation cases. Beard, 796 P.2d at 1353-54; Rybachek v. Sutton, 761 P.2d 1013, 1014 (Alaska 1988) (per curiam) (holding that a newspaper columnist who regularly discussed natural resource and mining issues was a public figure within the limited range of those issues); Moffatt, 751 P.2d at 941. 2. The Burden of Proof Mount Juneau Enterprises contends that the Juneau Empire failed to meet its burden of proof on the public figure issue. The Restatement (Second) of Torts § 580A (1977), which adopts the New York Times standard of liability for defamation of public officials or public figures, includes a comment on distinguishing public figures from private individuals: The question of whether a plaintiff is a public official or a public figure . is one of law, not of fact, though the facts on which the determination is to be made may be in dispute and therefore subject to the determination of the fact finder. Where the burden of proof lies as to these facts has not been settled. Id. cmt. c. Emphasizing the comment's remarks in regard to the uncertainty as to the burden of proof and the fact finder's role where facts are in dispute, but without citing to any other case authority, Mount Juneau Enterprises contends that the Juneau Empire should bear the burden of proving that Keen was a public figure because the Juneau Empire seeks the special constitutional protection of the New York Times standard. Mount Juneau Enterprises also contends that the Juneau Empire, as the party moving for summary judgment, raised no evidence establishing an absence of genuine issues of material fact on the public figure issue. Mount Juneau Enterprises is mistaken. The U.S. Supreme Court has stated that "as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show [a defamation plaintiff] to be a 'public official.' " Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966). The nearly universal rule is that determination of public figure status is a question of law for the court to determine. E.g., Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.) (en bane), cert. denied, 484 U.S. 870, 108 S.Ct. 200, 98 L.Ed.2d 151 (1987); Rebozo v. Washington Post Co., 637 F.2d 375, 379 (5th Cir.), cert. denied, 454 U.S. 964, 102 S.Ct. 504, 70 L.Ed.2d 379, 454 U.S. 964, 102 S.Ct. 505, 70 L.Ed.2d 379 (1981); Reader's Digest Ass'n, Inc. v. Superior Court, 37 Cal.3d 244, 208 Cal.Rptr. 137, 141-42, 690 P.2d 610, 614-15 (1984), cert. denied, 478 U.S. 1009, 106 S.Ct. 3307, 92 L.Ed.2d 720 (1986); Knudsen v. Kansas Gas & Elec. Co., 248 Kan. 469, 807 P.2d 71, 78 (1991); Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 785 n. 7 (1979) (holding that public figure status is a question for the court when the facts are undisputed); see also Williams v. Pasma, 202 Mont. 66, 656 P.2d 212, 214-15 (1982) (repudiating earlier Montana authority that had held public figure status to present a jury question under state constitution), cert. denied, 461 U.S. 945, 103 S.Ct. 2122, 77 L.Ed.2d 1302 (1983). But see Note, Defining a Public Controversy in the Constitutional Law of Defamation, 69 Va.L.Rev. 931, 943-44 & n. 75 (1983) (observing that the U.S. Supreme Court has not expressly addressed the burden of proof in the public figure determination, and suggesting the possibility that the defendant could have this burden). We have held that an evidentiary hearing may sometimes be required in order to determine whether an individual is a public figure, but such a determination may be resolved on summary judgment if the facts relating to public figure status are uncontro-verted. Rybachek, 761 P.2d at 1014; accord Rebozo, 637 F.2d at 379; see also Rosanova v. Playboy Enter., 580 F.2d 859, 862 (5th Cir.1978) ("[Wjhere undisputed facts admit to but one conclusion, then, on motion for summary judgment, the court properly decides the issue."). In the case at bar, the facts underlying the superior court's public figure analysis were not disputed. Mount Juneau Enterprises acknowledged in the complaint that it sought to build a tramway, sought City approval for the project, and attempted numerous real property transactions with the City in order to obtain land for the project. The dispute in this appeal pertains not to the validity of these facts but to the legal conclusion that the superior court derived from them. Because no genuine issue of material fact existed, the only issue for the superior court to address was whether the Juneau Empire was entitled to summary judgment as a matter of law. 3. Keen's Public Figure Status as to the Bankruptcy Article According to Mount Juneau Enterprises, the efforts of Alaska Trams to obtain building permits for the tramway were merely those of "a private party . trying to build a project which requires building permits, such as that required by any other private building project." Mount Juneau Enterprises contends that by this action Keen did not inject himself into any public controversy and thus did not become a public figure. The superior court rejected this argument: [Tjhis tram project has been going on in the City and Borough of Juneau for a long time. It has involved a lot of public comment, pro and con. There have been a number of hearings. Mr. Keen . has been in the forefront of the efforts to get the tram project both financed and the necessary permits for it. A public controversy is not simply a matter of interest to the public, but rather "a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way." Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980); see also Tavoulareas, 817 F.2d at 772-73. In order to have voluntarily injected himself or herself into the controversy, the defamation plaintiff "either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution." Waldbaum, 627 F.2d at 1297; see also Laurence H. Tribe, American Constitutional Law § 12-13, at 881-82 (2d ed. 1988). Our prior opinions in which defamation plaintiffs were held to be public figures all fit within these guidelines. See Beard, 796 P.2d at 1353 (holding that former employee of state transportation department who brought allegations of departmental corruption to public attention was a public figure as to his job performance given his charges that his termination resulted from his whistle-blowing activities and not from job performance); Rybachek, 761 P.2d at 1014 (holding that newspaper columnist on natural resource and mining issues injected herself into public controversy on those issues); Moffatt, 751 P.2d at 941 (holding that candidate for state medical board voluntarily placed herself in position of public attention and comment given the strong public interest in a board appointee's qualifications). Under the above analysis, Keen is a public figure. As the complaint itself alleges, pursuant to the tramway project Alaska Trams purchased property from the City, sought building permits for the tramway, and negotiated ordinances to facilitate a property trade with the City. In this fashion, Keen, in his capacities as president of Alaska Trams and a principal investor in the entity, voluntarily sought public approval of the ambitious tramway project. See Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 8-9, 90 S.Ct. 1537, 1538-40, 26 L.Ed.2d 6 (1970) (holding that real estate developer who was "deeply involved in the development" of the community was a public figure in regard to allegedly defamatory articles on his efforts to obtain a zoning variance and to negotiate land trade with the city). Furthermore, Keen conceded in his opposition to summary judgment that the tramway project was a matter of public concern. Therefore, we hold that the superior court did not err in concluding that Keen was a public figure. 4. The "Gooey Goose" Article and Freedom of Expression on Matters of Public Interest Mount Juneau Enterprises also argues that because the superior court offered explicit findings only as to the bankruptcy article of September 12,1990, a remand is necessary for an additional determination on Keen's public figure status concerning the "gooey goose" article of May 14, 1991. Mount Juneau Enterprises is mistaken. Pursuant to this court's defamation decisions the public figure test is not the only route to application of the actual malice standard. We further protect the free exchange of ideas by applying the actual malice standard to publications on issues of public interest and concern, even if the defamation plaintiff is not a public figure: On the one hand there is the interest in safeguarding the right to one's reputation. On the other hand there is the interest in allowing freedom of debate and expression on public questions and issues. We believe that a fair balance of these competing interests is achieved where the law of defamation permits one, without liability for damages, to comment, criticize and pass judgment on statements made by another on an issue or matter of public interest, even if such comment, criticism and judg ment involves misstatements of fact — so long as such misstatements are relevant to the subject matter spoken or written about by the one claiming to be defamed and are not shown by him to have been made with actual malice. Pearson v. Fairbanks Publishing Co., 413 P.2d 711, 713 (Alaska 1966); see also Gay v. Williams, 486 F.Supp. 12, 16-17 (D.Alaska 1979); Schneider v. Pay'N Save Corp., 723 P.2d 619, 623-24 (Alaska 1986); Doe v. Alaska Superior Court, 721 P.2d 617, 627-28 (Alaska 1986); West v. Northern Publishing Co., 487 P.2d 1304, 1305-06 (Alaska 1971). Assuming arguendo that Keen was not a public figure for the purposes of the "gooey goose" article, the actual malice standard applies nonetheless, because the subject of the article concerned matters of public interest. Keen does not dispute that the property on which the oil tank was located was originally purchased for the purpose of the tramway project. In addition, cleanup of the hazardous materials on the site poses an additional issue of public interest. Therefore, under the Pearson test, we hold that the actual malice standard applies to the "gooey goose" article, and that this issue need not be remanded to the superior court for additional findings. C. Liability of the Juneau Empire Under the Actual Malice Standard Mount Juneau Enterprises further contends that genuine issues of material fact existed as to whether the Juneau Empire acted with malice in publishing the articles of September 12, 1990 and May 14, 1991. This contention may be divided into two subargu-ments: that the superior court improperly placed excessive reliance on Pohl's testimony, and that the superior court failed to consider the Juneau Empire's failure to publish retractions. In order to show a defendant's reckless disregard for truth or falsity of published material, the plaintiff in a defamation case must present "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); accord Moffatt, 751 P.2d at 941-42; see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511, 111 S.Ct. 2419, 2430, 115 L.Ed.2d 447 (1991). Accordingly, application of the actual malice standard focuses on the defendant's subjective intent. See Moffatt, 751 P.2d at 944; Green, 655 P.2d at 742. The superior court correctly concluded that neither Pohl nor anyone else from the Juneau Empire acknowledged any reason to doubt the truth of what they printed. On appeal, Mount Juneau Enterprises offers no record evidence that any member of the Juneau Empire staff subjectively entertained any doubt as to the truthfulness of the articles at issue. Instead, Mount Juneau Enterprises points to perceived inadequacies in the Juneau Empire's preparation of the articles: [TJhere was evidence adduced before the court through the deposition testimony that Jeanine Pohl only reported one side of the issue; that Jeanine Pohl relied primarily upon people with ulterior motives or bias against the appellants; that Jeanine Pohl was not ever told by anyone at The Juneau Empire to check her facts before writing stories; that she conducted a grossly inadequate investigation; that she was given this assignment despite a lack of training or understanding of legal matters; that she assumes without question, whatever people tell her is "true"; that there was no rush or deadline on this case, and thus no reason for failing to adequately investigate and ascertain the true facts before publishing the article.... Assuming arguendo that these contentions are true, they alone do not establish actual malice. Failure to make a prior investigation into the accuracy of published' statements does not itself "constitute[ ] proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not." Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85, 88 S.Ct. 197, 199-200, 19 L.Ed.2d 248 (1967); accord St. Amant, 390 U.S. at 733, 88 S.Ct. at 1326; Tavoulareas, 817 F.2d at 797-98; see also Gay 486 F.Supp. at 16-17 (declining to find actual malice where local newspaper printed release from national wire service without independent investigation of the article's accuracy). Reckless disregard "is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing." St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325. The U.S. Supreme Court has also stated that "a public figure plaintiff must prove more than an extreme departure from professional standards and that a newspaper's motive in publishing a story — whether to promote an opponent's candidacy or to increase its circulation — cannot provide a sufficient basis for finding actual malice." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562 (1989). One commentator accordingly has concluded that "recklessness may not be- inferred from a publisher's failure to inquire into a matter's truth or falsity, although a responsible reporter might well have inquired." Tribe, supra, § 12-12, at 871. As Mount Juneau Enterprises correctly notes, the testimony of the defendant alone is not always sufficient to establish an absence of actual malice. Mojfatt, 751 P.2d at 941-42 (quoting St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326). However, Mount Juneau Enterprises' reliance on this language is futile. In Mojfatt we articulated a test to determine when the defendant's testimony alone is sufficient to counter a claim of actual malice: The defendant's testimony that he published the statement in good faith should be sufficient to counter a claim of actual malice when (1) the plaintiff has failed to present conflicting evidence, and (2) the circumstances do not indicate that the statement was "fabricated by the defendant, . the product of his imagination, . based wholly on an unverified anonymous telephone call . [or] so inherently improbable that only a reckless man would have put them in circulation." Moffatt, 751 P.2d at 946 (quoting St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326) (alterations in original). Mount Juneau Enterprises presents no evidence indicating that the Juneau Empire fabricated the articles at issue, created them from imagination, based them on an anonymous phone call, or could consider them inherently improbable. Indeed, the circumstances of this case resemble those of Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), the case on which the superior court relied. There, Time magazine, quoting from a report by the U.S. Commission on Civil Rights, described an account of a police detective's purported mistreatment of an African-American resident of Chicago, but failed to indicate that this account was based upon the resident's complaint and not upon the Commission's independent findings. The U.S. Supreme Court declined to find actual malice sufficient to sustain the detective's defamation claim because the magazine's omission of language that would qualify the material as an allegation constituted "the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities." Id. at 290, 91 S.Ct. at 639; see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512-13, 104 S.Ct. 1949, 1966-67, 80 L.Ed.2d 502 (1984). The Supreme Court concluded that to find actual malice in that case would apply a far stricter standard of liability on errors of interpretation than on errors of fact. Pape, 401 U.S. at 290, 91 S.Ct. at 639. Application of such a standard would have created the same concerns of self-censorship that caused the Supreme Court to fashion the New York Times rule: These considerations apply with even greater force to the situation where the alleged libel consists in the claimed misinterpretation of the gist of a lengthy government document. Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of "truth" that would not put the publisher virtually at the mercy of the unguided discretion of a jury. Id. at 291, 91 S.Ct. at 640. Similarly, one of Mount Juneau Enterprises' principal complaints is that Pohl misidentified Barbara Franklin, the attorney-advisor to the U.S. Trustee in the Alaska Trams bankruptcy proceeding, as the bankruptcy trustee. However, Franklin's motion paper work presents her title in such a fashion that a lay person could easily misconstrue the term "United States Trustee" to mean "bankruptcy trustee." Pape's holding was designed to protect publishers who make minor mistakes in construing documents that because of their ambiguity could be misconstrued by lay persons. The misidentifieation of Franklin is one of those mistakes. Therefore, we hold that the superior court's determination that there was no genuine issue of material fact as to whether the articles were published with actual malice should be sustained. Mount Juneau Enterprises also contends that the Juneau Empire's failure to retract raised an inference of actual malice which precluded summary judgment. We disagree. If a refusal to retract alone created a genuine issue of fact, then a defamation plaintiff could avoid, summary judgment by making a self-serving demand to retract before filing suit, and the possibility of summary judgment in a defamation case would be virtually nonexistent. Mount Juneau Enterprises' reliance on Golden Bear Distributing Systems of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944 (5th Cir.1983), and Holbrook v. Casazza, 204 Conn. 336, 528 A.2d 774 (1987), cert, denied, 484 U.S. 1006, 108 S.Ct. 699, 98 L.Ed.2d 651 (1988), is not helpful here. As the Juneau Empire correctly notes, both cases "involved a plaintiff who was accused of wrongdoing in terms sufficiently factual to be susceptible of being proved true or false, who demonstrated to the publisher the falsity of the publication, yet the publisher refused to retract." See Golden Bear, 708 F.2d at 950; Holbrook, 528 A.2d at 780. Golden Bear involved a magazine article that impliedly imputed to the plaintiff firm the fraud of a different company, with the same name, located in another state. 708 F.2d at 946-47. Furthermore, the refusal to retract occurred in circumstances where other evidence clearly indicated actual malice: The defendants knew at the time of publication that specific facts were false. Id. at 950. Holbrook involved a defendant's refusal to retract an accusation of wrongdoing against the plaintiff, even after the plaintiff obtained a second official exoneration of the purported improprieties. 528 A.2d at 780. By contrast, the material of concern to Mount Juneau Enterprises merely reproduced or paraphrased the statements of third parties, and did not embrace the positions of those individuals. In sum, Mount Juneau Enterprises did not present evidence of actual malice sufficient to create a genuine issue of material fact and thus survive the Juneau Empire's motion for summary judgment both as to the bankruptcy article and the "gooey goose" article. We thus conclude that the superior court properly granted summary judgment in favor of the Juneau Empire on this issue. D. The Award of Attorney's Fees Finally, Mount Juneau Enterprises contends that the superior court's award of 60% of attorney's fees was improper. There are two prongs to this argument: that the superior court improperly punished Mount Juneau Enterprises for conducting discovery, and that counsel for the Juneau Empire had inflated the total bill from which the partial fee award was calculated. The superior court held that much of the Juneau Empire's bill for legal services stemmed from the time required for the extensive discovery on which Mount Juneau Enterprises insisted: In this case, the issues were not particularly complex, and plaintiffs claim was never particularly strong. Nevertheless, plaintiff insisted on a lengthy continuance and a significant amount of discovery (which was of minimal assistance in resolving the summary judgment issue). Thus a significant amount of the Empire's fees is the result of plaintiffs own conduct. As a sort of benchmark, this court considers 50% of attorney fees as a good place to start.... In this case, attorney fees at 60% of the amount billed . are reasonable given the unreasonable discovery undertaken by plaintiffs on the summary judgment motion. Mount Juneau Enterprises does not directly challenge the determination that discovery was unreasonable, but instead contends, without citation to authority, that the voluminous discovery in this case was necessary given the difficulty that a defamation plaintiff has in meeting the New York Times actual malice standard. This contention does not raise an abuse of discretion by the superior court because such an argument does not adequately address the finding that most of the discovery in this case was unnecessary. Furthermore, Mount Juneau Enterprises offers little support for the argument that the Juneau Empire's attorneys inflated their bills. Essentially, Mount Juneau Enterprises argues that the portion of the attorneys' time taken up with discovery was not excessive, invites this court to speculate on the amount of legal research that the Juneau Empire's counsel had to perform in order to prepare this ease, and implies that conferences among the firm's attorneys are not a proper part of the research process. None of these arguments have merit, nor do they point to an abuse of discretion on the superi- or court's part. Therefore, we affirm the award of attorney's fees. rv. CONCLUSION Because Keen is a public figure, at a minimum for the purpose of the bankruptcy article of September 12, 1990, and because both the article of September 12, 1990 and the "gooey goose" article of May 14, 1991 addressed matters of public interest and concern, we hold that the actual malice standard applies. Furthermore, we hold that Mount Juneau Enterprises failed to present evidence of actual malice at the summary judgment stage as to either the bankruptcy article or the "gooey goose" article. Finally, we hold that the superior court's award of attorney's fees to the Juneau Empire was not an abuse of discretion. AFFIRMED. . In its briefing before this court, Mount Juneau Enterprises cites extensively to Keen's affidavit and to correspondence between Keen and his attorney at the time that the September 12, 1990 article was published. The Juneau Empire argues that the correspondence and the affidavit contain inadmissible hearsay statements which cannot be relied upon to oppose summary judgment. We agree. We do not consider any hearsay statements by Keen or Keen's attorney for the truth of the matter. See Broderick v. King's Way Assembly of God, 808 P.2d 1211, 1215, 1218 (Alaska 1991) (inadmissible hearsay assertions cannot be used either to oppose or support a motion for summary judgment). Mount Juneau Enterprises' contention that the Juneau Empire failed to object to this evidence is without merit. At the summary judgment stage, the Juneau Empire expressly objected both to the correspondence between Keen and his lawyer and to the Keen affidavit's hearsay accounts of alleged statements by Linda Kline and Deb Rudis. . The complaint also included claims against the City which stemmed from its alleged abandonment of commitments to exchange real property with Mount Juneau Enterprises, to avoid inter fering with the tramway project, and to deal in good faith with the project's financial backers. These claims are not at issue in this appeal. . The affidavit also contains a statement that Pohl obtained information for the September 12, 1990 bankruptcy article solely from the insurers' liquidation motion. In October 1991, after her deposition testimony, Pohl filed a supplemental affidavit in which she stated that she obtained information for the September 12, 1990 bankruptcy article not only from the insurers' motion but also from Franklin's joinder motion. Pohl did not otherwise change the substance of her earlier affidavit. . While the federal courts grant summary judgment in libel cases only where the plaintiff has shown actual malice by clear and convincing evidence or where no reasonable jury could find such actual malice was present, this court continues to apply the standard of review for summary judgment motions pursuant to Alaska Civil Rule 56(c). Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988) (declining to incorporate the applicable substantive evidentiary standard into this state's summary judgment practice). It is somewhat harder for a libel defendant to win summary judgment in Alaska state courts using the "no genuine issue of material fact" standard than it is in federal court. Id. at 944. . As applied to the states through the Fourteenth Amendment, the First Amendment prohibits any law "abridging the freedom of speech, or of the press." U.S. Const. amend. I; cf. Alaska Const, art. I, § 5 ("Every person may freely speak, write, and publish on all subjects, being responsible for abuse of that right."). .A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. See Restatement (Second) of Torts § 559 (1977); Green v. Northern Publishing Co., 655 P.2d 736, 742 (Alaska 1982), cert. denied, 463 U.S. 1208, 103 S.Ct. 3539, 77 L.Ed.2d 1389 (1983). . The absence of analysis regarding the burden of proof in public figure determinations has been attributed to the fact that courts treat this question as one of law. Note, supra, at 944 n. 76. . In its appellate brief. Mount Juneau Enterprises cites to Pohl's deposition testimony that she considered Keen and Alaska Trams to be interchangeable, and also notes that the May 1991 "gooey goose" article inaccurately named Keen, not Alaska Trams, as the owner of the oil tank. However, Mount Juneau Enterprises does not argue that Keen avoided public figure status merely by pursuing his business venture through the corporate form. . In support of its argument that the allegedly defamed parties were not public figures, Mount Juneau Enterprises relies upon Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976). The Firestone court held that a prominent socialite's judicial divorce proceedings did not make her a public figure, in part because she had no choice but to resort to the courts in order to obtain the divorce. Id. at 454-55, 96 S.Ct. at 965-66. Mount Juneau Enterprises contends that similarly, neither Alaska Trams' bankruptcy proceedings nor its efforts to obtain required building permits from the City make Keen a public figure. Firestone is distinguishable. The Firestone court held that judicial dissolution of a marriage did not constitute the sort of public controversy that mandated treating the spouses as public figures. Id. Contrary to the implication of Mount Juneau Enterprises, Firestone did not create a bright-line rule erasing an individual's public figure status merely because he or she was required to participate in government proceedings. Cf. Tribe, supra, § 12-13, at 881 (proposing that the reasoning for Firestone is not so much the fact that people must use courts to get divorces as that "the Firestone majority decided that gossip about the rich and famous is not a matter of legitimate public interest"). . The "gooey goose" article doesn't accuse Keen of committing a felony. It does contain a ' mistaken statement by a third party that the accidental killing, by oil contamination, of migratory birds was a felony under the Migratory Bird Treaty Act. A lay person could reasonably rely on a U.S. Fish and Wildlife Service biologist's statement that a potential felony offense was implicated under the Act. . Mount Juneau Enterprises in part relies on the panel decision in Tavoulareas v. Piro, 763 F.2d 1472 (D.C.Cir.1985) to support this argument. The Tavoulareas panel decision is not persuasive authority. The Circuit for the District of Columbia subsequently granted rehearing of this case en banc, id. at 1481, vacated the panel decision, id., and issued a new opinion rejecting the analysis of the panel. See Tavoulareas v. Piro, 817 F.2d 762 (D.C.Cir.1987) (en banc). .In the alternative, the Juneau Empire contends that the articles at issue enjoyed immunity under the "neutral reportage" doctrine, were constitutionally protected opinion, or were incapable of defamatory interpretation. Additionally, the Juneau Empire argues that the bankruptcy article enjoyed an absolute privilege for the truthful reporting of judicial proceedings. In light of our disposition of this case, we need not reach these other issues. Although we do note that the bankruptcy article in question here is in essence truthful.

10347171

Timothy STROTHER, Appellant, v. STATE of Alaska, Appellee

Strother v. State

1995-03-03

Nos. A-4827, A-4857

214

228

891 P.2d 214

891

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

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

Timothy STROTHER, Appellant, v. STATE of Alaska, Appellee.

Timothy STROTHER, Appellant, v. STATE of Alaska, Appellee. Nos. A-4827, A-4857. Court of Appeals of Alaska. March 3, 1995. Hearing Denied June 2, 1995. Jacalyn L. Bachlet, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant. Eric A. Johnson, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. . "A person commits child abduction when, with intent to violate a court order awarding custody of a child to another, he or she ... removes the child from Illinois without the consent of the person lawfully having custody of the child[.]” Illinois Revised Statute 1991, ch. 38, para. 10-5(b)(1).

8673

52548

OPINION MANNHEIMER, Judge. Timothy Strother appeals his conviction for first-degree custodial interference, AS 11.41.320(a). We affirm. On May 11, 1992, at an ex parte hearing, Evangeline Strother obtained a 20-day domestic violence restraining order against her husband Timothy Strother. See AS 25.35.020. (Ms. Strother told the court that she and her husband had had an altercation in which he had repeatedly slammed her head against his knee and against the dashboard of their car.) The restraining order gave Ms. Strother exclusive custody of the couple's child, A.S. District Court Judge Peter Ashman, the judicial officer who presided at the hearing, notified Ms. Strother that a second hearing would be held on May 26, 1992 to determine whether her custody of A.S. should be extended for 90 days under AS 25.35.010. The next day (May 12, 1992), Timothy Strother requested a hearing to contest Judge Ashman's issuance of the 20-day restraining order, and particularly the portion of that order that gave Ms. Strother exclusive custody of A.S. Strother asserted that his wife was an unfit mother; he asked the court to give custody of A.S. to his mother and grandmother. Both Mr. and Ms. Strother appeared in court on May 13, 1992. The court denied Mr. Strother's request to modify the custody order. At the same time, the court notified him that a further hearing would be held on May 26 to determine whether Ms. Strother's custody of A.S. should be extended for another 90 days. Evangeline Strother appeared for the hearing on May 26, but Timothy Strother did not. Mr. Strother had left the state of Alaska, although he remained in telephonic contact with his wife. Judge Ashman extended Ms. Strother's custody of A.S. for an additional 90 days. At the conclusion of the hearing, the court provided Ms. Strother with a copy of this 90-day custody order. On May 28, 1992, the clerk's office mailed two copies of the 90-day custody order to Mr. Strother, one by regular mail and one by certified mail. On June 4,1992, the proof-of-service receipt attached to the certified letter was returned unsigned and undelivered. On July 4,1992, Strother returned to Alaska, flying into Anchorage sometime before 11:00 p.m.. He drove to his mother's house in Palmer and picked up A.S., who was spending the night there. With A.S. in tow, Strother drove back to Anchorage and boarded a red-eye flight to an out-of-state destination. The next day (July 5), Ms. Strother came to her mother-in-law's house to retrieve A.S.. Her mother-in-law told her that Strother had taken the child to Montana and that he had left behind two letters for her. In those letters, Strother told his wife that she would never see him or A.S. again. Later that day, Ms. Strother informed the police that her husband had taken A.S. in violation of a court order. Through a friend, Ms. Strother supplied the police with a copy of Judge Ash-man's 90-day custody order. Strother maintained telephonic contact with his wife even after July 4, 1992, although he refused to divulge his location or the location of their child. Strother's mother, Sheila Byington, acted as the go-between for the couple, telling Ms. Strother when to expect a call from Strother. Eventually, the police traced one of Strother's telephone calls, discovering that it originated in Rapid City, South Dakota. Working with the authorities, Ms. Strother arranged to meet her husband at the Rapid City airport on August 18, 1992; there, agents of the Federal Bureau of Investigation arrested Strother. Strother was subsequently returned to Alaska to stand trial for first-degree custodial interference, AS 11.41.320(a). Ms. Strother apparently reconciled with her husband before trial, for she proved to be a cooperative witness for the defense. Previously, at grand jury, Ms. Strother had testified that she was the exclusive custodian of A.S. under the 90-day domestic violence order and that Strother had taken the child without her permission.' She also had testified that Strother knew of the 90-day custody order when he took A.S. from Alaska because she had personally told him about the order. However, at Strother's trial, Ms. Strother stated that she herself had been unaware of the existence of the 90-day custody order. Ms. Strother asserted that she could not remember attending the May 26 hearing and could not remember ever receiving a copy of the 90-day order. She testified that she told her husband that the judge had declined to grant the order. Alaska law provides two degrees of custodial interference. The basic elements of the crime are defined in the second-degree custodial interference statute, AS 11.41.330. The crime becomes first-degree custodial interference "if the [defendant] violates AS 11.41.330 and causes the victim to be removed from the state". AS 11.41.320(a). Strother conceded that he removed his daughter from Alaska. Thus, the dispute at Strother's trial centered upon the remaining elements of the crime — the ones found in the second-degree custodial interference statute, AS 11.41.330(a). The pertinent portion of this statute provides: A person commits the crime of 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. For purposes of this statute, the term "relative" includes a parent, and the term "lawful custodian" means "a parent, guardian, or other person responsible by authority of law for the care, custody, or control of another". AS 11.41.370(l)-(2). In her instructions to Strother's jury, Superior Court Judge Beverly Cutler informed the jury that, to prove the crime of custodial interference, the State had to establish: [4] [that Strother] took, enticed, or kept A.S. from a lawful custodian, to wit: Evangeline Strother; [5] [that Strother] intended to hold A.S. for a protracted period of time; [and] [6] [that Strother] knew he had no legal right to take A.S. from Evangeline Strother for a protracted period of time[.] Elaborating on this definition of the elements of the crime, the court instructed the jury: A parent is prohibited by law from taking a child away from the other parent with the intent to keep the child for a protracted period of time to the exclusion of the other parent. Only a judicial order depriving a parent of custody permits a parent to deprive the other parent of the joint custody of the child. As to element six ., this element can be proved either by the state proving . that the defendant "knew" [as defined in AS 11.81.900(a)(2) ] there was a custody order in effect giving temporary custody of A.S. to Eve Strother, or by the state proving . that the defendant knew his taking and keeping of A.S. was without legal authority. Relying on his wife's testimony, Strother argued that he was never informed of the 90-day custody order issued on May 26, 1992. He contended that, as far as he knew, he remained a joint custodian of A.S. and he retained the legal right to take his child where he wished. Thus, Strother asserted that even if the 90-day custody order did in fact temporarily end his legal right to exercise custody over A.S., he nevertheless lacked the culpable mental state for the crime of custodial interference because he remained ignorant of the 90-day order and therefore he did not know that his actions were unlawful. The prosecutor argued that the 90-day custody order was, for the most part, irrelevant. If Strother knew about the 90-day order, then his actions were clearly illegal. However, the prosecutor argued, even if the 90-day order had never been issued (so that Strother and his wife each remained a joint custodian of their child), Strother would still know that he had no right to take the child, flee the state, and keep the child hidden from his wife so that she was no longer able to exercise her right of custody. During their deliberations, the jury sent the court a note indicating that they believed the State had failed to prove that Strother knew of the 90-day custody order; they asked the court to clarify element six: We feel the state did not prove the defendant did in fact have knowledge of the 90-day court order. Is this an issue by itself? Do we need to decide 6.B as . part of 6.A, or on its own merit[?] The jury's question referred to the court's instruction that "element six . can be proved either by [proof] . that the defendant knew there was a custody order in effect giving temporary custody of A.S. to Eve Strother, or by [proof] . that the defendant knew his taking and keeping of A.S. was without legal authority." (emphasis added) In response to the jury's question, Judge Cutler told the jury that they could base their verdict on either theory. Shortly thereafter, the jury found Strother guilty. It therefore appeai-s that the jury relied on the alternative theory presented in the court's instructions: the theory that Strother, even if he was unaware of the 90-day order, was nevertheless aware that he had no legal right to keep A.S. hidden from his wife. On appeal, Strother argues that the jury instructions were fatally flawed to the extent that the instructions allowed the jury to convict Strother even after they found that he was not aware of the 90-day custody order. Strother's argument is directed to two different aspects of the custodial interference statute: the actus reus of the crime and the culpable mental states required to make that actus reus a criminal offense. Strother's argument with respect to the actus reus of the crime begins with the fact that, by law, a child's parents jointly share physical custody of the child unless some judicial event alters this situation. See L.A.M. v. State, 547 P.2d 827, 832 n. 13 (Alaska 1976); Appeal of Maricopa County Juvenile Action, 163 Ariz. 60, 785 P.2d 1248, 1250 (App.1990). Strother contends that, unless a court has taken action to alter a parent's right of physical custody, a parent is always entitled to "take" and "keep" a child from the child's other parent, even if the parent's actions effectively defeat the other parent's right of custody. Traditionally, parents who abducted their children were exempted from such crimes as kidnapping and child-stealing (unless a court had judicially terminated the parent's right of custody). See Annotation, "Kidnapping or Related Offense by Taking or Removing of Child by or under Authority of Parent or One in Loco Parentis", 20 A.L.R.4th 823 (1983), § 3 at 828-830. However, the question of whether Strother's conduct violated Alaska's custodial interference statutes is a question of statutory interpretation and thus of legislative intent. Did the Alaska Legislature intend AS 11.41.320 and AS 11.41.330 to reach the conduct of a parent whose right to physical custody of the child remains undiminished but whose conduct deprives the other parent of his or her right to custody? During the past twenty years, the federal Congress and the state legislatures have focused increasing attention on the problem of child custody disputes and the related problem of child abduction by a parent or other relative. In 1977, the Alaska Legislature enacted the Uniform Child Custody Jurisdiction Act, AS 25.30. The legislature declared that one of the chief purposes of this legislation was to "deter abductions and other unilateral removals of children [by people seeking] to obtain custody awards". Three years later, Congress passed the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. In its accompanying findings and declaration of legislative purpose, Congress found that "parties involved in [child custody] disputes . frequently resort to the seizure, restraint, concealment, and interstate transportation of children". For this reason, Congress found it necessary to "establish a national system for locating parents and children who travel from one [state] to another and are concealed in connection with [child custody] disputes", and to "deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards". Section 7, Public Law 96-611. During the same period as this reformation of child custody laws, the Alaska Legislature was formulating this state's present criminal code. In February 1977, the Criminal Code Revision Subcommission published its tentative draft of the offenses of kidnapping and custodial interference. Under the kidnapping statute drafted by the Subcom-mission, a parent or other relative who abducted a child would not be guilty of kidnapping if the parent or relative's "sole intent [was] to assume control over [the child] and the abduction [was] not coupled with [an] intent to use or threaten . deadly physical force or intent to sexually assault the [child]." However, added the Subcommission, "while the [parent or other relative] has not committed kidnapping, he [or she] may have committed custodial interference". Commentary to "Kidnapping and Related Offenses", Tentative Draft, Vol. 1, pp. 61-62. The Subcommission's draft of the custodial interference statute read as follows: A person commits the crime of custodial interference . if, knowing that he has no legal right to do so, he takes, entices, or keeps a person from his lawful custodian with intent to hold him permanently or for a protracted period. TD 11.41.330, Tentative Draft, Vol. 1, p. 53. The Subcommission declared that this statute was "intended to cover the typical 'child-stealing' committed by a relative", and the Tentative Draft specifically defined "relative" to include a parent. See Commentary Ao "Custodial Interference in the First and Second Degree," Tentative Draft, Yol. 1, p. 62; TD 11.41.370(3). "The language of the [proposed] statute is broad enough to encompass any interference with lawful custody rights by a person having no legal right to do so if [this person] has the intent to hold the person taken for a protracted period." Commentary to TD 11.41.330, Tentative Draft, Vol. 1, pp. 62-63. In addition, the Subcommission specified that the victim of the crime is not only the child but also the custodian who has been deprived of the child's custody: "[The statute] protects] parental custody against all unlawful interruption, even when the child . is a willing, undeceived participant in the attack on this interest of its parent." Tentative Draft, Vol. 1, p. 65 (quoting the Model Penal Code § 212.4, Comments (Tent.Draft No. 11, 1960)). The legislature echoed the Subcommission's comments when it passed the custodial interference statutes, AS 11.41.320 and AS 11.41.330. In its commentary to these two statutes, the legislature declared: [T]he statutes on custodial interference protect "parental custody against all unlawful interruption, even when the child itself is a willing, undeceived participant in the attack on this interest of its parent." Model Penal Code § 212.4, Comments (Tent.Draft No. 11, 1960). The [crime] encompasses any interference with lawful custody rights by a relative acting with the intent to hold the victim for a protracted period. The defendant must know he has no legal right to interfere with the custody of the victim. The statute covers not only child custody situations, but also interference with children in state custody, incompetents or others who are entrusted by law to the custody of another person or institution. 1978 Senate Journal, Vol. II, Supp. No. 47 (June 12), p. 21. We also note that the legislature (again following the Subcommission's proposal) included parents within the group of "relative[s]" whose actions can constitute the crime of custodial interference. See AS 11.41.370(2). This court has not previously addressed the question of whether, between two parents who retain equal right to physical custody of a child, one parent may commit the crime of custodial interference by keeping and concealing a child from the other parent. However, in a case involving parents who did not have equal custody rights, this court recognized that the gist of custodial interference is the defendant's unlawful deprivation of the other parent's right of custody. Wheat v. State, 734 P.2d 1007 (Alaska App. 1987), involved a father who had been awarded periodic physical custody of his child during the summer months. The child's mother (who lived in Alaska), remained the child's primary physical custodian during the remainder of the year. The defendant father took the child to Arizona at the beginning of the summer but then failed to return the child to Alaska in the fall. Prosecuted for custodial interference, the father claimed that he had committed no crime in Alaska. He argued that even though he had unlawfully failed to return the child to its mother, this unlawful act had occurred in Arizona, and therefore Alaska had no jurisdiction over the crime. This court disagreed: [To prove the crime of custodial interference], the state was required to show that, as a direct result of [the defendant's] conduct, [the child's] mother was deprived of the lawful custody of her daughter — in other words, that [the child] was kept "from a lawful custodian." It is this prohibited result, rather than the proscribed conduct per se, that is the gravamen of the offense, and it is precisely this result that occurred in Alaska. Wheat v. State, 734 P.2d at 1010-11 (footnote omitted). The legislative history of AS 11.41.320-330 leads to the conclusion that Alaska's custodial interference statutes were intended to prohibit parents from abducting their children as a means of settling a custody dispute. The crime of custodial interference was designed to protect any custodian from deprivation of his or her custody rights — even if that deprivation results from the actions of a person who also has a right to physical custody of the child. The crime does not focus on the legal status of the defendant, but rather focuses on the defendant's actions, the effect of the defendant's actions, and the intent with which those actions were performed. Other states have reached the same conclusion. In People v. Harrison, 82 Ill.App.3d 530, 37 Ill.Dec. 820, 402 N.E.2d 822 (1980), the defendant was charged with child abduction under Illinois law. When the defendant and his wife were divorced, the court gave primary physical custody of their children to the mother and granted "liberal, reasonable visitation rights" to the defendant. During one of his visitations, the defendant packed his belongings into a bus and fled to Mississippi with the children. Harrison, 37 Ill.Dec. at 821-22, 402 N.E.2d at 823-24. The defendant argued that he could not commit this crime because his right of custody was equal to that of his former wife. The Illinois court disagreed: Custody is a form of guardianship, and joint custody merely reflects the law of Illinois [that] parents have equal powers, rights, and. duties concerning the minor. It therefore follows that neither parent could remove the children without infringing on the powers [and] rights of the other. In our view, even assuming arguendo that there was some form of custody in [the] defendant, there was also custody in another within the meaning of the statute . The remedial purpose of the child abduction statute is so obvious as to need little exegesis on our part. The number of parents who in recent times have seen fit to seize their children . and spirit them off to another jurisdiction has increased dramatically. The legislature quite obviously felt that the civil penalties for such conduct were insufficient. Harrison, 37 Ill.Dec. at 822, 402 N.E.2d at 824 (internal quotations omitted). The Oregon Court of Appeals reached the same result in State v. West, 70 Or.App. 167, 688 P.2d 406 (1984). Like Harrison, West involved a divorced couple; the father was awarded primary physical custody of the child for three days each week (as well as during his vacation), while the mother was awarded primary physical custody at all other times. One day when the father went to pick up the child, he found the mother's apartment empty of all its furniture; the mother had fled with the child. One month later, the mother was located in Missouri; she was arrested and brought back to Oregon. Prosecuted for custodial interference, the mother defended by asserting that it was legally impossible for her to commit the crime because she had been awarded primary physical custody in the divorce. West, 688 P.2d at 407. Oregon's definition- of custodial interference is quite similar to Alaska's. Construing this statute, the Oregon court held that even when each parent retains custody rights over the child, neither parent is authorized to take actions that "infring[e] the powers, rights, and duties of the other". West, 688 P.2d at 408. The court stated: Clearly, the primary focus of the statute is the protection of the rights and interests of the two victims of the offense: the child and the "lawful custodian" from whom the child is "taken, enticed or kept." The focus is not on the legal status of the one who does the taking, enticing or keeping from. When [the] defendant removed the child from [this] state and failed to disclose her whereabouts, she was infringing on the rights . of the father. The emotional and financial costs suffered by him in trying to locate his daughter are among the primary evils that the statute was intended to deter. See Oregon Griminal Code of 1971, Commentary at 129 (1975). To interpret the statute as [the] defendant suggests would clearly be contrary to the parental rights the statute was intended to protect.... [The] defendant cannot rely on her joint custodial status to justify the act of secreting her daughter. West, 688 P.2d at 408 (footnote omitted). See also People v. Morel, 164 A.D.2d 677, 566 N.Y.S.2d 653 (N.Y.App.1991). Strother argues that Harrison and West are not on point because, in each case, a court had issued a decree defining the legal rights of the parents. He argues that a parent who violates the terms of a court decree may be guilty of custodial interference, but, in the absence of a court decree, no parent can violate the statute. We disagree. It is true that the court decrees in Harrison and West altered circumstances by setting out specific periods of time during which each parent would have primary physical custody of the children. However, in both cases, the defendant was not convicted simply because he or she took or kept physical custody of the child beyond the particular hours or days set forth in the court decree. Rather, in each case, the defendant's conviction was based on the fact that the defendant absconded with the child and hid the child from the other parent — thus completely depriving the other parent of his or her right of joint custody. Moreover, courts have upheld convictions for custodial interference even in the absence of a court decree defining the respective custody rights of the two parents. The Arizona Court of Appeals confronted such a case in State v. Donahue, 140 Ariz. 55, 680 P.2d 191 (App.1984). In Donahue, a child had been born out of wedlock to Donald Jones and Edrie Hale. Ms. Hale had physical custody of the child. Jones recruited the defendant Donahue to abduct the child from Hale. When Donahue was prosecuted for custodial interference, she defended by asserting that she had acted as the agent of the child's father. Donahue argued that, since both the child's father (Jones) and the child's mother (Hale) enjoyed co-equal custodial rights, Jones could not be guilty of custodial interference and therefore neither could any person acting on Jones's behalf. Donahue, 680 P.2d at 192. The Arizona court rejected this argument, commenting: Even assuming that Jones had a right to custody of the child, . his right was at most a right to co-equal custody with the child's natural mother. He did not have the right to custody of the child to the exclusion of the mother, in the absence of a court order to that effect. The surreptitious actions of [Donahue] and her cohorts in snatching the child and absconding with their possessions first to Nevada and then California support the inference that [Donahue] knowingly deprived the mother of her right to custody and that [Donahue] knew or had reason to know that she had no legal right to do so. The evidence is sufficient to support a conviction for custodial interference. Donahue, 680 P.2d at 193. The same result was reached by a Delaware superior court in State v. Todd, 509 A.2d 1112 (Del.Super.1986). Todd and a woman named Porter lived together and had a child out of wedlock; when they later separated, Porter assumed primary care of the child, but Todd continued to visit the child periodically. Todd offered to take care of the child over a weekend. Instead of returning the child to Porter when the weekend was over, Todd fled with the child to Texas. Todd, 509 A.2d at 1113. He was caught and charged with custodial interference. Todd argued that, "as [the child's] natural father, [and] absent a valid custody order to the contrary, his right of physical custody [was] equal to the mother's", and therefore he could not be guilty of custodial interference. Todd, 509 A.2d at 1113. The Delaware court rejected Todd's construction of the statute, declaring that "this view would . permit[ ] — indeed, encourag[e] — parents to engage in the type of reprehensible conduct which this defendant father unabashedly admits." Id. at 1114. The judge wrote: It is clear that the provisions of [Delaware law] delineate rights and responsibili ties between natural parents [even] where no valid custody order exists. Indeed, it has been recognized that a court order of joint custody may effect no different status in fact or in law than would exist in the absence of a court order. I simply cannot accept the proposition that the legislature intended that children and their [natural] parents who are joint custodians [in the absence of any court order] should not have the protection of the criminal justice system vis a vis the proscription of the custodial interference statute. In the case sub judice, therefore, the mother had equal rights . with respect to [the couple's daughter]. When the father absconded with [the child] to Texas he infringed on the rights . of the mother. I am satisfied [that] a parent, absent any valid custody order to the contrary, has no legal right to take a child into his or her own exclusive physical .:. custody to the exclusion of the other parent's lawful custodial rights. Todd, 509 A.2d at 1115-16. Based on our examination of the legislative history of AS 11.41.320-330, and based on the general development of the law in this area (as exemplified by the cases cited above), we conclude that Alaska's custodial interference statutes embody the rule that, when a child is entrusted to joint custodians, neither custodian may take exclusive physical custody of the child in a manner that defeats the rights of the other joint custodian. However, when the defendant is a joint custodian of the child, the actus reus of the crime must be examined with care. AS 11.41.330(a) declares that a parent or other relative of a child commits the crime of custodial interference if knowing that [he or she] has no legal right to do so, the defendant takes, entices, or keeps that child . from a lawful custodian and the defendant performs this act with intent to hold the child . for a protracted period. The first and third of these elements are culpable mental states; they specify what the defendant must know about his or her conduct (that he or she has no legal right to engage in this conduct), and what result the defendant must intend to accomplish by this conduct (holding the child for a protracted period). The second element is the actus reus of the crime — the physical aspect of the offense. The statute uses the phrase "takes, entices, or keeps [a] child . from a lawful custodian" to describe the prohibited act. However, the statute also requires the State to prove that the defendant performed this act with knowledge that he or she "ha[d] no legal right to do so". Thus, the statute implicitly requires proof that the defendant's taking, enticing, or keeping of the child was itself unlawful. That is, the actus reus of the crime is the act of taking, enticing, or keeping a child from a lawful custodian with "no legal right to do so". As defined in AS 11.41.370(2), a child's "relatives" include the child's stepparents, aunts and uncles, siblings, and all other ancestors besides the child's parents, whether related by blood, marriage, or adoption. These relatives have no right to physical custody of the child unless a court affirmatively gives them custody. If such a relative were to "take" or "entice" the child from a lawful custodian, the very act of taking or enticing would exceed the relative's legal authority. The situation is different, however, when the relative at issue is the child's parent. Until a court orders otherwise, each parent has a right to physical custody of the child. So long as a parent shares physical custody of the child, a parent does not exceed his or her legal rights by merely "taking" the child from another lawful custodian or by merely "enticing" the child to leave the custody of another lawful custodian. (We leave aside instances in which one parent forcibly takes a child from the custody of the other parent.) Back-and-forth shifting of physical custody is normal in a joint custody situation. When parents are joint custodians of a child, they repeatedly take exclusive physical control of the child on a temporary basis for any number of reasons. A parent may drive the child to school or to other activities, may take the child to a movie or to a restaurant, or may travel with the child to distant destinations. A parent who remains a joint custodian can take the child away from home — even outside the state — without violating the custodial interference statutes, because such an act generally does not deprive the other joint custodian of his or her custody rights. A parent's act of peaceably taking sole physical possession of a child does not exceed the parent's legal authority (does not infringe the custody rights of the other lawful custodian) unless the parent also performs other acts that alter the act of taking, converting it into conduct that defeats the custody rights of the other custodian. In the words of the custodial interference statute, this concept is expressed by the act of "keeping". The former crimes of larceny and embezzlement offer an analogy to this concept. At common law, larceny was a theft committed when a defendant unlawfully took possession of another person's property and appropriated it to his or her own use. To prove larceny, the government not only had to prove that the defendant intended to use someone else's property for purposes inconsistent with'the owner's rights, but also had to prove that the defendant had no right to take possession of the property — that the defendant committed a trespass by the very act of laying hands on the property. The statutory crime of embezzlement was enacted to deal with thefts committed by people who were entitled to possess the property (the property owner's employees and agents). Embezzlement was committed if the defendant came into possession of the property lawfully but then used the property in ways that defeated the owner's rights. Similarly, if two parents are jointly entitled to physical custody of a child, each has the right to assume temporary exclusive custody. Normally, a parent commits no "trespass" by peaceably taking physical custody of the child. But if a parent takes custody of the child and exercises that custody in a manner that defeats the custody rights of the other parent, unlawfully "keeping" the child from the other parent, then the parent's conduct constitutes the actus reus of custodial interference. When Strother took his daughter from his mother's home, he acted without his wife's knowledge but he took custody of the child peaceably. Therefore, assuming the jury found that Strother was unaware of the 90-day custody order, Strother's mere act of "taking" the child was within his legal authority and did not constitute the actus reus of custodial interference. However, immediately afterward, Strother engaged in acts that undeniably defeated his wife's co-extensive right of custody. He removed the child to another state; he left two letters telling his wife that she would never again see either him or their daughter; and for several weeks he was successful in keeping both his own whereabouts and the child's whereabouts hidden from his wife and the authorities. We conclude that this conduct was sufficient to constitute the actus reus of the offense of custodial interference: the keeping of A.S. with "no legal right to do so". The jury instructions in this case are somewhat ambiguous on the issue of what conduct constituted the actus reus of the offense. As explained above, the jury was told that the crime required proof that Strother "took, enticed, or kept A.S." from his wife. In explanation of this element, the jury was told that "[a] parent is prohibited by law from taking a child away from the other parent with the intent to keep the child for a protracted period of time to the exclusion of the other parent." (emphasis added) The problem with this latter segment of the instructions is that it apparently authorized the jury to convict Strother merely upon proof that (1) he "took" A.S. and (2) he intended to perform further acts that would have defeated his wife's right of custody. This is not sufficient proof of actus reus. As we construe AS 11.41.330(a), a parent must perform acts that actually defeat the other parent's right of custody, and the parent must perform this actus reus with the specified culpable mental states: (1) knowledge that he or she has no legal right to engage in these acts, and (2) an accompanying intent to keep the child for a protracted period of time. If Strother's custody of A.S. never actually infringed his wife's right to custody, then he could not be convicted of custodial interference regardless of his bad intentions. (Under such circumstances, he might be guilty of an attempt, but not the completed crime.) However, from our examination of the instructions as a whole, it appears that the court used the terms "take" and "keep" interchangeably. For instance, when defining the sixth element of the crime, the court told the jurors that the State had to prove that Strother "knew he had no legal right to take A.S. from Evangeline Strother for a protracted period of time In this phrase, "take . for a protracted period of time", the court was employing the word "take" in the sense of "keep". The court further told the jurors that, to prove element six, they had to find "that the defendant knew his taking and keeping of A.S. was without legal authority". (As explained later in this opinion, Strother expressly assented to the wording of this instruction.) Moreover, the facts of this case leave little room for jury confusion. Strother never seriously contended that his actions were consistent with his wife's right to physical custody of their daughter. It is clear that Strother not only "took" A.S. but also "kept" her in a manner that defeated his wife's custody rights. In arguing this case to the jury, the prosecutor stressed the fact that Strother had not merely assumed physical custody of A.S. but had removed A.S. from Alaska and had hidden the child from her mother, completely cutting off mother from daughter. Under these facts, Strother's conduct uneon-testably constituted the actus reus of custodial interference. Therefore the seed of ambiguity in the jury instructions never germinated into prejudicial error. Strother argues that if Alaska's custodial interference statutes are construed to cover a parent who deprives the other parent of his or her right of joint physical custody, then the statutes are void for vagueness. Strother basically contends that it is unreasonable to expect parents who have simultaneous rights of custody to know the boundaries of their custody rights and to know when one parent's actions would begin to violate the rights of the other parent. Strother relies on a remark by Judge Cutler that "three out of four divorce lawyers might not necessarily agree on whether a person does or does not have the right to do [what Strother did]". Strother asserts that if lawyers could disagree about a statute's meaning, then the statute must surely fail to give adequate notice of what conduct is prohibited. The fact that lawyers might disagree about the meaning of a statute does not mean that the statute is unconstitutionally vague. [T]he fact that people can, in-good faith, litigate the meaning of a statute does not necessarily (or even usually) mean that the statute is so indefinite as to be unconstitutional. The question is whether the statute's meaning is unresolvably confused or ambiguous after it has been subjected to legal analysis. If study of the statute's wording, examination of its legislative history, and reference to other relevant statutes and case law makes the statute's meaning clear, then the statute is constitutional. DeNardo v. State, 819 P.2d 903, 908 (Alaska App.1991) (emphasis in the original). Nevertheless, Strother's point can not be ignored. The actus reus of the custodial interference statutes can be problematical when the defendant is a parent who has custody rights to the child. We acknowledge that there is a potential vagueness in defining the actus reus of the crime in terms of conduct that defeats the other parent's right to custody when there is no court order defining the exact contours of that custody. After a court decree has specified the hours or days of each parent's physical custody of the child, it is fairly easy to identify conduct that infringes another parent's right of custody. But when both parents retain their original, undifferentiated joint right of custody, attempts to specify the actus reus of custodial interference are hampered by an unavoidable degree of imprecision. Difficult cases might be presented by situations in which one parent assumes protracted exclusive physical custody of the child without the other parent's knowledge and perhaps contrary to the other parent's previously expressed wishes. For instance, following a quarrel about the advisability of visiting relatives in another state, one parent might decide to unilaterally resolve the issue by taking the child on the trip and leaving the other parent behind. This parent's action would constitute a prolonged assertion of exclusive physical custody. But, assuming that the parent keeps the child away from home only for the length of a reasonable visit with relatives, one might well question whether this parent has acted in such a way as to defeat the custody rights of the other parent. This and similarly difficult cases may conceivably arise in applying the actus reus of custodial interference to joint custody situations. Nevertheless, "the possibility of difficult or borderline cases will not invalidate a statute where there is a hard core of cases to which the ordinary person would doubtless know the statute unquestionably applies." Holton v. State, 602 P.2d 1228, 1236-37 (Alaska 1979) (quoting Stock v. State, 526 P.2d 3, 9 (Alaska 1974)). Strother's actions of secretly removing and hiding his daughter, keeping the child from his wife and refusing to disclose the child's location, epitomize the conduct that the custodial interference statutes prohibit. If a parent engages in such actions, and if the parent acts with the two culpable mental states required by the custodial interference statutes (knowledge that he or she has no legal right to engage in these actions, and intent to hold the child for a protracted period), then persons of ordinary understanding would have no trouble concluding that the parent has committed the crime of custodial interference as defined in AS 11.41.330(a). Compare Michael v. State, 767 P.2d 193 (Alaska App.1988), overruled on other grounds, Michael v. State, 805 P.2d 371 (Alaska 1991), in which this court held that a parent may be convicted of assault for failing to take action to prevent another person from harming his or her child. The defendant in Michael argued that if the assault statute were construed to impose criminal liability on parents for failure to protect their children, then the statute did not give adequate notice of what conduct was prohibited. This court replied: Reasonable people may differ about the outer boundaries of a parent's duty to protect his or her child from harm, and about the appropriateness of using the criminal law to enforce that duty at or near the outer boundaries.... However, the duty of a parent to protect a child from severe abuse such as occurred in this case is crystal clear. We conclude that the statute is not vague as applied to this case. Michael, 767 P.2d at 199-200 (citations omitted). Under the facts of Strother's case, it was "crystal clear" that Strother lacked any legal right to abduct his daughter and keep her hidden from her mother. For these reasons, we conclude that Alaska's custodial interference statutes are not unconstitutionally vague as applied to Strother. Strother next argues that one of the jury instructions improperly lightened the State's burden of proof by allowing the jury to assume that any person would know that one parent can not abduct and hide a child from the other parent. The jury instructions do not bear out Strother's claim. The court instructed the jury that the State had to prove, beyond a reasonable doubt, that Strother "knew he had no legal right to take A.S. from Evangeline Strother for a protract ed period of time". In his summation, the prosecutor argued that any member of our society would know that a parent has no legal right to abduct a child and keep the child hidden from the other parent. However, the jury instructions clearly required the jury to find, not that this proposition was common knowledge, but rather that Strother himself knew he had no legal right to take his daughter and keep her hidden from his' wife. Strother's secretive abduction of the child, his immediate' flight from Alaska, and his ensuing refusal to reveal his whereabouts or the child's whereabouts are all circumstantial evidence supporting the jury's conclusion that this element of the State's case had been proved beyond a reasonable doubt. In his last argument on' appeal, Strother asserts that the jury instructions contain a fatal ambiguity concerning the culpable mental state needed for the crime. The court's first instruction on the elements of the offense told the jury that one element of custodial interference was that Strother "knew he had no legal right to take A.S. from Evangeline Strother for a protracted period of time", (emphasis added) Strother does not attack this instruction. However, Strother points out that the court's accompanying instruction told the jury that this culpable mental state could be established by proof "that the defendant knew his taking and keeping of A.S. was without legal authority ". Strother asserts that this language incorrectly shifted the burden of proof regarding his knowledge of the possible illegality of his actions. Strother concedes that the first phrase, "knew he had no legal right", correctly states the culpable mental state. However, Strother maintains that the jury might have erroneously interpreted the second phrase, "knew [he acted] without legal authority", to mean that Strother could be convicted merely upon proof that he knew that no court had explicitly given him the authority to take A.S. and keep the child from his wife. In other words, Strother points out that there is a difference between (a) knowing that an action is prohibited and (b) knowing that no one has explicitly authorized the action. The wording that Strother challenges on appeal was drafted by the trial judge during the discussion of jury instructions at Strother's trial. At that time, Strother's attorney explicitly accepted this wording: DEFENSE ATTORNEY: The statute clearly indicates that [the defendant] must have positive knowledge that he does not have the right to take the child. THE COURT: And the Court is going to instruct the jury exactly on that. That he does have to know_ [The defendant] can be guilty if he knew there was the custody order or [if] he knew he didn't have a right to do it even if there wasn't a custody order. But in terms of rewording . this instruction . DEFENSE ATTORNEY: Your Honor, I would be happy . if the [instruction said] he can be guilty if he knew there was a custody order [or] he can be guilty if he didn't know there was a custody order but he knew it was illegal. I think that's clear. [But] I think [the prosecutor's proposed instruction] is not clear.... [T]he way this is explained [in the prosecutor's proposal], it's incredibly confusing. THE COURT: Well, I'm going to respect your opinion, because . I know I get jaded [by repeatedly] hearing the same language.... I can think something is clear when it isn't. So I'm certainly willing to be open-minded to that. I'm . inclined to [alter this instruction to read] "As to element six [of the elements instruction], this element can be proved either by the State proving beyond a reasonable doubt that the Defendant knew there was a custody order in effect giving temporary custody of A.S. to Eve Strother, or by the State proving beyond a reasonable doubt that the defendant knew his taking and keeping of A.S. was without legal authority." I'll repeat [that]. The instruction would read, "As to element six, ." [The Court repeats the proposed language verbatim.] DEFENSE ATTORNEY: I'm satisfied with that. Because Strother explicitly accepted this wording at trial, his appellate attack on this instruction must fail unless he demonstrates plain error. Aviation Associates, Ltd. v. Temsco Helicopters, Inc., 881 P.2d 1127, 1131 (Alaska 1994). In this context, "[p]lain error exists when a jury instruction obviously creates a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice." Id. at 1131 n. 7, quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983). We find no plain error here. The language Strother challenges does not plainly suggest an erroneous definition of the culpable mental state. At most, the phrase "without legal authority", when viewed in isolation, might conceivably create the ambiguity Strother complains of. However, this phrase did not appear in isolation. The court's elements instruction told the jury that Strother had to know that he "had no legal right" to take the child. During his summation to the jury, the prosecutor did not ask the jury to convict Strother under the theory that he knew no court had issued a decree allowing him to take the child. Rather, the prosecutor argued that Strother, as one of two parents who each had custody rights, knew that he had no legal right to keep the child hidden from her mother. Given this record, there was no reasonable possibility that the jury was led astray by the variation in the court's phrasing. The judgement of the superior court is AFFIRMED. . We recognize that the terms "custody" and "custodian" have several legal meanings, depending upon the context in which the terms are used. Strother's appeal involves parents' right to physical custody of their children. This case requires us to interpret the offense of custodial interference in the context of a custody dispute between two parents, neither of whom has been awarded primary physical custody of their child. Thus, when we use the term "custody" in this opinion, we confine our meaning to a parent or guardian's right to physical custody of a child. When we say that one of two parents is a "joint custodian" of a child, we mean that no court has altered the parent's normal right to physical custody of the child by either temporarily or permanently awarding primary physical custody of the child to the other parent or to someone else. . The decisions .in this area repeatedly turn on the particular wording and legislative history of the statute under consideration. For example, Strother cites a single case in support of his argument that a joint custodian can never commit the crime of custodial interference. That case, Cline v. Superior Court, 135 Cal.App.3d 943, 185 Cal.Rptr. 787 (1982), involved a parent charged with child stealing. The California court focused on the fact that the California Legislature, when it enacted the crimes of kidnapping and child stealing, declined to adopt language that would have included parents among those who could commit these crimes. Cline, 185 Cal.Rptr. at 789-790. See also People v. Fields, 101 Mich.App. 287, 300 N.W.2d 548 (1980), aff'd, 413 Mich. 498, 320 N.W.2d 663 (1982) (another case holding that parents were excluded from the scope of a kidnapping statute, the decision explicitly turning on statutory construction). . "A person commits the crime of custodial interference . if, knowing or having reason to know that the person has no legal right to do so, the person takes, entices or keeps another person from the other person's lawful custodian with intent to hold the other person permanently or for a protracted period of time." Oregon Revised Statute 163.245(1). . "The legislative history of the offense [of embezzlement stems from] one large gap in the law of larceny[:] the [common law's] firm position that there is no . larceny without trespass de bonis. Thus a servant who has received money or property for his master . has [lawful] possession!.] [A] conversion by him is without trespass, and therefore not larceny, so an embezzlement statute was passed to cover such a case." Perkins & Boyce, Criminal Law (3rd ed. 1982), ch. 4, sec. 3, p. 353. "[T]he whole purpose of embezzlement is to proscribe certain [thievish] conduct not involving trespass[.]" Id., at 357. . At various points during his closing argument, the prosecutor stated: [Mr. and Ms. Strother] were both lawful custodians. They were both parents [who] had a right to see their child.... Both of them were lawful custodians. Neither one of them had a right to infringe on the rights of the other to the extent of taking that child away and going to Barrow, going to Nome, and hiding out and not disclosing the whereabouts of that child . to the other parent. [Strother had] to know it [was] illegal.... I'll just get right to the point of it — know it [was] prohibited.... Now I suggest to you that, even if [the court had not issued the 90-day] custody order, that you still know that [these actions are] illegal. Not [under] the order, but just by common sense and your understanding of how our society works. In other words, . the law is [that] you can't take a child from the other person and hide out. [Strother] came in that night [and then] left [with the child]. And then he wouldn't say where he was. "You're not going to find me." He's holding the child. It's out of state. "I know I'm wrong. The cops are looking for me," is basically what he's saying. "I'm not going to tell you. You're not [going to] get that child. I know I'm wrong." . You can come to the conclusion [that there] is a substantial probability that he knows it is illegal because of his conduct later.

11902873

Paul A.L. NELSON, Appellant, v. Loretto L. JONES, Appellee

Nelson v. Jones

1997-09-05

No. S-7760

476

481

944 P.2d 476

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Paul A.L. NELSON, Appellant, v. Loretto L. JONES, Appellee.

Paul A.L. NELSON, Appellant, v. Loretto L. JONES, Appellee. No. S-7760. Supreme Court of Alaska. Sept. 5, 1997. Rehearing Denied Oct. 3, 1997. Paul A.L. Nelson, pro se, Haines. Keith B. Levy, Law Offices of Keith B. Levy, Juneau, for Appellee Minor Child. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

2185

13498

OPINION COMPTON, Chief Justice. I. INTRODUCTION This appeal is from the superior court's order denying Paul Nelson's motion to modify child visitation. Nelson contends that the court, by denying all past motions to modify visitation, has effectively terminated his parental rights. Since we conclude that Nelson's parental rights have not been terminated, we affirm the superior court's order. II. FACTS AND PROCEEDINGS Paul Nelson and Loretto Jones had one child during their two-year marriage. After three days of testimony during their divorce trial, they stipulated to issues of custody and visitation. The stipulation provided that "the court finds clear and convincing evidence that [T.] was sexually abused by her father." Asked in open court if he approved the stipulation, Nelson stated, 'Tes . with the understanding that it is not an admission of guilt." The trial court entered a memorandum decision and order which incorporated the stipulation. The court ordered that Nelson have supervised visitation, conditioned upon Nelson's participation in a sex-offender treatment program. Nelson began the program, but refused to admit in therapy that he sexually abused T. Dr. Anthony Mander, the court-appointed therapist, terminated treatment, believing that patients in denial of having committed abuse are untreatable. Jones then refused all further visitation between Nelson and T. In 1987, Nelson moved to enforce visitation rights with T. In denying Nelson's 1987 motion, the trial court observed, "[p]ast experience with [Nelson] shows that he will not follow the rules of supervision, that he will attempt — using counsel when necessary — to overcome and defeat the controls placed upon him by the supervisor." In Nelson's appeal of that denial, we stated, "[Nelson] violated the court's orders by initiating or encouraging physical contact between him and T." Nelson v. Jones, 781 P.2d 964, 969 (Alaska 1989). We concluded that "[e]xpert testimony and [Nelson]'s behavior both suggest that even supervised visitation could be harmful to T. The trial court did not clearly err in concluding that 'the risk of continuing, long lasting emotional harm to T. from contact with Nelson while he remains in denial is too great to be tolerated.' " Id. We also specifically reviewed the trial court's conditioning Nelson's visitation of T. upon his admission that he abused her; we upheld the trial court's order. Id. We concluded that the trial court did not clearly err in concluding that Nelson sexually abused T., and therefore did not abuse its discretion in conditioning supervised visitation on Nelson's participation in sex-offender treatment. Id. at 969-70. Since that appeal, Nelson has filed additional motions to modify visitation. The trial court denied Nelson's next to last motion, because "[n]ot one of the conditions for the renewal of visitation previously set by the trial judge . has even remotely been met." In March 1996, Nelson again moved to modify child visitation. In June, the trial court denied, without hearing, Nelson's motion. Nelson appeals, charging that the cumulative effect of the superior court's orders is a termination of his parental rights. III.DISCUSSION A. Standard of Review Custody issues are reviewed under an abuse of discretion standard. See Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977). "Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily-mandated factors, or im properly weighted certain factors in making its determination." Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982). A trial court's factual findings are reversed only if they are clearly erroneous. See Horutz, 560 P.2d at 399. A finding is clearly erroneous if it leaves the court with "a definite and firm conviction on the entire record that a mistake has been made." City of Hydaburg v. Hydaburg Co-op. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993) (quoting Parker v. Northern Mixing Co., 756 P.2d 881, 891 n. 23 (Alaska 1988)). B. The Trial Court Did Not Exceed Its Jurisdiction and Effectively Terminate Nelson's Parental Rights. Alaska provides for the termination of parental rights only in the context of child in need of aid (CINA) proceedings under AS 47.10.080 and adoption proceedings under AS 25.23.180. See Perry v. Newkirk, 871 P.2d 1150, 1151 (Alaska 1994). Nelson contends that while the trial court never formally terminated his parental rights, it did so in practical effect by depriving him of all visitation with T. for almost ten years. He has repeatedly moved to modify the visitation order, but has been denied each time. He argues that these facts constitute a de facto termination of his parental rights. The gravamen of Nelson's argument is that he is innocent of sexual abuse, and therefore he still may appeal the condition attached to his visitation rights. However, the conditioning of Nelson's visitation on participation in a sex-offender treatment program was addressed in a previous appeal. He may not now raise that issue. In 1987, the trial court found: The court was well aware that the first step — and an absolutely indispensable step — in that treatment is a full admission of the offense and its cause to the treatment provider, the victim, and others directly involved. (Given the . lengthy involvement of experts in this case, Nelson also must have been fully aware of this at ' the time.) • The court had previously terminated Nelson's supervised visitation, pen-dente lite, because of his repeated and increasingly flagrant disregard of the rules governing the visits. And the court perceived no way in which visitation would not be harmful to [T.] until after Nelson had begun an effective course of treatment. In the 1989 appeal, this court reviewed the trial court's decision to condition supervised visitation on Nelson's admitting in therapy his sexual abuse of T. We concluded that it was not an abuse of discretion. We stated: [T]he [trial] court did not err in finding again that [Nelson] had abused his daughter. A more difficult question is whether, in light of its finding of abuse,- the trial court abused its discretion in conditioning further visitation by [Nelson] upon his admission that he abused T_ Though the trial court's order is severe, its severity is justified by the overriding need to protect T. from further harm.... [Nelson] violated the court's orders by initiating or encouraging physical contact between him and T_ Expert testimony and [Nelson]'s behavior both suggest that even supervised visitation could be harmful to T. The trial court did not clearly err in concluding that "the risk of continuing, long lasting emotional harm to T. from contact with Nelson while he remains in denial is too great to be tolerated." Nelson, 781 P.2d at 969. Even though we acknowledged the seriousness of conditioning Nelson's visitation on his admitting the abuse, we still concluded that the condition was not the product of an abuse of discretion. Because Nelson can attempt to reestablish visitation whenever he chooses, by complying with the trial court's conditions, the trial court found that "[o]f course, Nelson's parental rights have not been terminated." We decline to decide whether a court could constructively terminate parental rights in the manner asserted by Nelson, because we conclude that the trial court's restriction on visitation is not, in effect, a termination of Nelson's parental rights. C. The Trial Court Did Not Err by Denying Nelson an Evidentiary Hearing. The trial court is not required to hold a hearing whenever a parent moves for a change in visitation. See Carter v. Brodrick, 816 P.2d 202, 204 (Alaska 1991). "[T]he court has discretion to deny a hearing where no showing has been made of changed circumstances or of an alteration in the best interests of the child." Id. (denying an evi-dentiary hearing where father makes prima facie showing of changed circumstances is an abuse of discretion) (quoting Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981)). "While a trial court must consider all motions for a change in custody, it is not required to grant a hearing on the motion if it is plain that the facts alleged in the moving papers, even if established, would not warrant a change." Id. (quoting Deivert, 628 P.2d at 578). Since no facts are disputed with respect to the child's present desire to see Nelson, there are no factual issues which an evidentiary hearing would flesh out. Based on undisputed facts and the record, there was no change in circumstances which would require inquiry into the best interests of the child. Also, for this reason, no evidentiary hearing was required. D. The Trial Court Used the Standard of the Child's Best Interest in Conditioning Visitation. A court may modify visitation rights if it finds both a change in circumstances and that the modification is in the best interests of the child: An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child. AS 25.20.110(a). In denying Nelson's motion to modify, the trial court determined that "Nelson has already received a hearing on this issue, and the court has determined that the conditions placed on the resumption of visitation between Nelson and T, are in T.'s best interests." We conclude that the court specifically considered the child's best interests, and therefore committed no error. IV. CONCLUSION We conclude that Nelson's parental rights have not been terminated. Also, since it is undisputed that the child continues to oppose visitation, Nelson failed to show the change in circumstances needed to warrant an evi-dentiary hearing. Nelson's other arguments are without merit. The judgment of the superior court is AFFIRMED. . T., bom in 1983, is now 14 years old. . AS 47.10.080(c)(3) provides in part: If the court finds that the minor is a child in need of aid, it shall by order, upon a showing in the adjudication by clear and convincing evidence that there is a child in need of aid . as a result of parental conduct and upon a showing in the disposition by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights, terminate parental rights.... . AS 25.23.180(c) provides in part: "The relationship of parent and child may be terminated by a court order issued in connection with a proceeding under this chapter...." .This directly contradicts Nelson's continued proclamation that "Nelson never got a hearing at which ANYBODY proved that ending visitation served [T.] best interest." In fact, the trial court referred to "lengthy post-judgment eviden-tiary hearings" concerning "Nelson's sexual abuse of his daughter" and "other evidence bearing on Nelson's motions" (including motions regarding Nelson's visitation). . The trial court quoted T.'s counsel in its opinion: The only change in circumstance since the last motion is simply the passage of time.... The minor child still opposes Nelson's motions for modification and other legal actions he purportedly undertakes on her behalf. If the passage of time has any effect, it only serves to emphasize the child's steadfast desire to keep the visitation limitations in effect.... T. is now a teenager and her preferences deserve serious consideration. T. does not want further motions, hearings or orders. T. does not want visitation reinstated. It is T.'s desire that this endless stream of litigation come to an end. (alteration in original). . Nelson raises constitutional first and fifth amendment violations for the first time in his appellate brief, having failed to argue them in his motion to modify visitation. We decline to review these issues. See, e.g., Tommy's Elbow Room, Inc. v. Kavorkian, 754 P.2d 243, 245 n. 7 (Alaska 1988) (holding that argument first raised on appeal will not be addressed). Nelson, as a pro se appellant, is allowed a more lenient standard in his pleadings. See, e.g., Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995) (holding pro se litigants to less stringent standards than lawyers). However, Nelson raised these constitutional claims in federal court in August 1993, showing that he was aware of the issues. Nelson also argues that T.'s constitutional and civil rights are violated as well as his own. It is worth noting that T. opposes all visitation with her father. The trial court rejected Nelson's assertion of T.'s rights: T. is represented by counsel in this proceeding. Counsel for T. has not voiced these concerns; indeed, on behalf of T., she takes the opposite position. In these circumstances, there is no reason to conclude that T.'s rights have been violated by her lack of visitation with plaintiff. T. opposes visitation with plaintiff. . Nelson argues that the trial court did not use the standard of the child's best interest when ordering visitation in 1987. To the extent that the earlier appeal does not directly address the best interests of the child, Nelson is foreclosed from now raising the issue.

10336104

WESTERN ALASKA BUILDING & CONSTRUCTION TRADES COUNCIL, Jerry Smart, Larry Libbey, Richard Guittierez, Willie Sallison, and Linda Machia, and State of Alaska, Department of Labor, Appellants, v. INN-VESTMENT ASSOCIATES OF ALASKA and A & A Construction and Development, Inc., Appellees

Western Alaska Building & Construction Trades Council v. Inn-Vestment Associates of Alaska

1996-01-12

Nos. S-5887, S-5968

330

342

909 P.2d 330

909

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:30:38.468787+00:00

CAP

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

WESTERN ALASKA BUILDING & CONSTRUCTION TRADES COUNCIL, Jerry Smart, Larry Libbey, Richard Guittierez, Willie Sallison, and Linda Machia, and State of Alaska, Department of Labor, Appellants, v. INN-VESTMENT ASSOCIATES OF ALASKA and A & A Construction and Development, Inc., Appellees.

WESTERN ALASKA BUILDING & CONSTRUCTION TRADES COUNCIL, Jerry Smart, Larry Libbey, Richard Guittierez, Willie Sallison, and Linda Machia, and State of Alaska, Department of Labor, Appellants, v. INN-VESTMENT ASSOCIATES OF ALASKA and A & A Construction and Development, Inc., Appellees. Nos. S-5887, S-5968. Supreme Court of Alaska. Jan. 12, 1996. Rehearing Denied Feb. 15, 1996. James A. Gasper and William K. Jermain, Jermain, Dunnagan & Owens, Anchorage, for Appellants Western Alaska Building & Construction Trades Council, Jerry Smart, Larry Libbey, Richard Guittierez, Willie Sallison and Linda Machia. Robert A. Royee, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant State of Alaska, Department of Labor. Robert K. Stewart, Jr., Davis Wright Tre-maine, Anchorage, for Appellees Inn-Vestment Associates of Alaska and A & A Construction and Development, Inc. Before: MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

8008

50110

OPINION COMPTON, Justice. I. INTRODUCTION The Alaska Railroad Corporation (ARRC) entered into a general partnership with pri vate investors, Inn-Vestment Associates of Alaska (IAA). The purpose of IAA was to finance, construct, and maintain the Comfort Inn (Inn) on ARRC land in the Ship Creek area of Anchorage. IAA contracted with A & A Construction and Development, Inc. (A & A) for construction of the Inn. The primary question presented in this ease is whether ARRC's involvement in IAA implicated the provisions of Alaska's Little Davis-Baeon Act, AS 86.05, which requires that workers on public construction projects receive at least the current prevailing wage. AS 36.05.010. Both the Alaska Department of Labor (DOL) and the State Attorney General indicated that the project was subject to Alaska's Little Davis-Bacon Act, and thus workers should be compensated in accordance with the statutorily mandated prevailing wage. In response, IAA and A & A sought declaratory relief in the superior court, asking that the project be deemed outside the purview of the statute. IAA, A & A, and the State each moved for summary judgment. After permitting the Western Alaska Building and Trades Council (Trades Council) to intervene, the superior court entered summary judgment in favor of IAA and A & A. DOL and Trades Council appeal. We reverse. II. FACTS AND PROCEEDINGS In August 1991 ARRC received a 40% equity share in IAA, in exchange for contributing the land upon which to build the Inn. This partnership was formed for the purpose of financing, constructing, and maintaining the Inn. The remaining 60% of the partnership was owned by four groups of husband/wife investors who had previously participated together in other hotel development projects. ARRC is the largest individual shareholder. Initially ARRC had desired merely to lease its land to the investors and achieve a return based upon the market lease-value of the land. However, the investors urged ARRC to join them, become an equity partner, and execute all IAA loan obligations as a co-obligor. The investors' stated rationale for this arrangement, which they had utilized numerous times before, was to encourage cooperation between the landowner and the other investors. ARRC agreed to the arrangement, believing that it could realize a greater return on its land if it participated in development of the land. By virtue of owning a forty percent partnership interest, ARRC is the only partner whose approval must be obtained for significant partnership decisions; such matters require a sixty-one percent majority approval vote. However, day-to-day operational authority is vested in IAA's managing partner and a management company that has been hired to operate the Inn. ARRC undertook substantial obligations as a result of its partnership interest in IAA. ARRC leased the land, valued at $845,000, to IAA for $1.00 annually for a term of 35 years. A renewal term of an additional 35 years is available at IAA's option. If ARRC divests itself of its partnership interest at any time, the lease reverts to market lease rates. In addition to contributing use of the land, ARRC and the other investors executed as co-borrowers and separate obligors a $3.9 million construction loan agreement. This is an obligation on which ARRC and the other investors are individually 100% liable. ARRC does not "use, occupy, or directly control any part of the . Inn project." Instead, in announcing its participation in the project, ARRC enumerated three purposes for its involvement: (1) augmenting its passenger business, (2) creating a source of real estate income and (3) supporting its redevelopment of the Ship Creek area. Additional ly, ARRC noted that it had a history of investing in hotels, and planned similar future investments since such enterprises benefit and support ARRC's passenger business. IAA contracted with A & A for construction of the Inn. The total costs of improvements to the land eventually amounted to approximately $3.8 million, including architectural, engineering, and general contractor fees. In April 1992 the Attorney General issued an opinion, and DOL stated, that the project constituted "public construction" that was subject to the provisions of Alaska's Little Davis-Bacon Act. IAA and A & A responded by seeking declaratory relief in the superior court and a ruling that the Act did not apply to the project. Motions for summary judgment were filed. Before the court ruled on the motions, the Trades Council and several of its individual members were permitted to intervene. The superior court granted IAA and A & A's motion, holding that the Act did not apply. The court, however, provided no corresponding analysis, findings of fact, or conclusions of law. Additionally, the court awarded attorney's fees to IAA and A & A in the amount of fifty percent of their actual fees, stating that the actual fees were reasonable and, that while efforts were "not 'labor intensive' in the sense of extensive discovery, motion practice or trial," the lawyers had conducted extensive analysis of novel and complex issues. DOL and the Trades Council appeal both the superior court's holding and its award of attorney's fees. III. DISCUSSION A. Standard of Review The issue in this case is whether the work performed in constructing the Inn constituted "public construction" subject to Alaska's Little Davis-Bacon Act's wage protection provisions. AS 36.05.010, 36.95.010. We are reviewing the superior court's summary judgment holding that the Act does not apply. In City and Borough of Sitka v. Construction and General Laborers Local 942 644 P.2d 227 (Alaska 1982), we addressed the identical issue on appeal from a summary judgment holding. Id. at 230. We apply the same standard of review that was appropriate in Sitka: 'We employ de novo review to the question of law raised by the summary judgment motion." Id. at 230 n. 7 (citing Amnco Steel Corp. v. Isaacson Structural Steel Co., 611 P.2d 507, 516 n. 22 (Alaska 1980)). B. Statutory Provisions The dispute centers on the language of AS 36.05.010 and AS 36.95.010. Alaska Statute 36.05.010 provides: A contractor or subcontractor who performs work on public construction in the state, as defined by AS 36.95.010, shall pay not less than the current prevailing rate of wages for work of a similar nature in the region in which the work is done. The current prevailing rate of wages for each pay period is that contained in the latest determination of prevailing rate of wages issued by the Department of Labor before the end of the pay period. AS 36.05.010 (emphasis added). It is the phrase "public construction," and whether it encompasses the Inn project, that is the basis for the dispute between the parties. Alaska Statute 36.95.010(3), which provides definitions applicable to AS 36.05.010, supplies some assistance in interpreting the phrase: "[Pjublic construction" or "public works" means the on-site field surveying, erection, rehabilitation, alteration, extension or repair, including painting or redecorating of buildings, highways, or other improvements to real property under contract for the state, a political subdivision of the state,[ ] or a regional school board. AS 36.95.010 (emphasis added). Because this legislation "is a remedial act for the benefit of construction workers, [it] is therefore liberally construed to effectuate its beneficent purpose." Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers, Local Union No. 695 v. NLRB, 361 F.2d 547, 553 n. 23 (D.C.Cir.1966). C. Case Law This court has interpreted the applicable statutory language in two prior cases: City and Borough of Sitka v. Construction and General Laborers Local 942, 644 P.2d 227 (Alaska 1982), and Alaska State Federation of Labor v. State, Department of Labor, 713 P.2d 1208 (Alaska 1986). 1. City and Borough of Sitka v. Construction and General Laborers Local 9Jf2 In Sitka, we concluded that a timber harvesting contract, which was a necessary precursor to a dam construction project, fell within the ambit of Alaska's Little Davis-Bacon Act. We held that the legislation applied even though the timber agreement was separate from the dam construction contract. Clearing the land was an integral, preliminary part of dam construction. Sitka, 644 P.2d at 232. If the severance of the two contracts were permitted to defeat the application of the Act, this would have "impermis-sibly enable[d] a public agency to profit at the expense of workers engaged in activities instrumental to a public construction project." Id. at 233. 2. Alaska State Federation of Labor v. State, Department of Labor Our decision in Federation provides more specific guidance. The State Department of Community and Regional Affairs granted $1 million to the Central Council of Tlingit and Haida Indian Tribes of Alaska for the construction of a community hall. The question presented was whether the transfer of funds via the grant invoked the provisions of AS 36.05.010. Federation, 713 P.2d at 1210. As in the instant case, interpretation of AS 36.95.010(3)'s language, "under contract for the state," was the central issue in the dispute. See id. at 1210. In analyzing the situation in Federation, we considered all circumstances surrounding the transaction, rather than focusing on one factor as determinative. In utilizing this approach, we stated: "The Act clearly envisions contracts between the state or a political subdivision, and a contractor for the construction of a specified public project." Id. The contract involved a grant, i.e. the provision of funds and not construction itself. Id. While the structure would be used for a public purpose, the fact that the State would not retain control over or continue to fund the hall after construction belied the existence of a construction contract for the State. Id. Furthermore, the State supplied funds that constituted only twenty-five percent of the construction costs. Id. at 1211. In holding that this project fell outside the provisions of the Act, we explained: [T]he state never owned or controlled, nor intended to control or own the [structure]. The project was not public construction. The Act defines public construction as construction 'under contract for the state.' This requires significant state involvement. The evidence, however, shows that the project was intended primarily for private purposes and private control. State involvement was indirect — funding through a grant — and relatively small — only about twenty-five percent of the total cost. Id. at 1211 (emphasis added). Thus, Federation yields a list of factors for us to consider in determining whether the Inn project constitutes "public construction": (1) the nature of the contract (whether the contract was for the provision of funds or for the construction itself); (2) whether the structure will be used for a public purpose; (3) whether the State will control the structure after construction; (4) whether the State will continue to fund the project after construction; and (5) the relative portion of project financing that the State supplied. Implicit in Federation is the notion that these facets of State involvement are not intended to be considered individually. Rather, they are to be weighed in total to determine whether there is "significant state involvement" in the project. See id. 3. Analysis of factors implicating "significant state involvement" in the construction project a. Nature of the contract This factor is less germane to the instant case than it was in Federation. In that case, the State was providing funds in the form of a grant. 713 P.2d at 1209. Here, there is a construction contract in which ARRC is a participant through its involvement with IAA. Nevertheless, IAA argues that the existence of a contract between a State entity and a contractor is the "single most important factor" in determining if a project is "public construction." IAA attempts to disguise State involvement in the building contract. IAA argues that it was the partnership that made the agreement, and that ARRC was not a party to the contract. IAA's characterization is accurate, but ARRC has the ability to significantly influence the actions of IAA. ARRC could have vetoed the construction contract, via the provision of the partnership agreement that requires a sixty-one percent majority approval of major decisions such as construction and financing of the project. Its participation in securing the funds, and the security it provided to the lenders, may be viewed as a significant factor in obtaining the loan. Additionally, ARRC's involvement in the project resulted in substantial liability for ARRC. Each of these considerations indicates "significant state involvement." Permitting IAA to avoid application of the Act based upon the State's role being masked behind the partnership veil would defeat the "fundamental purpose" of the Little Davis-Bacon legislation: "to assure that employees engaged in public construction receive at least the prevailing wage." City and Borough of Sitka v. Construction and Gen. Laborers Local 942, 644 P.2d 227, 232 (Alaska 1982). Furthermore, such a result would encourage similar arrangements in the future, arrangements that could be designed to circumvent the Act's application. This would permit the situation this court warned against in Sitka and "impermissibly enable[] a public agency to profit at the expense of workers engaged in activities instrumental to a public construction project." Id. at 233. b. Public purpose of the project The day after deciding to participate as a partner in IAA and its development of the Inn project, ARRC's President and CEO issued the following statement to the Railroad's employees: I have some interesting news for you today: the Alaska Railroad Corporation plans on getting back into the hotel busi-ness_ The long-term benefits of this project are what make it most attractive: we augment our passenger business, cre ate a source of real estate income and support our redevelopment of the Ship Creek area. We have a long history of owning hotels such as those that operated at Curry and at Healy. We foresee other hotels being built upon ARRC property, especially near Denali Park or at Fairbanks. I believe hotels are natural enterprises in which the Railroad should invest because they can benefit and support our passenger business. We're convinced we'll be able to provide better customer service and attract more customers by having convenient, affordable accommodations to market with rail trips. As DOL asserts, this statement indicates that a public corporation was pursuing the Inn opportunity not only because it was a beneficial financial investment, but also because it would enhance the passenger portion of this public corporation's business. Additionally, ARRC's participation in the "hotel business" was an activity that was ongoing. IAA's position is that this view "confuse[s] the concept of public benefit with those of public purpose and use," as the Inn is a private facility that is not open to public use. In support of this assertion, IAA, while recognizing the benefits of increased employment and downtown development, cites four cases for the proposition that "incidental" public benefits can be distinguished from public purposes. See Daniels v. City of Fort Smith, 268 Ark. 157, 594 S.W.2d 288, 240-41 (1980); Zickuhr v. Bowling, 97 Ill.App.3d 534, 53 Ill.Dec. 65, 69, 423 N.E.2d 257, 261 (1981); Gregory v. City of Lewisport, 369 S.W.2d 133, 135 (Ky.1963); Erie County Indus. Dev. v. Roberts, 26 Wage & Hour Cases (BNA) 627, 632, 94 A.D.2d 532, 540-41, 465 N.Y.S.2d 301, 306-07 (1983), aff'd, 63 N.Y.2d 810, 482 N.Y.S.2d 267, 472 N.E.2d 43 (1984). The cases that IAA cites for the "incidental" public benefits rationale all involved government-sponsored bond financing. Therefore, these courts, just as this court in Federation, were reviewing situations where the government was merely involved in the financing of a project. Three of these courts specifically mentioned that the governmental entity would retain little control of the project in the long term. Daniels, 594 S.W.2d at 240; Zickuhr, 53 Ill.Dec. at 69, 423 N.E.2d at 261; Erie County, 26 Wage & Hour Cases (BNA) at 631, -, 94 A.D.2d at 538-40, 465 N.Y.S.2d at 305-06. These situations are distinguishable from the instant ease, since ARRC will continue to share in the financial future and management of the Inn. Therefore, these cases are not persuasive. Furthermore, IAA does not fully address DOL's argument that the motivation for ARRC's involvement is the enhancement of its passenger business, and not merely an investment opportunity. Trades Council cites Harris v. City of Cincinnati, 79 Ohio App.3d 163, 607 N.E.2d 15 (1992), for, among other things, that court's recognition that where government involvement in a project is significantly motivated by enhancement of the downtown community (e.g., reconstructs ing/rehabilitating the slum, improving the area's appearance, attracting businesses and consumers to the downtown), this is a factor in favor of finding that the construction is subject to prevailing-wage laws. Id. 607 N.E.2d at 20. Similarly, ARRC was attracted to the Inn project because of its effect on the Ship Creek area re-development project. While IAA's brief does address Harris, it does not respond persuasively to Trades Council's reliance on the case. Rather, IAA distinguishes Harris, based on the presence of some differing facts and a varying statutory scheme. While these distinguishing fac tors do exist, they do not nullify Harris' implications regarding ARRC's motivation for participating in the project, which in large measure is derived from ARRC's desire to participate in the hotel industry, as compared to other projects, as a complement to its passenger business. This factor weighs in favor of finding that ARRC's participation was in furtherance of a public purpose. c.State control of the structure after completion As discussed, by virtue of its forty percent share of IAA, ARRC enjoys the ability to veto any major partnership decisions. In minimizing the importance of this factor, IAA cites National Railroad Passenger Corp. v. Hartnett, 30 Wage & Hour Cases 977 (BNA), 169 A.D.2d 127, 572 N.Y.S.2d 386 (1991), for the proposition that the ability to veto certain project decisions is insufficient to constitute the requisite public control. Again, however, this was only one factor in that court's analysis, and it is important to recognize that the veto authority there had a much more limited scope than in the instant case. See id. at 979, 169 A.D.2d at 130-32, 572 N.Y.S.2d at 388-89. Furthermore, the court also noted that it was the private corporation that bore the risk of project loss in the future. Id. In the case of IAA, it is ARRC that will absorb its proportionate share of any Inn deficit. Additionally, ARRC can terminate the lease on one year's notice at any time during the renewal term (i.e., after the first thirty-five years of the lease). Even though this would mean compensating IAA for the fair market value of improvements, this ability still represents a further degree of control for ARRC in the continuing operations of the Inn. If a private individual enjoyed this position in such a venture, his or her involvement would be considered "significant." ARRC should receive a similar evaluation. This is the case even though authority for day-to-day operations is vested in a management company and the general partner. Considering ARRC's posture in the partnership and the power ARRC wields, other IAA partners simply cannot ignore its desires. d.State funding after construction The State would be obligated to provide funds on a continuing basis only if the Inn ran a deficit, or the debts and obligations of the partnership required further contributions from partners. Therefore, analysis of this factor militates against finding "significant state involvement," as it does not appear that ARRC would have continuing obligations. However, the existence of some ARRC responsibility for partnership losses and obligations makes this factor less persuasive. e.Relative portion of financing supplied by the State This factor weighs in favor of IAA's position. IAA argues that even assuming that ARRC essentially provided the fair market value of the land in exchange for its partnership share, this contribution constitutes no more than 18.3% of the total project costs, an assertion that DOL and Trades Council do not refute. This is significantly less than the twenty-five percent of project costs — and, expressed in other terms, also less than the $1 million — that this court deemed "relatively small" in Federation. 713 P.2d at 1211. In this case, most of the funds needed for construction are being obtained from a commercial lender. However, ARRC's participation in the lending process as a co-obligor with 100% liability for the loan amount, a fact that IAA concedes, cannot be overlooked. This pledge was undoubtedly a benefit to IAA in obtaining the loan. Furthermore, it is again important to remember the context of Federation: a grant contract, with indirect State funding, and no State obligation to retain control or fund the project upon completion. The percentage of State funding factor alone is not determinative. It is the total mixture of circumstances which must be reviewed in determining if there is "significant state involvement." IV. CONCLUSION The totality of circumstances indicates that the State's role provides the significant involvement that this court has deemed necessary in order to conclude that a project is "public construction" subject to Alaska's Little Davis-Bacon Act. See id. at 1211. ARRC was a party to a construction contract via its significant participation in IAA. ARRC undertook a significant liability that was of benefit to IAA in obtaining a construction loan for millions of dollars. ARRC's involvement in the project was due not only to an investment incentive, but also due to ARRC's desire to augment its passenger business and further the development of the Ship Creek area. Additionally, ARRC has pursued investment in hotels in a continuing course of action. Consistent with this role, ARRC will continue to participate in the financial future of the Inn. In view of its ability to veto significant, non-routine partnership transactions, ARRC wields substantial power in the functioning of IAA. Even though ARRC's portion of the total project financing was small, the other enumerated considerations indicate that State involvement in the Inn project was "significant." Therefore, the provisions of Alaska's Little Davis-Bacon Act that mandate payment of prevailing wages apply. This fulfills the legislation's fundamental purpose: "to assure that employees engaged in public construction receive at least the prevailing wage." City and Borough of Sitka v. Construction and Gen. Laborers Local 942, 644 P.2d 227, 232 (Alaska 1982). The judgment of the superior court is REVERSED and the case REMANDED to the superior court with directions to enter summary judgment in favor of the appellants. . IAA and A & A filed a single appellees' brief in this court. Therefore, references to the appel-lees' arguments will be addressed as those of IAA, but represent A & A's also. . The four husband/wife investment teams owned 23%, 12%, 18% and 7%, respectively, of IAA. . IAA maintains that all partners enjoy the ability to veto fundamental partnership decisions. However, IAA's citation to the record does not confirm this assertion. . The husband/wife investor groups that comprise the 60% of IAA not owned by ARRC also own the management company. . A & A is owned by a husband and wife team who are also partners in IAA. . In their briefs, the parties did not specify, or provide a citation to the record for, the incremental wage costs that IAA would have incurred if it had complied with the Act. During oral argument, the Trades Council's attorney maintained that in an affidavit that ARRC had submitted to the superior court, the incremental cost of compliance was estimated at $500,000 to $600,-000. . Alaska Statute 36.95.010(6) additionally provides that " 'state or political subdivision of the state' means any state department, state agency, state university, borough, city, village, school district or other state subdivision." . "The fundamental purpose of [Alaska's] Little Davis-Bacon is to assure that employees engaged in public construction receive at least the prevailing wage," the same purpose as under the federal legislation. City and Borough of Sitka v. Construction and Gen. Laborers Local 942, 644 P.2d 227, 232 & n. 11 (Alaska 1982). This court has held that because the Federal Davis-Bacon Act is the model for Alaska's legislation, federal precedent is persuasive in the absence of decisions from Alaska's courts. Id. at 231. . This list of factors is not comprehensive. Situations may demand consideration of additional factors. Furthermore, these illustrative factors need not necessarily be given equal weight. We recognize that the two factors relied on by the dissent (nature of ownership of building or work, and nature of use of the building or work) will often be particularly important or even disposi-tive in many, but not all, cases. . Cases from other jurisdictions are of only limited assistance in resolving this dispute. Varying combinations of aspects of state involvement and differing statutory schemes mean that no one case is likely to be persuasive. See Pen-field. Mechanical Contractors v. Roberts, 119 Misc.2d 105, 462 N.Y.S.2d 393, 395 n. 1 (N.Y.Sup.Ct.1983) ("Authority from other jurisdictions is of limited value due to differing statutory schemes.") aff'd, 98 A.D.2d 992, 470 N.Y.S.2d 1021 (1983) aff'd, 63 N.Y.2d 784, 481 N.Y.S.2d 72, 470 N.E.2d 870 (1984). . The dissent relies on National Railroad Passenger Corp. v. Hartnett, 30 Wage & Hour Cases 977, 169 A.D.2d 127, 572 N.Y.S.2d 386 (BNA) (1991). Like the cases cited by IAA, the National Railroad court also found it important that future financial loss risk, physical destruction, and operational profits all resided with private interests and not the State. Id. at 979, 169 A.D.2d at ISO-32, 572 N.Y.S.2d at 388-89. "These are the factors that have repeatedly been held sufficient to preclude any determination that a given project constitutes a public works_" Id. In the instant case, these factors are not present, as ARRC shares in these aspects of the operation via its partnership interest. . This factor is especially persuasive. Where a State entity shares in operational profits and losses as a result of its participation in a project, this weighs heavily in deeming a project "public construction"; the benefits or costs of such participation will accrue to the State. . In fact, ARRC already provided $485,000, pursuant to a capital call, to fund interim construction costs before the approval of the construction loan. These funds were to be returned once the construction loan closed. . $845,000 fair market value of land — ($3,764,732 construction costs + $845,000) = 18.3%. . Because of our disposition of this case, the award of attorney's fees is vacated and this matter remanded for an appropriate award of attorney's fee to the appellants.

10347172

Martin L. GILBERT, Appellant, v. STATE of Alaska, Appellee

Gilbert v. State

1995-03-10

No. A-4150

228

231

891 P.2d 228

891

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

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

Martin L. GILBERT, Appellant, v. STATE of Alaska, Appellee.

Martin L. GILBERT, Appellant, v. STATE of Alaska, Appellee. No. A-4150. Court of Appeals of Alaska. March 10, 1995. Gordon G. Goodman, Robinson, Beiswen-ger & Ehrhardt, Soldotna, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2025

12169

OPINION BRYNER, Chief Judge. Martin L. Gilbert was convicted by a jury of sexual assault in the first degree, AS 11.41.410(a)(1), and assault in the first degree, AS 11.41.200(a)(2). Gilbert appeals, claiming that the trial court improperly overruled his objection to the prosecutor's final argument, which commented on Gilbert's failure to call a witness in his defense'. We reverse. On the night of April 12-13, 1988, Gilbert, who worked aboard the fishing vessel Valor-is, went with other members of the Valoris ' crew to the Yukon Bar in Seward. B.M., a student in the forestry program at the Alaska Vocational Technical Center (AVTech) in Seward, was also at the Yukon Bar. During the last hour to hour-and-a-half before the Yukon Bar's 5:00 a.m. closing, Gilbert and B.M. sat next to each other at the bar and talked to the bartender. Gilbert and B.M. left the bar some time between 4:50 a.m. and 5:00 a.m. They were the last customers to leave. B.M. began walking back toward the AVTech dormitory; Gilbert accompanied her. What happened next was the central dispute at Gilbert's trial. According to B.M., when she and Gilbert were within viewing distance of the school, Gilbert grabbed her, pulled her off the road,- and forcibly raped her; after committing the rape, Gilbert began to choke B.M., and she passed out. When she awoke, Gilbert was gone. B.M. then went to the nearest house with lights on and called the police. In support of B.M.'s version of events, Jeanette Willis, an AVTech student, testified that, while walking to school early in the morning on April 13, she heard a woman scream; the scream came from a nearby wooded area. Willis looked back and saw someone in the snow. She walked on to the school and called the police shortly after arriving. In a subsequent interview, Willis evidently told that police that, after hearing the scream, she had seen a woman and a man, who was wearing a dark coat, together in the snow. At trial, however, Willis only recalled seeing the woman. The Seward Police Department received Willis' call at about 5:25 a.m. Officer James Knudson testified that he responded to the call but mistakenly investigated an area about a block away from the area Willis had observed; finding nothing suspicious, Knud-son returned to the station. At 6:26 a.m., the police received a second call, this one coming from the house where B.M. went after regaining consciousness. Knudson responded and found B.M., who had obviously been severely battered. B.M. reported the rape. In his defense at trial, Gilbert did not deny accompanying B.M. as she returned to AV-Teeh from the Yukon Bar, and he acknowledged having sexual intercourse with her in the woods near the AVTech dormitory. According to Gilbert, however, the intercourse was consensual. Gilbert testified that, after he and B.M. had sexual intercourse, B.M. went to sleep. Gilbert tried to wake her, but she did not want to be woken. Gilbert then returned to the Valoris. Gilbert insisted that B.M. was asleep and uninjured when he left her. Given the timing of the two calls that the police had received on the morning of the rape — -the first at 5:25 a.m. and the second an hour later — Gilbert theorized that someone must have assaulted and raped B.M. after Gilbert had left her asleep in the wooded area near AVTech. To support this theory, Gilbert called two witnesses. One of the witnesses, Jeffrey Jackson, was living in Arkansas at the time of Gilbert's trial. At the time of the alleged rape, however, both witnesses had been AVTech students living in the school's dormitory. Both testified that, at approximately 5:15 to 5:30 a.m. on April 13, two intoxicated men, one wearing a dark coat, had knocked on an AVTech dormitory window, trying to gain entry. Gilbert himself insisted that by 5:30 a.m., he was already back on board the Valoris. He explained that he had been anxious to get back to his boat before his skipper woke up; he recalled looking at the clock when he boarded the vessel. In describing his actions, Gilbert mentioned seeing a crewmem-ber as he boarded the vessel: Yeah, Bob Olson, one of our deckhands that we'd hired in Seattle, was cooking breakfast or cooking, I don't know if he just got back to the boat or not, but he was awake. And I remember looking at the clock. It was five-twenty something because I was worried whether or not I was getting back before Lloyd [Gilbert's boss] got up.... On cross-examination, Gilbert acknowledged that, in a prior police interview, he had never mentioned seeing Olson when he returned to the boat. During the rebuttal stage of the state's final argument to the jury, the prosecutor stated: [Gilbert's attorney] said the state had the power to produce all these witnesses and . well, speaking of witnesses, let me ask you a question: Why do you think the defense went to all the effort of bringing Jeff Jackson back from Arkansas but they didn't bother to bring you Bob Olson, this quote Bob Olson that we heard about on Monday, the one man that can presumably give him his alibi? The one man that supposedly is right there when he comes in at five-twenty something in the morning. Ask yourselves and think about that when you listen to what — and reflect on what [defense counsel] is telling you. Gilbert's attorney objected, asserting that the defense had no burden to produce witnesses and that "there are other considerations as to why Mr. Olson may or may not be here." The trial court, however, overruled the objection. The prosecutor then continued: The state's not saying that Mr. Gilbert had any burden of proving anything. I'm just saying if they went to all the trouble of bringing a man here from Arkansas who really doesn't know anything about this case, why do you suppose they didn't go to the effort of bringing somebody here who allegedly saw him at five-twenty in the morning? Think about that. I'll tell you why.... You've heard of the phrase "red herring." That's the job of the defense, to throw out red herrings to distract you. On appeal, Gilbert contends that the trial court erred in allowing the prosecution to argue that the jury should draw an adverse inference from Gilbert's failure to call Olson as a defense witness. 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), the Alaska Supreme Court noted that comment on a defendant's failure to call a witness is usually allowed only when the absent witness is peculiarly within the control of the defendant and when, under the defendant's version of events, the witness could reasonably bé expected to provide testimony favorable to the defense. More recently, in Lewis v. State, 862 P.2d 181, 190-91 (Alaska App.1993), after reviewing current case law, this court found that some courts have adopted a more flexible approach, abandoning the requirement that the non-testifying witness be peculiarly within the control of the defendant; .these courts allow a negative inference to arise from the defendant's failure to call any witness "whose testimony 'would naturally be expected to be favorable' to the defendant." Lewis, 862 P.2d at 190 (quoting People v. Ford, 45 Cal.3d 431, 247 Cal.Rptr. 121, 131, 754 P.2d 168, 178 (1988)); see also Wheatley v. State, 465 A.2d 1110, 1111 (Del.1983) (en banc); State v. Moore, 620 S.W.2d 370, 373 (Mo.1981)(em banc). Courts appear to be particularly disposed toward flexibility in allowing prosecutorial comment on a defendant's failure to call a potentially favorable witness when the witness is an alibi witness mentioned for the first time at trial. See, e.g., United States v. Schultz, 698 F.2d 365 (8th Cir.1983); United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980); cf. Commonwealth v. Niziolek, 380 Mass. 513, 404 N.E.2d 643 (1980). The state relies on these cases: it attempts to characterize the challenged argument in the present case as fair comment on Gilbert's failure to call a previously undisclosed alibi witness. In our view, however, the state's attempted characterization falls wide of the mark. Although it is undisputed that Gilbert made no mention of Olson before testifying in his own defense at trial, it is inaccurate to portray Olson as a missing alibi witness. Gilbert appears to have mentioned Olson only as a point of reference fixing Gilbert's own recollection of seeing the Valoris ' clock when he boarded the vessel. At no point in his testimony or in the ensuing final argument of his counsel did Gilbert suggest any significance to his sighting of Olson apart from the tie-in Gilbert personally drew between this observation and his action of looking at the clock. Gilbert did not testify, argue, or imply that Olson, for his part, would have had any occasion to remember the event; indeed, Gilbert's testimony did not even state or suggest that Olson had noticed Gilbert board the Valoris. Furthermore, although it is certainly clear that Gilbert's failure to mention Olson prior to trial rendered Olson unavailable to the state, the record is virtually barren of information establishing that Olson was available to Gilbert. From Gilbert's own testimony, it appears that Olson was a casual acquaintance at best — a deckhand recently hired in Seattle. At no point in its cross-examination of Gilbert did the state inquire about Gilbert's knowledge of Olson's whereabouts or about Olson's availability to Gilbert. No evidentia-ry basis was presented to support an inference by the jury that Gilbert could have called Olson as a defense witness had he wanted to, and the relationship between Gilbert and Olson is not sufficiently close, standing alone, to support such an inference. In short, the circumstances of this case simply fail to sustain a rational inference that Olson was a witness who "would naturally be expected to be favorable" to Gilbert. Ford, 754 P.2d at 178. It appears, to the contrary, that Olson could most naturally have been expected to be neutral' — a witness who, even assuming he was peculiarly available to Gilbert, would likely have had little light to shed on the issues in dispute at Gilbert's trial. For these reasons, the disputed argument in this case could not be deemed proper under either the McCurry approach or the more flexible approach described in Lewis. Under either approach, it was unfair for the prosecution to argue that the jury should draw a negative inference from Gilbert's failure to call Olson, because the totality of the evidence at trial could not fairly support such an inference. The prosecution's argument effectively called on the jury to speculate on matters beyond the scope of the evidence and the inferences fairly arising from that evidence. The improper argument was exacerbated by the trial court's denial of Gilbert's timely objection. The court's ruling could readily have been viewed by the jury as an indication that the negative inference proposed by the state could fairly be drawn. At the very least, the court's ruling enabled the prosecution to return to the theme and repeat its improper argument. So nurtured, the seed of unfairness yielded substantial prejudice. We are unable to say that the impropriety did not have a substantial effect on the jury's verdict. Love v. State, 457 P.2d 622, 631-32 (Alaska 1969). Accordingly, we REVERSE. . The state notes that Gilbert did not move for a mistrial, request a curative instruction, or object to the state's repeated reference to the significance of his failure to call Olson as a defense witness. Given the court's decision to overrule Gilbert's initial objection, however, Gilbert's counsel could properly have concluded that further objection would be pointless and might only result in drawing additional attention to the improper argument.

10347170

Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, Appellant, v. Sidney L. ROBERTSON, Sr., Terri A. Robertson, and Allstate Insurance Company, Appellees; ALLSTATE INSURANCE COMPANY, Cross-Appellant, v. Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, and Sidney L. Robertson, Sr., and Terri A. Robertson, Cross-Appellees

Myers v. Robertson

1995-03-10

Nos. S-4661, S-4673

199

214

891 P.2d 199

891

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:08.918968+00:00

CAP

Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J., pro tern.

Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, Appellant, v. Sidney L. ROBERTSON, Sr., Terri A. Robertson, and Allstate Insurance Company, Appellees. ALLSTATE INSURANCE COMPANY, Cross-Appellant, v. Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, and Sidney L. Robertson, Sr., and Terri A. Robertson, Cross-Appellees.

Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, Appellant, v. Sidney L. ROBERTSON, Sr., Terri A. Robertson, and Allstate Insurance Company, Appellees. ALLSTATE INSURANCE COMPANY, Cross-Appellant, v. Linda W. MYERS, Representative for Sidney Lee Robertson, Jr., deceased, Special Administratrix for the Estate of Sidney Lee Robertson, Jr., deceased, and Special Guardian for Stephen M. Robertson, a minor, and Sidney L. Robertson, Sr., and Terri A. Robertson, Cross-Appellees. Nos. S-4661, S-4673. Supreme Court of Alaska. March 10, 1995. Olof K. Hellén, Hellén & Accinelli, Anchorage for appellant (S — 4661) and cross-appellee (S-4673) Linda W. Myers. Theodore M. Pease, Jr. and Peter J. Maas-sen, Burr, Pease & Kurtz, Anchorage, for appellees (S — 4661) and cross-appellees (S-4673) Robertson. Ronald L. Bliss and Maryanne Boreen, Bliss Riordan, Anchorage, for appellee (S-4661) and cross-appellant (S-4673) Allstate. Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J., pro tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

9683

61156

OPINION MOORE, Chief Justice. I. Introduction This intra-family lawsuit arises from the accidental death of a thirteen year old boy, Sidney Robertson, Jr. The minor's estate, along with the child's brother Stephen (the "Estate"), sued the boys' parents, Sidney Robertson, Sr. and Terri Robertson ("the Robertsons"), on a theory of negligence. The parents' insurer, Allstate Insurance Co. ("Allstate"), appointed counsel to defend the Robertsons. However, based on Allstate's belief that the Robertsons' true interest was in losing the lawsuit so that they could recover the insurance proceeds paid to the Estate, Allstate later intervened in the case as a party defendant. Allstate participated at trial outside the jury's presence, and the jury was not informed of its existence as the real party in interest. The jury found that, although the Robertsons were negligent, their conduct was not the legal cause of their son's death. The Estate appeals, claiming that Allstate's interest in the case should have been disclosed to the jury. Allstate cross-appeals, arguing that the case should have been dismissed for lack of adversity and on public policy grounds. We conclude that several rulings of the trial court were erroneous, but that the errors were harmless. Therefore, we uphold the jury's verdict. II. Facts and Proceedings In June 1988, the Robertsons were living in a single family residence in Anchorage with their two sons, Sidney, Jr., then age 13, and Stephen, then age 9. The Robertsons had plans to attend a special event at an Anchorage museum for the evening of June 23, 1988. They decided to leave the children at home for the few hours they would be gone. To entertain the boys, the Robertsons left them some VCR movies, including a skateboard movie called "Thrasher." Following their parents' departure, Sidney, Jr. and Stephen watched "Thrasher." After the movie, Sidney, Jr. went to the garage, where Terri Robertson had parked the family's 1981 Triumph TR-7. At the back of the garage, the Robertsons stored a skateboarding ramp that they had given Sidney, Jr. for his birthday one month earlier. The parties dispute the following series of events. Allstate argues that the TR-7 was securely parked, in gear, with the emergency brake engaged and the garage door closed. Místate asserts that Sidney, Jr. opened the garage door, released the car's parking brake and intentionally attempted to move the TR-7 so that he could skateboard in the garage. The Estate suggests that the Robertsons had negligently left the garage door open, left the TR-7 out of gear and failed to repair the car's nonfunctioning emergency brake. As a result, when Sidney, Jr. tried to skateboard around the car, he unintentionally caused it to begin rolling. In either event, it is clear that at some moment the TR-7 began rolling backward down the Robertsons' steep incline driveway. Sidney, Jr. ran behind the car, apparently trying to stop it from rolling into the street. The TR-7 eventually backed into another car parked across the street from the Robertson home, pinning Sidney, Jr. between the two cars. Sidney, Jr. later died as a result of his injuries. Stephen witnessed the accident. Several months after Sidney, Jr.'s death, the Robertsons consulted with attorney Olof Hellén regarding the extent of their insurance coverage for the accident. Hellén's law firm reviewed the Robertsons' insurance policies and advised the Robertsons to designate a close friend as representative of Sidney, Jr.'s estate and as special guardian of Stephen. The firm further advised the Robert-sons to retain their own counsel, since Sidney, Jr.'s estate and Stephen would bring a lawsuit against them and that, in the event of a recovery by Sidney, Jr.'s estate, the Rob-ertsons ordinarily would receive the proceeds as their son's heirs in intestacy. Course of Proceedings The Robertsons arranged for Linda Myers, a family friend, to act as the representative of Sidney, Jr.'s estate and as Stephen's special guardian for the purposes of this litigation. The Robertsons waived any conflicts of interest, and Olof Hellén undertook representation of the Estate. The Estate filed this action against the Robertsons in December 1988, alleging that the Robert-sons were negligent in (1) possessing a driveway with an unsafe incline, and (2) failing to properly secure their Triumph TR-7 in their garage. Due to its duty to defend the claim against the Robertsons, Allstate appointed the law firm of Hughes, Thorsness, Gantz, Powell & Brundin ("Hughes, Thorsness") to represent the Robertsons. Hughes, Thorsness filed a motion to dismiss the Estate's claims based on the public policy that negligent parties should not benefit from their wrongful conduct. Hughes, Thorsness argued that, because the Robertsons were the sole beneficiaries of Sidney, Jr.'s estate, they would be monetarily rewarded if they negligently caused their son's death. The Estate opposed the motion; it then moved to disqualify the Robertsons' counsel on the grounds that the motion to dismiss was contrary to the Robertsons' interests in losing the case. Before the court ruled on the Estate's motion to disqualify, Hughes, Thorsness withdrew as defense counsel for reasons unrelated to this case. The law firm of Guess & Rudd substituted as defense counsel. However, Guess & Rudd subsequently withdrew due to an "irreconcilable conflict of interest" between it and the Robertsons. Following Guess & Rudd's withdrawal, the Estate moved for an order to protect the Robertsons by requiring that Guess & Rudd's files be transferred to the Robertsons and not to Allstate. Allstate then intervened in the case as a party defendant, asserting that the Estate was advancing the real interests of the Robertsons, who were not adverse to its claims. Based on the conflicting interests between Allstate and the Robertsons, the trial court ordered that Allstate appoint independent counsel to represent the Robert-sons. It further ordered that independent counsel not report to Allstate. In compliance with this order, Allstate retained Theodore Pease, Jr. of Burr, Pease & Kurtz, with the Robertsons' consent and the court's approval, to defend the Robertsons. Allstate moved to dismiss the Estate's claims under Alaska Civil Rule 12(b)(1), arguing that the lack of genuine adversity between the Estate and the Robertsons deprived the court of subject matter jurisdiction. Allstate alternatively moved to dismiss under Civil Rule 12(b)(6), arguing that the Estate's claims could not succeed due to the public policy barring the Robertsons from benefitting from their negligent conduct by obtaining the proceeds of Sidney, Jr.'s estate. The court denied Allstate's motion, and the ease proceeded to trial. With the court's approval, Allstate elected not to participate at trial during the jury's presence. The court also approved Allstate's motion to prevent any reference to insurance during trial, except for limited questions during jury selection. During trial, the Robertsons testified in a manner which sometimes suggested that they took responsibility for negligently causing their son's death. For instance, Terri Robertson testified that both she and her husband knew that the TR-7's emergency brake had never worked, and that they were negligent in failing to repair it. She also disputed that she told the police on the night of the accident that she had closed the garage door and left the TR-7 in gear before going out. Sidney Robertson, Sr. testified that the TR-7's emergency brake had never worked. The Robertsons' counsel, Theodore Pease, then impeached his clients' credibility with their prior statements, made either to the police or in depositions, which suggested that the TR-7 could not have begun rolling unless Sidney, Jr. first opened the garage door, took the car out of gear and released the parking-brake. By this impeachment, and through closing argument, defense counsel suggested to the jury that the Robertsons' emotional pain led them to take responsibility for their son's death, even when such responsibility was inappropriate. The Estate objected on the Robertsons' behalf, arguing that Mr. Pease's impeachment was contrary to the Robertsons' interests. The court overruled the objection, stating that, for sufficient adversity to exist, defense counsel must present "a classic defense in the sense that [the goal is] to make sure that his clients are not found liable." In argument over jury instructions, Allstate again raised the adversity issue. On Mr. Pease's proposal, the court instructed the jury that the Robertsons were the heirs to Sidney, Jr.'s estate. Mr. Hellén again objected that it was improper for defense counsel to propose such an instruction because the instruction was contrary to the Robertsons' interests. The court found that sufficient adversity existed because Mr. Pease, was properly representing the Robert-sons ás defendants, not as plaintiffs. Similarly, the court held that Mr. Pease could argue in closing that Sidney, Jr.'s own negligence had caused his injuries and death, even if the Robertsons did not want this argument to be made because they did not believe it was true. The jury determined that the Robertsons were negligent but that their negligence was not the legal cause of Sidney, Jr.'s death. The court subsequently entered judgment in favor of the Robertsons and Allstate. III. Discussion A. We first address the issues raised by Allstate's cross-appeal since they go to the court's jurisdiction. Allstate asserts that the case should have been dismissed because there was never any genuine adversity between the Estate and the Robertsons. 1. Adversity and Sitbject Matter Jurisdiction Allstate contends that the trial court had no subject matter jurisdiction over this ease since the Robertsons and the plaintiff had identical interests. Most notably, the Robertsons would receive any recovery by Sidney, Jr.'s estate as his sole beneficiaries in intestacy. See supra note 1. Moreover, because the Robertsons prompted the plaintiffs initiation of this suit, Allstate argues that Linda Myers is only a figurehead. According to Allstate, the Robertsons are the real plaintiffs and are in essence suing themselves. In discussing the standing requirement, this court has stated that an Alaska court has no subject matter jurisdiction unless the lawsuit before it presents an actual controversy involving a genuine relationship of adversity between the parties. Trustees for Alaska v. State, Dept. of Natural Resources, 736 P.2d 324, 329-30 & n. 9 (Alaska 1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2013, 100 L.Ed.2d 601 (1988); Wagstaff v. Superior Court, 535 P.2d 1220, 1225 (Alaska 1975). Adversity insures that parties will energetically pursue their opposing positions and present facts necessary for the fair resolution of the case. Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d 1095, 1098 (Alaska 1988). Accordingly, adversity constitutes the basic requirement for standing in Alaska. Trustees for Alaska, 736 P.2d at 327. This court has also held that children have a right to bring lawsuits against their parents for negligently inflicted injuries. Hebel v. Hebel, 435 P.2d 8, 15 (Alaska 1967) (no parental immunity bar to an unemanci-pated minor's negligence action against a parent). Thus, there is no per se failure of adversity simply because this lawsuit arises from an alleged intra-family tort. In Hebei, this court specifically recognized the potential for collusive intra-family litigation designed to defraud insurance carriers but determined that this danger "does not warrant denial of a remedy to the child." Id. at 12. It further stated: "Since the insurer is the real defendant, it has been said that there is danger of fraud and collusion between parent and child. One may not, of course, deny the hazard, but such a danger, being present in all liability insurance cases, furnishes reason not for denial of a cause of action, but for added caution on the part of court and jury in examining and assessing the facts." Id. (quoting with approval Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 42, 174 N.E.2d 718, 723 (1961) (Fuld, J., dissenting)) (emphasis added). Similarly, in Aydlett v. Haynes, 511 P.2d 1311 (Alaska 1973), this court noted that intra-family tort litigation can pose special problems due to the existence of insurance. In Aydlett, a wife sued her husband to recover for injuries caused by the husband's negligence. The court recognized that, in ordinary personal injury litigation, an insurer and a defendant-insured usually have a common interest in avoiding liability. Id. at 1315 n. 8. However, in intra-family litigation, the interests of the insured may conflict with those of the insurer since the insured may have a financial interest in seeing the plaintiff prevail. For this reason, the court stated, "[Wjhere the case involves an intra-family tort action, the trial judge must take care to assure that the actual interests of all parties are fairly represented." Id. In light of Hebei and Aydlett, there is no merit to Allstate's contention that the Estate's claims against the Robertsons were not actionable and should be precluded as a matter of law. See also Drickersen v. Drickersen, 604 P.2d 1082 (Alaska 1979) (husband's suit against wife on behalf of injured child could lie). Rather, as these cases indicate, the action may proceed. However, the trial court must exercise added caution to insure that the potentially conflicting interests of an insurer and its insured are fairly represented. This 'is precisely what Judge Fabe did. Consistent with the obligations imposed under Hebei and Aydlett, the court required counsel for the Robertsons to further the Robertsons' interests in this case as defendants, not as plaintiffs. Although placed in a sometimes awkward position, Mr. Pease conscientiously and effectively presented the Robertsons' defense. Further protecting the interests of all parties, the court appropriately required that the Robertsons' defense counsel be independent from Allstate in the sense that Mr. Pease would not report to Allstate. By these actions, the court struck a balance between the Estate's right to sue and Allstate's right to an adversarial defense. Because this case involved an adversarial relationship, the trial was not a sham and was properly allowed to proceed. While Allstate recognizes the general rule that intra-family litigation is permissible, it claims that this case is distinguishable from other Alaska intra-family tort cases because the Robertsons stand to gain 100% of any recovery paid to Sidney, Jr.'s estate. Allstate urges us to find that, in situations where the defendants' pecuniary interests are identical to those- of the plaintiff, the defendants are in fact the "real plaintiffs". Under this reasoning, the Robertsons are in essence suing themselves, so there is no adversity and no subject matter jurisdiction. Allstate cites several cases from other jurisdictions in support of this argument. These decisions adhere to the view that the administrator of a decedent's estate is not the real party in interest to the estate's wrongful death action; the real party in interest is the beneficiary to whatever recovery is obtained by the estate. Therefore, if the defendant is also the sole beneficiary of the estate, he must be considered both plaintiff and defendant, and no action will lie. See Dishon's Administrator v. Dishon's Administrator, 187 Ky. 497, 219 S.W. 794, 795 (1920) (no cause of action under Kentucky's wrongful death statute when defendant is the sole beneficiary of plaintiff-estate because the wrongdoer would be both defendant and real plaintiff); Glucksman v. Strelecki 102 N.J.Super. 53, 245 A.2d 228, 231-32 (1968) (granting summary judgment against plaintiff-estate because defendant, sole beneficiary of estate, was real party in interest and effectively acted as both plaintiff and defendant); Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203, 205-06 (1947) (administrator of estate had no wrongful death cause of action against decedent's tortfeasor-husband who was sole beneficiary of wife's estate); Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739, 743 (1984) (reiterating the Davenport rule in dicta). These cases also rely on the public policy that no person should profit from his or her own wrongdoing. This principle provides that it would be incongruous to permit an estate to recover damages, when the sole beneficiaries of that award are the same people who negligently caused the injury in the first place. See Carver, 314 S.E.2d at 745; Dishon's Administrator, 219 S.W. at 795; Glucksman, 245 A.2d at 232. However, a negligence action may proceed if there exist beneficiaries to the estate other than any negligent beneficiaries. See Carver, 314 S.E.2d at 744-45. In such situations, the non-negligent beneficiaries may recover their shares of any damages paid to the estate. Any negligent persons who otherwise would be beneficiaries are precluded from obtaining any part of the estate's recovery based on public policy considerations. Id. Whether the beneficiaries to an estate are in fact the "true plaintiffs" in a wrongful death action by the estate is a question of first impression in Alaska. We conclude that, where any recovery by the estate would not be paid directly to specified individuals, the beneficiaries to the estate should not be considered the plaintiffs. Therefore, there is no jurisdictional bar to an administrator's negligence action against parties who might otherwise stand to benefit from their wrongdoing. In resolving this issue, we look to Alaska's wrongful death statute, AS 09.55.580. It states that, in the event the decedent left no spouse, children or other dependents, any recovery for wrongful death will be paid to the decedent's estate. The recovery does not go directly to any specified beneficiaries. The proper beneficiaries of the estate can be determined subsequent to the estate's recovery. For this reason, the beneficiaries of an intestate estate are not the "true plaintiffs" in an action by the es tate. The plaintiff is the administrator, on behalf of the estate, which is distinct from its beneficiaries. Our conclusion is supported by precedent under Oregon law. In Oviatt v. Camarra, 210 Or. 445, 311 P.2d 746 (1957), the Oregon Supreme Court interpreted Oregon's wrongful death statute and determined that an estate is distinct from its beneficiaries when any recovery would be paid to the estate, not to the beneficiaries directly. We find this aspect of Oviatt persuasive, and therefore adopt it as the rule in Alaska. See also W. Keeton, Prosser and Keeton on the Law of Torts, § 127 at 958 (5th ed. 1984) (under wrongful death acts where any damages are recoverable on behalf of decedent's estate, the estate is considered distinct from its beneficiaries). In this case, there is no dispute that any wrongful death recovery by the administrator would be paid to Sidney, Jr.'s estate. The determination of eligible beneficiaries to that award is a question arising subsequent to the jurisdictional issue. We therefore address it as a matter of public policy apart from the adversity question. Accordingly, we believe the trial court properly asserted subject matter jurisdiction over this litigation. The real question is whether, had the Estate been successful on its claims, the Robertsons should forfeit their right to inherit any part of Sidney, Jr.'s estate. We address this question as a matter of public policy. 2. Public policy Allstate contends that the Estate's claims should have been dismissed based on the public policy preventing wrongdoers from benefitting from their own negligence. Relying substantially on Oviatt v. Camarra, 210 Or. 445, 811 P.2d 746 (1957), the trial court disagreed and concluded that there would be no public policy bar in Alaska to the Robert-sons' recovery of damages awarded to Sidney, Jr.'s estate through intestate succession. While we agree with Allstate as to its public policy concerns,-we do not agree that dismissal would be the appropriate means of resolving those concerns. We therefore depart from Oviatt in our analysis of this issue. The Oviatt court determined that the administrator of a deceased child's estate could bring a negligence action even though the administrator herself was both an heir to the estate and contributorily negligent in causing the chüd's death. 311 P.2d at 750-51. It also held that there was no public policy bar to a negligent party's recovery of wrongful death proceeds through intestate succession. Id. In our view, the better policy precludes a negligent party from obtaining any part of a damage award, so that the negligent party will not benefit from his or her wrongdoing. This is true whether the neghgent person would have benefitted directly, as a specified beneficiary under the wrongful death statute, or indirectly through intestate succession. In this respect, our decision is consistent with several eases cited by Allstate. See, e.g., Carver, 314 S.E.2d at. 744-45; Davenport, 44 S.E.2d at 205; Glucksman, 245 A.2d at 232. In implementing this policy, however, we do not follow the example set forth in many of the eases cited by Allstate. Many of those decisions reduce the damage award paid to the estate by the pro rata share otherwise payable to the negligent party. See, e.g., Carver, 314 S.E.2d at 744. In contrast to these cases, we do not believe the award to Sidney, Jr.'s estate should be reduced simply because certain beneficiaries are no longer eligible to recover any proceeds. Rather, we believe that any ineligible beneficiaries should be considered to have renounced their right to recover. The proceeds of the estate would then be distributed in a manner consistent with AS 13.11.295, regarding renunciation of intestate succession rights. Thus, for purposes of distributing any proceeds awarded to Sidney, Jr.'s estate, the Robert-sons should be considered to have predeceased their son, and the entire award may be distributed to any other existing and eligible statutory heirs. See AS 13.11.295(e). In summary, we affirm the trial court's decision regarding adversity and the court's subject matter jurisdiction over this action. The Robertsons were not the plaintiffs in this action, and the Estate's claims were properly permitted to go forward. We reverse the court's ruling regarding the Robertsons' eligibility as beneficiaries of any recovery by Sidney, Jr.'s estate. However, since the jury's verdict was in favor of the defendants, there is no need for further action on this issue. B. In its appeal, the Estate claims that the trial court erred in allowing Allstate to participate at trial outside the jury's presence and in prohibiting any reference to insurance during trial. It contends that, once Allstate intervened, the trial court was required to clarify the alignment of the parties in the case so that the jury would not misunderstand the true interests of all parties. The Estate further contends that the Robertsons' counsel represented Allstate's interests at trial instead of the Robertsons'. It argues that this fact tainted the entire trial because counsel presented a case at odds with the Robertsons' view of events and improperly suggested to the jury that counsel's own clients could not be believed. The jury was therefore unfairly prejudiced against the Robertsons, which damaged the Estate's interest in having the jury fully consider their trial testimony. The Estate frames these arguments in constitutional terms, claiming that the court's rulings violated its right to due process under the Alaska Constitution. It also argues that the rulings accorded insurance companies special status,' thereby depriving the Estate of equal protection under the law. We disagree that the trial court's rulings violated any of the Estate's constitutional rights. However, we agree with the argument that, in intra-family negligence actions such as the present case, the jury should be informed of an insurer's status as the real party in interest in order to avoid confusion and prejudice against either the plaintiffs or defendants. Despite this conclusion, we believe that the failure to inform the jury of Allstate's presence in this case was harmless error, and we uphold the jury's verdict. Disclosure of Allstate's interest In Severson v. Estate of Severson, 627 P.2d 649 (Alaska 1981), this court held that direct actions against liability insurers are not permitted in Alaska. The Estate does not argue that Severson should be overruled. Instead, it contends that once Allstate voluntarily intervened in the case, it was required to disclose its presence to the jury. This argument relies in part on Justice Dimond's concurring opinion in Drickersen v. Drickersen, 604 P.2d 1082 (Alaska 1979). Drickersen involved an intra-family lawsuit arising from an automobile accident in which the defendant-mother's insurance company was the real party in interest. In holding that good faith questioning of prospective jurors regarding insurance connections was permissible, a majority of this court chose not to address whether the presence or absence of liability insurance should have been made known to the jury. Id. at 1085. In his concurring opinion, Justice Dimond argued that the insurer's role as the real party in interest should have been disclosed. He stated that, because jurors on the whole are aware of the widespread existence of laws requiring automobile liability insurance, they would assume that a child's lawsuit against her mother involved insurance. He concluded: In a suit against the mother brought by a child, the insurance company is a real party in interest. I submit that this fact should be honestly faced and that the presence or absence of liability insurance should be divulged to the jury in cases such as this one. It is time to remove from the law the fiction that a child suing her mother for vast sums of money really intends to burden her mother with a resulting judgment, and to collect on the judgment from whatever assets the mother might have. Id. at 1089. Justice Dimond's point is well taken, and we now adopt it as the rule in intra-family lawsuits such as the one at issue here. That is, regardless of whether Allstate had intervened in this action, we believe its interest should have been disclosed to the jury. Without explaining the basic alignment of the parties, and the Robertsons' role as purely nominal defendants, there was a risk of confusing the jurors and unfairly prejudicing them against the plaintiff. In reaching this result, we do not overrule Severson or alter the basic proposition that the existence of insurance is irrelevant to the issue of negligent or wrongful conduct. See Alaska R.Evid. 411. We simply conclude that, in cases such as this, the jury should be provided with some context in order to fully and fairly evaluate the ease and the testimony before it. Here, the fact of insurance could have been admitted consistent with Evidence Rule 411 because that information would tend to show the potential bias or prejudice of the Robertsons as witnesses. Despite this conclusion of law, Allstate correctly points out that, to prevail on appeal, the Estate bears the burden of showing prejudicial error. Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984). To do so, the Estate must demonstrate that the failure to disclose Allstate's interest had a substantial influence on the outcome of the case. Id. To assess the effect of this error, this court must put itself in the position of the jury to determine whether the omission probably affected the verdict. Id. (citing Love v. State, 457 P.2d 622, 631 n. 15 (Alaska 1969)). In our view, the Estate has not carried its burden of showing prejudice. Although it raises a speculative possibility of prejudice, the Estate has not convinced us that the failure to disclose Allstate's interest probably affected the verdict. In reviewing the record, we specifically recognize the trial court's substantial efforts to preserve the integrity of the trial, and we see no evidence of jury confusion or undue prejudice against either the Estate or the Robertsons. The record indicates that, over the course of the trial, the jury heard abundant evidence to support the conclusion that Sidney, Jr. intentionally attempted to move the car, and that the Robertsons were not the legal cause of their son's injuries. The Estate's arguments do not convince us that the evidence would have been interpreted substantially differently if Allstate's presence had been disclosed. For this reason, we conclude that the error was harmless, and the jury's verdict should be affirmed. IV. Conclusion In sum, we affirm the trial court's decision regarding adversity and subject matter jurisdiction. However, we note that, had the Estate recovered any damages in this case, the Robertsons could not receive any benefit from that award through intestate succession or otherwise, due to the public policy preventing negligent parties from benefitting from their negligent acts. We acknowledge the validity of the Estate's argument regarding disclosure of an insurer's interest in in-tra-family tort actions such as the present one. For this reason, we believe that in this limited context the jury should be informed of an insurer's interest in order to prevent any undue confusion or prejudice against the parties. Despite this conclusion, we do not believe that disclosure of Allstate's interest in this action would have affected the jury's verdict. Therefore, the failure to inform the jury of Allstate's presence was harmless error. The verdict is AFFIRMED. . Because Sidney, Jr. had no dependents, any recovery for wrongful death would be paid to his estate. AS 09.55.580(a); In re Estate of Pushruk, 562 P.2d 329, 332 (Alaska 1977). That amount would then flow back to the Robertsons as Sidney, Jr.'s heirs in intestacy under AS 13.11.015(2). . This motion pertained only to the claims by Sidney, Jr.'s estate. There is no dispute that Stephen Robertson's claims for emotional trauma and loss of consortium were properly before the court. . Adversity is a basic requirement of standing, which is subject to de novo review. See Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d 1095, 1096-98 (Alaska 1988) (whether there is a genuine adversity so as to meet the standing requirement, is reviewed de novo as part of the doctrine of judicial restraint). . Moreover, it is well-settled in this state that, as the Robertsons' liability insurer, Allstate was not a proper party defendant at trial. Severson v. Estate of Severson, 627 P.2d 649, 651 (Alaska 1981) (direct actions against an alleged tortfea-sor's liability insurer are not permitted in Alaska). . Allstate argues that defense counsel's adversarial posture could not cure the lack of adversity in this case because counsel had no control over the manner in which the Robertsons would color the facts. However, even assuming that the Rob-ertsons tried to give testimony which would favor the Estate, the result in this case belies Allstate's claim. Defense counsel effectively handled the Robertsons' defense and procured a jury verdict in favor of the Robertsons and Allstate. .Given the trial court's actions to preserve the integrity of the proceedings in this case, sufficient adversity existed to allow the case to proceed even without Allstate's intervention. Therefore, Allstate's intervention did not cure a lack of adversity or create sufficient adversity for the case to proceed. Allstate's ultimate decision to intervene, to further insure adequate representation of its interests, is simply one more circumstance indicating that adverse interests were fairly litigated in this case. But cf. 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3530 at 319 (2d ed. 1984) ("a case conceived in cooperation may be saved by intervention of a genuine adversary"). . At the time of Sidney, Jr.'s accident, AS 09.55.580 stated in relevant part: (a) When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefore against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission.... The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. .Under this rule, there also would be no jurisdictional bar to an administrator's survival action, which would be brought on behalf of the decedent, since any damages will be paid to the estate to be distributed according to law. See AS 09.55.570. However, if the defendants in this action were the decedent's spouse, children or other dependents, a slightly different analysis is warranted. Because AS 09.55.580 directs that any recovery in wrongful death would be maintained exclusively for those specified individuals, they could be considered the "real plaintiffs" in an action by the estate. See Ditty v. Farley, 219 Or. 208, 347 P.2d 47, 52 (1959). However, as discussed infra, our public policy would preclude any negligent parties from recovery. Therefore, in such situations, there may be no per se failure of subject matter jurisdiction. The designated beneficiaries under the wrongful death act would be prevented from benefitting from any recovery, and the award would be distributed according to the intestacy scheme or other applicable probate law. . Alaska's original wrongful death statute adopted a modified version of Oregon's wrongful death act. The two statutes are compared in Kulawik v. ERA Jet Alaska, 820 P.2d 627, 631 n. 8 (Alaska 1991). . It is also consistent with the policy view declared by the Alaska Legislature. The state legislature has provided that persons who feloniously kill another may not benefit from their actions either by obtaining any proceeds of a wrongful death recovery, AS 09.55.580(f), or by inheriting through intestate succession. AS 13.11.305. Our decision today extends the policy expressed by these provisions in a manner that is compatible with the legislature's stated intentions. . We recognize that this rule may result in a windfall for the other eligible heirs. This possibility has also arisen in other circumstances and is not inconsistent with the language of our wrongful death statute. See Kulawik v. ERA Jet Alaska, 820 P.2d 627, 637-38 & n. 21 (Alaska 1991). . The Estate also asserts that there was reversible error arising from the Robertsons' counsel's presentation of a case to the jury that sometimes questioned the Robertsons' trial testimony and views on liability. The Estate further claims that the trial court erred in denying its motion for a mistrial after the Robertsons advised the court that they disagreed with their attorney's theory of the case. We decline to address these claims since the Estate has not explained how it has any standing to assert the Robertsons' alleged rights with respect to their relationship with Mr. Pease.

11902630

Dale M. VAN SANDT, Appellant, v. Simon BROWN, Appellee

Van Sandt v. Brown

1997-08-22

No. S-7619

449

453

944 P.2d 449

944

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:31:14.603883+00:00

CAP

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

Dale M. VAN SANDT, Appellant, v. Simon BROWN, Appellee.

Dale M. VAN SANDT, Appellant, v. Simon BROWN, Appellee. No. S-7619. Supreme Court of Alaska. Aug. 22, 1997. Daniel Westerburg, Homer, for Appellant. Venable Vermont, Jr. and William F. Morse, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

2371

14088

OPINION FABE, Justice. I. INTRODUCTION This appeal involves a civil rights action arising from the warrantless nighttime entry by three Alaska State Troopers into the home and bedroom of Dale Van Sandt. The troopers were searching for two escaped prisoners from the Spring Creek Correctional Center in Seward. The limited issue presented on appeal is whether the superior court correctly granted a directed verdict in favor of Sergeant Simon Brown on his qualified immunity defense. We reverse. II. FACTS Dale Van Sandt worked as a prison guard at the Spring Creek Correctional Center (Spring Creek). He lived in a mobile home in Seward, approximately three and a half miles from the entrance to the prison. Late in the evening of March 15,1994, two prisoners escaped from Spring Creek. Both were convicted murderers and considered extremely dangerous. The prison notified the Alaska State Trooper post headquarters in Soldotna of the escape. Brown was the senior trooper on duty that night and the head of the tracking team assigned to prison escapes. As he was driving to Seward to assist in the search for the escaped prisoners, Brown heard a radio transmission reporting that a person with the physical characteristics of one of the escapees had been sighted at the Short Stop, a convenience store near Van Sandt's trailer park. According to the radio report, a member of the search party had also found footprints in the snow approximately 200-300 yards behind the store. Brown directed his team to search an area encompassing several neighborhoods near the Short Stop, including the trailer park in which Van Sandt resided. Officer Dale Eaton was an investigator with the Seward Police Department and part of the search team. Eaton and several other officers worked their way through the trailer park in which Van Sandt resided, alerting the residents and searching for clues. When Eaton arrived at Van Sandt's trailer, he pounded on the door with either his flashlight or his fist, and the door popped open about six inches. Eaton then called into the trailer, but no one responded. Eaton called the police dispatcher and described what had occurred at the Van Sandt trailer. Brown heard the description over the radio and arrived at the trailer shortly thereafter. The parties dispute whether Eaton told Brown that he had caused the door to open by pounding on it, or whether he simply told Brown that he found the door open. Receiving no response to additional shouts of "Alaska State Troopers," Brown made the decision to enter Van Sandt's trailer with two of his team members. At the time Brown made the decision to enter, there were no broken windows or other signs of forced entry. There were no footprints leading to the Van Sandt trailer nor had any requests for assistance from the trailer or nearby residents béen received. As Brown conceded at trial: "I had nothing specifically that said [the escapees were] in . Van Sandt's residence." Brown based his decision on the open door, the report that someone resembling one of the escapees had been seen in the general vicinity about thirty minutes earlier, and his suspicion that the escapees might try to enter a residence in order to secure hostages, winter gear or keys to a vehicle. Van Sandt was asleep when the troopers entered his trailer. He awoke to the word "freeze," spoken by an officer wearing camouflage and a ski mask. The officer was pointing a gun at Van Sandt and shining a flashlight in his face. Van- Sandt testified that he believed that he would be killed. The officers identified themselves and told Van Sandt that they were looking for two escaped prisoners from Spring Creek. One of the officers searched the room and discovered Van Sandt's guard uniform in a closet. The officers then asked Van Sandt for identification. He responded that his identification tag was on his uniform shirt in the closet. After verifying Van Sandt's identity as a correctional officer, the officers left the trailer. Van Sandt filed an action for damages against Brown, the other members of the search team, and the State. Among Van Sandt's various causes of action was a civil rights claim under 42 U.S.C. § 1983, alleging that Brown had violated Van Sandt's Fourth Amendment rights under, color of state law. By the time of trial, only this claim remained. At the close of the testimony, Brown moved for a directed verdict, arguing that he was entitled to qualified immunity from Van Sandt's claim. The trial court granted the motion. Van Sandt appeals. III. DISCUSSION Van Sandt claims that when the officers entered and searched his residence, they violated his Fourth Amendment rights, thus providing the basis for § 1983 liability. Brown asserted as a defense the doctrine of qualified immunity. The superior court initially found that whether Eaton informed Brown that he had caused the door to Van Sandt's trailer to open was a disputed fact that precluded summary judgment on the issue of qualified immunity. At the end of the plaintiffs case, Brown moved for a directed verdict on the issue. The trial court indicated that, in "an abundance of caution," it wanted to hear additional testimony before ruling on the motion. At the close of all of the testimony, Brown renewed the motion for a directed verdict. After argument by both parties, the trial court again found that whether Eaton informed Brown that he had caused the door to open was a disputed fact. However, the court changed its position on the significance of this fact, concluding that even if Brown knew that Eaton had opened the door to the Van Sandt trailer, Brown was entitled to qualified immunity. We review the superior court's grant of a directed verdict "to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable [persons] could not differ in their judgment." Holiday Inns of Am., Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974). Whether a given set of facts entitles the defendant to qualified immunity from a § 1983 claim is a question of law, Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991), which we review de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994). Under federal case law, a law enforcement officer is entitled to qualified immunity when performing a search and seizure if, in light of clearly established law and the information available to the officer at the time, a reasonable officer could have believed the search to be lawful. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The law is "clearly established" if the contours of the right are sufficiently clear that a reasonable official would understand that his actions violate that right. Id. at 640, 107 S.Ct. at 3039. However, a court need not have previously held the very action in question unlawful for the rule to be "clearly established." Id. The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. A warrantless, noncon-sensual entry and search of a private residence is presumptively unreasonable in the absence of probable cause and exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S.Ct. 2091, 2096-97, 80 L.Ed.2d 732 (1984); accord Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir.1995). This rule was "clearly established law" at the time Brown searched Van Sandt's trailer. Therefore, Brown is entitled to qualified immunity only if a reasonable officer could have believed that the entry and search of Van Sandt's trailer was supported by probable cause and that exigent circumstances prevented obtaining a warrant. As the U.S. Supreme Court has stated, "[pjrobable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). Thus, the U.S. Supreme Court has adopted an approach that looks to the totality of the circumstances known to the officers at the time they entered the residence. Id. at 231, 103 S.Ct. at 2328-29. Under this approach, "[pjrobable cause requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." Murdock v. Stout, 54 F.3d at 1441 (citing Gates, 462 U.S. at 244, 103 S.Ct. at 2335). The facts, viewed in the light most favorable to Van Sandt, indicate that when Brown decided to enter Van Sandt's trailer, he possessed the following information suggesting that the escaped felons might be in the trailer: (1) someone with characteristics similar to those of one of the escapees had been spotted at the Short Stop, which was in the vicinity of Van Sandt's trailer park, (2) footprints had been found behind the Short Stop, (3) there was no response from within Van Sandt's trailer to the officers' shouts, and (4) the door to Van Sandt's trailer popped open when Investigator Eaton pounded on it. The federal courts require a stronger showing of probable cause than this to uphold a search under the "exigent circumstances" exception to the warrant requirement. For example, in Murdock v. Stout, the court found that officers had probable cause to enter a house when they had received reports of suspicious activity at the residence, the resident did not respond and there were indications that he was or should have been at home, and the door was open. 54 F.3d at 1441-42. However, the court stated that it doubted that a report of suspicious activity and an open door, in the absence of physical evidence of a burglary such as a broken window or forced lock, "would be sufficient probable cause to support entry." Id. at 1441. In Creighton v. Anderson, 922 F.2d 443 (8th Cir.1990), the court found probable cause to uphold a warrantless search of a house where the police had information "directly linking" the suspect with the house and with a car owned by the residents of the house, possessed evidence suggesting that the car had been used in the robbery under investigation, and had eliminated two other likely hiding places. In this case, there were no broken windows or other signs of forced entry, nor were there footprints, reports from neighbors, or other evidence indicating that the fleeing convicts had approached or entered the trailer. Moreover, although Brown received no response to his shouts into the trailer, there were no indications that "a resident was or should have been at the residence." Mur-dock, 54 F.3d at 1442. Indeed, the only fact that differentiated Van Sandt's trailer from any other trailer in the area where the resident did not respond to the police was that Van Sandt's door popped open when Eaton knocked on it. As Brown conceded at trial, he "had nothing specifically that said [the escapees were] in . Van Sandt's residence." If the facts are viewed in the light most favorable to Van Sandt, we conclude that a reasonable officer could not have believed that probable cause existed to enter and search Van Sandt's home. If Sgt. Brown was aware that the trailer door was opened by another officer, then he did not have sufficient information linking the escapees to the trailer to support a reasonable belief that the warrantless entry was lawful. Therefore, we hold that the superior court erred in granting Brown's motion for a directed verdict based on qualified immunity. Rather, the determination of whether Eaton told Brown that he had caused the door to open was a disputed material fact that should have been left to the jury. IV. CONCLUSION Therefore we REVERSE the superior court's grant of a directed verdict, and REMAND this case for a new trial. . Van Sandt's trailer park has approximately fifteen homes in it. On the other side of the road from the Short Stop are two additional subdivisions. Approximately 65 to 100 homes can be found within a one-mile radius of the Short Stop. . Van Sandt testified that less than half an hour earlier, at approximately 3:00 a.m., he had gotten out of bed to use the bathroom, opened the door to check the weather, and closed the door firmly. . Eaton initially stated that he told Brown "what he found and what he had done." Eaton later stated in an affidavit that he did not disclose to Eaton that he had caused the door to open. In a subsequent affidavit, he averred that he probably did tell Brown that the door came open when he knocked on it. At trial, Eaton testified that he could not remember what he told Brown, but agreed that he could think of no reason why he would not have told him what he had done. . We note that qualified immunity is an "immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Therefore, immunity questions ordinarily should be decided by the court long before trial. Id. at 529, 105 S.Ct. at 2817. . The elements of and defenses to a federal cause of action are defined by federal law. Howlett v. Rose, 496 U.S. 356. 375-76, 110 S.Ct. 2430. 2442-43, 110 L.Ed.2d 332 (1990). Thus, we look to federal law in determining the scope of Van Sandt's rights and Brown's qualified immunity with respect to Van Sandt's § 1983 claim. . In this case, Van Sandt conceded at oral argument that if the door to Van Sandt's trailer had been open when the officers arrived, Brown would have had probable cause to support entry into the residence. . Because of our conclusion, we need not reach the issue of exigent circumstances.

10478319

James NIZINSKI, Appellant, v. Charles E. CURRINGTON, Appellee

Nizinski v. Currington

1974-01-02

No. 1799

754

756

517 P.2d 754

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

James NIZINSKI, Appellant, v. Charles E. CURRINGTON, Appellee.

James NIZINSKI, Appellant, v. Charles E. CURRINGTON, Appellee. No. 1799. Supreme Court of Alaska. Jan. 2, 1974. James Nizinski, in pro. per. Joseph W. Sheehan, of Rice, Hoppner, Blair & Associates, Fairbanks, for appel-lee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

1149

7149

OPINION FITZGERALD, Justice. The appellant, James Nizinski, was discharged by his employer, Golden Valley Electric Association. Nizinski contested the discharge and the matter was submitted to arbitration in accordance with his collective bargaining agreement with Golden Valley. Charles Currington, the appel-lee here, was selected to be the arbitrator. He found that Golden Valley was justified in discharging Nizinski. Nizinski then brought suit in superior court against the employer, alleging in part that the arbitration by Currington was invalid because of fraudulent misstatements made by Golden Valley. This suit was terminated by summary judgment in favor of the employer. Nizinski appealed that decision to this court, and we affirmed. Ni-zinski v. Golden Valley Electric Association, 509 P.2d 280 (Alaska 1973). Nizinski next brought suit against Cur-rington, the arbitrator, for an allegedly libelous statement made in an affidavit submitted on behalf of Golden Valley in support of its successful motion for summary judgment. This affidavit stated in part: "The sole reason for the decision by affiant, confirming the discharge by Golden Valley of James Nizinski, was that said James Nizinski had, in writing and orally, stated that he would not lend any assistance to the fighting of a fire that might occur at his place of employment, in Healy, Alaska." Currington moved to dismiss the complaint for failure to state a claim for which relief could be granted. The trial court granted the motion and Nizinski has appealed. Before we reach the merits of this appeal we must determine whether the trial court's order is final, and thus appealable. The federal courts have established that an order entered pursuant to Civil Rule 12(b)(6) — -failure to state a claim for which relief can be granted — may or may not be appealable, depending on whether the court dismisses only the particular complaint or the asserted action itself. This court has also recognized that some Civil Rule 12(b)(6) dismissals are not appealable. There is considerable uncertainty about the complaint/action distinction. We will therefore treat a Rule 12(b)(6) dismissal as appealable where it is clear that the trial court determined that the complaint could not be amended so as to prevent future dismissals, thereby preventing the claimant from proceeding. In the instant case it is clear from the record that the trial judge determined that Nizinski's complaint could not be actionable even with an amendment, hence the trial court order was final. We proceed to the merits of the appeal. This court has said that even under the present liberal, notice-type civil rules a complaint must "disclose information from which a court could conclude that a valid claim is alleged showing that the pleader is entitled to relief." Nizinski's complaint averred that Currington had submitted a libelous affidavit in a judicial proceeding. Currington moved to dismiss, contending successfully that the complaint revealed on its face the existence of an absolute privilege which barred an action for libel. The authorities are virtually unanimous that defamatory testimony by a witness in a judicial proceeding, which is pertinent to the matter under inquiry, is absolutely privileged. In such instances an action for libel or slander will not lie even though the testimony is given maliciously and with knowledge of its falsity. The rule applies to affidavits as well as to in-court testimony. The trial court was therefore justified in dismissing Nizinski's complaint if the Currington affidavit was pertinent to the proceedings in which it was tendered. The court properly decided the question since it presented a legal issue rather than one of fact. Moreover, the trial court could consider matters of public record, including the court files in Nizinski v. Golden Valley Electric Assoc., although normally a motion to dismiss under Civil Rule 12(b) (6) is determined solely on the basis of the pleadings. The test in this regard is not relevance or materiality in the strict sense, but rather whether the statement has some reasonable reference or connection to the subject of inquiry. Nizinski contended, inter alia, in the Golden Valley suit that the arbitrator Currington had acted incompetently and in bad faith in affirming the company's right to fire Nizinski. Thus an affidavit from Currington detailing the rationale for his decision was clearly pertinent to the subject matter of the judicial proceeding, and neither the alleged falsity of the statement nor the malice behind its utterance would support a claim for defamation. The trial court acted properly in dismissing the complaint for failure to state a claim for which relief could be granted. Affirmed. . Hereinafter referred to as Golden Valley. . 2A J. Moore, Federal Practice § 12.14, at 2338 (2nd ed. 1948). . City of Fairbanks v. Electric Distribution Sys., 413 P.2d 165, 168 (Alaska 1966); Dworkin v. First Nat'l Bank of Fairbanks, 444 P.2d 777, 778 (Alaska 1968). . See Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962) for a fuller discussion of this practical approach to the problem. . Civil Buie 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." See also Dworkin v. First Nat'l Bank of Fairbanks, 444 P.2d 777, 778 (Alaska 1968). . Normally the defense of privilege must be asserted as an affirmative defense, see Annot., 51 A.L.R.2d 552, 567 (1957), but the privilege is properly before the court on a Civil Buie 12(b) (6) motion where the complaint itself clearly alleges or shows the existence of the circumstances creating the privilege. Owen v. Kronheim, 113 U.S.App.D.C. 81, 304 F.2d 957, 958 (1962); Whelan v. Wolford, 164 Cal.App.2d 689, 331 P.2d 86, 88 (1958). . Smith v. Banister, 9 Alaska 632 (1939); Fairbanks Publishing Co. v. Francisco, 390 P.2d 784 (Alaska 1964) (dicta); W. Prosser, Torts, at 777-81 (4th Ed. 1972); Restatement of Torts § 585-589 (1938). . See Annot., 54 A.L.R.2d 1299, 1305-9 (1957). . See Stryker v. Barbers Super-Markets, Inc., 81 N.M. 44, 462 P.2d 629, 631 (1969); Powers v. Vaughan, 312 Mich. 297, 20 N.W.2d 196, 199 (1945) ; Restatement of Torts § 619 (1)(1938). . 509 P.2d 280 (Alaska 1973). . See Iacaponi v. New Amsterdam Casualty Co., 379 F.2d 311, 312 (3rd Cir. 1967); Hagan v. State of California, 265 F.Supp. 174, 175 (D.C.Cal.1967). . See Stryker v. Barbers Super-Markets, Inc., 81 N.M. 44, 462 P.2d 629 (1969); Spoehr v. Mittelstadt, 34 Wis.2d 653, 150 N.W.2d 502 (Wis.1967) ; W. Prosser, Torts § 109 (3rd Ed. 1964); Restatement of Torts § 589 (1938). . The affidavit read in part: "The sole reason for the decision . was that James Nizinski had . . . stated that lie would not lend any assistance to the fighting of a fire that might occur at his place of employment . . . ."

10483615

Jonathan COGER, Appellant, v. STATE of Alaska, Appellee

Coger v. State

1974-01-16

No. 1766

1403

1406

517 P.2d 1403

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

Jonathan COGER, Appellant, v. STATE of Alaska, Appellee.

Jonathan COGER, Appellant, v. STATE of Alaska, Appellee. No. 1766. Supreme Court of Alaska. Jan. 16, 1974. Susan Burke, Asst. Public Defender, Herbert D. Soil, Public Defender, Anchorage, for appellant. Ivan Lawner, Asst. Atty. Gen., John E. Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

1761

10582

OPINION CONNOR, Justice. Jonathan Coger appeals from a July 1972 judgment of conviction sentencing him to three years imprisonment for selling hallucinogenic drugs in violation of AS 17.12.- 010. The only issue in this appeal challenges the state's procedure in presenting evidence to the grand jury. On April 12, 1972, the grand jury convened in Fairbanks, Alaska, to consider a series of drug cases which were based on the undercover activities of one Dennis McKelvie, a Fairbanks city policeman. The grand jury heard testimony from Roland K. Bonneville, a special investigator for the Fairbanks Police Department, and from Joseph L. Turner, an investigator for the Alaska State Troopers, both of whom supervised McKelvie's undercover operations. Bonneville and Turner described how the operations were set up and how McKelvie was supervised. Then McKelvie himself was called as a witness and was sworn. The district attorney called on McKelvie to give very little direct testimony. Instead, the district attorney read to the grand jury police reports prepared by Bonneville and Turner. While McKelvie was never asked specifically as to the correctness of the entire statement, he clearly indicated his concurrence by pointing out where a mistake had been made and, further, by answering direct questions from a grand juror. In the case of Jonathan Coger, the proceedings before the grand jury consisted of the following: "MR. CLAYTON: [The report concerning] Jonathan Coger, indicates that you told the officers that about 0230 hours, that'd be 2:30 in the morning on February 10th, of '72 you were with Don Daily (phonetic) in the French Quarter. Don and you arranged to buy 2 lids of marijuana from a Negro male in the bar. . . . Don made the arrangements with another Negro male who he called Garfield (phonetic). At approximately 2:45 we left the French Quarter and went into a 1963 Ford Galaxy, license 58374 Alaska. Garfield (phonetic) drove and the other Negro, who Don called John, rode next to him. Don and I rode in the back seat. We drove to 901 Cush-man Street. A sign on the front said, Parrish Self Help (phonetic) — Parrish Self Help (phonetic). John rolled a marijuana cigarette because he wanted us to try it before we walked — bought. In order to insure a smooth operation I faked a few hits off the joint. I avoided inhaling the smoke as I always do. At approximately 3:30, John brought a lid out of the back room and asked if it was all right. Don said he wanted a lid and so did I. John got another lid out .of the back room. I took one lid and Don Daily (phonetic) took the other. Don gave him a Twenty Dollar ($20.00) bill; I gave him 2 tens (10.00s). Garfield (phonetic) was a witness. At about 4 — 0400 Don Daily (phonetic), Garfield (phonetic) and myself left the residence at 901 Cushman. John stayed at the residence. We returned to the French Quarter at 0400. I turned the marijuana over to Turner and Bonneville at 1910 hours at Fairbanks police department. Turner sealed and wrapped the marijuana in my presence for shipment. That report indicates 10 grams of vegetative matter showing without a doubt the presence of marijuana. The report indicates that the '63 Galaxy was registered to Garfield Jenkins (phonetic). And that you had told them that the man was called John. And how did you identify him to the police ? A. [McKelvie] I identified him through police photographs. MR. CLAYTON: And that was Jonathan Coger. A. And I'd like to indicate one mistake that was made here. The person that's been called Don Daily, (phonetic) and he may be called that in a few more reports until I positively identified him, is in fact Donald Jessie Darling (phonetic). MR. CLAYTON: And at this time you knew him, Donald Daily (phonetic) ? A. Right. I — I'd made a mistake when I heard him introduce himself and I thought his name was Daily (pho netic). Actually it's Darling (phonetic). MR. CLAYTON: At, this time you hadn't had any transactions with Don— with Don ? A. No. A GRAND JUROR: Were you and Don both there with Coger at this time ? A. That's correct." On April 12, 1972, the grand jury returned an indictment against Jonathan Coger charging him with haying sold approximately ten grams of marijuana to Dennis McKelvie. On June 1, 1972, Coger moved to dismiss the indictment on the ground, inter alia, that insufficient evidence was presented to the grand jury to support the indictment. Following a hearing on June 2, 1972, the motion was denied by the superior court. On June 7, 1972, the jury found Coger guilty of the crime of selling a hallucinogenic drug as charged in the indictment. The court entered judgment pursuant to the jury's verdict on July 13, 1972. Appellant argues that his conviction should be reversed because the state elicited no direct testimony before the grand jury from its undercover agent as to appellant's alleged sale of drugs,. He characterizes the district attorney's reading of the police report in the context of questioning the witness McKelvie as hearsay evidence because it was an out-of-court declaration offered to show the truth of matter asserted therein. Citing the American Bar Association standards relating to the use of hearsay in proceedings before the grand jury (which this Court adopted in Taggard v. State, 500 P.2d 238, 242 (Alaska 1972)) he concludes that there was no necessity for not eliciting direct testimony, that, as a result, the procedure leading to his indictment failed to meet the A.B.A. Standards, and therefore that the trial court erred in denying his motion to dismiss the indictment. While we cannot understand Why the district attorney summarized the police report in the process of examining the witness and thereby risked the possibility of improperly influencing the grand jury, we nevertheless are unable to agree with appellant that the procedure was so defective as to require reversal. We simply do not subscribe to appellant's characterization of the district attorney's question as hearsay. Inasmuch as the prosecutor was not a sworn witness but was acting as counsel when he summarized the police report, his statement was technically not testimony. In an adversary proceeding, to be sure, that form of question might be objected to as leading. But it is a familiar phenomenon of trial practice that a leading question may be easily rephrased and thereby rendered unobjectionable. Inasmuch as grand jury practice is ex parte and the district attorney has no opponent to alert him to improperly phrased questions, the cru cial issue here is whether the evidence sought to be elicited was so tainted by the form of the question that it could not properly support the indictment. Alaska Criminal Rule 6(r) as promulgated in Supreme Court Order 157 provides in part: "Evidence which would be legally admissible at trial shall be admissible before the grand jury." (Emphasis added.) Unquestionably, McKelvie was competent to testify concerning what he observed and did in purchasing marijuana from appellant oh February 10, 1972. And, he would certainly be permitted to refresh his recollection with any notes or reports he had made contemporaneously with the events themselves. Appellant's objection, then, can go only to the form of the district attorney's question and not to its content. In our opinion, this defect did not render the evidence of Coger's sale of marijuana to McKelvie inadmissible before the grand jury. We therefore hold that the lower court did not err in declining to dismiss the indictment. Despite our holding we strongly disapprove of the procedure followed. We will in the future hold indictments to be defective when based solely upon narrative statements read to a witness, rather than upon testimony elicited by means of a question and answer method. Affirmed. . The fact that the defendant has already been convicted does not of itself bar a challenge to the indictment. As we said in Taggard v. State, 500 P.2d 238, 243 (Alaska 1972) : "A mere formal defect does not require dismissal of an indictment after the guilt of the defendant has been established at a fair trial. But courts do not hesitate to dismiss an indictment, even after a conviction, when the defect in the indictment is substantial. The conviction must be overturned when an indictment is invalid and the error was properly preserved by a timely objection prior to trial." . See C. McCormick, Law of Evidence § 225, at 460 (1954). . American Bar Association Standards Relating to the Prosecution Function and the Defense Function § 3.6(a), at 88-89 (Approved Draft, 1971). . The absence of an opponent is not to be regarded by district attorneys as license to engage in questionable practices before the grand jury. We are not unmindful of the trial court's expression of disapproval of the procedure utilized in this case: "In denying the motion to dismiss the indictment, this court does not put its seal of approval on the procedure of eliciting testimony before the grand jury as it was done in this case. Practice lends itself to possible abuse. Now, Judge Hepp has criti- [ci]zed the procedure . in the Alexander case and I criticize the procedure in the Coger case. Someone in the district attorney's office is obviously not getting the message and a different result might well append itself in a future case." As we observed in State v. Shelton, 368 P.2d 817, 819 (Alaska 1962) : "[AT vital function of the grand jury [is] the protection of the innocent against oppression and unjust prosecution." (Footnote omitted.) We will zealously review alleged abuses of the grand jury system to ensure that this vital function is not eroded. . Our holding does not prohibit the use of statements where permitted by the American Bar Association Standards Relating to the Prosecution Function and the Defense Function § 3.6(a), at 88 (Approved Draft, 1971), as adopted in our opinion in Taggard v. State, 500 P.2d 238, 242, n. 14 (Alaska 1972), and Burkholder v. State, 491 P.2d 754, 758, n. 14 (Alaska 1971). We note that the state in its brief has conceded that the method used here to adduce evidence before the grand jury was not good practice, and that this Court should disapprove of it.

11950603

PUBLIC EMPLOYEES' LOCAL 71, Appellant, v. STATE of Alaska, Appellee

Public Employees' Local 71 v. State

1989-06-09

No. S-2726

1062

1064

775 P.2d 1062

775

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

PUBLIC EMPLOYEES’ LOCAL 71, Appellant, v. STATE of Alaska, Appellee.

PUBLIC EMPLOYEES’ LOCAL 71, Appellant, v. STATE of Alaska, Appellee. No. S-2726. Supreme Court of Alaska. June 9, 1989. Kevin Dougherty, Anchorage, for appellant. Virginia B. Ragle and Susan D. Cox, Asst. Attys. Gen., and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.

1441

9135

OPINION Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ. BURKE, Justice. I. INTRODUCTION Public Employees Local 71 (Local 71) and Confidential Employees Association (CEA) appeal the decision of the superior court, affirming the decision of the State, Labor Relations Agency (Agency), which dismissed the unfair labor practice charges filed against the state. The first issue on appeal is whether a collective bargaining agreement is subject to legislative approval of its monetary terms. The second issue is whether the state violated its duty to bargain in good faith. II. FACTS On June 4, 1984, Local 71 entered into a collective bargaining agreement with the state, which was in effect from January 1, 1984, through December 31, 1986. The terms of the contract called for salary increases of 0% during the first fiscal year of the contract (July 16, 1984 — July 16, 1985), 5% during the second fiscal year (July 16, 1985 — July 16, 1986), and 3.8% during the third fiscal year (July 16, 1986 — July 16, 1987). In 1985, the legislature appropriated the necessary funds for the 5% salary increase. However, the legislature also adopted Leg islative Resolution No. 19, which stated "that the Alaska State Legislature will not fund the monetary terms of the existing contracts for future years" and directed the parties to renegotiate the monetary terms proposed for fiscal year 1987. The state and unions were unable to renegotiate the salary increases. At the beginning of the 1985 legislative session, the governor requested funding for the 3.8% salary increase in House Bill 500. Subsequently, after a projected revenue decline, the governor submitted to the legislature a revised operating budget consisting of $120,000,000 in proposed reductions. The reductions did not refer to the 3.8% pay increase. In 1986, the legislature refused to fund the 3.8% salary increase. On April 17, 1986, Local 71 filed an unfair labor practice charge against the State of Alaska. A hearing was held on July 18, 1987. On October 21, 1986, the agency issued its order dismissing the unfair labor practice charge. Local 71 appealed. The superior court affirmed the agency's dismissal of the unfair labor practice charge. This appeal followed. III. STANDARD OF REVIEW When an appeal of an agency decision involves a question of statutory interpretation one of two standards will apply. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896 (Alaska 1987). The "rational basis" test is used when the issue involves agency expertise or the determination of fundamental policies within the agency's statutory function. Id. at 903. If the agency's decision is supported by the facts and has a reasonable basis in the law, the decision will be upheld. Id. However, when the statutory interpretation does not involve agency expertise, or the agency's specialized knowledge and experience would not be particularly probative, the reviewing court can independently review the decision and substitute its own judgment. Id. IV. DISCUSSION A. Legislative Approval The first issue is whether a collective bargaining agreement is subject to legislative approval of its monetary terms. This issue is a question of statutory interpretation and should be reviewed under the independent judgment standard. Alaska Statute 23.40.215(a) provides that the "monetary terms of any agreement entered into under the Public Employment Relations Act are subject to funding through legislative appropriation." The initial approval of the monetary terms of any agreement is a "nonbinding, advisory expression of legislative intent." AS 23.40.215(b). Additionally, under Alaska's constitutional system funding of an agreement is constitutionally relegated to the legislature. Alaska Const, art. IX, § 13. The Public Employment Relations Act recognizes this constitutional requirement in AS 23.40.-215(a). From our independent review of the statute, it is clear that the monetary terms of a collective bargaining agreement are not effective until the funds are appropriated by the legislature. Each year the monetary terms of a collective bargaining agreement are subject to independent legislative approval. B. Duty to Bargain in Good Faith The second issue is whether the state violated its duty to bargain in good faith. We hold that it did not. The governor sought funding for the bargained pay raise when he submitted his executive budget, which included a request for the 3.8% pay raise. The governor's subsequent proposal to the legislature, suggesting $120,-000,000 in budget cuts, did not constitute a withdrawal of the governor's request to fund the pay raise, because the 3.8% pay raise was not among the reductions. The decision is AFFIRMED. . CEA also entered into a collective bargaining agreement with the state providing for salary increases. CEA joins in Local 71's arguments. . The legislature stated in section 20 of the budget act: Failure of the legislature to adopt a separate appropriation item for the pay raise constitutes rejection of the monetary terms of the collective bargaining agreements in accordance with AS 23.40.215. AS 23.40.215 is set forth in full at note 3. . AS 23.40.215 provides: (a) The monetary terms of any agreement entered into under the Public Employment Relations Act are subject to funding through legislative appropriation. (b) The Department of Administration shall submit the monetary terms of an agreement to the legislature within 10 legislative days after the agreement of the parties, if the legislature is in session, or within 10 legislative days after the convening of the next regular session. The legislature shall advise the parties by concurrent resolution if it approves or disapproves of the monetary terms within 60 legislative days after the agreement is submitted to the legislature. The approval of the monetary terms of an agreement under this subsection is a nonbinding, advisory expression of legislative intent. If within 60 legislative days after the agreement is submitted the legislature advises the parties by concurrent resolution that it disapproves the monetary terms of the agreement, the parties may resume negotiations. .In its brief, Local 71 relied solely on Boston Teachers Union, Local 66 v. School Committee of Boston, 386 Mass. 197, 434 N.E.2d 1258 (1982). In Boston Teachers, the teachers' union sought declaratory and injunctive relief to compel the mayor to submit a budget to the city council which would provide appropriations for the salary increases in the second year of a collective bargaining agreement. The Massachusetts court held that approval by the legislature of the monetary terms of the contract was statutorily required throughout the contract's three-year term: We think that the requirement in § 7(b), that the employer submit a request to the appropriate legislative body for an appropriation sufficient to fund the cost items of the agreement, applies only to the funds needed in the first year of the agreement, and that an appropriation funding the first year of the contract constitutes an approval by the legislative body of the entire agreement. The context of this provision suggests that this is the proper interpretation.... In order for § 7(b) to be construed consistently with § 7(a), authorizing contracts of three years' duration, the statute must be read as contemplating an initial approval of the contract by the legislative body, followed by appropriations as a matter of course in the succeeding years of the contract. Id. at 1263. See Mass.G.L. c. 150E ¶7. The Massachusetts court also found support for its position in the legislative history of the statute, which provided that if there is a conflict between the terms of a collective bargaining agreement and the statute, the terms of the agreement prevail. Id. at 1263. Based on Boston Teachers, Local 71 asserts that once the legislature approves the monetary terms of the first year of a collective bargaining agreement, the legislature must fund the subsequent years. However, Boston Teachers is distinguishable from the case at hand because the governing statutes in the two states are clearly different. Therefore, Boston Teachers is not persuasive. . The superior court for the first judicial district has also held that the monetary terms of an agreement are not enforceable until the legislature appropriates the required funding. Alaska Public Employees Ass'n v. State, No. 1JU 79 538 Civ. and Public Employees' Local 71, AFL-CIO v. State, No. 1JU 79 983 Civ. (Alaska Super., Ct. Dec. 24, 1979). . Additionally, Local 71 and CEA assert that the agency's decision is not supported by substantial evidence and that the agency failed to properly review whether the state supported the pay raise throughout the entire legislative session. Both of these arguments are without merit.

9035884

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

Alderman v. Iditarod Properties, Inc.

2004-12-30

No. S-10975

136

146

104 P.3d 136

104

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:38:48.788091+00:00

CAP

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

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

Caleb ALDERMAN; Barbara Alderman; Alaska Guestours, Inc., dba Fourth Avenue Theater Trolley Tours, Appellants, v. IDITAROD PROPERTIES, INC., dba Fourth Avenue Theatre, Appellee. No. S-10975. Supreme Court of Alaska. Dec. 30, 2004. Robert C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants. Walter T. Featherly and Teresa S. Ridle, Patton Boggs LLP, Anchorage, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

5084

31295

OPINION CARPENETI, Justice. I. INTRODUCTION This appeal arises out of a failed business venture between Iditarod Properties and the Aldermans. In 2001 we affirmed a judgment for trademark infringement against the Al-dermans, but we vacated the portion of the judgment allowing Iditarod to recover unpaid rent. Iditarod subsequently brought suit against the Aldermans in superior court seeking to recover the unpaid rent, and it prevailed on its claim following a bench trial. The Aldermans appeal the decision of the superior court granting Iditarod recovery for unpaid rent, attorney's fees, and prejudgment interest. We affirm the judgment and the award of prejudgment interest, but we reverse the award of enhanced attorney's fees. ' II. FACTS AND PROCEEDINGS Robert Gottstein, the sole shareholder of Iditarod Properties (Iditarod), is the owner of the Fourth Avenue Theatre, an historic building in downtown Anchorage. In 1995 the Aldermans obtained a permit to park their trolley in front of the Fourth Avenue Theatre, and they entered into an oral agreement with Gottstein under which Iditarod employees sold trolley tour tickets in the theater's gift shop and the Aldermans rented the theater ticket booth and office space in the theater's basement. The arrangement survived until 1997 when numerous conflicts between Iditarod and the Aldermans resulted in the Aldermans moving to an office space next door to the theater. After moving, the Aldermans registered and operated their trolley tour under the name "Fourth Avenue Theater Trolley Tours," which prompted Iditarod to file suit against the Aldermans for trade name infringement. Jury trial began in May 1999. After the close of evidence Superior Court Judge Brian C. Shortell granted Iditarod's motion to amend its pleading to add a cause of action for breach of the oral lease agreement. The jury found that Iditarod owned the trade name "Fourth Avenue Theatre," that the Al-dermans had infringed on that trade name, that the Aldermans violated the rental agreement by failing to pay Iditarod fifteen percent of the revenues from the trolley tickets sold at the theater, and that the Aldermans owed Iditarod $13,924.05 for unpaid rent. We decided Alderman v. Iditarod Properties, Inc. in 2001 We affirmed the trial court's judgment that the Aldermans infringed on Iditarod's trade name, "Fourth Avenue Theatre," and its award of enhanced attorney's fees to Iditarod. However, we vacated the judgment for unpaid rent because we found that the Aldermans had suffered substantial prejudice because Iditarod unduly delayed pleading the breach of contract claim until after the close of evidence. On January 14, 2002 Iditarod filed a new complaint against the Aldermans seeking damages for the breach of the agreement to pay rent. The Aldermans moved for summary judgment, arguing that Iditarod's claim was barred by res judicata and the applicable statute of limitations. The superior court denied the motion, ruling that Iditarod's claim was not barred by res judicata because our 2001 decision was not a ruling on the merits and because the action for rent was "fundamentally different" from the action for trademark infringement. The court found that the cause of action arose prior to August 7, 1997, and that the action was therefore timely because the applicable statute of limitations was «six years under the former AS 09.10.053. Trial commenced on November 15, 2002. Iditarod offered into evidence the testimony of Robert Gottstein and the prior sworn testimony of Caleb Alderman, Barbara Alderman, and Francis Gallela, the last over the Aldermans' objection. The Aldermans offered into evidence the testimony of Caleb Alderman, the corporate income tax returns of Alaska Guestours, and receipts of trolley ticket purchases. The superior court entered judgment in favor of Iditarod on November 21, 2002. The court found that the Aldermans had entered into an oral contract with Gottstein whereby they agreed to pay fifteen percent of Alaska Guestours' gross revenue to Iditar-od Properties and/or Gottstein. In determining how rent was calculated, the court relied on the Aldermans' prior sworn testimony, the prior sworn testimony of Francis Gallela, and the Aldermans' tax returns. The court found that the Aldermans were obligated to pay $24,920.55 in rent, but it offset this amount by $11,817 which was retained by Gottstein from ticket sales from the 1997 season. Accordingly, it ordered the Aldermans to pay Gottstein the balance of $18,108.55. Iditarod sought to recover its full attorney's fees accruing from the date of the 1999 superior court judgment. Iditarod claimed that it had incurred $61,266.25 in attorney's fees, an amount which included fees for all work after the first trial, including appellate work. The Aldermans opposed this motion. The court awarded Iditarod $18,170 in attorney's fees under Alaska Civil Rule 82, an amount which represented fifty percent of Iditarod's actual fees for the 2002 trial, excluding the -post-1999 appellate work. The court enhanced the fee award because the Aldermans had appealed the 1999 judgment on the grounds that they were denied the opportunity to present evidence in their defense but then failed to introduce any new evidence at the 2002 trial; because Iditarod made an offer of judgment that the Alder-mans rejected; and because the Aldermans' defenses were generally weak. The Alder-mans' motion for reconsideration on this is-site was denied. | The court ordered the Aldermans to pay $18,170 in attorney's fees, $582.29 in costs, and $1,235.34 for the remainder owed for unpaid rent, for a total judgment of $19,987.63. The Aldermans appeal on several grounds. They claim that the superior 'court erred in denying their motion for summary judgment on the grounds that Iditar-od's suit was barred by res judicata and the applicable statute of limitations, in admitting the prior sworn testimony of Francis Gallela, in awarding enhanced attorney's fees, and in calculating the amount of prejudgment interest. III. STANDARD OF REVIEW A trial court's determinations whether an action is barred by res judicata or the applicable statute of limitations present questions of law, which we review de movo. The determination of the date on which a cause of action acerued is a factual finding. Such factual findings are reviewed for clear error. A determination regarding the admissibility of evidence is a matter within the 'discretion of the trial court, and its rulings will not be disturbed absent an abuse of discretion. If the admissibility of evidence turns on whether the trial court applied the correct legal standard, we review the court's decision using our independent judgment. We review an award of attorney's fees for an abuse of discretion, which we will find only if, after a review of the entire record, we are left with a definite and firm conviction that the trial court erred in its ruling. If the award of attorney's fees requires interpretation of the Alaska Civil Rules, we apply our independent judgment. The date when prejudgment interest begins to accrue is a question of law which we review de novo. IV. DISCUSSION A. The Action To Recover Rent Is Not Barred by Res Judicata. The Aldermans argue that Iditar-od's action to recover rent is barred by res judicata because Iditarod should have raised the claim at the first trial but did not proper ly do so. The doctrine of res judicata "prevents a party from suing on a claim which has been previously litigated to a final judgment by that party'" And, as we stated in Plumber v. University of Alaska, Anchorage, "res judicata bars not only re-litigation of the same cause of action, but also new claims arising from the same transactions as those in the first suit." When determining whether two claims are part of the same cause of action, we look to the transaction out of which the claims arose, not the legal theories asserted. We exercise pragmatism in making this determination and consider "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." The actions for trademark infringement and breach of an oral rental contract are separate and distinet causes of action. Each action required proof of different facts, arose out of a separate and distinct injury, and caused a separate and distinct harm. The cause of action for trademark infringement arose when the Aldermans began using Idi-tarod's trade name, "Fourth Avenue The-atre," in their trolley tours, while the cause of action for unpaid rent arose when the Aldermans failed to pay rent as agreed. Although both causes of action were precipitated by the breakdown in the parties' business relationship, either cause of action could have been brought had the factual cireumstances underlying the other cause of action never occurred. Because the two causes of action arose out of separate transactions, we find that Iditarod's action to recover rent was not barred by res judicata. B. The Action Is Not Barred by the Statute of Limitations. The Aldermans also argue that Idi-tarod's 2002 suit to recover rent was barred by the statute of limitations. They contend that, because the cause of action accrued after August 7, 1997, it was subject to a three-year statute of limitations rather than the six-year period used by the superior court. Iditarod contends that the cause of action acerued in June or July 1997 because the Aldermans failed to pay rent for those months. Accordingly, they argue that the action is governed by the six-year statute of limitations period applicable under former AS 09.10.050. Iditarod argues in the alternative that, even if the cause of action was subject to a three-year statute of limitations, the action is saved by Alaska's statutory savings clause. Because we find that Alaska's statutory savings clause applies, we need not review the superior court's factual find ings regarding when the cause of action accrued. Alaska's statutory savings clause, codified in AS 09.10.240, provides that, if a judgment on a particular cause of action is reversed or dismissed on appeal, and the cause of action was originally commenced within the time prescribed, the losing party may commence a new action on the same grounds within one year of the reversal or dismissal. Alaska 'Statute 09.10.240 applies to all actions that are dismissed at the trial or appellate level other than those dismissed on their merits. Iditarod's action to recover rent was originally filed as an amendment to a complaint for trademark infringement in May 1998, making it timely under either the three-year or six-year statute of limitations. We did not dismiss the judgment for rent on its merits, but because we were concerned that allowing Iditarod to amend the complaint after the close of evidence might have caused prejudice to the Aldermans. Because Iditarod's original action was timely, and because we did not vacate the judgment on the merits, we conclude that AS 09.10.240 applies. Idi-tarod's second action to recover rent, filed less than one year after the judgment was vacated, was timely under AS 09.10.240. The action was not barred by the statute of limitations. C. Any Error in Admitting the Prior Sworn Testimony of Francis Gallela Was Harmless. At the 1999 trial, the Aldermans called Francis Gallela as an expert witness to prove the economic damages suffered by the Alder-mans due to Iditarod's alleged interference with their business. At the 2002 trial, Judge Christen allowed Iditarod to read into evidence Gallela's prior sworn testimony that had been given as part of an offer of proof. In the portion of testimony that was offered into evidence, Gallella stated that Caleb Alderman had told Gallela that the rental agreement required the Aldermans to provide Iditarod with fifteen percent of Alaska Guestours's gross receipts, a statement that contradicted the Aldermans' position at the 2002 trial. At that trial, the Aldermans maintained that their rent agreement called for them to pay only fifteen percent of their ticket sales from locations on the Gottstein property, not fifteen percent of their gross revenues. The Aldermans argue that the trial court erred in admitting Gallela'®s prior sworn testimony because it was hearsay and did not fall within an exception to the hearsay rule. Under Alaska Evidence Rule 801(c), hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted." A statement is not considered hearsay if it is an admission by a party and is offered against that party. Iditarod urges this court to hold that when a party puts a witness on the stand to prove a particular fact and the witness does so, the witness's testimony constitutes an adoptive admission by that party and is therefore not hearsay. We need not reach this issue because, even if Gallela's testimony was admitted in error, it was harmless. The admission of evidence, even if erroneous, is harmless when there is no reasonable likelihood that the admitted evidence had an appreciable effect on the court's decision. When determining whether an allegedly erroneous admission of evidence was harmless, we do our best to put ourselves in the position of the trier of fact In this case, there is no reasonable likelihood that admission of Galle-la's testimony would have had an appreciable effect on a reasonable trier of fact (here, the court was the trier of fact) because the financial records presented at the second trial, the testimony of Robert Gottstein, and substantial testimony from the Aldermans themselves at the first trial all supported the court's decision and all were in conflict with the testimony of the Aldermans at the second trial. D. The Superior Court Erred in Awarding Enhanced Attorney's Fees to Id-itarod. The court awarded Iditarod $18,170 in attorney's fees, an amount which represented an enhanced fee award of fifty percent of Iditarod's actual attorney's fees. The court enhanced the award because the Alder-mans failed to present new evidence on the issue of rent, they rejected Iditarod's reasonable settlement offers, and they presented a weak defense. The Aldermans argue that this was an abuse of discretion. Under Alaska Rule of Civil Procedure 82(b)(1), if an issue is contested and goes to trial, a prevailing plaintiff is entitled to recover as attorney's fees twenty percent of a judgment up to $25,000. The trial court has discretion to vary a fee award if it determines that variation is warranted because of, among other factors, the attorneys' efforts to minimize fees, the reasonableness of claims and defenses pursued by each side, vexatious or bad faith conduct, and any other relevant equitable factors. We reverse the award of attorney's fees because we find that the court erred in considering Iditarod's offers of judgment when awarding enhanced fees and because the findings that the Alder-mansg' claims were either unreasonable or brought in bad faith are not supported by the record. 1. Iditarod's offers of judgment were not relevant under Civil Rule 82. torney's fees. The superior court awarded Iditarod enhanced attorney's fees in part based on its finding that Iditarod had attempted to minimize its attorney's fees through pre-trial offers of judgment. On October 17, 2002 Idi-tarod offered the Aldermans and Alaska Guestours $900 to settle the case. The settlement offer was not accepted, and Iditarod subsequently incurred at least $9,000 in at-The settlement offer did not lead to an award of attorney's fees under Rule 68, because the court found that the parties did not set a deadline for initial disclosures, a finding that Iditarod does not challenge on appeal. Although the offers of judgment were reasonable attempts by Iditarod to minimize the attorney's fees of both parties, we have consistently held that it is error for a superior court to consider past settlement negotia tions when awarding enhanced fees under Rule 82. The only method by which fees may be enhanced for failure to accept an offer of judgment is found in Civil Rule 68. If an offer of judgment fails due to a procedural defect, as is the case here, the superior court may not then penalize the offeree by awarding enhanced fees under Rule 82. We reverse the award of enhanced fees because the award was at least partially based on Iditarod's offers of judgment under Rule 68. 2. The Aldermans' defenses were not unreasonable. The superior court also awarded Iditarod enhanced attorney's fees because it felt that the Aldermans' defenses were weak. When a party has taken a legitimate position, it has not acted unreasonably for the purposes of Rule 82. This case centered on the terms of an oral contract, about which neither party was able to produce definitive evidence. Caleb Alderman testified that the oral contract was for fifteen percent of sales generated at the Fourth Avenue Theatre and not fifteen percent of Alaska 'Guestours's gross receipts, although his testimony at the first trial had been inconsistent on this point. The prior testimony of Barbara Alderman, which was read into evidence, was somewhat less clear but tended to support the claim that the contract was for fifteen percent of sales made at the theater. Gottstein claimed that the contract was for fifteen percent of the gross receipts from the trolley tours. Considering the conflicting testimony presented at trial, we cannot say that the Alder-mansg' defense was unreasonable. The superior court's finding appears to be based on Judge Shortell's characterization of the Al-dermans' claims and defenses during the 1999 trial, and does not support enhancement pursuant to Rule 82(b)(8)(F), which requires a finding that a party's defense was unreasonable. 3. There is no factual basis to support a finding that the Aldermans acted in bad faith or made misrepresentations to the court during the current litigation. Finally, the court stated that it awarded enhanced fees because the Alder-mans appealed the 1999 judgment on the grounds that they were not given the opportunity to present new evidence but then failed to present any new evidence at the 2002 trial. This appears to be another way of saying that the Aldermans' appeal was brought in bad faith or that the Aldermans made misrepresentations to this court. In the first appeal, we held that the Alder-mans were prejudiced when Judge Shortell allowed Iditarod to assert a cause of action for unpaid rent after the close of evidence. The Aldermans argued that thé late addition of this claim prevented them from presenting evidence concerning the terms of the parties' oral rent agreement. At the second trial, the Aldermans submit, ted tax returns for Alaska Guestours for the years 1995-1997, as well as assorted receipts. The tax returns specified Alaska Guestours' gross receipts and rent expenditures for each year. Caleb Alderman testified that some of the rent expenses on Alaska Guestours' tax returns were related to the company trolley and van. He also testified that the parties' oral agreement specified that the Aldermans would pay Iditarod fifteen percent of ticket sales made at the theater and not, as Iditar-od claimed, fifteen percent of all gross re ceipts generated from the trolley. Clearly the Aldermans presented some new evidence, both testimonial and documentary, at the 2002 trial. The superior court also stated that the Aldermans may have acted in bad faith due to evidence that they had delayed the case by attempting to evade process, an apparent reference to the Aldermans' attempt to avoid Iditarod's judgment in the 1999 action. But conduct undertaken in "bad faith" for the purposes of Rule 82 must relate to conduct during the litigation, and not to actions taken during the underlying transaction or other litigation between the parties. It was thus inappropriate to consider the Alder-mans' alleged attempts to avoid judgment in another cause of action. We conclude that the superior court erred in awarding Iditarod enhanced attorney's fees and remand this issue for imposition of Rule 82 attorney's fees without enhancement. E. The Superior Court Correctly Calculated Prejudgment Interest. The superior court awarded Idi-tarod prejudgment interest at a rate of 10.5% per annum to accrue from August 1, 1997, but excluding the period during which Iditar-od was in possession of the judgment for unpaid rent. The right to prejudgment interest in an action for breach of contract accrues from the date of contractual breach. The purpose of awarding prejudgment interest is to "'compensate [a] plaintiff for the loss of use of the money from the date of injury until the date of judgment'" The Aldermans argue that the court's award of prejudgment interest gave Iditarod a double recovery and that Iditarod's right to interest acerued after August 1, 1997, claims which, if true, would both reduce the amount of interest owed as well as change the rate at which interest would be calculated. For the following reasons, we reject these arguments and affirm the award of prejudgment interest. 1. The award of prejudgment interest did not give Iditarod a double recovery. The Aldermans argue that Judge Christen's award of prejudgment interest for the period of August 1, 1997 to May 10, 2000 granted Iditarod a double recovery because the Aldermans had already paid prejudgment interest for that period in accordance with Judge Shortell's order. The Aldermans correctly argue that prejudgment interest may not be awarded to the extent that it would give the plaintiff a double recovery. However, Judge Christen correctly credited the Aldermans not only with the amount paid on the earlier judgment, but also the interest that they paid on the judgment. In addition, the Aldermans did not have to pay interest during the period of time that Iditarod had possession of the judgment. Thus, Iditarod did not receive a double recovery. 2. The Aldermans have waived all other claims concerning the computation of prejudgment interest. The Aldermans also argue that the superior court erred in ruling that Iditarod was entitled to receive prejudgment interest beginning on August 1, 1997. The Alder-mans raise this issue for the first time on appeal. Absent plain error, we generally will not consider issues raised for the first time on appeal. (1) not dependent on any new or controverted facts, (2) closely related to the appellant's trial court arguments; and (8) could have been gleaned from the pleadings. Because the Aldermans' claim rests on a controverted fact-the date on which the cause of action acerued-and because there was no plain error in calculating the date from which prejudgment interest accrued, this argument has been waived. Finally, the Aldermans' argument that a different statutory rate of interest applies, an issue raised in the Aldermans' points on appeal but not argued before the trial court or in their opening brief before this court, is deemed abandoned. v. CONCLUSION We AFFIRM the superior court's award of past-due rent and prejudgment interest in favor of Iditarod, but we REVERSE the award of enhanced attorney's fees and REMAND to the superior court to issue an award of attorney's fees in accordance with this opinion. . These facts are taken from Alderman v. Iditarod Props., Inc., 32 P.3d 373 (Alaska 2001). . The Aldermans, and their counsel, have variously spelled their name "Alderman" and "Alde-man'" throughout this litigation. We use the former spelling, which represents that used in our earlier published opinion in this case. . 32 P.3d 373 (Alaska 2001). . Id. at 398. . Id. at 394-97. . 'The former statuté, AS 09.10.050, was amended effective August 7, 1997 when AS 09.10.053 was enacted. Ch. 26, § 3-4, SLA 1997. . Alaska Guestours is the name of the Alder-mans' trolley business. . The amount owing for rent was so low because the Aldermans had previously paid to Iditarod $13,924.05 in rent and $1,766.45 in accrued interest, and this sum was subsequently deposited with the court pending the outcome of trial. . See State, Dep't of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 359 (Alaska 2000) (determination of whether action is barred by res judicata is question of law); Jenkins v. Daniels, 751 P.2d 19, 21 (Alaska 1988) (determination of which statute of limitations applies is question of law). . John's Heating Serv. v. Lamb, 46 P.3d 1024, 1031 (Alaska 2002). . Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998). . Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). . Landers v. Municipality of Anchorage, 915 P.2d 614, 616 n. 1 (Alaska 1996). . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001). . Id. . Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002). . At oral argument, Iditarod argued that the Aldermans waived this argument because it was not listed in their statement of points on appeal. However, the Aldermans did raise this claim before the trial court, they fully briefed the issue to this court, and we may effectively address it without the need to review untranscribed portions of the electronic record. Accordingly, we find that the Aldermans' failure to include the issue in the statement of points on appeal does not bar consideration of the issue. See Alaska R.App. P. 204(e) ('The appellate court will only consider points included in the statement [of points on which the appellant intends to rely in the appeal], and points that the court can address effectively without reviewing untranscribed portions of the electronic record."). See also Native Vill. of Eklutna v. Bd. of Adjustment for Municipality of Anchorage, 995 P.2d 641, 646 (Alaska 2000) (review of issue on appeal was not precluded when all relevant portions of electronic record were transcribed, appellant raised issue before superior court, and issue was fully briefed on appeal). . Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999) (quoting Moore's Federal Practice § 131.10[1](a] (3d ed. 1997)). . 936 P.2d 163 (Alaska 1997). . Id. at 166. . Tope v. Christianson, 959 P.2d 1240, 1244 (Alaska 1998). . McElroy v. Kennedy, 74 P.3d 903, 908 (Alaska 2003); see also Restatement (Second) or Junements § 24 (1982). . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 379 (Alaska 2001). . For causes of action accruing on or after August 7, 1997, the statute of limitations for breach of contract is three years. AS 09.10.053. If the cause of action accrued before August 7, 1997, the statute of limitations is six years. Former AS 09.10.050. See ch. 26, § 3-4, SLA 1997. . Smith v. Stratton, 835 P.2d 1162, 1165 (Alaska 1992). . Alderman, 32 P.3d at 395-96. . We read AS 09.10.240 to apply to judgments that have been vacated as well as those that have been dismissed. As with an action that has been dismissed on grounds not related to its merits, when a judgment is vacated it is as if the judgment had never been entered and the parties are put in the same position they were in before the entry of judgment. See, eg., Earthmovers of Fairbanks, Inc. v. State, Dep't of Transp. & Pub. Facilities, 765 P.2d 1360, 1363 (Alaska 1988) (effect of reversal is vacation of that judgment, putting case back in same position as before judgment). . Alaska R. Evid. 801(d)(2). . Crosby v. Hummell, 63 P.3d 1022, 1028 (Alaska 2003). . See Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000) (under harmless error test, we will put ourselves in position of jury to determine if reasonable people would have been affected by improperly admitted evidence in rendering verdict). . The evidence showed that the Aldermans paid fifteen percent of gross revenues for 1995 and 1996, their first two seasons of operation, and the superior court reasonably found that this strongly supported the conclusion that fifteen percent of gross revenues reflected the amount that the parties had agreed upon. . Mr. Gottstein testified that his agreement with the Aldermans was that they would pay him fifteen percent of the gross proceeds of the tour business as rent. . For example, while their testimony at the first trial was inconsistent, both Aldermans referred to '"fifieen percent of gross receipts" at least once. Caleb Alderman testified at the first trial that he paid Gottstein "fifteen percent of gross [receipts]." Barbara Alderman testified that Gottstein proposed increasing the rent to thirty percent of gross receipts rather than the fifieen percent he had been receiving under their prior agreement. . Fees were not awarded under Civil Rule 68 because the parties did not set a deadline for the exchange of initial disclosures. Neither party raises this issue on appeal. . Alaska R. Civ. P. 82(b)(3)(E). . Alaska R. Civ. P. 82(b)(3)(F). . Alaska R. Civ. P. 82(b)(3)(G). . Alaska R. Civ. P. 82(b)(3)(K). . Van Dort v. Culliton, 797 P.2d 642, 645 (Alaska 1990); Doyle v. Peabody, 781 P.2d 957, 962 (Alaska 1989); Day v. Moore, 771 P.2d 436, 438-39 (Alaska 1989); Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752-53 (Alaska 1989). . Doyle, 781 P.2d at 962; Day, 771 P.2d at 438-39; Myers, 770 P.2d at 752. . Day, 771 P.2d at 438. . See Van Dort, 797 P.2d at 645 (we have consistently reversed awards of attorney's fees based in whole or in part on improper consideration of past settlement negotiations). . Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 605 (Alaska 1999). . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 395 (Alaska 2001). . Id. at 394-95. . Cole v. Bartels, 4 P.3d 956, 961 n. 24 (Alaska 2000). . K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 (Alaska 2003) (prejudgment interest runs from date claim accrues). . Liimatta v. Vest, 45 P.3d 310, 321 (Alaska 2002) (quoting Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1343 (Alaska 1982)). . The former AS 09.30.070, which applies to causes of action accruing before August 7, 1997, provided for a 10.5% rate of interest. Under the current AS 09.30.070, the statutory interest rate is three percentage points above the 12th Federal Reserve District discount rate in effect on January 2 of the year judgment is entered. See ch. 26, § 18, SLA 1997. . See, eg. Liimatta, 45 P.3d at 321 (holding that prejudgment interest cannot be awarded if it would amount to double recovery). . Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001). _ . 1d, . See In the Matter of H.C., 956 P.2d 477, 480 n. 7 (Alaska 1998) (citing Kodiak Elec. Ass'n, Inc. v. DeLaval Turbine, Inc., 694 P.2d 150, 153 n. 4 (Alaska 1984) (issues raised in party's statement of points on appeal, but not adequately briefed, are considered abandoned).

11963002

Jeffery L. MURPHY, Appellant, v. Gail MURPHY, Appellee

Murphy v. Murphy

1991-06-07

No. S-3693

960

966

812 P.2d 960

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.

Jeffery L. MURPHY, Appellant, v. Gail MURPHY, Appellee.

Jeffery L. MURPHY, Appellant, v. Gail MURPHY, Appellee. No. S-3693. Supreme Court of Alaska. June 7, 1991. Joseph L. Kashi, Soldotna, for appellant. Phil N. Nash, Kenai, for appellee. ' Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3184

19411

OPINION RABINOWITZ, Chief Justice. INTRODUCTION Pursuant to an action for divorce, Jeffery and Gail Murphy entered an oral stipulation settling their property and custody dispute. The superior court adopted the stipulation over Jeffery's objection. The stipulation awarded Gail virtually all the marital property, worth approximately $300,000. Jeffery was awarded the three children. He was also awarded $450 per month in child support. He appeals the superior court's refusal to set aside the property settlement and its determination of child support under Civil Rule 90.3. PACTS AND PROCEEDINGS Jeffery and Gail Murphy were married in Kenai on February 23, 1982. The couple has three children: Jeffery,. born in 1983, Michael, born in 1985, and Christopher, born in 1988. During the marriage, both Gail and Jeffery had worked as instrument technicians on the North Slope. By January 1985, however, the couple had settled down in Homer and purchased a business, the Driftwood Inn, with their earnings. Essentially, Gail tended the children while Jeffery managed the business. Jeffery filed a complaint for divorce in August 1988. Pursuant to her motion for interim relief, Gail was awarded pendente lite child support of $1,000 per month ($333.33 per child), spousal support of $1,000 per month, and $900 per month in housing costs. On August 10 and 11, 1989, the parties participated in lengthy settlement negotiations before Judge J. Justin Ripley. On August 11, 1989, an oral settlement agreement was put on record. Pursuant to the stipulation, Gail received all marital proper ty; Jeffery kept his personal effects and some premarital property. The value of the marital property awarded to Gail was approximately $300,000. It included the Driftwood Inn and adjacent lots with a net value of $172,200; equity of approximately $21,500 in the Inlet Trading Post; cash or certificates of deposit pertaining to the Driftwood Inn approximating $47,500; and other miscellaneous assets such as boats, motor vehicles, household items, and guns worth approximately $60,000. Gail incurred a debt of some $27,000 in order to pay her attorneys and a CPA in connection with the divorce proceedings. Jeffery, whom everyone agrees is a fit custodian, received custody of the three children. Child support was to be determined later in accordance with Civil Rule 90.3. After the divorce, Jeffery was left with approximately $1,600 in cash and other liquid assets. He and the children moved into a used trailer. Jeffery had not yet obtained other employment. Gail suffers from a knee injury and cannot do heavy work; Jeffery's earning capacity is superi- or to that of Gail's. In his motion for child support, Jeffery requested a temporary award of $2,700 per month for interim child support, and a final award of $2,500 per month. He argued that such an award was necessary for the children's needs, particularly their special health needs. On September 11, the superior court entered a pendente lite child support order, without findings, which awarded Jeffery $1,500 per month pending the final Civil Rule 90.3 child support order. Additionally, the order enjoined Gail from transferring, selling, conveying or alienating any property received as a distribution of marital property. On November 3, 1989, a hearing to resolve all outstanding issues was set for November 7, 1989. On November 7, Jeffery served opposing counsel with various motions, including a motion to set aside a portion of the settlement stipulation or, in the alternative, to provide for the cash payment of child support as an "in gross" lump sum from marital property. The court denied all of Jeffery's motions. At the conclusion of the November 7 hearing, the superior court found that Gail "wilful[ly]/intentional[ly]" failed to comply with the interim child support award and awarded Jeffery the difference between the amount paid and the amount due, plus $300 for cost of enforcement. However, the court also entered an order which vacated the injunction against the transfer of property and confirmed the settlement agreement. Additionally, it ordered Gail to pay child support under Civil Rule 90.3 at $450.00 per month ($150.00 per child). The child support award was based on the superior court's finding that Gail's anticipated income from all sources, including her income from odd jobs until she opened a nutritional consultant business, would be $1,800 per month. Jeffery's appeal followed. Jeffery argues that the superior court erred in its Civil Rule 90.3 computation by failing to account for Gail's investment and potential investment income, by failing to consider Gail's potential employment income, and that the overall award was too low. He also argues that the superior court erred in not ordering Gail to pay support "in gross" and in failing to set aside the property settlement. We conclude that the superior court erred in departing from the requisites of a proper Civil Rule 90.3 computation. As we discuss below, the remaining points on appeal lack merit. CIVIL RULE 90.3 AWARD The standard for reviewing a child support award is whether the trial court abused its discretion. Coats v. Finn, 779 P.2d 775, 776 (Alaska 1989); Houger v. Houger, 449 P.2d 766, 771 (Alaska 1969). 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. Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1191 (Alaska 1987). We hold that the superior court abused its discretion by considering irrelevant factors in calculating the Civil Rule 90.3 award. Cf. Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982) (it is abuse of discretion for a court to consider improper factors in custody context). In the case at bar, the superior court attempted to punish Jeffery and his attorney in its Civil Rule 90.3 award. This is shown by the following excerpt: By Mr. Kashi [Jeffery's attorney questioning Gail]: Q Question number one, aside from the Inlet Trading Post rent, and the Driftwood Inn, do you have any other sources of income? Since, say, let's say, oh, the middle of August of 1989? THE COURT: That's yes or no. A No. Q Do you recall selling marijuana to a 16 year old child since that time? MR. NASH: Oh, Judge.... THE COURT: Sustained. MR. KASHI: Your Honor, it's a source of income. THE COURT: Oh, Mr. Kashi, I'm going to find this case against your client based on that last question from here on out. MR. KASHI: Okay. THE COURT: We're in recess. Type up an order. I'm going to sign it. He's done. You did this to yourself, friend. You shot yourself in the leg. Make the findings, I'll sign the order, Mr. Nash. It is also shown by the court's findings of fact: That despite the court's warning at the outset, plaintiff persisted in a broad ranging attack comprised of irrelevancies, misapplied authorities and personal vilification all for the purpose of evading the property settlement previously agreed to on 8/11/89. Further, this motive, clearly discernible from plaintiff's conduct, evidenced by his filings since August 11, 1989 demonstrates bad faith. Finally, the court find [sic] that modest sanctions will not deter plaintiff from this conduct. In its conclusions of law, the superi- or court specifically stated, "[AJlthough the record amply supports the findings and conclusions proposed by defendant and adopted by the court, the court additionally concludes that they should be and hereby are found and entered as appropriate sanction for plaintiff's bad faith demonstrated herein." Bad faith is a totally inappropriate factor to consider in determining a child support order. While we refrain from determining whether attorney sanctions would have been appropriate in the case at bar, we hold that lowering a child support award is an inappropriate means of controlling attorney conduct. Further, the court's findings do not demonstrate consideration of the special needs of the children. Civil Rule 90.-3(c)(1)(A) reads, (c) Exceptions (1) The court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied.... Good cause may include a finding: (A) that unusual circumstances, such as especially large family size, signifi cant income of a child, health or other extraordinary expenses, or unusually low expenses, exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute toward the nurture and education of their children.... See also AS 25.27.060(a) (the need of the child for support shall be considered in an order of support); Hunt v. Hunt, 698 P.2d 1168, 1172 (Alaska 1985); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987); Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979). Both parents acknowledge the children's special health needs. Jeffery, the oldest child, has been diagnosed as having mental retardation, brain damage, and autism. In her motion for interim relief, Gail herself requested $750 per child. She explained, "Although initially this sum may seem large, it must be remembered that the eldest child sufferers from severe handicaps which require extensive care and very expensive food supplements." When Gail had custody of the children, she received $1,000 per month for pendent lite child support, $1,000 per month in spousal support, and approximately $900 per month in mortgage payment and upkeep for her residence. In Gail's financial statement filed with the court in August 1988, she estimated her expenses to be $3,156.84, with a food and household supplies budget alone of $1,000 per month. After Jeffery took custody of the children, he received $1,500 per month in his pendent lite child support award. Moreover, Gail volunteered to pay $1,000 or $333.33 per child in temporary support. On remand, the superior court should specifically identify the reasonable needs of the three children and the ability of the parents to meet those needs, pursuant to Civil Rule 90.3. See Hunt v. Hunt, 698 P.2d at 1173. Given that the consideration of irrelevant factors tainted the entire award in this case, we believe that the questions of investment income and potential employment income should be considered anew on remand. FAILURE TO ORDER SUPPORT "IN GROSS" Jeffery alleges that future child support payments may not be forthcoming, given Gail's past failure to comply with the child support order, her lack of employment income, her disposal of assets, and her hiding assets. Jeffery believes that, at the least, Gail should be required to provide some security for these obligations. This request for security is a new request made for the first time on appeal. Gail argues that even assuming her past failure to pay support was willful, an in gross award is not warranted. The superior court's findings note that Gail has sold the Driftwood Inn and its findings acknowledge a steady stream of income for the term of the sales contract. As this income can be garnished pursuant to AS 25.27.062, the refusal to award the support in gross was not an abuse of discretion. Moreover, sufficient evidence exists supporting the superior court's finding that Gail was not hiding assets. Indeed, Jeffery's evidence indicating that Driftwood Inn employees were requested to hide assets had to do with Gail's mother, who was helping Gail run the Inn, and not with Gail herself. Gail did not deny the charge, but testified that when she heard that her mother had a desire to hide assets, she "immediately put a stop to it" and she made her mother "account every day for her room sales." As far as alleged prepayments on the mortgage on the Inn, which Jeffery believes Gail made to hide her assets, Gail explained that she made these payments to satisfy the buyer. The on-site manager for the Driftwood Inn testified that she did not believe Gail hid any money while she was there. Finally, Gail sold the Inn only subject to the superior court's removal of the injunction against her transferring assets. REFUSAL TO SET ASIDE THE PROPERTY SETTLEMENT Jeffery requested that the superior court set aside the property settlement. The superior court viewed this request as a bad faith attempt to evade the property settlement. Jeffery argues that, as a matter of public policy, this court should invalidate the property agreement because the "pressure of the settlement conference and concern about his children" led him to act. He cites Arndt v. Arndt, 777 P.2d 668 (Alaska 1989), and says this important case was not known by counsel at the time settlement was reached. He also argues that the expectation that Gail would pay reasonable child support formed the basis of the August 11, 1989 stipulation. After a low award and Gail's failure to pay, he fears for the children's financial needs. The superior court did not err in failing to set aside the property settlement. The standard of review and the substantive issue are intertwined, both governed by Kerslake v. Kerslake, 609 P.2d 559 (Alaska 1980), and Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104 (Alaska 1977). In Kerslake, we decided, on a motion to reconsider, that a court "may accept as 'just' a divorce property settlement entered into by parties represented by counsel." Id. at 560. We relied upon AS 09.55.210(6), now AS 25.24.160(a)(4), which gives the court power to divide the parties' property "in a just manner" and held, Although this section grants broad authority to a trial court to fashion property settlements absent an agreement, we do not read the section as imposing an affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just. We favor the rule advocated by Professor Clark that, insofar as an agreement relates to the division of property, the separation agreement should be controlling in the absence of fraud, duress, concealment of assets or other facts showing the agreement was not made voluntarily and with full understanding. H. Clark, Law of Domestic Relations § 16.10 at 551 (1968). While counsel for Chariot Kerslake raises the spectre of "concealment of assets" or "lack of understanding," it seems clear that Chariot and her counsel understood that she was entering into a stipulation with incomplete knowledge, but she apparently considered it to be adequate enough at the time to make an informed decision. Kerslake, 609 P.2d at 560 n. 1. In Interior Credit Bureau, the credit bureau challenged the enforceability of an oral stipulation to settle a case, entered into by counsel with their clients' authority. 559 P.2d at 104-05. The Credit Bureau sought to withdraw from the settlement. We held that when a stipulation is recognized in open court or made in writing and filed with the clerk, and there is no dispute as to the material terms of the settlement, the stipulation is enforceable. Id. at 106-07. This was applied to the divorce property settlement context in Kerslake, 609 P.2d at 560. The rationale behind the rule is that "Stipulations and settlements are favored in law because they simplify, shorten and settle litigation without taking up valuable court resources." Interior Credit Bureau, 559 P.2d at 106. Jeffery admits that at the end of the August 11, 1985 negotiations, the stipulation was put on the record in open court. At that time, he agreed to the arrangement. Jeffery's citation to Arndt does not change our analysis. What would have been error in Arndt, was not an error here. Gail was not awarded a higher property settlement to ease her burden of child support. Rather, the child support and property division were considered independently at separate times. We therefore AFFIRM, in part, and REVERSE, in part, and REMAND for redeter-mination of child support. . Gail had filed a motion for interim relief requesting, inter alia, $1,500 per month in child support ($750 per child because her youngest was not yet born) and $2,000 per month in spousal maintenance. Jeffery opposed it as being excessive. . Jeffery requested oral argument on September 14, 1989 to determine permanent child support under Civil Rule 90.3. On September 21, 1989, Jeffery filed a motion for order to show cause because Gail indicated she would not pay child support. By the time of the hearing on November 7, 1989, Gail had paid only |2,900 out of 14,500 owed under the pendente lite order. On October 3, 1989, Gail filed a motion for expedited consideration of essentially all issues. On or about October 18, 1989, Jeffery served upon Gail discovery requests pertaining to the child support criteria and her ability to pay. This was due November 18, 1989. Gail filed for a protective order on November 2, 1989. . Our decision to remand for a complete rede-termination of child support pursuant to the dictates of Civil Rule 90.3 is fortified by the superior court's apparent unpreparedness in calculating its support award. Although we are cognizant of the pressures facing a trial court in managing its calendar, here the court had the option of continuing the case in the event it needed additional time to prepare, or in the event it determined that discovery was incomplete. . Formerly AS 47.23.060. . In the property settlement, Gail obtained ownership of the Inlet Trading Post, where the children previously lived. Jeffery had to obtain new housing. . Formerly AS 47.23.062. .Under Civil Rule 52(a), factual findings may be reversed only if clearly erroneous. Horton v. Hansen, 722 P.2d 211, 215 (Alaska 1986). The court must be "left with a definite and firm conviction on the entire record that a mistake has been made.... " Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979) (citations omitted). . We note that AS 25.24.220(h) affords no help to Jeffery. While that provision demands that court use a heightened level of scrutiny in reviewing a property settlement if a minor child of the marriage exists or if a patently inequitable division of the marital estate occurs, these new portions of AS 25.24.220 were adopted in 1990 after the hearing and afford no additional protection for divorce actions commenced under AS 25.24.010. The legislature may want to consider extending the heightened level of scrutiny to divorces commenced under AS 25.24.010, for the need for heightened scrutiny is arguably as great in a contested divorce which is ultimately settled. . Gail argues in her conclusion that the court should reconsider the superior court's decision on the award of reasonable actual attorney's fees and make an award to her. There was no cross-appeal, however. Also, the authority she cites, Hilliker v. Hilliker, 768 P.2d 115 (Alaska 1988), is inapplicable. That case specifically states the standard for awarding fees at the end of a divorce trial, which entails review of the parties' relative economic status, is not applicable to awards of fees on appeal. The trial court in the case at bar had each party bear its own costs and fees. Given Gail's superior economic position, she benefited from this ruling.

11955761

Mary Anne O'BRANNON, Appellant, v. STATE of Alaska, Appellee

O'Brannon v. State

1991-05-24

No. A-2704

222

232

812 P.2d 222

812

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Mary Anne O’BRANNON, Appellant, v. STATE of Alaska, Appellee.

Mary Anne O’BRANNON, Appellant, v. STATE of Alaska, Appellee. No. A-2704. Court of Appeals of Alaska. May 24, 1991. Helen L. Simpson, Simpson & Thompson, P.C., 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., and COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

5323

32940

OPINION COATS, Judge. On April 25, 1988, Mary Anne O'Brannon was convicted of eighteen counts of criminal contempt. AS 09.50.010(5) and 09.50.-020. The criminal contempt charges were based on allegations that O'Brannon had violated the conditions of a Stipulated Order and Finding of Contempt signed on October 1, 1985. O'Brannon appeals from these convictions, arguing that several errors were made at trial, and that her sentence was excessive. O'Brannon was in the business of producing telephone directories. In the fall of 1982, her business, the Alaska Directory Service, Inc., published a telephone directory of business listings. After publication of this directory, various Anchorage utilities sued O'Brannon in Federal District Court for copyright infringement. A stipulated order was signed in 1982 which prohibited her from producing or distributing any directories. Despite the federal court order, the Consumer Protection Division of the Alaska Attorney General's Office ["the Division"] received complaints that O'Brannon had collected advance payments for advertising in the 1983, 1984, and 1985 directories; these directories were never published. On August 29, 1984, O'Brannon entered an "Assurance of Voluntary Compliance" in which she agreed to make restitution to subscribers. When O'Brannon failed to comply with this assurance, the Attorney General's Office filed a Complaint for In-junctive Relief and Civil Penalties, alleging violations of AS 45.50.471. Assistant At torney General Robert E. Mintz signed this complaint. On May 7, 1985, Superior Court Judge Milton M. Souter entered a Consent Judgment and Injunction. This judgment enjoined O'Brannon from soliciting or accepting any advance payments or deposits for directory advertising, unless the payments or deposits were immediately placed in a trust or escrow account and various other conditions were met. The injunction also required O'Brannon to refund deposits or advance payments made for advertising in directories which were never published; this restitution was to be administered by the Consumer Protection Division of the Attorney General's Office. On September 6, 1985, the Division filed a Supplemental Complaint for Civil Contempt. The state alleged that O'Brannon had violated the Consent Judgment and Injunction by soliciting and obtaining advance payments and deposits for future directory advertising, and failing to place these payments and deposits in a trust or escrow account. Assistant Attorney General Mintz signed this complaint. Judge Souter entered a stipulated order and finding of contempt on October 1,1985. This order permanently enjoined O'Bran-non from: soliciting or accepting any advance payment or deposit in connection with any type of advertising or publication; participating or associating with any business or other activity which involves the solicitation or acceptance of advance payments or deposits for advertising or for any publication. The order also prohibited O'Brannon, for a period of five years, from soliciting or accepting any advance payment or deposit in connection with any product or service. The order required O'Brannon, for a period of five years, to notify the Division in writing within ten days of each change in any of her employment or business relationships or activities. She was also required to report to the Division at the end of each calendar year, for a five-year period, on her employment and business relationships and activities. O'Brannon was also ordered to immediately terminate all participation in or association with any directory business which was soliciting or accepting advance payments or deposits. On February 20, 1986, Judge Souter ordered O'Brannon to pay restitution in the amount of $20,000 to reimburse directory advertising customers for advance payments made after May 7, 1985, to reimburse the State of Alaska for attorney and investigative fees of $16,536.50 and costs of $7,424, and to pay the State of Alaska civil penalties in the amount of $50,000. The Division conducted an investigation of O'Brannon in which they allegedly discovered that O'Brannon was still running a directory business which solicited and accepted advance payments or deposits; O'Brannon called these payments and deposits "set-up fees." The Division obtained a search warrant and conducted a search of O'Brannon's business. They seized written business records and computer diskettes containing business records. Based on evidence obtained through the Division's investigation of O'Brannon and search of her business, the Anchorage District Attorney's Office charged O'Brannon with eighteen counts of criminal contempt. Each count charged O'Brannon with violating AS 09.50.010(5) and 09.50.020, and stated that her contempt "defeated or prejudiced the state's remedy." Counts I through X charged O'Brannon with soliciting or accepting advance payments or deposits for phone directory advertising from ten different businesses. Count XI charged O'Brannon with participating in a business that solicited or accepted advance payments or deposits for phone directory advertising. Counts XII-XV charged O'Brannon with soliciting or accepting advance payments for travel guide advertising from four different businesses. Count XVI charged O'Brannon with participating or associating with a business which solicited or accepted advance payments or deposits for advertising in a travel guide. Count XVII charged O'Brannon with failing to provide the Division with documentation detailing the customers to whom she had made restitution for failing to publish past directories, and the amounts which she had paid to each customer. Count XVIII charged O'Brannon with failing to file yearly reports, at the end of each calendar year, on her employment and business relationships and activities. In April of 1988, O'Brannon was convicted by a jury of the eighteen counts of criminal contempt. O'Brannon first argues that Trial Judge Mark C. Rowland erred in allowing Assistant Attorney General Mintz to sit at counsel table with the District Attorney who was prosecuting the case. Mintz was the attorney in the Division who had initiated the civil suit against O'Brannon. Mintz had signed the complaint for injunc-tive relief and civil penalties of January 27, 1985; the stipulation for entry of consent judgment and injunction of April 30, 1985; and the supplemental complaint for civil contempt of September 6, 1985. Mintz had also brought the case to the District Attorney's Office and asked that it be prosecuted. Mintz had drafted the pleadings. Judge Rowland denied the defense motion to preclude Mintz as a witness. Defense counsel then asked Judge Rowland to preclude Mintz from sitting at counsel table, preparing exhibits, preparing documents, drafting pleadings, or otherwise acting as an attorney in the case. Judge Rowland ruled that Mintz could testify in the case and could remain in the courtroom. However, he ruled that Mintz could not "argue, advocate, question or perform any of the other functions that trial counsel generally perform." Judge Rowland then instructed the jury that Mintz's role was only as a witness and that Mintz was not participating as counsel in the trial. A trial court's decision on a motion to disqualify opposing counsel because he may be testifying as a witness will be reviewed for an abuse of discretion. Munn v. Bristol Bay Housing Authority, 777 P.2d 188, 196 (Alaska 1989). A trial court's decision whether to exclude a witness under Evidence Rule 615 is also reviewed under the abuse of discretion standard. Schroff v. State, 627 P.2d 653, 655-56 (Alaska App.1981). O'Brannon contends that under Disciplinary Rule 5-102(A), Mintz should not have been allowed to remain at counsel table. Disciplinary Rule 5-102(A) states: If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). The exceptions listed under DR 5-101(B)(l) through (4) are inapplicable to this case. Ethical consideration 5-9 suggests that one of the policies underlying the rule is that it is difficult for opposing counsel to attack the credibility of an advocate who testifies as a witness: Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate.... [T]he opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as, an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. EC 5-9. In People v. Superior Court, County of San Bernardino, 86 Cal.App.3d 180, 150 Cal.Rptr. 156 (1978), the Court analyzed the policies behind Rule 2-111(A)(4) of the Rules of Professional Conduct in regard to whether a district attorney could testify as a witness for the prosecution if the district attorney's office was prosecuting the case. The California Court of Appeal held that the trial court erred in recusing the entire prosecutorial office of the district attorney because one district attorney might be called as a witness. The court noted that the rule precluding a lawyer from performing the roles of both a witness and an advocate "is fully applicable to deputy district attorneys and proscribes a single deputy's acting as both trial prosecutor and material trial witness on behalf of the prosecution." Id., 150 Cal.Rptr. at 172. The court noted that in criminal proceedings, the problem with having a prosecutor-witness is that the prosecutor's testimony might be accorded too much weight. Id. at 173. Because in that case, the prosecutor-witness would not be the prosecutor at trial, there would be no problem with enhanced credibility. Id. The court found that there would be no impropriety in the prosecutor testifying, as long as he did not hold himself out to be the prosecutor at trial. Id. at 174. Finally, the court noted that there could be no impropriety in having the prosecutor arguing the credibility of a prosecutor-witness to the jury, because there was no functional difference between that and the district attorney arguing the credibility of an investigator. Id. Under DR 5-102(A), EC 5-9, and County of San Bernardino, it is clear that a prosecutor actually conducting a trial normally cannot also be a witness for the prosecution. We believe that the trial court could properly find that Mintz's actions during the trial were consistent with those of being an investigator and that the problems of credibility and impropriety which are the basis for DR 5-102(A) did not arise. See Dickens v. State, 398 P.2d 1008 (Alaska 1965) (allowing police investigating officer to remain in the courtroom and be seated at counsel table under the predecessor to A.R.E. 615). We place particular emphasis on the fact that the prosecuting attorney was clearly conducting the case, Mintz's role was strictly limited, and that Judge Rowland emphasized to the jury that Mintz was only a witness in the case and was not acting as counsel. O'Brannon also appears to contend that Mintz's participation in the case biased the prosecution of the case against her. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809, 107 S.Ct. 2124, 2138-39, 95 L.Ed.2d 740 (1987), the Supreme Court held that counsel for a private party that is a beneficiary of a court order could not be appointed to prosecute a criminal contempt action alleging violation of that order. The Court noted that, because the private party's interest was in obtaining the benefits of the court order, rather than dispassionately assessing the propriety of the criminal charges, the private party had a conflict of interest. Id. at 805,107 S.Ct. at 2136. The court stated that the private party could assist a disinterested prosecutor in pursuing the contempt action, but that the assistance could not be extended to the point where counsel for the private party is "in control of the prosecution." Id. at 806 n. 17, 107 S.Ct. at 2137 n. 17. See also Person v. Miller, 854 F.2d 656 (4th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989). However, under the facts of this case, the trial court could properly find that the prosecutor from the district attorney's office was in control of the litigation and acted as a disinterested prosecutor. It also does not appear that Mintz had any private interest in the outcome of this case. It therefore seems clear that, since the prosecutor from the district attorney's office was in charge of the case, it was not improper for the court to allow Mintz to provide legal assistance outside of the courtroom, and to act as an investigating officer inside of the courtroom. Since the court apparently made sure that the prosecutor from the district attorney's office was in control of the litigation and that the jury was aware that Mintz's role was not as a prosecutor, but as a witness, we conclude that the court did not abuse its discretion in allowing Mintz to participate. O'Brannon next argues that Judge Rowland erred in instructing the jury on the definition of "advance payment or deposit." The court instructed the jury as follows: An "advance payment or deposit" includes not only the payment of money but also the provision or exchange of goods or services. Money, goods, or services advanced by a customer constitute an "advance payment or deposit" even if structured or designated as a "loan." By itself, mere denomination of a payment or deposit, which would otherwise fall within the terms of this definition, as something else, will not exclude such payment or deposit from its terms. It is for the jury to determine after considering all the relevant facts and circumstances whether an exchange, provision or payment constitutes an "advance payment or deposit." At trial, O'Brannon objected to the second paragraph of this instruction because it deviated from the definition of "advance payment or deposit" in Judge Souter's 1985 order. The definition of "advance payment or deposit" in Judge Souter's order consisted only of the first paragraph of the instruction given to the jury. The trial court did not change the jury instruction; the trial court noted that this was a question of form and substance, and that substance should control. On appeal, O'Brannon argues that "th[is] instruction came close to directing a verdict." We conclude that the trial court did not abuse its discretion in giving the second paragraph of the jury instruction. This paragraph does not misstate the law, nor does it direct a verdict. It merely acknowledges that calling "an advance payment" something else does not change the fact that it is an advance payment. It appears to be a common sense, logical instruction, in which the trial court directs the jury not to elevate form over substance. We conclude that the trial court did not abuse its discretion in giving this jury instruction. O'Brannon next argues that Judge Rowland erred in instructing the jury on the term, "willful." At trial, the court gave the following instruction on the definition of the term willful: Conduct is "willful" when it is done voluntarily and intentionally. A person acts-"willfully" with respect to conduct described in a court order when he or she is aware of the court order and voluntarily and intentionally engages in conduct prohibited by the court order or voluntarily and intentionally refrains from conduct required by the court order. It is not necessary that the proof also show that the person intended to violate the court order. (Emphasis added.) At trial, O'Brannon objected to the last sentence of this instruction on the grounds that it would be confusing to the jury. The state argued that under Rollins v. State, 748 P.2d 767, 771 n. 1 (Alaska App.1988), a person need not specifically intend to violate a court order for their act to be "willful"; all that is necessary is that the defendant willfully engage in conduct which she knows is violative of the court order. We conclude that, although the state's argument was legally correct, O'Brannon's contention that this last sentence was confusing is valid. For an act of contempt to be willful, the defendant must have been aware of the requirements of the court order, and the defendant must knowingly violate the court's order. In State v. Browder, 486 P.2d 925, 943 (Alaska 1971), the court stated that an act of contempt is willful "if done voluntarily and intentionally, that is, with the intent to disobey or disregard the law." See also Gwynn v. Gwynn, 530 P.2d 1311, 1313 (Alaska 1975). This definition seems to suggest that "willfully" might require proof of a specific intent to violate a court order. However, case law clarifies that the intent required is an intentional act which the defendant knows violates the court order, not an act motivated by the intent to violate a court order. In Continental Ins. Cos. v. Bayless & Roberts, 548 P.2d 398, 407 (Alaska 1976) (footnotes omitted), the court stated An intentional or willful failure to comply with an order occurs when such failure is not due to inability, but to purposefulness, bad faith or fault of petitioner as distinguished from accidental, inadvertent or negligent conduct. If it is proved that a party had notice of the court's order and was aware of the requirements but failed to comply with the order, in the absence of explanation of the reason for such failure, a court could infer it to be intentional. The court in Continental Insurance indicated that the intent which is required to prove willfulness is an intent to do the action which violates the court order; the defendant need not act with the specific intent to violate the court order. In essence, the defendant must engage in conduct with the awareness that it violates the court's order, but need not be motivated by the intent to violate the court order. See Rollins, 748 P.2d at 771 n. 1 ("[wjillfulness is established by proof of conscious action and does not require a showing of specific intent"). Therefore, the state was correct in arguing that "willful" required an awareness of the requirements of the court order, and an intent to do an action which violates that order. The state was not required to prove O'Brannon had a specific intent to violate the court order. The last sentence of the challenged instruction informed the jury: "[i]t is not necessary that the proof also show that the person intended to violate the court order." This instruction is technically correct assuming its reference to intent is understood to mean specific intent. It would have been improper to instruct the jury that the state had to prove that O'Brannon specifically intended to violate the court order — in other words, that O'Brannon acted for the express purpose of violating the court's order. On the other hand, it would have been equally improper to instruct the jury that O'Brannon was not required to be aware that her conduct violated the court's order. In this respect, the challenged instruction is potentially confusing because its use of the word "intended" might have been understood as a reference to general rather than specific intent. So construed, the instruction reasonably could have been taken to mean that O'Brannon did not need to know her conduct violated the court's order — that she could be convicted as long as she knew what the court's order said and knowingly performed acts that violated it, even if she reasonably and in good faith believed that her acts did not amount to a violation. Such an interpretation would have been erroneous in negating an essential element of the crime of contempt: the awareness that one's conduct violates an order of the court. In order to determine whether the jury might have been misled by this instruction, we have reviewed the other instructions and the arguments of counsel. In reviewing the other jury instructions, we find that they correctly describe the element of "willful." The other instructions do not seem to compound the error or confusion caused by the jury instruction in question. However, they also do not clarify that instruction. However, we believe that the arguments of counsel adequately clarify the instruction. In closing argument, the prosecutor first listed the elements of criminal contempt, and then argued how each element had been proven. The prosecutor stated that "willfully" means that "she just didn't do it — she didn't accidentally violate the order, she did it willfully, deliberate, on purpose." He later stated that O'Brannon knew what the order said, and she "had to know what she was doing." Later in his argument, the prosecutor reiterated that to prove O'Brannon acted "willfully," he must "establish that she knew the order, what it really meant, and yet she deliberately went ahead with the business." Thus, in his argument, the prosecutor emphasized that O'Brannon had to know that her actions violated the court order. In her argument, O'Brannon emphasized that her actions had to be willful. However, she did not clarify the term. We can logically assume that, had O'Brannon been concerned that the jury did not adequately understand the concept of "willful," she could have clarified this concept for the jury in light of the prosecutor's opening argument. It appears that she must have concluded that it was unnecessary to do so. Therefore, we find that although the jury instruction on willfulness was potentially misleading, the jury instruction was rendered harmless by the arguments of counsel. O'Brannon next argues that the prosecution failed to prove that a "right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt." O'Brannon was charged and convicted of violating AS 09.50.010(5) and 09.50.020. Alaska Statute 09.50.010(5) states: Acts or omissions constituting contempt. The following acts or omissions in respect to a court of justice or court proceedings are contempts of the authority of the court: (5) disobedience of a lawful judgment, order or process of the court . Alaska Statute 09.50.020 states: Penalty. A person who is guilty of contempt is punishable by fine of not more than $300 or by imprisonment for not more than six months. However, when the contempt is one mentioned in AS 09.50.010(3) — (12), or in an action before a magistrate, the person is punishable by a fine of not more than $100 unless it appears that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt, in which case the penalty shall be as prescribed for contempts described in AS 09.50.010(1) and (2). (Emphasis added.) The first sixteen charges of contempt alleged that O'Brannon's contempt defeated or prejudiced the state's injunctive remedy, count seventeen alleged that O'Brannon's contempt defeated or prejudiced the state's remedy of restitution, and count eighteen alleged that O'Brannon's contempt defeated or prejudiced the state's remedy requiring her to inform the state of her business activities and locations. At trial, the jury was instructed, without objection, that in order to find O'Brannon guilty, they must find that each charged act of contempt defeated or prejudiced a right or remedy of the state. During deliberations, the jury sent a note requesting clarification of the phrase "defeated or prejudiced the state's injunctive remedy." The court responded with a supplemental instruction which defined "in-junctive remedy," and said that the rest of the words should be given "their ordinary and commonly understood meaning." On appeal, O'Brannon argues that the state failed to prove the element of prejudice to a right or remedy of a party. She contends that prejudice to the state's in-junctive remedy is insufficient proof to subject her to a fine of greater than $100. The state asserts that it presented sufficient evidence that its injunctive remedy was prejudiced. The state also argues that the issue of whether a right or remedy of a party was defeated or prejudiced is an issue for the judge at sentencing. Continental Insurance, 548 P.2d at 398, provides some guidance in determining when prejudice has been established. In Continental, the defendant insurance company was convicted of contempt for failure to comply with a discovery order, and was given a $10,000 fine. On appeal, the court held that Continental should not have been given a fine greater than $100, if there was no showing that the rights of the opposing party were prejudiced by failure to comply with the court's order. Id. at 408. Under Continental, a mere violation of a court order or injunction is insufficient to prove prejudice to the rights or remedies of a party. However, damage to the rights or remedies of a party need not be measured solely in financial terms. In Siggelkow v. State, 731 P.2d 57, 62 (Alaska 1987), the supreme court held that an ex-husband's violation of a court order prohibiting him from contacting his ex-wife, prejudiced her right to be left alone and therefore was punishable by a term of imprisonment. In Betzner v. State, 768 P.2d 1150 (Alaska App.1989), this court found that the state's rights were prejudiced when a witness refused to testify. In Betzner, the magistrate who sentenced the defendant specifically found that the state was prejudiced by the refusal of a significant witness to testify. Id. at 1156. On appeal, this court held that the state was prejudiced in its right to present a significant witness even though the state ultimately secured a conviction. Id. at 1156. Therefore, under the case law construing AS 09.50.020, it is clear that some tangible right of a party must be prejudiced in order to subject a defendant to the higher penalty of imprisonment and a $300 fine. Viewing the evidence in the light most favorable to the state, it seems clear that reasonable jurors could find that O'Brannon's actions violated a remedy of the state. The state obtained a court order which enjoined O'Brannon from soliciting or accepting any advance payments or deposits in connection with a publication and from participating in any sort of business which involved the solicitation or acceptance of advanced payments or deposits for any publication. The court also had ordered O'Brannon to provide the Division with documentation detailing the customers to whom she had made restitution for failing to publish past directories and the amounts to which she paid each consumer. The court also ordered O'Brannon to file yearly reports, at the end of each calendar year, on her employment and business relationships and activities. It is uncontested that this was a lawful court order. The Division had a substantial interest in protecting the public from O'Brannon's business activities. There is no question that O'Brannon's actions as charged went to the heart of the state's remedy; she engaged in the prohibited business activities and failed to provide the required reports. We conclude that there was sufficient evidence to support the verdict. O'Brannon next argues that the trial court erred in failing to grant a continuance so that her trial attorney could represent her at sentencing. O'Brannon also contends that the trial court erred in not granting her a continuance so that she could present additional information at sentencing. The record shows that the jury returned its verdicts on April 25, 1988. The court scheduled sentencing to occur on June 29, 1988. On May 31, 1988, O'Bran-non's trial attorney moved to continue the sentencing until sometime after September 8, 1988, because the attorney was going to be on leave from June 1, 1988, until September 8, 1988. The state opposed the continuance because of the length of time requested. The state expressed concern that O'Brannon had previously violated conditions of bail. On the day before the sentencing hearing was scheduled, O'Bran-non moved for a continuance to allow a psychiatrist who was evaluating her to complete his report. The trial court denied this motion. However, for reasons which do not appear in the record, the sentencing hearing was postponed to July 14, 1988. At the sentencing hearing, defense counsel did not make any representation that she was unprepared, and submitted a psychiatric report at sentencing. We conclude that the trial court did not abuse its discretion in refusing to grant the continuances which O'Brannon requested. Although we would normally expect the trial court to go out of its way to make sure that O'Brannon could be represented at sentencing by the attorney who had represented her at trial, the continuance which O'Brannon requested was so lengthy that the trial court did not abuse its discretion in denying the continuance. The record does not establish that O'Brannon's counsel had an inadequate opportunity to prepare for sentencing or was in fact inadequately prepared. Under these circumstances, we find no error. O'Brannon next argues that her sentence is excessive. Judge Rowland sentenced O'Brannon to a composite sentence of 375 days to serve with an additional 1,125 days suspended. Judge Rowland ordered O'Brannon to serve five years of probation upon her release from confinement. In sentencing O'Brannon, Judge Rowland found that O'Brannon had consistently and persistently demonstrated a disrespect for court orders. He concluded that it was necessary for him to sentence O'Brannon to consecutive sentences. The court pointed out that the total amount of money collected by O'Brannon was "pretty significant." O'Brannon contends that Judge Rowland's findings were insufficient to support a sentence in excess of the six-month maximum sentence for O'Brannon's most serious offense. O'Brannon points out that, in Mutschler v. State, 560 P.2d 377, 280 (Alaska 1977), the Alaska Supreme Court held that in order to impose an un-suspended sentence of imprisonment that exceeded the maximum sentence for the most serious offense, the sentencing court should expressly find that imposition of the full term of imprisonment was necessary to protect the public. In the instant case, the prosecutor informed Judge Rowland of this standard during the sentencing arguments in this case. We believe that Judge Rowland's statement that it was necessary to impose consecutive sentences can only reasonably be interpreted, in context, as applying the Mutschler standard. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981) (the lack of an express finding of necessity to impose a consecutive sentence to protect the public may be inferred from the record). The record also demonstrates that O'Brannon had twice been found in civil contempt of court. It appears from the record that O'Brannon collected a substantial amount of money without providing any services. The evidence produced at trial showed that O'Brannon collected $35,-000 during the period covered by the contempt charges. The record demonstrates that O'Brannon flagrantly and continuously violated court orders. Under these circumstances, we conclude that the sentence was not clearly mistaken. The conviction is AFFIRMED. MANNHEIMER, J., not participating. . Rule 2-111(A)(4) is the functional equivalent of DR 5-102(A). It is quoted in full at County of San Bernardino, 150 Cal.Rptr. at 160-61. . Our disposition of this issue makes it unnecessary for us to decide whether the state must prove, as an element of the offense, that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt or whether this was a matter for the court to find at sentencing. The jury was instructed that it had to find that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt in order to find O'Bran-non guilty. Given this finding, it seems clear that O'Brannon violated the state's injunctive remedy, and that the sentencing court so found.

11955634

Suh Joon YANG and Ha Sook Yang, Appellants, v. Chun Young YOO and Jun Nam Yoo, Appellees

Suh Joon Yang v. Chun Young Yoo

1991-05-31

No. S-3380

210

217

812 P.2d 210

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.

Suh Joon YANG and Ha Sook Yang, Appellants, v. Chun Young YOO and Jun Nam Yoo, Appellees.

Suh Joon YANG and Ha Sook Yang, Appellants, v. Chun Young YOO and Jun Nam Yoo, Appellees. No. S-3380. Supreme Court of Alaska. May 31, 1991. George Trefry, Perkins Coie, Anchorage, for appellants. John C. Pharr, Law Offices of John C. Pharr, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4470

26512

OPINION COMPTON, Justice. The Yoos sold the Inlet Inn in downtown Anchorage to the Yangs. The Yangs defaulted on their payments to the Yoos, and the Yoos sought judicial foreclosure. The Yangs filed a counterclaim alleging that the Yoos promised to return their down payment if the Inlet Inn's revenues for the first year did not exceed $1 million. The Yangs argued that their default was excused and they were entitled to receive their down payment back since the Inlet Inn's revenues were much less than promised. After a jury trial, the superior court entered judgment in favor of the Yoos and ordered foreclosure and sale of the property. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In October 1985, Suh Joon Yang and Ha Sook Yang came to Anchorage to look into the possibility of purchasing the Inlet Inn from Chun Young Yoo and Jun Nam Yoo. The Inlet Inn is a 93-room hotel located in downtown Anchorage near the bus station. The Yangs met with real estate agent Ken Zong, who had informed them of the opportunity to buy the Inlet Inn. Zong showed the Yangs the Inlet Inn, as well as several other hotels. The Yangs inspected the physical premises of the Inn and a brief financial report prepared by Zong indicating that the previous year's room revenues were $960,000. Before returning to Los Angeles where they were living at the time, the Yangs made an offer to purchase the Inlet Inn for $2,700,000. The Yoos made a counter-offer to sell the Inn for $3,100,000, which the Yangs rejected. According to the Yangs, they nevertheless remained interested in the Inn because Zong assured them that,the Yoos would refund the down payment, retake possession of the hotel, and reassume the underlying note if revenues during the Yangs' first year of ownership did not at least equal the revenues for the previous year. The Yangs consulted Michael Kim, a Korean-speaking attorney in Los Angeles, who drafted some language which he understood incorporated the substance of the Yoos' guaranty. Mr. Yang made a second trip to Anchorage and met with Zong and the manager of the Inlet Inn, Myung Ho Won. They reviewed the Inn's daily revenue reports. Yang returned to Los Angeles, and several days later he received a call from Zong and Mr. Yoo. According to the Yangs, Yoo confirmed that he would retake possession of the Inlet Inn and refund the Yangs' down payment if future revenues did not equal or exceed $1 million per year. At trial Yoo denied making a guaranty for future revenues, but admitted that he had guaranteed the past income. Before traveling to Anchorage to consummate the transaction, the Yangs again visited their Los Angeles attorney Mr. Kim. He prepared a second document designed to protect the Yangs in the event that revenues during their first year of ownership did not reach the guaranteed minimums and thereby provide sufficient cash flow to meet their debt obligations. On January 10, 1986, the Yangs executed a "Sales Agreement and Earnest Money Receipt" prepared by Zong. The Yoos had signed the agreement on December 18, 1985. The Yangs made a few changes to which the Yoos agreed. The agreement states a purchase price of $3,050,000. The Yangs were to make a cash down payment of $400,000, which included $20,000 earnest money, $300,000 before closing, and an additional $80,000 at the time the sale closed. In addition to assuming the underlying deed of trust of $1 million held by the United Bank of Alaska (UBA), the Yangs agreed to execute a promissory note to the Yoos in the principal amount of $1,650,000. The agreement was expressly subject to approval by UBA of the assumption by the Yangs of the first deed of trust. The agreement did not contain any of the language drafted by Mr. Kim designed to protect the Yangs from low revenues. Ac cording to the Yangs, they tried to incorporate such language into the agreement, but Zong convinced them that the strong ties of trust which bind Korean nationals made such a request improper. The Yangs paid the Yoos $120,000, sold their Los Angeles house, removed their daughter from school, and moved to Anchorage for the anticipated closing in February. A "due on sale" clause in the UBA deed of trust prevented the Yangs from assuming it. However, First Federal Bank agreed to refinance the UBA note. The Yangs borrowed $1 million from First Federal and simultaneously applied for a Small Business Administration (SBA) loan which would pay the First Federal loan down to $375,000. The closing occurred on February 18, 1986, at which time the Yangs paid the Yoos $87,741.52. Previously the Yangs had paid the Yoos $200,000 in addition to the $120,000 payment. Thus, the Yangs had paid a total of $407,741.52 to the Yoos by the closing date. This amount represented the $400,000 down payment plus half of the loan and escrow fees. The Yangs were to make monthly payments to the Yoos of $17,881.40. The SBA loan was approved and closed on May 9, 1986. Since the Yoos agreed at closing to subordinate their lien position to the SBA loan, this left the Yangs in debt to the following parties in the respective positions of priority: First Federal ($375,000), SBA ($625,000), and the Yoos ($1.65 million). The $375,000 owed to First Federal was due October 1, 1986. The $625,000 owed to the SBA was due over fifteen years. The Yoos had agreed that on October 1, 1986, they would pay $125,000 of the amount due to First Federal and the Yangs would pay $250,000 of this sum. The portion paid by the Yoos would then be added to the principal balance of the Yoo-Yang note. By August 1986, it became evident to the Yangs that revenues would not approach the guaranteed amount of $1 million. They requested return of their down payment, but were refused. It also became apparent that the $375,000 obligation due First Federal could not be met. The Yoos had not tendered the promised $125,000, and lack of revenues from the Inlet Inn precluded the Yangs from making their balloon payment of $250,000. In October the Yangs again requested the Yoos to return their down payment and take back the hotel. The Yoos refused. In order to avoid foreclosure by First Federal, the Yangs negotiated a loan modification agreement with the bank in which the $375,000 would be paid as follows: $175,-000 due on October 30, 1987; $100,000 on October 30, 1988; and $100,000 on October 30, 1989. Both the Yoos and the Yangs, as well as First Federal, signed this loan modification agreement. On October 23, 1986, the Yoos and the Yangs signed two agreements between themselves. In one document, the Yoos agreed to pay $125,000 of the sum due to First Federal on October 30, 1987. The Yangs were to pay the remaining $50,000. The $125,000 paid by the Yoos would then be added to the amount the Yangs owed the Yoos. The second document provided that the monthly payments the Yangs owed the Yoos would remain at $17,881.21 and would increase to $19,235.80 only when the Yoos paid the $125,000 to First Federal. In April 1987 the Yangs stopped making payments to the Yoos. At this point, the Yangs had paid the Yoos $246,336.94 in addition to the initial $400,000 down payment. The Yangs did not respond to a written notice sent by the Yoos. On July 14, 1987, the Yoos sued in an attempt to convert their note to a judgment and to judicially foreclose on the underlying deed of trust. The Yoos also filed a Motion to Enter and Take Possession of the Property, but the court denied it. The Yoos obtained a protective order preventing any information relating to this motion and its denial from being presented to the jury. The Yangs filed an answer to the Yoos' complaint and a counterclaim alleging that the Yoos had breached an oral side agreement to take back the hotel and refund the down payment on October 1, 1986, if the revenues for the year after the closing did not equal or exceed $1 million. The Yangs filed affidavits by their attorney, William Artus, and by the Inlet Inn's manager, Myung Ho Won, stating that Zong confirmed the existence of such an oral agreement at a meeting in Artus's office on July 15, 1987. Artus had prepared an affidavit relating to Zong's statements for Zong to sign. Apparently Zong confirmed that the contents of the affidavit were true, but he refused to sign it. The parties attempted to settle their disagreement. In October 1987 the Yangs filed a separate lawsuit claiming that the Yoos had breached a settlement agreement. The proceedings in the foreclosure action were stayed, but the Yangs made no attempt to pursue their action concerning the settlement agreement. The court approved a stipulated agreement in the Yangs' separate action and reinstated this foreclosure action. On October 7, 1988, the Yoos moved for summary judgment seeking an order establishing personal liability on the note and a decree of foreclosure. Judge Rene J. Gonzalez denied the motion. A jury trial began on January 31, 1989, and concluded on February 13. Because William Artus was unavailable, his testimony was presented by videotape deposition. The deposition was conducted during the course of the trial. During cross-examination of Artus, the Yoos offered into evidence the affidavit of Myung Ho Won describing the meeting with Zong at Artus's office. The Yangs did not object to admission of this document. Apparently, as the result of a clerical error during playback of the videotape to the jury, the in-court deputy did not note the offer of the affidavit on the court's exhibit list. At the time the exhibits were being gathered for submission to the jury, the Yoos did not recall offering Won's affidavit into evidence. Won had not been called at trial. Because Won did not testify and Artus did not deny the statements with which he was confronted that were contained in Won's affidavit, the trial judge refused to submit Won's affidavit to the jury. On the jury's final day of deliberation, the jury sent the following note to Judge Gonzalez: The jury has arrived at part VI"A," and is uncertain as to what to put in the blanks. Is Yes or No appropriate? Is Instruction # 35 appropriate at this stage? Over objection of both counsel, the court responded as follows: In part VI of the Verdict Form, identify the prevailing party by using a check mark in the appropriate space. Instruction # 35 is appropriate. The concept of rescission and its purpose is to return the parties to their position before the contract was made. The jury reached a verdict, finding that the Yangs had failed to comply with the terms of the deed of trust note and that they were not legally excused from doing so. The jury found in favor of the Yoos on their claim for judicial foreclosure, but did not award the Yoos any damages. Judge Gonzalez entered final judgment in favor of the Yoos. The judgment ordered foreclosure of the Yoos' deed of trust and sale of the Inlet Inn. The Yoos were not awarded a deficiency judgment. Judge Gonzalez awarded the Yoos $20,000 in attorney's fees. The Yangs moved to amend the judgment so that it still provided for foreclosure, but resulted in most of the proceeds going to the Yangs instead of the Yoos. Judge Gonzalez denied this motion. The court also denied the Yangs' motion seeking a stay of proceedings to enforce the judgment. In addition, the Yangs filed a motion for a new trial, or in the alternative for a judgment notwithstanding the verdict. The court denied this motion on August 7, 1989. Prior to the scheduled foreclosure sale on May 5, 1989, the Yangs filed bankruptcy. The proceedings in this case were automatically stayed pursuant to 11 U.S.C. § 362, until the United States Bankruptcy Court lifted the stay on June 1, 1989. At that time, the Yoos were able to conduct their foreclosure sale. The Yangs appeal the judgment and request this court to vacate the foreclosure sale. II. DISCUSSION A. Did the Trial Court Commit Reversible Error in its Instructions to the Jury Concerning Rescission? Instruction 35 reads as follows: "Rescission is a remedy that relieves a purchaser of property from the obligations to the sellers under the contract." The Yangs argue that the phrase "under the contract" is a misplaced modifier and incorrectly implies that one can rescind a contract and still enforce it. In addition, the Yangs contend that Judge Gonzalez improperly instructed the jury that rescission could be considered when the jury reached Part VI(A) of the special verdict form. According to the Yangs, the court's instruction led the jury to reach an inconsistent verdict, awarding foreclosure but no damages, to the Yoos. The Yangs admit that they did not object to Instruction 35 at the trial. Generally, we will not consider an assertion that an instruction was erroneous where the matter was not properly brought to the attention of the trial court. We will, however, correct plain errors which are so substantial as to result in injustice. Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967) (court erroneously instructed jury that plaintiff had burden of proving malice in assault and battery action). 1. It is [sic] more likely than not that the defendants failed to comply with one or more of the terms of the deed of trust and deed of trust note signed on February 18, 1986, in the amount of $1,650,000? Yes (Answer yes or no) 2. Is it more likely than not that the defendants were not legally excused from their failure to comply with one or more terms of the deed of trust and deed of trust note of February 18, 1986? Yes (Answer yes or no) If your answer to both questions 1 and 2 is yes then you need not answer PART II, PART III, IV AND V, and should go to PART VI and enter Verdict for the Plaintiffs in Part A. While we agree with the Yangs that Instruction 35 was inappropriate when the jury reached Part VI(A) of the verdict form, we do not believe Judge Gonzalez's instructions concerning rescission prejudiced the Yangs. Before they reached Part VI(A), the jury had already concluded that the Yangs were not legally excused from defaulting on their debt to the Yoos. Instruction 38 specifically explained that "the Yangs were excused from keeping their promise" if the jury found that "it is more likely true than not true that the Yoos' promise to return to the Yangs the down-payment they made if the total revenues of the Inlet Inn were not approximately $1,000,000 during the first year of operation, and the revenues of the Inlet Inn in fact were not approximately $1,000,000 during the first year of operation." The jury did not believe an enforceable oral side agreement existed between the Yangs and the Yoos. Therefore, we reject the Yangs' argument that the jury intended to rescind the contract and return the Yangs' down payment and other expenses to them. B. Was the Jury's Verdict Inconsistent and Legally Impossible? The Yangs argue that the verdict is invalid because it awards foreclosure although there is no underlying obligation. According to the Yangs, the jury's award of zero damages to the Yoos means the jury concluded that the Yangs owed nothing to the Yoos. As explained in the preceding section, we reject this interpreta tion. The jury explicitly found that the Yangs had no legal excuse for their failure to pay the Yoos. Admittedly, the jury's answer to the damages question is somewhat puzzling. Given the language of Instruction 40, Judge Gonzalez apparently intended that the jury indicate as damages the amount it believed the Yangs owed the Yoos. Judge Gonzalez should have returned the verdict to the jury with clarifying instructions. His failure to do so, however, is not grounds for amending the verdict or granting a new trial. We will not disturb a jury verdict if there is a theory which reconciles the apparent inconsistencies. This course of action is well supported by cases from other jurisdictions. See, e.g., Granger v. Fruehauf Corp., 429 Mich. 1, 412 N.W.2d 199, 203 (Mich.1987) (in products liability action brought by truck driver injured in fall from trailer, verdicts of negligence but no breach of implied warranty of fitness were not fatally inconsistent in light of manufacturer's intervening resale of trailer to driver's employer); Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn.1984) ("If the answers to special verdict questions can be reconciled on any theory, the verdict will not be disturbed.") (emphasis in original); City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo.1981) (affirmed verdict finding that defendant was negligent but that negligence was not a proximate cause of plaintiff's damages); Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 869 (Utah 1981) (A jury's answers to special interrogatories must, if at all possible, be read harmoniously.); Garcia v. Dependable Shell Core Machines, 783 S.W.2d 246, 249 (Tex.Ct.App.1989) ("An appellate court may not strike down conflicting jury answers if there is any reasonable basis upon which they may be reconciled."); Dallas Market Center v. The Swing, Inc., 775 S.W.2d 838, 842-43 (Tex.Ct.App.1989) (upheld verdict which found that both parties had breached a lease, but awarded damages to only one of the parties); Becker v. State Farm Mut. Automobile Ins. Co., 416 N.W.2d 906, 913 (Wis.Ct.App.1987) ("An inconsistent verdict is one in which the jury answers are logically repugnant to one another."). See also, Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962) ("Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment."); 5A Moore's Federal Practice ¶ 49.03[4], at 49-39 to 49-42 (1990). We believe it is possible to reconcile the jury's award of zero damages with the jury's finding in favor of the Yoos on their foreclosure claim. Concluding that no enforceable oral side agreement existed that would excuse the Yangs' failure to make payments on the deed of trust held by the Yoos, the jury awarded foreclosure to the Yoos. Foreclosure means the property will be sold. The underlying obligation, the $1,650,000 note, essentially becomes a non-recourse obligation. It is enforceable against the property but not against the Yangs personally. This is the theory relied on by Judge Gonzalez. It seems readily defensible from the perspective of an appeal by the Yangs. The instruction on damages told the jury that its "general goal should be to put the plaintiffs in as good a position as they would have had had the defendants kept their promise." The jury might well have concluded that permitting the note to be enforced only against the property through the device of foreclosure adequately accomplished this goal. The question on the verdict form pertaining to damages seems unnecessary. The Yoos did not request damages in addition to the amount owed under the note. Having awarded foreclosure, there is no reason for the jury to calculate the exact amount owed to the Yoos under the note, since there is no dispute of fact concerning the payments made on the note or the interest due. This case can be distinguished from State v. Lewis, 785 P.2d 24 (Alaska 1990), in which this court reversed and remanded the case because the jury's answers on a special verdict were irreconcilable. Lewis involved an inverse condemnation proceeding. The jury found that the remaining property was worth more after taking than the entire parcel had been worth before, but also found that the remaining property received no special benefit from the public improvement resulting from the taking. Id. at 27. See also Massey-Ferguson Credit Corp. v. Orr, 420 N.W.2d 1, 3 (N.D.1988) (reversed and remanded special verdict where jury found that there was no agreement between secured creditor and debtor waiving deficiency judgment upon repossession of collateral, but jury awarded creditor no damages); Continental Assur. Co. v. Davis, 538 So.2d 542, 544 (Fla.Dist.Ct.App.1989) (setting aside jury's award of .compensatory and punitive damages against insurance company and its salesman where jury found that salesman did not deliberately and knowingly misrepresent policies). In Lewis, two of the jury's factual findings directly conflicted. In this case, the inconsistency of the verdict is not obvious on its face, but instead depends on reading a certain intent into the verdict answers. Where, as in this case, a plausible theory exists to reconcile the jury's answers on a special verdict form, we will do so. C. Is the Trial Court's Judgment of Foreclosure Reversible Because it Fails to Specify the Amount Due to the Yoos on the Underlying Debt? The Yangs offer two reasons why calculation of an exact amount owed is necessary: (1) to determine upon sale whether the Yoos are entitled to a deficiency judgment or whether the Yangs are entitled to a surplus under AS 09.35.110 (made applicable by AS 09.45.180); and (2) to determine the Yang's redemption rights under AS 09.45.190. We have not previously addressed the issue of whether every judgment for foreclosure must specify an exact amount of the outstanding indebtedness. In this case, we find the calculation of an exact amount by the court unnecessary. The superior court resolved the legal issues concerning the Yangs' obligation to the Yoos; therefore, determining the exact sum of the existing debt is a matter of math, not a matter of law. See Bank of Honolulu, N.A. v. Anderson, 3 Haw.App. 545, 654 P.2d 1370, 1374 (1982) ("To be entitled to a decree of foreclosure, the Bank was required to prove Anderson's default. It was not required to prove the exact amount owed under the Agreement until after the confirmation of the foreclosure sale. Consequently, despite lacking the specific amount of indebtedness, the Decree is valid."). We distinguish this case from Jones v. North American Acceptance Corp., 442 S.W.2d 492 (Tex.Ct.App.1969), in which the trial court ordered foreclosure without resolving the clear dispute regarding the amount of indebtedness owed. In Jones, the debtor argued that she promised to pay $2,700 to the creditor for repair of her roof. The Trust Deed and Contract for Labor and Materials, however, called for a payment of $4,099.26. In Jones, the appellate court appropriately invalidated the foreclosure decree for uncertainty because the trial court left critical legal issues unresolved. D. Did the Trial Court Commit Reversible Error in Failing to Admit the Affidavit of Myung Ho Won? In his affidavit, Won states that Zong, the Yoos' real estate broker, explained to the Yangs' attorney that he had in fact represented to the Yangs prior to their purchase of the Inlet Inn that the Yoos would rescind the purchase agreement if the Inn's revenues did not exceed a certain level. Apparently the Yoos offered Won's affidavit during cross-examination of the Yangs' attorney, William Artus. The court deputy, however, failed to list the affidavit on the court's exhibit list. Judge Gonzalez refused to admit the affidavit when the Yangs offered it later, i.e., after they had rested their case. The standard of review of the trial court's admission or exclusion of evidence is abuse of discretion. Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska 1986). Although the Yoos were mistaken when they denied having offered the affidavit into evidence, this does not excuse the Yangs' own failure to ensure that essential evidence was in fact admitted by the court. At the time the videotaped cross-examination of Artus was played back in court, the Yangs could have confirmed that the court listed Won's affidavit on the list of exhibits. In addition, the Yangs had sufficient opportunity to call Won as a witness and introduce his affidavit at that time. Instead, the Yangs waited until after the close of evidence to raise the issue. Given the circumstances in this case, we do not believe that Judge Gonzalez abused his discretion in excluding Won's affidavit. III. CONCLUSION While the Yangs correctly identify some irregularities in the trial proceedings, we conclude that the verdict is not irreconcilable and that the judgment is not fatally defective. Therefore, we AFFIRM. . Part VI(A) of the Special Verdict states: Plaintiffs (Yoos) claim for judicial forclosure [sic]: Plaintiffs (Yoos) _ Defendants (Yangs)_ Instruction 35 reads: Rescission is a remedy that relieves a purchaser of property from the obligations to the sellers under the contract. . According to the Yangs, the Yoos successfully submitted a set-off bid of $1,650,000 for the property at the foreclosure sale. . PART I of the special verdict asked the following questions and was answered as follows by the jury: . Instruction 40 states: In deciding the amount of damages that the defendants must pay to the plaintiffs, if any, you must keep in mind the following rules: First, that your general goal should be to put the plaintiffs in as good a position as they would have had had the defendants kept their promise. I will explain in a moment how you are to do this. Second, you must have a reasonable basis for fixing the amount of damages. The plaintiffs are not required to show their damages with mathematical exactness, but you must have a reasonable basis for fixing damages in this case. A mere guess is not enough. Now I will explain to you how to award damages to the plaintiffs so they will be kept in as good a position as if the defendants had kept their promises. The deed of trust note the defendants signed on February 18, 1986, provided that plaintiffs were to receive the sum of $1,650,-000, together with interest at the rate of 11.75% per annum. The deed of trust note provides upon default by defendants in payment of any indebtedness secured by the deed of trust defendants signed on February 18, 1986, or in performance of any agreement in the deed of trust, all sums secured by the deed of trust shall immediately become due and payable at the option of the plaintiffs. You are instructed that on July 20, 1987, the plaintiffs exercised their option to declare all sums secured immediately due and payable.

11963094

Tyoga G. CLOSSON, Petitioner, v. STATE of Alaska, Respondent

Closson v. State

1991-06-07

No. S-3722

966

976

812 P.2d 966

812

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Tyoga G. CLOSSON, Petitioner, v. STATE of Alaska, Respondent.

Tyoga G. CLOSSON, Petitioner, v. STATE of Alaska, Respondent. No. S-3722. Supreme Court of Alaska. June 7, 1991. Rex Lamont Butler, Anchorage, for petitioner. David Mannheimer, Asst. Atty. Gen., OSPA, Anchorage, Douglas B. Baily, Atty. Gen., Juneau, for respondent. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

6653

41537

OPINION RABINO WITZ, Justice. A jury convicted Tyoga Closson of theft in the second degree. The court of appeals affirmed the conviction. Closson v. State, 784 P.2d 661 (Alaska App.1989). We granted Closson's petition for hearing on the questions of whether the state violated its obligations under an immunity agreement with Closson, and whether Closson was consequently entitled to have the immunity agreement specifically enforced. I. FACTS AND PROCEEDINGS In October 1985, Closson stole a .45 caliber pistol from an Anchorage home where his girlfriend was housesitting. A friend and sometime roommate of Closson's, Robert Betts, acquired the gun from Closson. Betts loaned the gun to John Bright, who used it on October 12,1985 to shoot and kill Robert Pfeil in a murder for hire drive-by shooting. Betts drove the ear for Bright. Betts then returned the gun to Closson, who traded it to Jack Peters for cocaine. Later that month, Inspector Ken Spada-fora of the Anchorage Police Department learned that Closson had been speaking of his involvement in the Pfeil shooting. Spa-dafora left a message at Closson's apartment for Closson to contact the Anchorage police. On the morning of October 24, 1985, Closson went voluntarily to the police station where he was questioned by Spadafora and Police Sergeant Michael Grimes. The officers did not give Closson a Miranda warning, but they did tell him he was free to leave. This interrogation was tape-recorded. During that interrogation, Closson admitted his theft of the gun, and explained how it was involved in the Pfeil shooting. Grimes and Spadafora urged Closson to cooperate with the police, assuring him that he would otherwise face grave consequences, both from the authorities and his acquaintances. Closson agreed to cooperate and to "wear a wire" when talking with Betts. Assistant District Attorney Stephen Branchflower then arrived at the interrogation room. Branchflower was concerned about Closson's youth and consequently he first determined that Closson was indeed eighteen years old. Shortly after Branch-flower began to speak with Closson, the tape recorder was turned off, apparently by accident. The parties agree that in the course of this conversation, Branchflower offered Closson immunity from prosecution for the gun theft and arranged to have the Municipality of Anchorage drop a pending assault charge in exchange for Closson's cooperation in the investigation. Branch-flower did not reduce the immunity agreement to writing. Branchflower, Closson, and Grimes left the police station and went to the courthouse, where Branchflower prepared an application for a search warrant. Shortly thereafter, the three attended a search warrant hearing in front of District Judge Stewart, where Grimes and Closson explained Closson's role in the investigation, and introduced evidence for the purpose of establishing Closson's credibility as an informant. Both Grimes and Closson testified to the terms of the immunity agreement. Judge Stewart issued the search warrant. Closson had his first monitored conversation with Betts that night. As a result of the monitoring, the police learned that Closson had lied at the search warrant hearing when he testified that he had thrown the gun into the inlet. Consequently, Branchflower had Closson return to court the following day, to testify that in fact he had traded the gun to Peters. Branchflower's purpose in having Closson return before Judge Stewart was to keep the court apprised of developments, in view of the fact that Closson's testimony had been the basis for the search warrant. Branchflower indicated his intention to continue using Closson as an informant; he did not request any change in the immunity agreement or search warrant. After hearing this testimony, Judge Stewart did not rescind the warrant authorizing the electronic surveillance. Subsequently, on at least one occasion, Closson apparently attempted to have a wired conversation with Peters in an effort to recover the gun. However, Closson was unable to make contact with Peters. Closson did have additional monitored conversations with Betts, however, and he eventually persuaded Betts to cooperate in the investigation. The state admits that Closson's assistance was important in breaking the case. On November 11, 1985, the police arrested Betts, Bright, and other suspects in the case. The suspects were charged by an information which disclosed Closson's involvement in the investigation. The subsequent press coverage published Closson's name and an account of his involvement. On November 14, 1985, Closson and his grandfather met with Spadafora. Spada-fora told Closson that, as part of Closson's agreement, Closson had to wear a wire that night to interview Peters and he had to testify the following Monday before the Grand Jury. Closson expressed anger and concern that his name had been made public. He reluctantly agreed to return that evening and wear the wire. However, Closson never kept that appointment, nor did he show up at the Grand Jury. When Closson failed to appear before the Grand Jury, Branchflower added his name to the bill, and the Grand Jury indicted Closson for second degree theft. Closson moved for dismissal of the second degree theft charge on several grounds. In part, he alleged that the state had breached the immunity agreement by charging Closson when he had substantially or completely complied with his obligation under the agreement, by disclosing his name to the public, and by requesting that Closson perform further undercover operations after the state had disclosed his name. These allegations form the basis for this petition. The superior court held an omnibus hearing on February 17-18, 1986. Two issues before the court included the terms of the agreement and the question of breach. At this hearing, Grimes and Branchflower testified that the terms of the agreement clearly specified that Closson had to wear a wire whenever asked and that Closson had agreed to testify at all necessary court hearings. Additionally, Grimes testified that he had made it clear to Closson that Closson would have to testify in public proceedings. Closson testified at the omnibus hearing that he understood the immunity agreement to consist of a promise that "if Robert Betts turned himself in and cooperated to the fullest extent that they wouldn't prosecute me." He denied that he had agreed to testify at hearings, because "I didn't want any publicity, I didn't want anybody knowing I was involved in any of this garbage." Moreover, Closson testified that he was later assured that if Betts cooperated, "that I wouldn't be bothered no more; that my name wouldn't be in the paper, that I wouldn't have to testify." To further establish the terms of the agreement, the superior court heard evidence of the testimony at the search warrant hearing, where the state had first put the immunity agreement on the record. At the search warrant hearing, Closson had acknowledged that he agreed to testify at future court hearings. At the omnibus hearing, however, Closson asserted that much of his testimony at the search warrant hearing was untrue. He attributed the untruthfulness to an alleged arrangement he had made with Branchflower, whereby Closson would follow Branchflower's testimonial signals and ignore the content of the questions. The superior court agreed with the state's interpretation of the agreement and rejected Closson's motion to dismiss the theft charge. The court gave the following explanation for its decision: Having weighed the testimony presented, the court finds that the agreement entered into by the State and Closson for immunity was as testified to on October 24, 1985, during testimony in support of the application for search warrant. The court finds that the terms of the agreement were as follows: The prosecution promised that a pending City assault and battery case would be dismissed and that Closson would not be prosecuted for theft of the gun provided that Closson had no further involvement in the shooting incident than had been disclosed to that point. Closson agreed to cooperate with the police including wearing a transmitter as often as required to by the police and to testify truthfully when called upon to testify at the hearing for the application of search warrant as well as at any other court hearings. Closson had been given assurances by police officers that his name would be kept confidential during the investigation and that they would do whatever necessary to protect his safety. Enforcement of the Agreement: Closson asserts that he is entitled to specific performance of the immunity agreement. The court finds that Closson materially breached the agreement by failing to appear for testimony before the grand jury and that given that breach, the State is not obligated to perform. The court rejects the State's argument that Closson materially breached the agreement by lying before Judge Stewart on October 24. While this indeed was a breach of the agreement, that breach was excused when the State chose to continue to use Closson under the terms of the agreement. Further, the court finds that Closson breached the agreement by failing to wear a monitoring device for conversations with Jack Peters when instructed to do so by the police on November 14. However, the court finds that breach to be excused by Closson's reasonable fear in participating in the monitoring after public disclosure of his cooperation with the police on November 11. Despite the disclosure of November 11 in the information, the court finds no excuse for Closson's failure to appear before the grand jury for testimony. Closson specifically agreed to testify at further court proceedings. Given that agreement, it is unreasonable to interpret the agreement to totally bar disclosure of Closson's name forever. Closson should have known and must have known that his name would be disclosed at a future date at the conclusion of the investigation. Given the material breach of the immunity agreement, the State is not required to perform its part of the agreement. Closson was subsequently tried and convicted of second degree theft. In a separate proceeding, he was later convicted of perjury on the basis of his testimony at the omnibus hearing that Branchflower had suborned perjury at the search warrant hearing. The court of appeals affirmed both convictions. Closson v. State, 784 P.2d 661 (Alaska App.1989). In reviewing Closson's claim that the state had breached its immunity agreement with Closson by breaking its promise of confidentiality, the court of appeals concluded that "[tjhere was . ample evidence presented below to support the court's conclusion that the state had lived up to its end of the bargain. The court was not clearly erroneous in finding that Closson was promised confidentiality only during the investigative phase of the case_" Id. at 666. Additionally, the court of appeals rejected Closson's claim that he was excused from testifying before the grand jury because of a reasonable fear for his safety; it also rejected his argument that if he did breach the immunity agreement, his breach was not material. Id. This court subsequently granted Clos-son's petition for hearing on the following question: "Should the state be held to strict compliance with the terms of an immunity agreement where it is found that the state, through its own actions in violating its agreement to maintain petitioner's anonymity, relieved further performance on the part of the petitioner?" As a preliminary matter, however, it must be determined whether the state did, in fact, breach the immunity agreement it had entered into with Closson. II. STANDARD OF REVIEW The court of appeals began its analysis in Closson by correctly noting that "[ijmmu-nity agreements are contractual in nature and general principles of contract law apply to the resolution of disputes concerning their enforcement and breach." 784 P.2d at 664 (citing United States v. Irvine, 756 F.2d 708, 710-11 (9th Cir.1985); United States v. Carrillo, 709 F.2d 35, 36 n. 1 (9th Cir.1983); United States v. Brown, 801 F.2d 352, 354 (8th Cir.1986)). The court of appeals also properly cautioned that "[ajlthough the analogy between immunity agreements and ordinary contracts is useful, immunity agreements are subject to constitutional restraints, foremost of which is the due process clause's overriding guarantee of fundamental fairness to the accused." Closson, 784 P.2d at 665 (citing Surina v. Buckalew, 629 P.2d 969, 975 (Alaska 1981)). Nevertheless, the court of appeals concluded that the superior court's findings as to the terms, scope, and breach of this immunity agreement must, under contract law, be upheld unless clearly erroneous. Closson, 784 P.2d at 665. Under general contract principles, the trial court must determine the terms of an oral agreement, and its decision will be upheld unless clearly erroneous. See Geczy v. LaChappelle, 636 P.2d 604, 606 (Alaska 1981). When the government claims that the defendant has breached an immunity or plea bargain agreement, the burden is on the government to prove, by a preponderance of the evidence, that a substantial breach occurred. United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.1987), cert. denied, sub nom. Latorre v. United States, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987); Annotation, Necessity and Sufficiency, in Federal Prosecution, of Hearing and Proof with Respect to Accused's Violation of Plea Bargain Permitting Prosecution on Bargained Charges, 89 A.L.R.Fed. 753 (1988); Note, The Standard of Proof Necessary to Establish that a Defendant has Materially Breached a Plea Agreement, 55 Fordham L.Rev. 1059 (1987). A finding of breach will be upheld unless clearly erroneous. Gonzalez-Sanchez, 825 F.2d at 579. III. DISCUSSION A. The superior court's finding that the state had not breached its agreement was clearly erroneous. 1. The express terms of the agreement. The superior court found that the terms of the immunity agreement were "as testified to" at the search warrant hearing of October 24, 1985, namely that the police had promised Closson anonymity and safety during the investigative phase of the case. While it is not clear that the superior court considered the promises made by the police as enforceable promises incorporated into the agreement, the state now concedes that these promises of anonymity became part of the immunity agreement. Closson disputes the state's contention that the assurances of confidentiality applied only to the investigative phase of the case and maintains that "the police promised Mr. Closson complete anonymity." The first promise of confidentiality was made by Grimes during Closson's initial police station interrogation: Closson: "I got the gun and I'm gonna get stiffed...." Grimes: "Not if you, we can work together here guy, if you weren't involved in it, can do a lot." Closson: "Sure I'll help you back here behind, but there's no way in hell I'll let anybody know what . I'm doin'." Grimes: "No one's gonna know. But you gotta be straight up with us." Grimes: "... just totally cooperate with us, you cooperate with us, we'll get these people off the street, they won't touch you, I'll guarantee you that." (Emphasis added.) This text does not limit the promise of confidentiality and safety to the duration of the investigation. Rather, it seems that Closson was conditioning his cooperation on assurances of anonymity. In addition, no evidence exists that Branchflower and Closson expressly agreed to any arrangement which would supersede promises made by Grimes. Branchflower himself relied on the substance of the conversation between Closson and the police to establish the parameters of the immunity agreement. Therefore, we conclude that there was no express term in the immunity agreement which limited the scope of the promise of anonymity to the investigative phase of the case. 2. The implied limits to the scope of the agreement. The superior court found the promise of confidentiality limited because "Closson specifically agreed to testify at further court proceedings." From this agreement, the superior court concluded that "it is unreasonable to interpret the agreement to totally bar disclosure of Closson's name forever. Closson should have known and must have known that his name would be disclosed at a future date at the conclusion of the investigation." Given that the scope of the immunity agreement was at best ambiguous, the superior court may infer a "reasonable" limit to the promise of anonymity. We hold, however, that the state's action of disclosing Closson's name to the press, via the information filed on November 11 and the press conference held on November 12, was not reasonable in light of its promise of confidentiality and safety and its request to Closson on November 14 that he perform further investigative work for it. The superior court's interpretation of the scope of the promised confidentiality presupposes that a reasonable person would have understood the agreement to imply an acceptance of public disclosure. However, a reasonable person would not make such an inference from this record, much less a reasonable person of Closson's youth and education. Indeed, when Branchflower was questioned about the promise of confidentiality, he could not rule out the possibility that he might have made such a promise without limiting its scope. However, he indicated that it was extremely unlikely, based on his specialized knowledge as a prosecutor, that an informant's name is generally made public. It is not general knowledge that the name of an informant "would have to appear at the foot of the indictment" or "would be discoverable to any defendants that were to be charged in the future." True, Closson did agree at the search warrant hearing that he would testify "in the future at any other court hearings." We find it significant, however, that Closson only agreed to testify after Branchflower assured him that the search warrant hearing was a closed proceeding. Moreover, the common understanding of grand jury proceedings is that they are closed to the public. Based on the evidence in the record, we conclude that a reasonable person in Closson's position would expect that his name would not be disclosed to the public, at least until it was absolutely necessary that he testify in a public trial. Thus, the superior court erred when it found that the promise of confidentiality contained in the immunity agreement was limited to the investigative phase of the case. Accordingly, when the state disclosed Closson's name to the public in the information filed on November 11, it breached its promise of confidentiality to Closson. 3. The state anticipatorily breached the agreement by asking Closson to perform further investigation after it had disclosed his name. Even accepting the state's interpretation that the promise of confidentiality was limited to the investigation, the state's demand that Closson engage in further investigation after it had disclosed his name constituted an anticipatory breach of its agreement. If the state's interpretation of the agreement was accurate, Closson's obligation to wear a wire would have terminated upon the state's disclosure of his name. However, by virtue of the state's demand to Closson, the investigation was still continuing. The state argues that because it had arrested all the principals in the primary crime, Closson should have known that the investigation was over. However, it appeared that the investigation was still ongoing. While Closson knew that Peters was collateral to the primary crime, since Peters only became involved through Clos-son's own behavior, Closson had no way of knowing whether some confederates of the principals might still be at large. In fact, Closson knew that the police had not finished the investigation — they still had loose ends to tie up. More importantly, Closson knew that the police had disregarded his safety. When the police disclosed his name, he became known as a police informer. Indeed, the superior court recognized that Closson's reasonable fear for his own safety excused his failure to cooperate in the investigation of Peters. The superior court erred, however, in failing to recognize that the state's demand for Closson's assistance was in itself an anticipatory breach of the immunity agreement. This result is bolstered by our conclusion that the scope of the agreement was at best ambiguous. At the time he was asked to wear a wire and meet with Peters on November 14, Closson understood that his promise for anonymity was, if not permanent, at least to last for a reasonable time. He knew, however, that at that time his undercover activities on behalf of the police had been disclosed. While Closson generally had agreed to cooperate with the state, we refuse to interpret this agreement as completely open-ended. Closson had to obey all reasonable requests. Similarly, the state had an obligation to keep all requests within reason. By requiring Clos-son to perform a task after it disclosed his identity, however, the state communicated its repudiation of the original agreement to Closson. Thus, the state anticipatorily breached its immunity agreement with Closson, entitling him to the appropriate remedy as required by contract law and due process, as discussed below. B. The circumstances require that the State specifically perform its obligations under the immunity agreement with Closson. 1. The remedy for a breach of an immunity agreement by the state is specific performance. In Surina v. Buckalew, 629 P.2d 969 (Alaska 1981), we confronted the situation where a witness made a self-incriminating statement in reliance on the prosecution's promise of immunity. We stated that when the prosecution breaches an immunity agreement, the promisee is entitled to rescission, which "should have the effect of placing the individual in the same position he would have been in had he not engaged in the agreement." Id. at 975 n. 14. However, because of the inherent impossibility of rescinding an incriminating statement, we noted that "the alternative remedies of 'rescission' and 'specific performance' will collapse into one, in most cases." Id. Where an accused relies on a promise of immunity to perform an action that benefits the state, this individual too will not be able to "rescind" his or her actions. Therefore, we believe that the remedy of specific performance is equally applicable to Clos-son's situation, whether viewed as a remedy for a breach or for an anticipatory breach. 2. Fundamental fairness dictates that the state be held to strict compliance after it breached its promise to Closson. While we have determined that the state breached its agreement, we still must determine whether that breach is material— whether it was critical enough to excuse further performance on Closson's part. See Closson, 784 P.2d at 665 (materiality involves issues of law subject to de novo review). However, as this is an immunity agreement, and not a contract, we must interpret it with regard to substantial fairness, not just the law of contracts. See Closson, 784 P.2d at 665. Branchflower testified that the state's public disclosure of Closson's involvement on November 11 was immaterial, because Closson's role inevitably would have been revealed one week later at the grand jury proceeding. Closson, on the other hand, argues that given the time and nature of the state's disclosure, it was a material breach because of the threat to his safety. Many courts consider the defendant's detrimental reliance as the gravamen of whether it would be unfair to allow the prosecution to withdraw from a plea agreement. See Annotation, Right of Prosecutor to Withdraw From Plea Bargain Prior to Entry of Plea, 16 A.L.R.4th 1089, 1094-1100 (1982). Here, Closson cooperated with the state and took risks on behalf of the state, which he would not have otherwise done but for the agreement. Moreover, Closson's cooperation conferred a large benefit on the state. To the extent that detrimental reliance is determinant, fundamental fairness dictates that the state should be required to specifically perform its part of the bargain. Other factors enter into the fundamental fairness equation as well. Closson was initially a cooperative informant and he complied with all reasonable requests. From the start of their relationship, the state knew of Closson's concern with publicity and safety. The police promised him protection and anonymity, and Branchflower knew that Closson was at least reluctant, if not unwilling, to testify at an open hearing. By disclosing Closson's involvement unnecessarily, the state disregarded Closson's concerns and its own promises. More troubling is the state's disregard for Closson's safety. Fundamental fairness mandates that we consider this unnecessary exposure of Closson's identity. Finally, we must consider Closson's youth and lack of education, and the state's experience and knowledge. Here, the prosecution generally treated Closson fairly and initially did not press its bargaining advantage. Nevertheless, after the state revealed Closson's identity and Closson refused to wear the wire with Peters, the more experienced state should have better controlled the situation. Instead of negotiating with Closson to determine his concerns, the state simply threatened Closson with prosecution if he did not comply with their demand. On the other side of the scale, although we note that Closson initially stole the gun and he lied at the search warrant hearing, these were both excused by the state. Unquestionably, Closson erred by going into hiding at the time the state made its objectionable demands and by not communicating his concerns. At the time, however, eighteen-year-old Closson had no legal counsel to whom he could turn for advice. In sum, we hold that fundamental fairness concerns are substantially in Closson's favor. A similar situation arose in State v. Johnson, 23 Wash.App. 490, 596 P.2d 308 (1979). In Johnson, the defendant was an eighteen-year-old charged with second degree theft. In exchange for a lesser charge on that crime and immunity on another, Johnson agreed to cooperate with the authorities. At one point, however, Johnson had begun to distrust the deputy sheriff with whom he was dealing, and asked to see an attorney before cooperating further. The prosecutor considered this a breach of Johnson's agreement and filed charges. The Washington Court of Appeals reversed Johnson's conviction. It noted that Johnson had initially cooperated, and only had ceased cooperating when the state behaved unreasonably by denying him access to an attorney. Moreover, the state suffered no prejudice from Johnson's technical breach, and in fact, the "state had reaped part of the benefit of its bargain and was therefore bound to give the defendant a reasonable time under reasonable conditions to fulfill his part." Id. at 312. Because the state's action was unreasonable, Johnson was entitled to have his conviction vacated and the charge dismissed. Here, Closson cooperated fully with every reasonable request. As a result of Closson's assistance, the state was able to proceed in a very important case. Thus, given Closson's substantial performance of his part of the bargain, the indeterminate scope of the agreement, the fact that fundamental fairness weighs heavily in favor of Closson, and the state's breach of the agreement, we find it would be unfair for the state to renege on its part of the bargain. As one court has explained, "it would be grave error to permit the prosecution to repudiate its promises in a situation in which it would not be fair and equitable to allow the State to do so." Kisamore v. State, 286 Md. 654, 409 A.2d 719, 721 (1980) (quoting State v. Brockman, 277 Md. 687, 357 A.2d 376, 383 (1976)). In sum, we conclude that the state breached its promise of confidentiality. Moreover, after disclosure of Closson's identity, the state made an unreasonable demand for further investigative participation by Closson pursuant to the immunity agreement. This constituted an anticipatory breach of that agreement. Closson has substantially complied with his obligations under the immunity agreement; therefore, we hold that the state must specifically perform its obligation. REVERSED and REMANDED to the court of appeals with directions to remand to the superior court to VACATE Closson's conviction for second degree theft. . Branchflower did not have a lengthy conversation with Closson, apparently because all parties were anxious to get started on the investigation, . Closson alleges that Branchflower participated in a press conference on November 12, in which he announced the arrests and told of Closson's role in the investigation. At the omnibus hearing, Branchflower admitted that he had participated in a press conference, but he stated that he thought it took place at a later date. . This testimony was as follows: Branchflower (questioning Closson): All right. And now, you realize that your cooperation with the police sort of extends to wearing this transmitter as often as they feel you need to and you're also testifying truthfully today as well as in the future at any other court hearings? That's part of our bargain? Closson: Yes I do. . This petition for hearing concerns only the theft conviction, and in particular the immunity agreement. . Closson asserts that for an error of constitutional magnitude the standard of review is "harmless beyond a reasonable doubt." We note, however, that here the terms and scope of an immunity agreement are clearly within the purview of the court as fact finder. These terms do not impact upon a finding of guilt or innocence. Here, they do not impact on immunized testimony or other constitutional rights. Therefore, the findings of the superior court as to the terms of the immunity agreement are reviewable under a clearly erroneous standard. . At the omnibus hearing, Grimes conceded that he had promised Closson "all the protection that was necessary" and anonymity "during the time he was working with us." We have previously found a prosecutorial promise of immunity binding on the state, even in the absence of a statutory grant of authority. Surina v. Buckalew, 629 P.2d 969, 975 (Alaska 1981). Here, because the state admits that the promises made by the police officers became part of the agreement, we need not reach the question of whether these police officers had authority to bind the state. We nevertheless must determine the scope of that promise; while the state concedes that the promise was binding, it cannot unilaterally determine the scope of its promise. . Although an avowed purpose of the state at the search warrant hearing was to put the terms of the immunity agreement with Closson on the record, no testimony about the promise of confidentiality was given. Consequently, to try and reconstruct the scope of this promise, we must go to other evidence in the record. . The record contains some assertions by prosecution witnesses as to what Closson "understood," but does not contain any evidence of an express limit to the promise of confidentiality. From this, we conclude that these witnesses were inferring an implied limit to the scope of the agreement from Closson's promise to testify in court proceedings. For evidence of an express term limiting the promise of confidentiality, we look first to the testimony at the search warrant hearing. Branchflower later testified that at the time he called Closson as a witness for the purpose of obtaining a search warrant, he did not know the details of Closson's conversation with Grimes. Moreover, at the search warrant hearing, Branchflower did not testify to the terms of the immunity agreement himself; rather, he asked Grimes to explain the immunity agreement to the court. At the search warrant hearing, Grimes did not testify to any promise of anonymity. Nor did he testify to a promise by Closson to testify in open court. Instead, Grimes testified, Branchflower (questioning Grimes): "Now, why don't you just recite for the court what promises have been made to Closson in exchange for his cooperation with the police? And include in your answer, if you would, what it is he's agreed to do." Grimes: "The promises made to Closson, my understanding at this time, is that he had a pending assault and battery charge, which dates back, I think, a month or 2. That the case against him would be dropped in regards to the assault and battery. Additionally, that for the theft of the weapon from the residence of Dan Coffey, which hadn't been reported yet, by the way, he will not be charged with. In return for this, he has agreed to have further conversations, as many as necessary, with Robert Betz, [sic] and particularly talk about the shooting incident, the disposition of the gun that was used, the vehicle that was used, other persons involved, and possibly who paid money to have the shooting done. Also, he will make every attempt possible to have a face-to-face meeting with this John, possibly last name of Bright to determine the same information_" Branchflower: "All right. And did you speak to Closson and caution him about the need for telling the truth, especially during any court hearings?" Grimes: "Yes I did." Grimes later testified that he was present during the entire time that Branchflower spoke to Clos-son when the immunity agreement was arranged at the police station; therefore, Grimes' testimony at the search warrant hearing about the terms of the agreement is the best evidence of any agreement between Closson and the state subsequent to Closson's initial interrogation. Branchflower testified at the omnibus hearing that he explained to Closson "that he would have to wear the appropriate gear, the electronic gear, as requested by the police, as often as they requested, for as long as they requested" and that "he'd be required to give testimony, that he would have to give that testimony as often as called upon to do so, and that during his testimony he would have to give truthful answers." However, while Branchflower admitted that he was aware that Closson was concerned about publicity, he could not recall discussing publicity with Closson: Butler (Closson's attorney, questioning Branchflower): "Do you recall or were you told that [Closson] didn't want his assistance to be made public?" Branchflower: "I'm sure he expressed a concern for that." Butler: "Okay. And what was your response?" Branchflower: "I don't have any idea what my response was." At the omnibus hearing, Grimes testified that he had promised Closson anonymity "during the time he was working with us." At that hearing, Grimes was also asked, "Was it clear in your various conversations with Mr. Closson that at some point in time the prosecution was going to become public and he would have to testify in public proceedings?" Grimes responded, "That's correct, yes." However, Grimes did not elaborate or point to any conversation with Closson which would have expressly limited the scope of the agreement. Based on the evidence of the record, and the fact that the superior court did not find an express term limiting the scope of the agreement, we conclude that there was none. . Closson argues that we should interpret an ambiguous immunity agreement in favor of the defendant. In other words, we should consider the agreement from the subjective view of the defendant. In general, however, contract law gives effect to the "reasonable expectations of the parties," not the subjective understanding of one party. Mitford v. de Lasala, 666 P.2d 1000, 1005 (Alaska 1983). Since we hold that a reasonable person would not have inferred that the promise of confidentiality was limited to the investigative phase of the case, we need not address this argument. . This testimony occurred in the following colloquy between Closson's attorney and Branch-flower: Butler (questioning Branchflower): "Now, you also recall that a promise was made to Mr. Closson that what he said would not be made public, don't you?" Branchflower: "What he said when?" Butler: "The assistance he was giving you. That his assistance, assisting the state, would not be made public?" Branchflower: "I don't recall making that statement. I may have. I don't recall it." Butler: "But if you did make it, would you turn around and violate that agreement?" Branchflower: "It's likely that I — I can't imagine making that — that unqualified sort of statement, because I knew as a prosecutor that informants — the identity of informants, especially informants who are so central to the prosecution, that their identity eventually becomes known, either through the discovery process or as a witness. And I expected him to testify on behalf of the State. I knew that his name would have to appear at the foot of the indictment, I knew that his statement would be discoverable to any defendants that were to be charged in the future. So I doubt that I ever told him that his cooperation with the police would remain a secret from everyone for all time." Butler: "If the police made that promise to him, would you be willing to back that promise?" Branchflower: "I'm not sure that I can answer that." . In State v. Kuchenreuther, 218 N.W.2d 621 (Iowa 1974), Kuchenreuther and the prosecution entered into an immunity agreement which stated "[t]he County Attorney agrees . to keep all information received as confidential as is possible and will divulge the source of the information only if necessary to prosecute other persons other than Darwin Ray Kuchenreuther and will then require Darwin Ray Kuchenreuther's testimony only after subpoenaed into court of law." Id. at 622-23. Here, where Closson was given assurances of confidentiality and was never told of a requirement to testify in public, we believe it would be reasonable for Closson to assume that the terms of his agreement, like Kuchenreuther's, called for public disclosure only when necessary. . "[A] definite and unconditional repudiation of the contract by a party thereto, communicated to the other, is a breach of the contract, creating an immediate right of action and other legal effects, even though it takes place long before the time prescribed for the promised performance...." Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 89 n. 3 (Alaska 1974) (quoting Corbin on Contracts, § 959 (1951)). . See also People v. Fisher, 657 P.2d 922, 925 (Colo. 1983) ("no other remedy short of enforcement of the promise would secure fundamental fairness to the defendant"). . In the plea bargaining arena, the United States Supreme Court has held that states should be held to strict compliance with their promises. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the prosecutor promised that, in return for a guilty plea, he would not make a sentence recommendation. However, at sentencing, a different prosecutor represented the state and he recommended the maximum sentence. The judge imposed the maximum sentence, but stressed that he was compelled to do so by the facts and was not influenced by the prosecutor's recommendation. Id. at 259, 92 S.Ct. at 497. The Supreme Court found such a breach to be a violation of fundamental fairness. The defendant had "'bargained' and negotiated" for this promise so "the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial." Id. at 262, 92 S.Ct. at 498. "[W]hen a plea rests in any significant degree on a promise or agreement of the prose cutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. We recognize that not all of the judicial concerns of plea bargaining are implicated when the prosecution grants immunity in exchange for cooperation without requiring the accused to plea to a lesser charge. However, we have previously applied the principles of Santobello to prosecutorial breaches outside the plea bargaining arena. Surina, 629 P.2d at 978. We believe that the interests of fairness and the integrity of the criminal justice system require the application of those principles here as well. See United States v. Carter, 454 F.2d 426, 427-428 (4th Cir.1972); People v. Fisher, 657 P.2d 922, 927 (Colo.1983); State v. Kuchenreuther, 218 N.W.2d 621, 623-24 (Iowa 1974). . See also State v. Kuchenreuther, 218 N.W.2d 621 (Iowa 1974). There the defendant received a grant of immunity in exchange for promises to cooperate, to make restitution, and to plead guilty to a charge of disturbing the peace. The defendant kept his part of the bargain, except that no charge of disturbing the peace was ever entered against him. Instead, the state charged him with larceny. Id. at 623. The court reversed his conviction on the larceny charge, holding that "the bargain made was breached by the State. Under existing circumstances such is nothing less than an intolerable violation of our time-honored fair play norm...." Id. at 624.

9038749

Larry R. VARILEK, Appellant, v. CITY OF HOUSTON and MatanuskaSusitna Borough, Appellees

Varilek v. City of Houston

2004-06-25

No. S-10814

849

856

104 P.3d 849

104

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:38:48.788091+00:00

CAP

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

Larry R. VARILEK, Appellant, v. CITY OF HOUSTON and Matanuska-Susitna Borough, Appellees.

Larry R. VARILEK, Appellant, v. CITY OF HOUSTON and Matanuska-Susitna Borough, Appellees. No. S-10814. Supreme Court of Alaska. June 25, 2004. Larry R. Varilek, pro se, Houston. Richard A. Weinig, Pletcher & Weinig, Anchorage, for Appellee City of Houston. Elizabeth D. Friedman, Assistant Borough Attorney, and Teresa Williams, Borough Attorney, Palmer, for Appellee Matanuska-Susitna Borough. . Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3591

22902

OPINION CARPENETI, Justice. I. INTRODUCTION Larry Varilek sued Matanuska-Susitna Borough and the City of Houston claiming that their enforcement of certain land use ordinances violated his constitutional rights. The superior court dismissed the claim because Varilek failed to exhaust his administrative remedies prior to bringing suit. Vari-lek asserts that he was unable to exhaust administrative remedies because he was unable to pay the borough's mandatory $200 administrative filing fee. Because Varilek's access to the legal system in this case is contingent on payment of the borough's administrative fees, an absolute requirement that such fees be paid, without a process for waiver upon a showing of indigency, would violate Varilek's right to procedural due process if Varilek is in fact indigent. Because it is unclear whether Varilek is indigent, we vacate the superior court's dismissal and remand for a determination of that issue. II FACTS AND PROCEEDINGS Larry Varilek operated a "metal recycling" business in an area denominated as a "holding district" within the municipal boundaries of the Matanuska-Susitna Borough and the City of Houston. Under Matanuska-Susitna Borough Code 17.41.530(B), development within the holding district "will be permitted through a conditional use approval process." Varilek did not receive a conditional use permit for his business. Borough officials issued Varilek a notice of violation of zoning and land use codes regulating "junk and trash" and governing the disposal of serap or junked cars. The borough then issued an Enforcement Order requiring Varilek to remedy the violations specified in the notice. Varilek sued, claiming that the borough's regulations and their enforcement were unconstitutional on a variety of grounds. The defendants moved to dismiss, claiming that Varilek failed to exhaust his administrative remedies before he brought suit. Varilek responded that exhaustion was not required because he was challenging the laws as facially unconstitutional. The superior court rejected this argument and dismissed Vari-lek's claims without prejudice, strongly implying that he should attempt to exhaust his administrative remedies before refiling his case. On appeal, this court upheld that decision in all respects. Varilek then apparently attempted to appeal the borough's Enforcement Order to its Board of Adjustment and Appeals. However, such appeals require a $200 filing fee, to "defray the administrative cost of the appeal including, but not limited to, preparation of the transeript." Claiming indigence, Varilek requested a fee waiver, but his request was denied. The borough admits that it has no provision for waiving the required administrative fee. Varilek then filed a new lawsuit on essentially the same grounds as Varilek I. This time, however, he claimed that his attempt to file an administrative grievance, plus the borough's refusal to waive its filing fees, meant that he had either effectively exhausted his administrative remedies or was excused from doing so. At the same time, Varilek also appealed the borough's fee-related dismissal of his administrative grievance, claiming that the dismissal denied his right to procedural due process and equal protection. The superior court consolidated Vari-lek's new civil suit with his appeal of the administrative fee decision. The borough and city moved to dismiss Varilek's lawsuit for failure to exhaust administrative remedies and on collateral estop-pel grounds. The superior court found that the parties and issues were identical to those in Varilek's first case. It therefore held Varilek to be "collaterally estopped from re-litigating his complaint." Alternatively, the court found that Varilek had again failed to exhaust his administrative remedies. The court thus dismissed the civil suit portion of the consolidated case. Varilek appeals this dismissal. In its subsequent review of the borough's administrative fee, the superior court found that "Varilek's underlying property interest in obtaining review of [the borough's enforcement order] is outweighed by the Borough's interest in defraying the administrative cost of the appeal." The court also found that the borough "did not violate Mr. Varilek's equal protection rights because the filing fee requirement . does not facially discriminate one class of individuals from another." The superior court thus affirmed the borough's refusal to waive its administrative filing fee. Varilek also appeals this decision. We consider both of Varilek's claims here-the dismissal of his civil suit on collateral estoppel grounds and the determination that he failed to exhaust his administrative remedies. III. STANDARD OF REVIEW [1-6] We review decisions granting or denying motions to dismiss de novo. We also apply a de novo standard of review to questions of law, including constitutional law and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Whether res judicata or collateral estoppel applies is a question of law, as is the determination whether a claim requires the exhaustion of administrative remedies. On the other hand, whether available administrative remedies actually were exhausted is a question of fact that we review for abuse of discretion. "We will reverse a ruling for abuse of discretion only when left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." IV. DISCUSSION A. Because the City of Houston Had No Role in this Controversy, It Is Dismissed from this Case with Prejudice. In all proceedings before the superior court and this court, the city has concurred with the borough's legal arguments. However, the city also claims that it "has no role in this controversy," and notes that Varilek "does not allege action by the city" or "seek determination that any ordinance established by the City of Houston [is] unconstitutional." Accordingly, the city argues that it should be dismissed from this case. The borough has not opposed the city's argument. In support of its dismissal, the city has asked this court to take judicial notice of two facts pursuant to Alaska Rule of Evidence 201. Evidence Rule 201(b) allows us to take judicial notice of facts "not subject to reasonable dispute." Facts are not subject to reasonable dispute if (1) "generally known within this state," or (2) "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be challenged." The city explains that Houston and Matanuska-Susitna are separate political entities, one a city and one a borough, and that the city is within the geographic limits of the borough. These facts are of general knowledge, and thus may be judicially noticed. The city also asks us to take judicial notice of the fact that all of the laws challenged by Varilek in this case are borough, not city, ordinances. This can be easily ascertained by reviewing Varilek's pleadings: All of the statutes Varilek cites are in fact borough ordinances, despite the fact that many of them refer to or regulate the city. Moreover, under Evidence Rule 202 this court may take judicial notice (with or without the request of a party) of "[dJuly enacted ordinances of municipalities or other governmental subdivisions." This includes Alaska's geographic and political boundaries. Accordingly, we take judicial notice of the above facts. We can properly dismiss all claims against a party pursuant to Alaska Rule of Civil Procedure 21, which allows a court to "drop" misjoined parties "on motion of any party or of its own initiative at any stage of the action." Since the city does not have any interest or role in this case, we dismiss all claims against the city. B. Varilek's Legal Claims Are Not Precluded by Collateral Estoppel. The doctrine of collateral estop-pel or "issue preclusion" renders an issue of fact or law conclusive, and thus prevents its relitigation between the same parties. For collateral estoppel to apply, four requirements must be met: (1) the party against whom preclusion is sought must have been a party in a previous action (2) in which the identical issue was decided (8) by a final judgment on the merits (4) that depended on resolution of the issue. Although we have not ruled on the issue, other courts generally do not consider dismissals without prejudice (such as the dismissal of Varilek's first lawsuit) to be preclu-sive final judgments on the merits. Furthermore, in his previous lawsuit Varilek argued that he was not required to exhaust administrative remedies, while in the present case Varilek has argued that the borough's filing fees prevented him from exhausting administrative remedies. Thus, Varilek's second case cannot be dismissed on the same grounds as his first. For this reason as well, collateral estoppel should not preclude Vari-lek's claims. C. Non-Waivable Administrative Filing Fees Violate Procedural Due Process if They Deny Indigent Litigants Access to the Courts. Varilek claims that the borough's refusal to waive his filing fees violated his constitutional right to procedural due process. The superior court rejected this claim, and upheld the borough's decision as consti-, tutional. The superior court relied upon our decision in Midgett v. Cook Inlet Pre-Trial Facility, which is based on the United States Supreme Court's decision in Mathews v. Eldridge. Under Midgett, the determination of what constitutes due process (and thus whether it was denied) involves balane-ing: (1) "the private interest affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards"; and (8) "the government's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail." Addressing the first Midgett factor, the superior court rejected Varilek's due process claim in part because it found his interest in the case was "not compelling because it is a property interest." The court based this conclusion in part on Boddie v. Connecticut. Boddie discussed an indigent's right to the judicial process unhampered by excessive fees. The Supreme Court only applied this right to cases where the judicial system holds a monopoly on the avenues of "adjustment of a fundamental human relationship, such as divorce." Because the superior court interpreted our decision in In re K.A.H. as "adopt[ling] the rationale" of Boddig, and because Varilek's interest in this case is only "economic," the superior court concluded that Varilek has no constitutional right of fee-less access to the legal system. We cannot agree. Alaska is not precluded from offering greater rights and legal protections to its citizens than those offered by the federal government. Accordingly, we have not limited the right to access Alaskan courts without fees to indigents claiming "fundamental family interests." Rather, we have widened the right of access to the judicial system beyond the Boddie line of cases. In Bush v. Reid, a parolee's suit for personal injuries from an automobile accident was dismissed based on a statute suspending the civil rights of a convict. We noted that a personal injury lawsuit constituted "only" a property interest and, unlike divorces, automobile accidents can often be resolved privately, without resort to the state. Nonetheless, we recognized that parties are not always successful in mediating their conflicts and that it is sometimes necessary to resort to the legal process. Although only Bush's property interests were at stake, we held that "the very quality of his future existence may be dependant upon the outcome" of the case, and the denial of access to the court would constitute a "grievous loss" of his property interests. Varilek's property interests in this case include his business and livelihood, the logs of which certainly might affect the quality of his future existence. Similarly, in Patrick v. Lynden Transport, Inc., we explicitly held that access to the courts to litigate a property interest is an "important right." The superior court's application of the first Midgett factor thus substantially underestimates the value of the private interest affected by the borough's rule. Furthermore, in this case it is the state, and not a private individual or entity, that allegedly threatens Varilek's livelihood. This case thus does not involve, as was at issue in KA.H., "the private structuring of individual relationships and repair of their breach," for which the judicial system should be the last resort. In KAH., we upheld a trial court's decision to deny reimbursement to an attorney for personal funds he advanced an indigent client prior to a favorable settlement. The funds were meant to cover the client's living expenses, not litigation costs or fees, and as such were prohibited by Alaska Rule of Professional Conduct 1.8(e). The attorney argued that barring him from advancing living expenses to indigent litigants amounted to an unconstitutional interference with the indigents' right to access the court, by "im-pos[ing] a financial hardship on plaintiffs that forces them to settle disputes rather than endure the potentially prolonged litigation process." Rejecting this contention, we noted that Boddie's holding was limited to cases "involving state controls or intrusions on family relationships," which were not at issue in K.A.H. However, we clearly indicated that in Alaska the right of access to the courts is greater than that guaranteed by Boddie. As we explained, [Whereas Bush, Boddie, and Patrick involved direct impediments to court access, this case does not. The statute in Bush flatly prohibited parolees from filing suit. The statutes in Boddie and Patrick imposed court fees that denied indigent plaintiffs access to the courts. Such fees have been characterized as "insurmountable barrier{s] to filing suit." By contrast, nothing in Rule 1.8(e) expressly prohibits potential plaintiffs from filing suit or requires plaintiffs to pay for court access.[ ] Accordingly, we disagree with the superior court's conclusion that KA.H. models Alaska's right of court access on the same narrow standard used by the federal courts. An indigent whose business or property interests are threatened by an administrative action originally filed by a government agency need not be litigating a fundamental family matter in order to have a right of access to the courthouse. Since "prohibitive" filing fees should not be allowed to hamper an indigent litigant's access to the justice system in such situations, it follows that such fees should also not be allowed to hamper his access to an administrative process if such access is a prerequisite to judicial relief. The Midgett test also requires analysis of the state's interests in its existing laws, the costs of changing them, and the viability of alternatives to the laws at issue. A reviewing court must address "the probable value, if any, of additional or substitute procedural safeguards . and . the fiscal and administrative burdens that additional or substitute procedural requirements would entail." The superior court explicitly concluded that the borough's interest in charging a $200 administrative fee to all claimants was of utmost importance. While the borough has an interest in collecting fees to defray the cost of the administrative appeals process, a $200 fee is not critical to the borough's ability to conduct these appeals, particularly when other options might accommodate Varilek's and the borough's competing interests, such as reduced or graduated fees for indigent claimants or an installment payment plan. The superior court did not address potential alternatives to the city's mandatory fee policy, nor did it weigh the benefit of such fees against the social costs inherent in a policy that effectively prohibits indigents from protecting their rights and interests against state actions. We cannot agree with the superior court's conclusion that in situations such as this, a $200 fee imposed on an indigent person is "so nominal that it minimally impedes [the] appellant's opportunity to seek appellate review, and [that] the probable value of additional procedural safeguards is minimal." Accordingly, we hold that the borough's refusal to offer any alternative to a $200 filing fee for administrative actions amounts to an unconstitutional denial of due process to indigent claimants. The only question then is whether Varilek is in fact indigent. The superior court made no findings of fact regarding Varilek's ability to pay the borough's filing fee. While a court might rightfully be skeptical that a person who is both a business owner and a property owner is unable to pay a fee of $200, there is nonetheless some support in the record for Varilek's indigence. That support includes the fact that the superior court itself waived its filing fees for Varilek based upon his low income. But because the record is incomplete in this regard, we remand for factual findings related to whether Varilek can afford to pay the filing fees or whether this requirement prevents him from pursuing his claim through the courts. D. Varilek's Other Constitutional Claims Need Not Be Addressed. In Varilek I, the superior court refused to address Varilek's constitutional claims, as did we. We explained that these claims contained "implicit allegations of non-constitutional administrative error." Addressing such claims "require[s]} a factual context [that] would have been supplied by an administrative appeal." And an administrative reversal of such error might moot Varilek's entire case. Since Varilek has yet to pur sue his administrative appeal it remains premature to address his other constitutional claims. It should be noted that since these claims were not properly before the court in this appeal, the borough was not obligated to brief these issues and it did not waive any defenses by declining to do so preemptively. v. CONCLUSION Because the city played no role in enacting or enforcing the legislation challenged in this case, it is dismissed from this case with prejudice. Because access to the borough's administrative appeals process requires a flat fee from all appellants regardless of their wealth, and because this process is a prerequisite to accessing the legal system, the borough's policy violates the procedural due process rights of indigent litigants. Because it is unclear in the present case whether Varilek is actually indigent, we REMAND to the superior court for a factual determination of this question and further proceedings in accordance with this opinion. . Varilek v. City of Houston and Matanuska-Susitna Borough ("Varilek I"), 104 P.3d 849, 2003 WL 539034 (Alaska, April 10, 2002). . McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003); In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003). . R & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 293 (Alaska 2001). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . McElroy, 74 P.3d at 906. . Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater Util., 32 P.3d 362, 366 (Alaska 2001). . Id. . Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). . See dex.htm. http://ordlink.com/codes/matanusk/in- . See McGee v. State, 614 P.2d 800, 808 (Alaska 1980) (taking judicial notice of fact that Mile 206 of Richardson Highway is within boundaries of Fourth Judicial District). . The city moved for dismissal only from the action related to the borough's administrative decision, and the superior court granted its motion. While there is no indication in the record that the city moved for dismissal in response to Varilek's civil suit, we find that dismissal is appropriate given that the cases are consolidated and the city has no interest or stake in either action. . McElroy, 74 P.3d at 907. . Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995). . See, eg., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396-97, 110 S.Ct. 2447, 110 LEd.2d 359 (1990) (holding that under Federal Rules of Civil Procedure, dismissal without prejudice does not "operate as an adjudication upon the merits," and that even when dismissed claim was so unfounded as to merit Rule 11 sanctions, litigant was not precluded from refiling it); Pilot's Point Marina, Inc. v. Cazzani Power Boat Mfg., Inc., 745 A.2d 782, 784 (R.I.2000) (dismissal of claim without prejudice where claimant lacks capacity to sue is not final judgment on merits); Eastern Idaho Agric. Credit Ass'n v. Neibaur, 133 Idaho 402, 987 P.2d 314, 320 (1999) ("A dismissal without prejudice usually does not result in issue preclusion."). . Varilek v. City of Houston and Matanuska-Susitna Borough, 104 P.3d 849, -, 2002 WL 539034, *1 (Alaska, April 10, 2002). . 53 P.3d 1105 (Alaska 2002). . 424 U.S. 319, 96 S.Ci. 893, 47 L.Ed.2d 18 (1976). . Midgett, 53 P.3d at 1111 (adopting test articulated in Mathews ). . 401 U.S. 371, 91 S.Ct. 780, 28 LEd.2d 113 (1971). . Id. at 382-83, 91 S.Ct. 780. . 967 P.2d 91 (Alaska 1998). . Bush v. Reid, 516 P.2d 1215, 1219-20 (Alaska 1973). . Id. . Id. at 1217-18. . Id. at 1218. . Id. at 1218-19. . 765 P.2d 1375 (Alaska 1988). . Id. at 1379. Although this decision was grounded in an equal protection analysis, its reasoning is equally applicable to a due process inquiry. . Bush v. Reid, 516 P.2d at 1218 (quoting Boddie v. Connecticut, 401 U.S. at 375, 91 S.Ct. 780). . K.A.H., 967 P.2d at 97-98. . Id. at 92. . Id. at 94. . Id. at 94-95. . Id. (internal citations omitted). . Bush v. Reid, 516 P.2d 1215, 1217-18 (Alaska 1973) (citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). . See, e.g., Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270, 273 (Alaska 2002) (dismissal of indigent appellant's appeal of administrative decision for failure to pay transcript costs was abuse of discretion). . Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1111 (Alaska 2002). . Varilek complains only of a "[tlotal denial" of access to review "based upon the inability to pay a lump sum ." and he proposes "a payment schedule where the fee is paid over a period of time, ie., $25.00 per month." . Varilek I, 104 P.3d 849, 2002 WL 539034, at *1 (Alaska, April 10, 2002).

9035775

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. MUNICIPALITY OF ANCHORAGE d/b/a Municipal Light & Power Department, a municipality of the State of Alaska, Appellee

State, Department of Revenue v. Municipality of Anchorage

2004-12-23

No. S-11011

120

125

104 P.3d 120

104

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:38:48.788091+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. MUNICIPALITY OF ANCHORAGE d/b/a Municipal Light & Power Department, a municipality of the State of Alaska, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. MUNICIPALITY OF ANCHORAGE d/b/a Municipal Light & Power Department, a municipality of the State of Alaska, Appellee. No. S-11011. Supreme Court of Alaska. Dec. 23, 2004. Martin T. Schultz, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellant. Roger R. Kemppel and John Andrew Le-man, Kemppel, Huffman and Ellis, P.C., Anchorage, for Appellee. - Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

2750

17492

OPINION EASTAUGH, Justice. I. INTRODUCTION Anchorage Municipal Light & Power (ML & P), a subsidiary of the Municipality of Anchorage, produces natural gas, some of which it uses to generate electricity it sells to ML & P customers. Alaska Statute 43.55.016(a) levies "upon the producer of gas a tax for all gas produced from each lease or property in the state, less any gas the ownership or right to which is exempt from taxation." But per AS 29.71.0380, a municipality is not subject to a state tax unless "the law or regulation expressly provides that the municipality is to be assessed or taxed by the particular law or regulation." ~ (Emphasis added.) Does AS 48.55.016(a) "expressly" provide that municipalities are to be taxed? Because its text does not state that it taxes municipalities and because the legislative history does not imply an intention to levy the gas production tax on municipalities, we conclude that AS 48.55.016(a) does not apply to the gas ML & P produces for its own use in generating electricity. We therefore affirm the superior court decision holding that ML & P is exempt from paying the gas production tax. ' II. FACTS AND PROCEEDINGS ML & P is a department of the Municipality of Anchorage; it provides electric service to Anchorage. In 1996 ML & P purchased a one-third interest in the Beluga River Gas Field, consisting of federal and state leases held by Shell Oil Company. ML & P, which operates for profit, uses the gas produced in the Beluga River Gas Field for two purposes. It uses part of the gas to supply third parties, and it uses part of the gas to generate electricity for sale in Anchorage. ML & P used approximately eighteen to twenty-five percent of its monthly gas production for the latter purpose from November 1996 through December 1997. For the transfer of the state leases to ML & P to be effective, the Alaska Department of Natural Resources (DNR) had to approve the transaction. ML & P proposed not paying conservation and production taxes for gas ML & P used for municipal purposes, le., gas it did not sell to third parties. As a condition of approval, DNR ultimately imposed production taxes for gas ML & P sold to third parties but left open the question whether production of gas used to generate electricity would be similarly taxed. ML & P conceded during oral argument before us that it does not seek a refund for or contend that it is exempt from the taxes paid for gas produced and sold to third parties, per its agreement with DNR. ML & P.paid production and conservation taxes to the Alaska Department of Revenue (DOR) for all gas produced from ML & P's interest in the Beluga River Gas Field but filed a refund claim in December 1999 for those taxes it paid for gas it used to generate electricity for Anchorage. When DOR denied ML & P's refund claim for taxes paid for gas ML & P produced and used to generate electricity, ML & P administratively appealed the decision, ultimately to the Alaska Office of Tax Appeals. The Office of Tax Appeals held on summary judgment that ML & P was responsible for the production taxes at issue. ML & P appealed this decision to the superior court. It reversed, holding that under rules of statutory interpretation, AS 48.55.016(a), Alaska's gas production tax statute, did not apply to ML & P's gas production on its leases at the Beluga Gas Field when read in conjunction with AS 29.71.0380, Alaska's municipal tax exemption statute. DOR appeals the superior court's decision. III. STANDARD OF REVIEW We independently review the merits of the administrative decision when the superior court acts as an intermediate court of appeal. We apply our independent judgment to questions of law such as statutory interpretation if a decision does not involve an agency's special expertise or determination of fundamental policies. When interpreting a statute, we apply a sliding scale approach in which the "plainer" the meaning of the statutory language, the more convine-ing any contrary legislative history must be. We construe the statutory language according to its common usage unless the word or phrase at issue has "acquired a peculiar meaning, by virtue of statutory definition or judicial construction." Because the issue whether municipalities are exempt from gas production taxes is one of first impression, we adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION A. Alaska Statute 43.55.016(a) Does Not Satisfy the "Expressly Provides" Requirement of AS 29.71.030 for Taxation of Municipalities. The question here is whether ML & P, as a department of the Municipality of Anchorage, is subject to the gas production tax imposed by AS 48.55.016(a). Whether it is depends on whether the statute satisfies the requirement of AS 29.71.0830 that, in order to tax a municipality, a state law must "expressly" provide that it taxes the municipality. DOR argues that AS 48.55.016(a), the gas production tax statute, imposes a tax on ML & P for the gas it produced and used to generate electricity. DOR reasons that AS 48.55.016(a) expressly levies a tax for "all gas produced," and that, by application of AS 49.55.900(18), AS 48.55.016(a) therefore expressly exempts only production from interests owned by the federal government or the state. Alaska Statute 48.55.016(a) provides in pertinent part: "There is levied upon the producer of gas a tax for all gas produced from each lease or property in the state, less any gas the ownership or right to which is exempt from taxation." Alaska Statute 493.55.900(183) defines "ownership or right to which is exempt from taxation" as "any ownership interest of the federal government or the state." Alaska Statute 48.55.016(a) thus imposes a tax for "all gas produced" except gas to which the ownership or the right is exempt. Alaska Statute 48.55.900(18), which defines the exempted ownership and rights to which AS 48.55.016(a) refers, does not state that it includes ownership interests of municipalities. DOR consequently concludes that gas produced by the municipality is not exempted from taxation, making it subject to the express tax on "all gas produced." ML & P contends, however, that it is not liable for gas production taxes because the plain language of AS 29.71.080 generally exempts municipalities from taxation unless the law expressly provides for taxing municipalities, and AS 48.55.016(a) fails to do so. Alaska Statute 29.71.080 states: "A state law or regulation may not assess or tax, or be construed to assess or tax, a municipality unless the law or regulation expressly provides that the municipality is to be assessed or taxed by the particular law or regulation." (Emphasis added.) The superior court declined to, interpret "expressly" in section .080 to include laws or regulations whose construction implicitly allows for taxation of a municipality: The term "expressly" is not a term that has acquired a peculiar meaning through legislative or judicial definition. As a result, it is appropriate to use a common meaning of the word when interpreting the statute. Webster's Revised Unabridged Dictionary defines "express" as; (1) exactly representing; exact, (2) directly and distinctly stated; declared in terms; not implied or left to inference; made unambiguous by intention and care; clear; not dubious. That same dictionary defines "expressly" as; in an express manner; in direct terms; with distinct purpose; particularly. Alaska cases have consistently interpreted express provisions as those that are stated in legislation. (Citations omitted.) We addressed in Alaska Housing Finance Corp. v. Salvucei the question of what constitutes "express" in context of statutory imposition of a burden. The issue in Salvucet was whether the Whistleblower Act, which prohibits retaliatory actions by a public employer against an employee, contains the "express and specific statutory authority" required to rebut the presumption against assessing punitive damages against governmental entities. The pertinent Whistle-blower Act provision states, "A person who alleges a violation of [the Whistleblower Act] may bring a civil action and the court may grant appropriate relief, including punitive damages." Because the language of the statute did not expressly state that punitive damages were authorized against public employers (rather than against individual government employees), we held that punitive damages, although mentioned by the statute, were not available against public entities in Whistleblower Act claims. Alaska Statute 48.55.016(a) similarly does not state expressly that it taxes municipalities. It does not mention municipalities at all. To construe AS 48.55.016(a) as taxing municipalities, one would have to refer first to AS 48.55.900(18), note that its listed exemptions do not include municipal interests, and then conclude by negative inference that municipalities are not exempted. This inference, while logical, is not the express provision required by AS 29.71.0830. DOR reminds us that tax exemptions should be strictly construed in favor of tax liability, but this rule of construction does not apply here. Alaska Statute 29.71.0830 states not only that a law or regulation "may not assess or tax" without expressly providing that the municipality will be taxed, but that it will not be "construed to assess or tax" a municipality unless it expressly provides for municipal taxation. The statute is the legislature's self-imposed blanket prohibition to prevent an unintended taxation of municipal interests or activities; section .030 leaves no room for taxing a municipality by statutory interpretation founded on implication or inference. The parties have not referred us to any legislative history of AS 48.55.016(a) suggesting that municipalities should be exempt from the gas production tax statute. Likewise, nothing in the legislative history of AS 498.55.900(18) suggests, as DOR argues, that it contains an exhaustive list of exemptions applicable to AS 48.55.016(a). Because it appears that municipalities have only recently become involved in producing natural gas, it is not surprising that the parties have produced for us no indication the legislature ever considered whether municipalities should be exempt from production taxes when it enacted the definition of exempted interests in 1973. Because no intent contrary to the plain meaning of the statutory language is evident and because AS 48.55.016(a) does not mention municipalities at all, we hold that AS 43.55.016(a) does not satisfy AS 29.71.080's requirement that statutes must "expressly" impose a tax on municipalities. B. Alaska Statute 29.71.0830 Applies even if ML & P's Gas Production Is Commercial. The plain meaning of AS 29.71.080 requires that to impose a tax on a municipality, the law must "expressly" provide that municipalities are to be taxed. Section .030 draws no distinction between commercial and noncommercial activities. Assuming ML & P's production of gas used to generate electricity for Anchorage were commercial in nature, AS 29.71.0830 contains no exception that would exeuse its application to the gas production tax statute. DOR urges, however, that existing precedent and the Alaska Constitution support taxing municipalities engaged in commercial enterprise. It relies on article IX, section 4 of the Alaska Constitution, which states in part: The real and personal property of the State or its political subdivisions shall be exempt from taxation under conditions and exceptions which may be provided by law. All, or any portion of, property used exelu-sively for non-profit religious, charitable, cemetery, or educational purposes, as defined by law, shall be exempt from taxation. This provision, however, exempts certain property from taxation, not activities. Even assuming that the gas production tax operates like a property tax, the constitution contains no "use" restrictions for exemptions afforded to public property. Section 4s first clause, which states that all property belonging to the State and its subdivisions shall be exempt from taxation, does not on its face address-much less impose-conditions on use. In contrast, the second clause explicitly lists exemptions based on the nature of use. Charitable purposes cases relied upon by DOR, such as Evangelical Covenant Church of America v. City of Nome, do not involve the type of statutory exemption asserted by ML & P. Other cases cited by DOR to support its claim that other jurisdictions tax municipalities for their commercial activities relate to statutes that either explicitly address municipalities engaged in private business or explicitly provide exemptions based on the property's use rather than its ownership. These cases do not support nullifying the tax exemption afforded by AS 29.71.0830 merely because the activity may be commercial. The parties have not brought to our attention any indication of a legislative intent to adopt an exception that is not found in the plain words of the statute. Public policy considerations also do not support an interpretation that would change the meaning of AS 29.71.0830. Such arguments should be addressed to the legislature. Public policy cannot justify an interpretation nowhere supported in the words or history of a statute. v. CONCLUSION Because we conclude that the gas production statute, AS 48.55.016(a), does not "expressly" tax municipalities, we AFFIRM the superior court's decision without reaching the alternative arguments raised by ML & P. . Anchorage Municipal Charter § 19.14; Anchorage Municipal Code (AMC) 26.10.060 (1996) (Utilities owned by the municipality . shall be operated in such a manner as to provide a reasonable profit in accordance with applicable regulations of the state public utilities commission. ."). . Effective July 1, 1999, the legislature repealed AS 43.57.010, the similarly worded oil and gas conservation tax statute. Ch. 34, § 6, SLA 1999. This appeal thus concerns ML & P's gas conservation tax liability prior to that effective date. Because the analyses for 1996-1997 tax liability under both AS 43.57.010 and AS 43.55.016(a) are effectively the same, we will refer for simplicity only to production (or severance) taxes imposed under AS 43.55.016(a). . ML & P's original refund claim covered taxes for gas produced from November 1996 through November 1999. ML & P has since withdrawn its claim for taxes paid in 1996. This appeal therefore pertains to taxes underlying ML & P's 1997 refund claim. The 1998 and 1999 refund claims are pending resolution of this appeal. . Fairbanks N. Star Borough v. Golden Heart Utils. Inc., 13 P.3d 263, 266 (Alaska 2000); Thompson v. United Parcel Serv., 975 P.2d 684, 687-88 (Alaska 1999). . Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150 (Alaska 2002); State, Dep't of Revenue v. Dyncorp & Subsidiaries, 14 P.3d 981, 985 (Alaska 2000); Thompson, 975 P.2d at 688; Nat'l Bank of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982). . Coughlin v. Gov't Employees Ins. Co. (GEICO), 69 P.3d 986, 988 (Alaska 2003). . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 788 (Alaska 1996). . Id. at 787. . Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116 (Alaska 1997). . Id. at 1124 (citing Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 906 (Alaska 1991)). . Id. (quoting AS 39.90.120(a)). . Id. at 1125 ("Instead of being express and specific as to whether punitive damages can be awarded against public employers, the statute is noncommittal and ambiguous on this point."). . Ketchikan Gateway Borough v. Ketchikan Indian Corp., 75 P.3d 1042, 1045 (Alaska 2003); Sisters of Providence in Wash., Inc. v. Municipality of Anchorage, 672 P.2d 446, 447 (Alaska 1983). . Ch. 4, § 3, FSSLA 1973. . Evangelical Covenant Church of Am. v. City of Nome, 394 P.2d 882 (Alaska 1964). . City of Phoenix v. Moore, 57 Ariz. 350, 113 P.2d 935, 937 (1941) (referring to statute stating that "person" includes municipal corporations); Dep't of Treasury v. City of Evansville, 223 Ind. 435, 60 N.E.2d 952, 953 (1945) (addressing statutory amendment which changed definition of taxable "person" to include "any . municipal corporation . engaged in private or proprietary activities or business"); City of Liberal v. Seward County, 247 Kan. 609, 802 P.2d 568, 570 (1990) (finding that royalty interests on city property leased to commercial oil and gas producers were not tax exempt under provisions exempting all property "used exclusively" by the municipality). . Wold v. Progressive Preferred Ins. Co., 52 P.3d 155, 161 (Alaska 2002) ("[SJtatutes themselves reflect the state's public policy; hence, we have recognized that 'public policy . cannot override a clear and unequivocal statutory require ment.' ") (quoting Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829, 833 (Alaska 2001}); Tipton v. ARCO Alaska, Inc., 922 P.2d 910, 913 (Alaska 1996).

9035840

Tom CHALOVICH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tom Irwin, Commissioner, and Harold F. Parker, Appellees

Chalovich v. State, Department of Natural Resources

2004-12-30

No. S-10977

125

135

104 P.3d 125

104

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:38:48.788091+00:00

CAP

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

Tom CHALOVICH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tom Irwin, Commissioner, and Harold F. Parker, Appellees.

Tom CHALOVICH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tom Irwin, Commissioner, and Harold F. Parker, Appellees. No. S-10977. Supreme Court of Alaska. Dec. 30, 2004. J.P. Tangen, Anchorage, for Appellant. Lawrence Z. Ostrovsky, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee State of Alaska. Harold F. Parker, pro se, Anchorage. Before: BRYNER, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices.

6142

37398

OPINION CARPENETI, Justice. I. INTRODUCTION Tom Chalovich appeals a final decision by the Department of Natural Resources (DNR) finding that he abandoned his state mining claims by failing to timely make a payment in lieu of annual labor as required by 11 Alaska Administrative Code (AAC) 86.220(b). Cha-lovich attacks the validity of this regulation on the grounds that it is inconsistent with the Alaska Land Act, arbitrary, and unconstitu tional. He also claims that 11 AAC 86.107(g), which prevents DNR from refunding cash payments made in lieu of annual labor, has resulted in an unconstitutional taking because the department has not refunded payments made since his claims were deemed abandoned. Because we find that Chalovich timely paid cash in lieu of annual labor by placing payment in the mail by the regulatory deadline, we reverse the determination that he abandoned his claims. II. FACTS AND PROCEEDINGS Tom Chalovich purchased five mining claims in November 1997 from Carol Brown. Two of these claims, Akland 2-8, were staked over claims previously held by Dennis Browa, Carol's husband, and his mining partner, Harold Parker, that were deemed abandoned by DNR. Another claim, Akland 8, covered a previous claim staked by Dennis Brown and Parker and never abandoned. Because Parker asserted a competing interest in Akland 2 and 8, Chalovich filed suit. to quiet title in August 1998. Through decisions by the superior court in October 1999 and July 2002, Chalovich successfully quieted title in Akland Nos. 2-5, though his complaint regarding Akland No. 8 was dismissed without prejudice on Chaloviech's motion pending his appeal of DNR's determination that he did not perform annual labor for this claim in 2000. The department had initially determined that Chalovich abandoned all five claims because he made the 2000 cash-in-lieu-of-labor payment on November 29, 2000, nearly three months after the September 1 deadline, but the department later determined that a survey conducted on Akland claims Nos. 2-5 would qualify as annual labor for those claims. While the quiet title litigation was pending in the superior court, Parker went to the DNR offices in January 2002 to review Cha-loviech's annual labor affidavits for the contested claims, and he discovered that the 1999 cash-in-lieu payment for these claims was also received by DNR after the September 1 deadline. The payment was postmarked on that date, but it was not received by DNR until September 8. Parker related this information to DNR Mineral Property Manager Kerwin Krause, who informed Cha-lovich in January 2002 that his claims were deemed abandoned by operation of law as of September 1, 1999 pursuant to 11 AAC 86.145(a)(2) and (4), because his payment was received after the regulatory deadline. Though DNR does not usually allow administrative appeals of events that occur by operation of law, such as abandonment of mining claims under AS 38.05.265, Krause permitted Chalovich to appeal his decision to the commissioner. Both Chalovich and Parker appealed Krause's decision. While Chalovich claimed that DNR should treat his payment as timely, he also argued that 11 AAC 86.220(h) was arbitrary and inconsistent with other regulatory deadlines, that forfeiture was an unreasonably harsh penalty for late payment, and that DNR would be unjustly enriched if it did not refund payments he made after his claims were forfeited on September 1, 1999. He request ed a hearing on his appeal. Parker objected that Chalovich had no right to appeal Krause's decision because his claims were forfeited by operation of law. Commissioner Pat Pourchot issued a final decision in July 2002 denying both appeals. Pourchot upheld the department's decision because it was made pursuant to a validly adopted regulation, and he rejected Chalovich's request for a hearing because there were no disputed questions of fact. He did not address Chalo-vich's claim that the department had no right to retain the annual labor payments made since September 1, 1999. While Pourchot agreed with Parker that the department's January 2002 decision should not have been appealable, he noted that no harm resulted since he was denying Chalovieh's appeal. Chalovich appealed the commissioner's decision to the superior court in August 2002, and Parker filed a motion to dismiss the appeal on the grounds that DNR should have rejected Chalovich's appeal since forfeiture occurs as a matter of law. The superior court granted Parker's motion in January 20083, holding that because Chalovich failed to comply with the provisions of AS 38.05.265, his claims were forfeited by operation of law and he had no right to an administrative appeal. The superior court denied Chalo-vich's motion for reconsideration in February 2008. Chalovich appeals. III STANDARD OF REVIEW When the superior court acts as an intermediate court of appeal, we independently review the underlying administrative decision. This case presents no disputed questions of fact since the parties agree that Chalovich mailed payment to DNR on September 1 and that it was received on September 8. We review questions of law, including the interpretation of statutes and regulations, using our independent judgment. When an agency has adopted regulations under a delegation of authority from the legislature using the process prescribed by the Administrative Procedures Act, we presume that the regulations are valid and place the burden of proving otherwise on the challenging party. We limit our inquiry to whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions, and whether the regulation is reasonable and not arbitrary. In making the consistency determination, we apply our independent judgment unless the issue involves agency expertise or the determination of fundamental policy questions on subjects committed to an agency's discretion, in which case we employ a rational basis standard and defer to an agency's determination so long as it is reasonable. "Whether the regulation is necessary to implement the statute involves fundamental policy determinations which we review on a rational basis standard. " We also use a deferential standard to conduct the "reasonable and not arbitrary review." IV. DISCUSSION A. 11 AAC 86.220(h) Validly Requires Payment in Lieu of Annual Labor by September 1, but a Postmark Is Evidence of Timely Payment. DNR found that Chalovich abandoned his claims because it received his 1999 payment two days after the regulatory deadline of September 1, 1999. Chalovich acknowledges that his payment was not received by DNR by September 1, but he claims that the deadline is arbitrary and that the penalty of forfeiture is unduly harsh and unconstitutional. Because Chalovich has not challenged the procedure by which this regulation was adopted, our inquiry is limited to whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions, and whether the regulation is reasonable and not arbitrary. Chalovich challenges the validity of three separate aspects of 11 AAC 86.220(h): he challenges the date for payment of cash-in-lieu of labor as being inconsistent with AS 88.05.210(a); he claims that the penalty for late payment is excessive; and he argues that the requirement that payment be received, rather than postmarked, by the deadline is arbitrary. While we uphold the challenged regulation to the extent that it requires performance of labor by September 1, we agree with Chalovich that it is unreasonable to require actual receipt of payment rather than treating a postmark as the date of payment. 1. Annual labor is required to maintain a state mining claim. As noted, in order to maintain a state mining claim, each claim holder must perform annual labor valued at $100 on or for the benefit of each claim or make a cash-in-lieu payment instead of performing labor. By statute, DNR has authority to "establish the date of the commencement of the year during which the labor or improvements are to be performed." The department determined that the labor year begins on September 1 and it requires performance of all required labor by that date. Cash payments in lieu of labor must be received by that date. Within ninety days after the end of the labor year each claim holder must file an affidavit with the department describ"ing, among other things, the dates and character of labor performed or improvements made, and the amount of any cash payment made in lieu of annual labor. An affidavit that does not include this required information is considered void and the mining claim is deemed abandoned. The contested regulation, 11 AAC 86.220(h), states that a claim is forfeited i#f payment is not received by September 1. Because DNR did not receive Chalovich's 1999 payment until September 3, 1999, it determined that he had abandoned his claims under the terms of 11 AAC 86.220(h). l Abandonment of mining claims is governed by AS 38.05.265, which states that the [flailure to properly record . a statement of annual labor . constitutes abandonment of all rights acquired under the mining claim, leasehold location, or prospecting site involved.... A statement of annual labor that does not accurately set out the essential facts is void and of no effect. | | Chalovich claims that he did not violate AS 38.05.265 because he properly recorded a statement of annual labor within ninety days of the end of the labor year, and he cites as proof the fact that DNR received his payment-in-lieu and affidavit of annual labor on September 3, 1999. Chalovich separates the requirement to perform labor from the requirement to submit an affidavit describing such labor, and he reads AS 88.05.265 narrowly to impose forfeiture only for failure to record. the affidavit by November 30-not for failure to perform the labor the affidavit must describe. He also claims that payment of cash in lieu of labor should be timely if received by November 30, the deadline for receipt of affidavits of labor, rather than the September 1 deadline for performance of labor. In short, Chalovich argues that those paying cash rather than performing labor should receive an additional three months for performance, and that, in any event, forfeiture is an inappropriate penalty for mere tardiness. The department responds that labor must be performed by September 1 because a statement of annual labor cannot be properly recorded if the required labor is not performed by that date. Alaska Statute 38.05.265 would be meaningless, it argues, if a miner did not complete annual labor but could nonetheless avoid forfeiture by filing an affidavit by November 80 stating that no labor was performed or payment made, or that performance was late. Because AS 38.05.210(a) requires annual labor, and because AS 38.05.265 deems claims abandoned if a statement of labor is not recorded, the department argues that 11 AAC 86.220(b) fills a statutory gap by requiring payment of the labor substitute by the end of the mining year. We agree with DNR that all labor must be performed by September 1 and that forfeiture is an appropriate penalty for late performance. We disagree only on the department's standard for timely performance of labor. a. Annual labor must be performed by September 1. DNR has authority to define the labor year for mining claims. Alaska Statute 38.05.210(a) grants authority to DNR to "establish the date of the commencement of the year during which labor or improvements are to be performed" and, through regulations, DNR established that the labor year runs from noon on September 1 through noon the following September 1. The mining year is the same regardless of whether a miner performs labor or makes a cash payment. Federal mining law defines the mining year using the same dates. There is no question that DNR acted within its delegated authority to establish a deadline for annual labor, and the fact that federal and state mining law define the mining year using the same dates demonstrates that the state's choice of September 1 is reasonable and not arbitrary. Even Chalovich concedes that "DNR is well within its rights to set a September 1 deadline for the receipt of cash-in-lieu payments." His concern is not with the deadline for labor but with the definition of timeliness and the penalty for late performance. b. A mining claim is abandoned if labor is not performed by September 1. Alaska Statute 88.05.210 requires both that miners perform $100 of annual labor and that they file a signed statement confirming that they performed the required labor "[dJuring the year in which annual labor is required or within 90 days after the close of that year." The requirement to file an affidavit of annual labor has been a feature of Alaska mining law since 1961 and of federal mining law applicable to federal lands in Alaska since 1907. Chalovich claims that, even if he is required to submit an affidavit of annual labor, nothing in the statute clearly states that the labor must be completed before the affidavit can be submitted. According to this argument, because AS 88.05.265 does not state that claims are abandoned if labor is not performed, but rather that a "[fJailure to properly record . a statement of annual labor . constitutes abandonment," Chalovieh's claims would only be forfeited if he failed to record a statement of annual labor by the November 30 deadline-irrespective of whether he even performed annual labor or paid cash-in-lieu. According to Chalovich, since abandonment technically follows from the failure to proper ly document the performance of annual labor, and not from the failure to actually perform the required labor, "DNR just made this rule up out of whole cloth. It is the very definition of an arbitrary mandate and is no more appropriate than a requirement that the claim owner hop on his left foot by September 1." This argument misses the point-and it undermines the intent of AS 38.05.210(a)-that all miners, must perform annual labor. While AS 38.05.265 does not state that claims are abandoned if labor is not performed by September 1, a regulation to that effect implements the intent of that statute, particularly since "[a] statement of annual labor that does not accurately set out the essential facts is void and of no effect." Since the labor performed or cash paid are essential facts, a claim holder cannot properly set out these facts if they are not actually performed. The challenged regulation implements AS 88.05.210 by requiring payment by the end of the labor year as a necessary precondition to filing a statement of annual labor, and the penalty for non-compliance is consistent with AS ©38.05.265. If a claim holder fails to properly record a statement of annual labor he forfeits his claims. Chalovich also argues that forfeiture is inappropriate because the dual deadlines-September 1 for performance of labor and November 30 for filing a statement of labor-ereate an "unfair trap for the unwary." According to Chalovich, the use of two deadlines is confusing, particularly since DNR requires that payment-in-lieu be accompanied by "a copy of the affidavit of annual labor or a statement containing the name and [Alaska Division of Land] number for the mining claim." He claims that the implication of this regulation is that cash-in-lieu need not be paid until November 30, when the affidavit of annual labor is due. But DNR's regulations are clear and unambiguous: Labor must be performed by September 1. If a miner performs actual labor, it must be completed by September 1 but he need not submit an affidavit affirming its completion until November 30. If a miner opts to make a cash payment, such payment must be received by September 1, and it must be accompanied by documentation sufficient to identify the claims for which payment is made-either the statement of annual labor or the name and ADL number of the claim. The affidavit need not be submitted by September 1 so long as payment is accompanied by the name and ADL number for the relevant claim. Additionally, the deadline for payment-in-lieu is clearly noted on the form affidavit of annual labor provided by DNR. As the commissioner explained in his written decision, while a claim holder does have to keep track of two different deadlines, the overall number of claims abandoned for late payment is small, with none recorded in 2001. Since 1961 Alaska's miners have had ninety days from the end of the labor year to submit an affidavit of annual labor, and this requirement is statutory, not regulatory. The dual deadlines are not a trap for the unwary. | The core of Chalovich's argument is that forfeiture is an "abhorrent" penalty for what he characterizes as petty, procedural non-compliance. We addressed forfeiture of mining claims in AU International, Inc. v. State, Department of Natural Resources, and agreed with DNR that the failure to record a statement of annual labor that includes all essential facts constitutes abandonment without regard to intent. In AU International, the claim holder actually performed the required labor to improve its 1,035 claims, but the statement of labor it filed with DNR listed the name or claim number for only four claims. We held that the remaining 1,081 claims were abandoned by operation of law because the statement of labor did not include the "essential facts" for these claims. By regulation, these essential facts include the name or number of the mining claim, and the dates of performance of labor and the character of the labor performed, or the amount of cash paid in lieu of annual labor. If a claim is abandoned for failure to properly record its name or number-even though labor was performed-then clearly a claim is abandoned if the required labor is not actually performed within the labor year. Kile v. Belisle, cited by Chalovich in support of his argument that abandonment requires intent, is not to the contrary. In Kile, we noted that under federal law the failure to perform annual labor does not by itself constitute abandonment, but the question in that case was whether federal mining claims had been abandoned. As we explained in AU International, Alaska mining law, unlike federal law, requires no proof that a miner intended to abandon his claim, and a state mining claim will be deemed abandoned for failure to comply with the requirements of AS 38.05.265 irrespective of the claim holder's intent. Moreover, federal mining regulations have generally been interpreted to require strict compliance with deadlines and filing requirements. | Indeed, when the federal government began requiring miners to submit affidavits of annual labor in 1976, the Bureau of Land Management (BLM) routinely found that miners had abandoned their claims if the affidavits were received after the filing deadline-even if they were postmarked well in advance. While federal law now requires most miners to pay a cash "maintenance fee" rather than perform annual labor, the failure to timely pay this fee still results in forfeiture. Chalovich may characterize the Alaska Land Act's procedural requirements as petty, but it is the system created by the legislature, and it is consistent with federal law. Chalovich nonetheless argues that forfeiture violates article VIII, section 1 of the Alaska Constitution, which states that "[it is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest." But article VIII, section 11 further states that "[clontinuation of [mineral] rights shall depend upon the performance of annual labor, or the payment of fees, rents, or royalties, or upon other requirements as may be prescribed by law." Regulations requiring payment of cash in lieu of labor by September 1 and deeming claims abandoned if payment is not received by that date are consistent with the statutes they implement, are reasonable and not arbitrary, and are consistent with the Alaska Constitution. Fundamentally, Chalovich seeks preferential treatment for those who pay cash rather than perform annual labor. Allowing miners to pay cash-in-lieu until November 30 would create a fifteen month "year" for some miners and a twelve month year for others. There is no justification for allowing such disparate treatment. The legislature requires that claim holders perform annual labor to maintain their state mining claims. By regulation, this labor must be performed between September 1 and the subsequent September 1. If labor is not performed by September 1 a claim holder cannot properly record a statement of annual labor because he cannot accurately set out an essential fact-that he performed annual labor as required to maintain his claim. Accordingly, a claim is abandoned if labor is not performed by September 1. 2. A payment-in-lieu of annual labor is timely if postmarked by September 1. Our agreement with DNR that miners must perform annual labor by September 1 or face forfeiture of their claims does not resolve the issue before us, however, because Chalovich also argues that 11 AAC 86.220(h) unreasonably and arbitrarily requires actual receipt of payment by the September 1 deadline rather than accepting a postmark as the date of payment. DNR acknowledges that it received payment from Chalovich on September 8, 1999 in an envelope postmarked on September 1. Chalovich claims that his payment was timely because it was mailed by the deadline, and he argues that a rigid requirement of receipt unfairly makes miners dependent upon the efficiency of the postal service. While the department did not address this issue in its briefing, the commissioner stated in his July 1, 2002 final decision that the requirement actual receipt was enacted to treat cash payment the same as actual labor. Whether it is reasonable and not arbitrary for DNR to require actual receipt of payment in lieu of annual labor is a close question, but we must resolve it in favor of Chalovich,. We reach this conclusion, despite the deferential standard of review applicable to this regulation, for two reasons. First, a requirement of actual receipt is not necessary to achieve DNR's goal of equal treatment of all claim holders. Second, the state's deadlines are no longer consistent with federal mining law, which has adopted a modified postmark rule, and while we do not require consistency between state and federal mining law, it is persuasive that BLM does not impose such a rigid requirement. We address each reason in turn.. DNR argues that it is necessary to require actual receipt of cash payments by September 1 to ensure that all miners are treated equally. We agree that since the $100 cash payment per claim is a substitute for the actual performance of labor, miners should face the same deadlines regardless of how they fulfill the labor obligation. But we cannot agree that the contested regulation is an appropriate way to achieve this goal. In fact, for reasons that we explain below, the regulation actually undermines DNR's goal of equal treatment. Further, by requiring actual receipt of payment by September 1, the department unnecessarily exposes miners to risk of forfeiture due solely to the vagaries of the postal service. This regulation is starkly different from the one proposed by DNR in 1989 when it revised the mining regulations in response to the legislature's amendment of AS 38.05.210 to allow payment in lieu of labor. As originally proposed, the regulation treated as timely cash payments made within ninety days after the end of the labor year. After a citizen commented that the regulation effectively provided some miners with an additional ninety days to complete annual labor, DNR adopted the current regulation which requires receipt of payment on September 1. The record shows that the department appropriately considered the public comment and made changes to its proposed regulations in an effort to ensure that all miners had the same amount of time to complete their annual labor requirements. Unfortunately, in attempting to resolve one potential inequity, DNR created another. There is no apparent reason to impose forfeiture on a miner who mails a payment of cash in lieu of labor on September 1 so long as the date of mailing can be verified through a postmark. Such a miner would receive no advantage over one who actually performs labor, nor would acceptance of a postmark as evidence of performance create an unreasonable delay in notifying DNR that labor was performed. This is particularly true since miners who physically perform labor need not inform the state of such performance until November 30. If anything, the department's requirement of physical receipt means that a miner making a cash-in-lieu payment must make the payment well in advance of the deadline in case delivery of his payment is delayed by the postal service. The likelihood of such an occurrence is non-negligible since most miners are likely to mail payments or affidavits to DNR rather than deliver them in person. If cash-in-lieu is a substitute for annual labor, miners who pay it should have the same time to perform as miners who actually perform annual labor. Accordingly, we hold that a miner who mails payment on or before September 1, and who can verify the date of such mailing through a postmark, has performed annual labor by the end of the mining year. We find further support for our decision today in the law applicable to federal mining claims. While Alaska is not required to adopt the same regulations as the federal government, it is persuasive that BLM has adopted a modified postmark rule precisely to avoid unwarranted forfeiture of mining claims due to delays by the postal service. In 1982 the BLM amended its regulations to treat as timely annual filings that were postmarked by the deadline so long as they were received by DNR within twenty days of the (then) December 830 filing deadline. This amendment did not completely change the receipt rule to a postmark rule, because filings received after the twenty-day period were still rejected even if postmarked by December 30. These regulations were subsequently amended to provide a fifteen-day grace period and to govern payment of annual maintenance fees, which are due by September 1. The legislative history of the 1982 amendments shows that BLM made the changes to "save a large number of mining claimants from the loss of their claims due to delays in the mails over the holiday season." BLM noted that strict application of the existing regulation had led to the loss of claims due solely to "the heavy volume of holiday mail and unusual delays in delivery times," with "annual proofs of labor . postmarked two or three weeks prior to the statutory December 30th deadlines [being] delivered to the proper BLM office in January, which is after the filing deadline." But BLM was not worried solely about holiday-related mail delays because federal regulations now provide for a fifteen-day grace period for payment of the annual maintenance fee, which is due on or before September 1. Thus when DNR amended its regulations in 1990 to permit payment in lieu of annual labor and to require actual receipt of payment by the September 1 deadline, federal regulations permitted a twenty-day "grace period" during which an affidavit of labor postmarked by the due date of December 30 could be received by BLM and still be treated as timely filed. While consistency between state and federal mining law is not required, we find it persuasive that the federal government has recognized the injustice of allowing a miner's claims to be forfeited due solely to problems with mail delivery. Because requiring receipt of payment-in-lieu violates DNR's stated goal of equal treatment, because DNR's regulations impose inconsistent and possibly confusing standards for timeliness, and because the federal government has adopted a less rigid standard, we find that the challenged regulation unreasonably fails to treat as timely a payment postmarked by the regulatory deadline of September 1. B. Chalovich's Challenge to AS 11 AAC 86.107(g) Is Moot. Chalovich also challenges the validity of 11 AAC 86.107(g), which prohibits DNR from making a refund of a payment of cash in Heu of annual labor, and argues that the department had no right to payment after his claims were abandoned. He asserts that if he had no interest in these claims after September 1, 1999 then DNR had no right to retain the payment it received on September 3 or other payments made since that time. He concedes that he has not requested a refund, but claims that the plain language of the regulation would make it fruitless to do so. -He asks that we find that the regulation was not authorized by the Alaska Land Act, and that it violates the due process clauses of the Alaska and of the United States Constitutions, as well as the principles of equity. We decline to reach this issue in light of our decision that Chalovich timely paid cash in lieu of labor in 1999. In any event, DNR agrees that annual labor is required only for active mining claims, so any payment made after a claim is abandoned is unnecessary and would be returned to the miner. C. Parker's Claims Are Not Properly Before this Court. Appellee Parker supports DNR's position and encourages this court to find that Chalovich abandoned his mining claims on September 1, 1999. He also raises several additional arguments, one of which we previously resolved, and the remainder of which are waived since Parker did not file a cross-appeal. Parker asks that we strike from the record two superior court decisions that pertain to his dispute with Chalovich over ownership of the Akland claims, because he alleges that these documents were not part of the department's record on appeal. These decisions are in the agency record. While they provide relevant background information about the status of these claims, they are immaterial to the resolution of the legal questions raised in this case. In any event, we previously denied Parker's motion to strike these documents, and there is no reason to address this issue a second time. Parker also claims that his constitutional rights were violated because the superior court denied his requests for attorney's fees and for monetary sanctions against Chalo-vich. Because Parker, the appellee in this case, did not file a cross-appeal, these claims are not properly before us and will not be considered. v. CONCLUSION DNR determined that Tom Chalovich abandoned his state mining claims pursuant to AS 88.05.265 because he did not perform annual labor as required by AS 88.05.210(a). Because Chalovich timely paid cash-in-lieu by the September 1 deadline, we REVERSE the agency's decision that he abandoned his claims. Accordingly, we need not address the validity of 11 AAC 86.107(g). Because Harold Parker did not file a cross-appeal his claims are not properly before the court. MATTHEWS, Justice, not participating. . AS 38.05. . Alaska law requires miners to perform $100 worth of annual labor on or for the benefit of each mining claim. AS 38.05.210(a). Instead of performing this labor, a miner may make a $100 cash payment to the state. Id. . For purposes of state mining claims, the terms "abandon" and "forfeit" are synonymous. See AU Int'l, Inc. v. State, Dep't of Natural Res., 971 P.2d 1034, 1038-39 (Alaska 1999) (failure to comply with filing requirements constitutes abandonment regardless of miner's subjective intent). See also 43 C.F.R. § 3833.0-5(z) (2003) (terms synonymous under federal mining law). . This regulation states in relevant part that "(al cash payment made instead of performing annual labor must be received by the department . on or before September ist of each year.... If cash payment . is not paid by the end of the labor year, the mining claim or leasehold location will be considered abandoned under AS 38.05.265." . This statute deems mining claims abandoned if a miner fails to "properly record a certificate of location or a statement of annual labor, pay any required annual rental, or pay any required production royalty.. . ."" Because DNR received Cha-lovich's payment-in-lieu of annual labor after the regulatory deadline it deemed his claims abandoned by operation of law. We note that, after the oral argument in this case, the legislature amended this statute to allow a defaulting miner to cure his abandonment. Ch. 26, SLA 2004. . Crivello v. Commercial Fisheries Entry Comm'n, 59 P.3d 741, 744 (Alaska 2002). . Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003). . Lakosh v. Alaska Dep't of Envtl. Conservation, 49 P.3d 1111, 1114 (Alaska 2002). . Id. (citing AKeZly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971)). . Id. . O'Callaghan v. Rue, 996 P.2d 88, 94-95 (Alaska 2000). Under the rational basis standard of review, we will defer to an agency's determination so long as it is reasonable and not arbitrary. Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 91 P.3d 240, 244 (Alaska 2004). "However, 'reasonable necessity is not a requirement separate from consistency. If it were, courts would be required to judge whether a particular administrative regulation is desirable as a matter of policy'; this is a function of the agency." Lakosh, 49 P.3d at 1114 n. 14 (quoting State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997)). . O'Callaghan, 996 P.2d at 95. . Because we resolve this case in Chalovich's favor on nonconstitutional grounds, it is unnecessary for us to reach his constitutional argument. . Lakosh, 49 P.3d at 1114. . AS 38.05.210(a). . Id. . 11 AAC 86.220(a). . 11 AAC 86.220(b). . Although the statutes require a "statement" of annual labor, DNR regulations require that the statement be in the form of an affidavit. See AS 38.05.210(b); 11 AAC 86.220(c). The terms are synonymous. . AS 38.05.210(b); 11 AAC 86.220(c). . AS 38.05.265; 11 AAC 86.220(g). . 11 AAC 86.220(a). . 30 U.S.C. § 28(f) (1993); 43 C.F.R. § 3833.1-5 (2003). . AS 38.05.210(a), (b). . Ch. 123, § 5, SLA 1961. . Ch. 2559, § 1, 34 Stat. 1243 (1907), currently codified at 30 U.S.C.A. § 49e (2004). . AS 38.05.265. . 11 AAC 86.220(c). . 11 AAC 86.220(b). . Ch. 123, § 5, SLA 1961. . AS 38.05.210(b). . 971 P.2d 1034 (Alaska 1999). . Id. at 1038. . Id. at 1036. . Id. at 1038. . 11 AAC 86.220(c). . 759 P.2d 1292 (Alaska 1988). . Id. at 1296 n. 13. . AU Int'l, Inc., 971 P.2d at 1038. . Id. at 1038-39. . See United States v. Locke, 471 U.S. 84, 101, 105 S.Ct. 1785, 85 LEd.2d 64 (1985) ("Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.... A filing deadline cannot be complied with, substantially or otherwise, by filing late-even by one day."). . See 2 Am L. of Mining § 45.03]2][(cl § 45.05[2][al{iv] (2d ed. 1984) (noting that BLM regularly rejected submissions that were timely postmarked but received after deadline). See, e.g., Don A. Chris Coyne, 52 IBLA 1 (1981) (mining claim forfeited even though affidavit postmarked in advance of filing deadline and record showed that delivery delayed due to error of postal service). . 2 Am. L. Mmnimmic § 45.03[2](d]. . Since abandonment occurs by operation of law, the actual date of mailing is irrelevant under the regulation and a miner's claim is forfeited even if late receipt was clearly caused by an unreasonable delay by the postal service. . See Agency Record for 11 AAC $6.220(b). . Id. . 11 AAC 86.220(c). . Prior to June 1, 2002 the only offices for in-person payment were in Anchorage and Fairbanks. 11 AAC 86.107(c). Payments can now be made at recording district offices. Id. It is likely that the remote location of many miners requires that payments be mailed. . 2 Am. L. or Mmuinc § 45.05[2][al{ivl. . Id. See also 47 Fed.Reg. 56305 (Dec. 15, 1982). The regulations now reflect a fifteen day "grace period" during which filings will be treated as timely so long as they are postmarked by the filing deadline. 43 CFR. § 3833.0-5(m) (2003). . 43 C.F.R. § 3830.0-5(m) (2003). . 43 C.FR. § 3833.1-5 (2003); 2 Am L. or Mme § 45.03{2](d]. . 43 CFR. § 3833.1-5(b) (2003). . 47 Fed.Reg. 56300 (Dec. 15, 1982). . 47 Fed.Reg. 56302 (Dec. 15, 1982). . 11 AAC 86.220 (amended 5/18/90). . See 2 Am L. or Mminc § 44.04{12]. . Although the superior court's decision also found that Chalovich was not entitled to an administrative appeal, we need not consider that point because neither Parker nor DNR raises it in their briefing. . See McQueary v. McQueary, 902 P.2d 1326, 1327 n. 3 (Alaska 1995) (citing Jackson v. Nangle, 677 P.2d 242, 247 n. 3 (Alaska 1984)).

10483627

BAYLY, MARTIN & FAY, INC., OF ALASKA, d/h/a Clary-Pioneer Insurance Agency, Appellant, v. ARCTIC AUTO RENTAL, INC., d/b/a Airways Rent-A-Car of Alaska, Appellee

Bayly, Martin & Fay, Inc. v. Arctic Auto Rental, Inc.

1974-01-21

No. 1891

1406

1407

517 P.2d 1406

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

Before CONNOR, ERWIN, BOO-CHEVER, and FITZGERALD, JJ.

BAYLY, MARTIN & FAY, INC., OF ALASKA, d/h/a Clary-Pioneer Insurance Agency, Appellant, v. ARCTIC AUTO RENTAL, INC., d/b/a Airways Rent-A-Car of Alaska, Appellee.

BAYLY, MARTIN & FAY, INC., OF ALASKA, d/h/a Clary-Pioneer Insurance Agency, Appellant, v. ARCTIC AUTO RENTAL, INC., d/b/a Airways Rent-A-Car of Alaska, Appellee. No. 1891. Supreme Court of Alaska. Jan. 21, 1974. John Scott, of Holland, Thornton & Scott, Anchorage, for appellant. James D. Rhodes of Cole, Hartig, Rhodes & Norman, Anchorage, for appellee. Before CONNOR, ERWIN, BOO-CHEVER, and FITZGERALD, JJ.

634

3706

OPINION PER CURIAM. This case involves the award of costs and attorneys' fees to appellant under Rule 68 on its acceptance of an offer of judgment and the offsetting award of costs and attorney fees to appellee from the date of the offer of judgment until the date of acceptance of the offer. We hold that the award of costs and attorneys' fees to appellee in this case should be reversed. Recently, in Davis v. Chism, this court held that the offer of judgment must be construed as including the defendant's assessment of all the damages that plaintiff is entitled to. Further, the court noted that the date of the offer and not the date of some ultimate judgment was the critical date for determining whether the judgment was sufficient. Therefore, in the case at bar, the award of costs and attorneys' fees should have been computed for both parties as of the date the offer was made and not at the later time when accepted. The award of costs and attorneys' fees to appellee is reversed and this case is remanded to the superior court with directions to enter a new judgment in conformity with this opinion. RABINOWITZ, C. J., not participating. . Alaska R.Civ.P. 68 provides as follows: 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 his 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. . 513 P.2d 475 (Alaska 1973). . Id. at 482, n. 6. . Appellee urges that since it could not revoke the offer, it should be permitted to recover its costs and attorneys' fees accrued during the period until acceptance. However, in Davis, we held that the plaintiff could not recover prejudgment interest during this period and by implication held that his costs and attorneys' fees were similarly restricted. Further, to permit defendant to be awarded costs and attorneys' fees during this period is to permit a reduction of the amount offered and to turn an unconditional offer into a conditional one. The plaintiff would only be aware of the exact amount of the offer on the date of receipt, and the subsequent 10 day period would be superfluous.

10478359

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

Crow v. State

1973-12-28

No. 1966

756

757

517 P.2d 756

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

Before CONNOR, ERWIN, BOOCH-EVER and FITZGERALD, Justices.

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

Robert CROW, Appellant, v. STATE of Alaska, Appellee. No. 1966. Supreme Court of Alaska. Dec. 28, 1973. Herbert D. Soil, Public Defender, Anchorage, Stephen R. Cline, Asst. Public Defender, Fairbanks, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., James M. Hackett, Asst. Dist. Atty., Fairbanks, for appellee. Before CONNOR, ERWIN, BOOCH-EVER and FITZGERALD, Justices.

263

1696

OPINION PER CURIAM. In this appeal it is claimed that a sentence of five years' imprisonment, with two years suspended on condition of good behavior, is excessive for a first felony conviction. Appellant pleaded guilty to the crime of assault with a dangerous weapon, which arose from a shooting incident at Circle City, Alaska. The superior court found him guilty based upon his plea, and imposed the aforementioned sentence. Appellant has eighty-one prior misdemeanors on his record, including five convictions for assault and battery and six for larceny. By his own estimate, appellant has spent eight of the past ten years in jail. Prior psychiatric and psychological evaluations have shown appellant to be an "immature individual with poor impulse control and a great deal of underlying hostility" whose behavioral problems are further compounded by chronic alcoholism. He was not viewed as a proper candidate for psychiatric treatment. There is no indication that appellant's condition had changed at the time of this sentencing. In view of appellant's recidivism and the duty of the court to protect society, we do not find the sentence imposed to be outside the zone of reasonableness. Affirmed. RABINOWITZ, C. J., not participating. . Kriska v. State, 501 P.2d 159 (Alaska 1972).

10480326

W. R. GRASLE COMPANY and Employers Insurance of Wausau, Appellants, v. ALASKA WORKMEN'S COMPENSATION BOARD and Wenzel Joseph Raith, Appellees

W. R. Grasle Co. v. Alaska Workmen's Compensation Board

1974-01-07

No. 1950

999

1005

517 P.2d 999

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

W. R. GRASLE COMPANY and Employers Insurance of Wausau, Appellants, v. ALASKA WORKMEN’S COMPENSATION BOARD and Wenzel Joseph Raith, Appellees.

W. R. GRASLE COMPANY and Employers Insurance of Wausau, Appellants, v. ALASKA WORKMEN’S COMPENSATION BOARD and Wenzel Joseph Raith, Appellees. No. 1950. Supreme Court of Alaska. Jan. 7, 1974. Dennis E. Cook, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellants. O. Nelson Parrish, Fairbanks, for appel-lee Raith. William L. Christian, Asst. Atty. Gen., Fairbanks, John E. Havelock, Atty. Gen., Juneau, for appellee Alaska Workmen’s Compensation Bd. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

3129

19146

OPINION BOOCHEVER, Justice. We here dispose of issues concerning the limitation of actions imposed upon claims for workmen's compensation. On June 24, 1965, Wenzel Joseph Raith stepped on a corner of a defective grille and fell 14 feet onto frozen ground, the grille landing upon him. He was treated near the scene of the accident in Barrow by a doctor who transferred him to Fairbanks. There he was cared for by Dr. Paul B. Haggland for approximately eight weeks. Both doctors diagnosed Raith's most serious injury as multiple rib fractures. The Barrow doctor diagnosed muscle bruises to the left shoulder, and Dr. Haggland diagnosed "strain neck." Both doctors represented to Raith and to the compensation carrier that no permanent disabilities would ensue from the injury. Appellant Employers Insurance of Wausau paid Raith eight weeks and two days temporary total disability compensation at a rate of $100 per week. Thereafter, Raith obtained employment on the Dew Line. He immediately noticed extreme difficulty in use of his left shoulder; he was forced to use only the right arm in climbing scaffolds. Upon returning to Dr. Haggland, Raith was found to have a shoulder separation; subsequently he resumed work in Barrow. He testified that he was unable to work up to his own standards and added: I stayed up there two years and it was more or less my convalescent home, I would say, which is one reason why during' the period I was in Barrow I was not able to come to a hospital and com plain, but I can tell the Board that for three years after the accident I couldn't sleep on my stomach or my left side. Subsequent to the treatment in 1965 Raith experienced the following difficulties: left knee which would "go out of joint" and "lock up" fairly frequently, occasionally on scaffolds; upper back and neck which caused constant pain and "knots up" in a manner prohibiting ordinary body rotation; weakness in left shoulder; loss of sensation in left arm associated with back pain. Raith worked in the Fairbanks area from August, 1967, until the date of the Alaska Workmen's Compensation Board hearing. The various complaints never prevented Raith from finding employment in his usual trade as a journeyman electrician. Nor has Raith ever suffered reduced compensation as a result of his diminished ability to handle heavier tasks. However in May, 1971, Raith lost four consecutive days of work as a result of the condition of his upper back and neck. On August 4, 1971, Raith saw Dr. Erwin Lindig, Jr., in Fairbanks, who diagnosed his condition as "degenerative changes of cervical spine, chronic muscular strain syndrome, left scapular area, internal derangement of left knee, and degenerative changes and deformity of left acromiocla-vicular joint" (the junction of the collar bone and the shoulder blade). On May 6, 1972, Dr. Lindig suggested Raith may need surgery upon both the left knee and the left acromioclavicular joint. Dr. Lindig estimated the following disability figures: cervical spine, 20%; left scapular area, 10%; left knee, 20%; left shoulder, 10%. Raith filed with the Alaska Workmen's Compensation Board a claim for permanent partial disability in August, 1971, shortly after he first saw Dr. Lindig. On May 10, 1972, the Board held a hearing upon that claim in Fairbanks. Appellants were represented by counsel at that hearing, and they raised two statute of limitation issues. No other objection to Raith's claim was raised. The Board issued findings of fact and conclusions of law in favor of Raith, and appellants sought relief against the Board's order by filing a complaint in the Superior Court, Fourth Judicial District. The operative allegations of the complaint charged that the Board failed to make findings of fact sufficient to support the order and erred in interpreting AS 23.30.-105(a). Raith contends that the decision was based on a finding that he suffered from a latent defect. The only issues being legal, appellants moved the court to grant summary judgment in their favor. Judge Taylor held that the Board properly found Raith's injury to be latent and entered summary judgment for appellees, Raith and the Board. This appeal followed. We must decide how the confusing limitation of actions section, AS 23.30.105, applies to Raith's claim, and whether the Board made a supportable finding that the claim was timely filed under the "latent defects" provision of the statute. AS 23.30.105(a) contains three sentences of potential applicability to claims for physical injury. The first establishes a two-year limitation commencing when "the employee has knowledge of the nature of his disability and its relation to his employment and after disablement." Previously we concluded that "knowledge" imports also chargeable knowledge. The second sentence purports to establish a four-year maximum limitation commencing upon "injury". Prior to a 1962 amendment the statutory structure was simple: claims became time-barred upon the first to occur of the passage of four years from "injury" or two years from the date that the employee had knowledge of the disability and its relationship to employment. We come now to the 1962 amendment, which provided that full right to claim should exist, "time limitations notwithstanding", where the disability is caused by "latent defects". A key to interpretation of the provision is the construction of the term "latent defects". Latent "injury" rather than "defects" certainly will be found more frequently in workmen's compensation discussions. It appears clear to us, however, that by "defect" the legislature intended "injury". The term "latent injury" has a generally accepted meaning, and we hold in accordance therewith that an injury is latent so long as the claimant does not know, and in the exercise of reasonable diligence (taking into account his education, intelligence and experience) would not have come to know, the nature of his disability and its relation to his employment. This test is identical to the one set forth in the first sentence of AS 23.30.105(a) which determines the commencement date of the two-year statute. Although we have attempted to give meaning to every provision of the amended statute, we find no time frame in which the four-year statute may operate subsequent to the amendment. A disability which becomes apparent immediately upon the occurrence of some mishap will be more quickly barred by the two-year limitation ; a disability which does not fall within the actual or chargeable knowledge of the claimant until four years have passed must be treated as a latent defect for which the four-year period is waived by the 1962 amendment. Only where the claimant acquires knowledge of the nature of his disability and its relation to his employment more than two years but less than four years from the date of "injury" could the four-year period apply, but we would find a result allowing a two-year filing period to an applicant who acquired knowledge four or more years after the mishap and a shorter period to an applicant who acquired knowledge in more than two but less than four years incongruent with the liberal purposes motivating the latency amendment. We therefore conclude that the effect of the 1962 amendment was to repeal the four-year statute contained in the second sentence of AS 23.30.105(a). Accordingly, we need not consider whether the Board applied the four-year statute to Raith's claim. The congruency of the tests applied to the remaining effective provisions of AS 23.30.105(a) and the injunction to give intelligent effect to as much of a single en actment as possible do lead us to conclude that the 1962 amendment did not repeal the first sentence of the statute. Thus, a claim for any disability must be filed within two years of actual or chargeable knowledge of the nature of the disability and its relation to employment. We decline to speculate upon the issue of the proper commencement date of the four-year statute of limitations despite forceful argument by the parties, because the interpretation of a nugatory provision would serve no useful purpose. We turn, therefore, to the proper application of the "latent defects" provision to the action of the Board upon Raith's claim. THE ADEQUACY OF THE BOARD'S FINDINGS Appellants charge that the Board did not find Raith's injury to be latent. The superior court concluded that the Board had so found. The adequacy of findings of fact and conclusions of law presents an issue of law to which we give fresh consideration on appeal. The Board made the following findings of fact: We find that the applicant did not have knowledge that he was suffering permanent partial disability until he saw Dr. Edwin Lindig in August 1971. Before that time, in 1965, both Dr. Miller and Dr. Haggland had reported that he would not have permanent defect. His work in Barrow, where limited medical evaluation was available, was not such that he had to go all out and he was able to work without loss in earning capacity. We find that in 1971 when his condition did cause him to lose some days from work . he did report to a doctor and did visit an attorney with regard to filing a claim. . . . Prior to 1971 the applicant had little reason to file a claim — his doctors believed his condition and complaints not permanent, and he was able to continue work. Upon the statute of limitations issue the Board made the following conclusion of law: Physicians treating the applicant in 1965 believed no permanent defect would result from the severe injuries to his chest and shoulders; and because the applicant believed his condition continued to improve over the next few years and because his earnings were not diminished, the applicant had no reason to file a claim for permanent partial disability compensation. It was not until 1971 when he began missing work because of the continuing residuals of the 1965 accident and after Dr. Lindig advised him he had permanent partial disability that the applicant had knowledge he was experiencing one of the four categories of compensable disability — that of permanent partial disability. We conclude that the applicant acquired knowledge of the nature of his disability and its relationship to his employment after his 1971 disablement and that his claim heard on May 10, 1972 was made within the time limitations of AS 23.30.105(a). The appellant's second contention before the Board, not maintained on appeal, was that AS 23.30.095(a) barred payment of Raith's medical expenses. Be cause the limitation of AS 23.30.095(a) contains a latency exception parallel to AS 23.30.105(a), findings with respect to the former statute are relevant in interpreting findings respecting the latter. The allowance of Raith's expense claim inferentially finds latency, and the Board's language reveals an understanding that Raith suffered latent injury: In this case the applicant had need for treatment for a few months following injury and then was able to work until 1971 when his condition because of the nature of the 1965 injury, began to cause disability. His physician found considerable changes from the 1965 injury. . Sec. 095, if interpreted according to the defendant, would preclude any medical care for an injury causing a latent defect. '. . . We conclude that the applicant is not barred by Sec. 095 from further medical care, [emphasis added]. Although the Board could have framed an order more conclusively disposing of the issues, we conclude that the above language sufficiently conveys the meaning of the Board's order and reveals the process of reasoning through which the result was formed to "permit us to intelligently review the . . . assertions advanced by appellant." We agree with the superior court that the Board found that Raith neither knew of nor should be charged with knowledge of the nature of his disability or its relation to his employment until some time in 1971. THE PROPRIETY OF THE BOARD'S FINDINGS Having determined that the Board found Raith's injuries to be latent under a proper legal test, our assessment of the rectitude of the order "is limited to a determination of whether the Board's findings are supported by substantial evidence in light of the record as a whole." Thus cases cited to us in which other courts have upheld decisions of trial courts or administrative bodies that injuries were not latent are unpersuasive, since the appellate court might very well have upheld a contrary decision by the trial court if there were substantial evidence supporting either side of the issue. The few cases where appellate courts have found non-latency as a matter of law reveal that claimants suffered injuries which caused continuous substantial interference with work or personal lives. We have previously held that a layman "should not be expected to diagnose a condition which physicians whom he had consulted . . . failed to diagnose." The Board found that Raith, acting upon the apparently reasonable advice of his physician, believed his difficulties to be minor and transitory until he was forced to miss work in 1971, and that whatever difficulties he experienced before 1971 caused no interference with his ability to obtain and hold employment for full wages at his ordinary occupation. Appellants' contention that the mere presence of pain or annoyance associated with the area of the body which suffered the origi nal impact makes an injury non-latent as a matter of law cannot be supported in the law of this or any other jurisdiction. Because the injuries properly were found to be latent the Board had the power to determine that Raith had full right to make his claim notwithstanding the four-year limitation of actions. The claim was filed within two years of the time it became discoverable to Raith; no further challenge to the propriety of the Board's •order exists. The judgment of the superi- or court sustaining the order of the Alaska Workmen's Compensation Board is therefore affirmed. Affirmed. . AS 23.30.105(a). . AS 23.105(a) provides in full: The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of his disability and its relation to his employment and after disablement. However, the maximum time for filing the claim in any event other than arising out of an occupational disease shall be four years from the date of injury, and the right to compensation for death is barred unless a claim therefore is filed within one year after the death, except that if paj'ment of eompensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment. Is is additionally provided that, in the case of latent defects pertinent to and causing compensable disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding. The final sentence respecting latent defects was added by amendment, § 6 ch. 42 S.L.A. 1962. See Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 538 n. 2 (Alaska 1966). . Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 540 (Alaska 1966). . Consolidated Underwriters v. Pittman, 388 S.W.2d 315, 317 (Tex.Civ.App.1964). . Stancil v. Massey, 141 U.S.App.D.C. 120, 436 F.2d 274, 277 (1970) ; Griffin v. Rustless Iron & Steel Co., 187 Md. 524, 51 A.D.2d 280, 284, 288 (1947) ; Potter v. Midland Cooperative, 248 Minn. 380, 80 N.W.2d 59, 61 (1956) ; Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 732 (Mo.App.1968) ; Crites v. Missouri Dry Dock and Repair Co., 348 S.W.2d 621, 624 (Mo.App.1961); Brown v. Safeway Stores, Inc., 82 N.M. 424, 483 P.2d 305, 307 (1970). See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194, 197 (1967); Rinne v. W. C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872, 877 (1951); Tabor Motor Co. v. Garrard, 233 So.2d 811, 815 (Miss.1970); Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776, 778 (1968); Boyle v. Industrial Commission, 8 Wis.2d 601, 99 N.W.2d 702, 704 (1959). . Morrison-Knudsen Co. v. Vereen, 414 P. 2d 536, 541 (Alaska 1966). . "Those provisions of the original act which are in irreconcilable conflict with the provisions of the amendatory act are impliedly repealed." 1A Sutherland, Statutory Construction § 22.32 at 186 (4th ed. Sands 1972). . State v. American Can Co., 362 P.2d 291, 297 (Alaska 1961). . Hewing v. Alaska Workmen's Compensation Board, 512 P.2d 896, 898 (Alaska 1973); Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962). . AS 23.30.095(a) provides in part: The employer shall furnish medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus for the for the period which the nature of the injury or the process of recovery requires, not exceeding two years from and after the date of injury to the employee. However, if the condition requiring the treatment, apparatus, or medicine is a latent one, the two-year period runs from the time the employee has knowledge of the nature of his disability and its relationship to his employment and after-disablement. . Hewing v. Alaska Workmen's Compensation Board, 512 P.2d 896, 898 (Alaska 1973). . Anchorage Roofing Co. v. Gonzales, 507 P. 2d 501, 503 (Alaska 1973) (footnote omitted) and cases cited Id. n. 5. . Bowers v. Wayne Lovelady Dodge, Inc., 80 N.M. 475, 457 P.2d 994, 995 (1969); Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249, 253 (1959); Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 734-735 (Mo.App.1968); Rinne v. W. C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872 (1951). . Mathes v. Blue Ridge Glass Corp., 206 Tenn. 19, 330 S.W.2d 342 (1959) ; Copinjon v. Aetna Casualty & Surety Co., 242 S.W. 2d 219, 220 (Tex.Civ.App.1951). . Employers' Liability Assurance Corp. v. Bradshaw, 417 P.2d 600, 601 (Alaska 1966) ; see Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 540-541 (Alaska 1966); Borowski v. Armco Steel Corp., 188 Neb. 654, 198 N.W. 2d 460, 462 (1972). . See, e. g., Borowski v. Armco Steel Corp., 188 Neb. 654, 198 N.W.2d 460, 462 (1972) ; Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776, 779 (1968). . Employers' Liability Assurance Corp. v. Bradshaw, 417 P.2d 600, 601-602 (Alaska 1966). "It is unreasonable to conclude that an injury is not latent merely because the plaintiff suffered pain, when thereafter several physicians were unable to correctly diagnose his injury." Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776, 778 (1968). See Gluck Bros. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 764 (1968).

11962928

Helene S. WOOD, Appellant/Cross-Appellee, v. Vernon COLLINS, Appellee/Cross-Appellant

Wood v. Collins

1991-06-07

Nos. S-3208, S-3209 and S-3692

951

960

812 P.2d 951

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.

Helene S. WOOD, Appellant/Cross-Appellee, v. Vernon COLLINS, Appellee/Cross-Appellant.

Helene S. WOOD, Appellant/Cross-Appellee, v. Vernon COLLINS, Appellee/Cross-Appellant. Nos. S-3208, S-3209 and S-3692. Supreme Court of Alaska. June 7, 1991. Thomas L. Melaney, Anchorage, for appellant/ cross-appellee. Philip R. Volland, Anchorage, for appel-lee/cross-appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5219

32150

OPINION RABINOWITZ, Chief Justice. This appeal is centered on the superior court's division of the property of Vernon Collins and Helene Wood following the ter mination of their twelve-year intimate, yet non-matrimonial, relationship. I. FACTS AND PROCEEDINGS Vernon Collins and Helene Wood are first cousins. In early 1974, when both were married, they became romantically involved with each other. Helene separated from her husband in September 1974 and divorced him in February 1975. In July 1975, Helene moved from Texas to Alaska, but then she returned to Texas in August. Vernon asked her to come back to Alaska. He told her that he would soon divorce his wife, and recommended that she sell her house in Texas. Helene sold the house, keeping all the proceeds, and returned to Alaska. Thereafter, Vernon and Helene conducted themselves as husband and wife. When their romantic relationship ended in 1986, Vernon evicted Helene from the apartment over his shop in which she had been living. Upon eviction, Helene moved to a Hawaii condominium co-owned by Vernon and herself. Helene and Vernon together had purchased the Hawaii condominium in March 1985 for $85,000. The condominium was the only property they acquired jointly. They had no joint bank accounts, nor did they comingle any of their accounts. The condominium deed recites that they took the property as tenants in common. Vernon contributed $1000, and Helene $4000, to the down payment. Vernon also borrowed $52,900 from the First National Bank of Anchorage to finance the purchase. After Vernon paid off the owner's equity, Vernon and Helene assumed the seller's loan jointly. Vernon has been making all the monthly payments on both notes. He has also paid all the monthly condominium fees, the property taxes, the telephone and electric costs, and property improvement costs. In December 1986, Vernon brought suit against Helene for dissolution of the partnership in the condominium and for an accounting. Helene counterclaimed asserting that an express or implied agreement existed as a consequence of Vernon's promise that he would take care of her housing needs for the rest of her life, in the event that their relationship terminated. The superior court found that the parties owned the condominium as tenants in common. The court also concluded that it was the intent of the parties that Vernon pay the bulk of the upkeep, the mortgage, and other payments in connection with their ownership of the condominium. On the other hand, the superior court then awarded Vernon credit for half of the payments he made towards the "mortgage and taxes and condo fees, etc.," up to and after the point of the parties' separation. Finding that Vernon was excluded, for all intents and purposes, from occupying the condominium after the parties separated, the superior court also awarded him one-half the fair rental value of the property. As to Helene's counterclaim, the superior court found that no explicit or implicit contract was entered into by Vernon to provide Helene with housing. The court also found that the facts did not warrant an equitable remedy which would require Vernon to support Helene's housing needs. The superior court's order allowed Helene to remain in the condominium until January 6, 1989. Beginning October 1, 1988, however, she was assessed one-half of the loan payments and condominium dues, plus payment of rent and utilities. The superior court further ordered the condominium sold, ordered Helene to comply with certain inspections and the sale, and directed entry of a judgment in Vernon's favor for $46,161.90. Helene then filed a motion for reconsideration which was denied in all respects except that the superior court reduced Vernon's judgment from $46,161.90 to $41,-186.32. The court also awarded Vernon attorney's fees as the prevailing party and awarded 12.5% prejudgment interest against Helene for rejecting a $20,000 offer of judgment. On June 13, 1989, Helene filed a Motion to Enforce Order regarding the moving expenses Vernon was ordered to pay for Helene's goods. Helene had 180 days to inform Vernon where her goods should be sent, which she did. Helene never sorted through the material, however. Vernon stored her goods before the 180 days lapsed and assessed Helene the cost. Vernon opposed the motion and submitted a Cross-Motion to Enforce and Modify Order and for Relief from Provisions of Order dated June 13,1989, essentially seeking expenses he incurred as a result of Helene's noncompliance with the superior court's order, calling Helene's noncompliance "total." Thereafter, the superior court entered an order directing Helene to provide Vernon with access to the condominium, in order that Vernon could obtain a variance from the Honolulu Building Safety Department for the -loft and bathroom, after which the property had to be listed and sold. Helene refused to cooperate "in every respect" with the necessary inspections and renovations. Consequently, Vernon had to travel to Hawaii to undertake the necessary renovations and arrange for inspections. She also refused to sign the listing agreement, pending the outcome of the appeal, and she refused to sell to one willing and able buyer. Helene vacated the condominium on January 20, 1989. Thereafter, the superior court awarded Vernon, inter alia, expenses incurred for the moving, packing, and storage costs of Helene's possessions, Helene's unpaid rent and expenses, expenses in preparing the property for sale, and attorney's fees. The total judgement was $15,988.57. II. DISCUSSION A. Did the Superior Court Err in Failing to Find an Express or Implied Contract to Provide Helene with Housing? Helene claims that Vernon promised to take care of her housing needs if they ever separated. Under a contract theory, she argues that she is entitled to relief. While Helene's appeal raises the question of whether an unmarried couple can contract for marriage-like benefits, we need not reach this issue. The superior court found that no contract was made. Over Vernon's denials, Helene claims that Vernon assured her that everything would be taken care of by him in the event they separated. The superior court did not find Helene credible. Alaska Rule of Civil Procedure 52(a) makes clear that issues of credibility are for the trial court. The court also found that there was no clear indication of what Vernon was agreeing to, if an agreement even existed. Helene argues that the parties' conduct corroborates the existence of an agreement. Vernon accompanied her to look at alternative housing following a separation in 1982. Yet, the superior court called the significance of this act "speculation." Vernon never did buy her a condominium, nor was there a specific discussion as to her needs or his obligations. After their reconciliation in 1982, Vernon never represented to Helene that if they again separated, he would pay for her housing. While Vernon executed a will leaving Helene his Raspberry Road property, and amended his will to leave Helene an interest in the condominium, this only indicated Vernon's plans on death, not if they separated. The superior court found it significant that no writing existed as to the alleged agreement, when other important agreements between the parties, such as the agreement concerning the will, were reflected by writings. Also, Helene's letters, written after her eviction, never referred to an agreement. Finally, although Helene sold her home, Vernon denied urging her to sell it as a condition to beginning a relationship with him in Alaska; he asserts that he suggested she sell it because of tenant and rodent problems, about which Helene had complained. The trial court found "absolutely no indication . that there was . an exchange of a permanent guarantee of housing including the eventuality of separation." Overall, we affirm the superior court's holding that there was no expressed or implied contract to provide Helene with housing for the rest of her life. B. Did the Superior Court Err in Denying Equitable Relief To Helene Which Would Have Required Vernon to Take Care of Helene's Housing Needs? Helene claims that the superior court's denial of equitable relief, because it was not appropriate, was clearly erroneous. While this begs the preliminary question of whether equitable relief is available when a cohabitating couple ends its relationship and property questions arise, we need not address this question at this time. The superior court found that even if equitable principles applied, they favored Vernon, not Helene. This finding is not clearly erroneous. The superior court found that Helene worked, kept all of her earnings, kept the investment from the sale of her house, had Vernon pay for out-of-pocket expenses when they travelled, and benefitted from Vernon's paying for her housing, food and entertainment. The court also found that Helene was not responsible for Vernon's net worth increase in any way. Helene was not actively involved with the operation of his business. While she did loan his company $110,000 for bonding, that money was paid back immediately. Vernon's accountant testified that Vernon's business increased in value primarily because of the economy and the addition of a new partner. Vernon never used any of Helene's money. Helene worked as a travel agent until 1984 and kept all her own income from her work and her investments. By the time the parties separated, Helene had saved $200,000. Although Helene provided airline tickets for the couple to travel, she obtained those tickets free. This contribution alone is de minimis. Helene points out that she divorced her husband, moved to Alaska, and sold her home in Texas. No indication exists, however, that she exchanged this for lifetime housing; rather, she did it because she wanted to be with Vernon. She admitted that her marriage had "disintegrated," and that she and her husband had discussed separation. While Helene divorced her husband and lost benefits associated with being an officer's wife, no evidence indicates that it was anything other than her emotional involvement with Vernon that spurred the divorce. She sold her house because she felt it was a burden. She kept the proceeds and invested them. Overall, the superior court's finding that the equities favored Vernon is not clearly erroneous. C. Did the Superior Court Err in Giving Vernon a Credit for Half of the Payments Made in Connection With the Condominium Prior to the Parties' Separation? The superior court gave Vernon a credit for half of the payments he made towards the mortgage, taxes and condominium fees before the parties separated. The superior court relied on what was fair under the circumstances, the parties' intent, and the decision in Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978) (en banc). While we agree with the superior court's interpretation of the law, we conclude that the superior court misapplied the law to these facts. In Beal, the Supreme Court of Oregon found that property accumulated during cohabitation should be divided by determining the express or implied intent of the parties. Id. 577 P.2d at 510. There Barbara and Raymond Beal, recently divorced, purchased property together, listing themselves as husband and wife. Both contributed to the down payment, Barbara paying $500 more. Barbara made the first monthly payment; Raymond made all subsequent payments. The parties lived together in the house, both contributing to the household. After two years, Barbara moved out. Raymond remained and made all monthly payments on the house. The court decided the property dispute should be resolved by looking at the parties' intent. Id. at 510. Before Barbara moved out, the trial court found that the parties intended to pool their resources for their common benefit. Id. Therefore, both parties were held to have an undivided interest in the property. Id. The court rejected the regular rules of cotenancy, which would have required the parties to share expenses based on their ownership share, because these rules failed to account for the relationship between the parties. Instead, the court stated, We believe a division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution. While this is obviously true when the parties have executed a written agreement, it is just as true if there is no written agreement. The difference is often only the sophistication of the parties. Thus, absent an express agreement, courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon. In summary, we hold that courts, when dealing with the property disputes of a man and a woman who have been living together in a nonmarital domestic relationship, should distribute the property based upon the express or implied intent of those parties. Id. See also Hynes v. Hynes, 28 Wash.2d 660, 184 P.2d 68, 75 (1947) (cohabitating parties' agreement, that each shall own realty purchased in an undivided one-half interest, controlled property settlement). However, after Barbara moved out, the court applied the regular rules of cotenan-cy. Id. 577 P.2d at 511. We agree with Beal. Property accumulated before separation should be divided by determining the express or implied intent of the parties. In the case at bar, the superior court found, [I]t was the intent of the parties . quite clearly that the property be . owned jointly in equal shares. It was also the intent of the parties I think that the plaintiff was to pay the vast majority of the upkeep, the mortgage and other payments on the unit, as he has done. That was their pattern, and I don't think the mere fact that they took it as tenants in common really negated that pattern. The history of Vernon paying for Helene's housing supports this conclusion. From 1975-1986, Vernon paid most of Helene's dwelling expenses. The fact that Helene never signed the First National Bank of Anchorage obligation which financed the purchase, nor was she asked to do so by Vernon, further supports this conclusion. Moreover, the parties were in a loving relationship. In essence, Vernon "volunteered" to make those payments prior to their separation; they were like a gift. See Carlson v. Olson, 256 N.W.2d 249 (Minn.1977). Vernon claims the record "fully supports" assessing one-half of the expenses against Helene. Vernon stresses that Helene said she would "eventually" share the expenses for the condominium. This vague statement is too indefinite and unsubstantiated to indicate the parties' intent, especially when contrasted with their past pattern of financing their housing. Helene's "recollection of the events" leading up to the property's purchase, while "very similar to Bud's," also remains undefined. It does not demonstrate a mutual intent to share the expenses incurred while they were in the relationship. Thus, we accept the superior court's finding that Vernon "was to pay the vast majority of the upkeep, the mortgage, and other payments." We also adopt the superior court's conclusion of law that, for unmarried cohabitants, the intent of the parties will control property division for property acquired before separation. However, we remand on this issue because the superior court erred when it applied the law to the facts, by ordering Helene to repay Vernon one-half of the payments he had made for Helene's housing prior to separation. D. Did the Superior Court Err in Awarding Vernon Attorney's Fees, Costs and Interest? The superior court awarded Vernon $7,548.43 in attorney's fees pursuant to Civil Rule 82(a). Given Helene's success as to some of the issues on appeal, attorney's fees should be redetermined by the superi- or court on remand. Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410, 417 (Alaska 1985). The superior court awarded prejudgment interest of $9,347.99. Vernon claims that prejudgment interest should have been set at 15.5% as required by statute, and not 12.5%. He cites to the amended statute, see AS 09.30.065, as amended, which applies "to all causes of action accruing after June 11, 1986." Ch. 139, § 9, SLA 1986. As Vernon did not even evict Helene until July 16, 1986, the cause of action arose subsequent to June 11, 1986. Vernon did not file a cross-appeal on this issue; however, we find that misapplication of the statute constitutes plain error. Therefore, on remand, the superior court should apply the amended statute. E. Did the Superior Court Err in Not Awarding Vernon a Judgment for All Mortgage, Taxes, and Condominium Payments Following the Couple's Separation in September 1986? The superior court found that Vernon was excluded "for all intents and purposes" from occupancy of the condominium after the couple separated. The superior court held, "from the time of separation, he is entitled to credit for . half of the payments and . one-half of the fair rental value of the property." The court based its decision on fairness and the holding in Beal. Vernon contends that Beal was misapplied. He believes that the rules of coten-ancy and unjust enrichment dictate that when Helene had exclusive possession, he should have been awarded his full amount expended on the mortgage, taxes, and condominium payments. Helene responds by contending that traditional notions of co-tenancy do not apply in the non-commercial situation and the parties' intent should govern. Contrary to both Vernon's and Helene's position, the superior court's ruling was correct. We hold that the rules of cotenancy apply after separation when the parties no longer were maintaining a domestic relationship. See Beal, 577 P.2d at 509-10. As the Beal court explained, Since the parties have not lived together since June, 1974, their property rights after that date should be determined by the regular rules of cotenancy. As such, Barbara is obligated to reimburse plaintiff for 50 percent of the house payments made by him after June 1974. 577 P.2d at 511 (citations omitted). Here, Vernon has made all the payments on the condominium from the time of separation. Hence, Helene must reimburse Vernon for her share of the post-separation payments. Under the general rules of co-tenancy, a cotenant who occupies the premises need not pay rent to the nonoccupying cotenants. As a general rule, at common law a tenant in common who occupies all or more than his proportionate share of the common premises and who has not agreed to pay therefor or ousted or excluded his cotenant or cotenants is not liable to his cotenant or cotenants, because of such occupancy alone, for rent or for use and occupation. 86 C.J.S. Tenancy in Common § 46 (1954). However, as the Beal court explained, an exception to this rule exists when "one cotenant's use of the property in fact excludes the other cotenant's use and enjoyment of it." 577 P.2d at 511 (citations omitted). In Beal, the court noted that it would be impractical for the two parties to continue to occupy the premises. Id. Here, the superior court made a finding that Vernon was excluded from the property from the time of separation. Vernon testified that, although Helene would let him visit if she was home, he was not able to use or occupy the condominium at any time since 1986. Additionally, he testified that he and his son were refused access when they were trying to have work done on the condominium. On this record, we cannot say that the court's finding was clearly erroneous. Given a finding of exclusive use and enjoyment by Helene, the trial court correctly applied the law of co-tenancy and awarded Vernon one-half of the rental value for the post-separation period. Vernon was properly awarded half the rental value, and half of the mortgage, tax, and condominium payments. F. Did the Superior Court Err in Not Awarding Vernon the Full Cost of Renovating the Condominium? The superior court initially approved an order granting Vernon the full amount he requested for renovation and credit for his down payment. On reconsideration, the court apportioned to each party fifty percent of renovation costs and equalized the down payment between the parties. Vernon first contends that Helene's motion for reconsideration was untimely. Helene moved for reconsideration on December 19, 1988. The order had been entered on November 10, 1988. Vernon contends Civil Rule 77(m) governs. Helene argues that Civil Rule 60(a) or (b) applies. A motion to reconsider the ruling must be made within ten days after the date of notice of the ruling as defined in Civil Rule 58.1(c) unless good cause is shown why a later filing should be accepted. In no event shall a motion to reconsider a ruling be made more than ten days after the date of notice of the final judgment in the case. The court stated in its order that Helene's motion for reconsideration was "untimely." The superior court also stated, however, that it granted the motion because there was an issue it realized "might be plain error." Helene's motion, entitled "to reconsider, modify, and correct proposed judgment" (emphasis added) stated that "The Plaintiff's proposed final order does not accurately reflect the Court's oral findings and conclusions." The fact that the superior court may have called the motion one for reconsideration is irrelevant. See Julsen v. Julsen, 741 P.2d 642, 644 (Alaska 1987). We may affirm a decision on different grounds from those advanced by the trial court whether or not those grounds appear in the record. Foster v. Foster, 684 P.2d 869, 872 n. 6 (Alaska 1984). Even if we determine "that the decision of the superior court was incorrect as a matter of law, we may nevertheless uphold that decision if there is any other ground which, as a matter of law, would support the result reached by the superior court." Carlson v. State, 598 P.2d 969, 973 (Alaska 1979). Here the superior court had jurisdiction to amend its judgment under Civil Rule 60(b)(6) for "a reasonable time." The motion was filed within six weeks of the order. Vernon also contends that Helene waived any right to object because her counsel already approved a revised form of the order on December 16, 1988. However, although Helene's attorney did not initially catch the error, her motion to correct the proposed judgment was sufficiently timely under Civil Rule 60(b). Vernon also contends that the superior court's failure to award him the full amount of renovation expenses was inequitable. He essentially argues that the ouster prohibited him from enjoying the full value of the improvements; therefore, he should not be obligated to pay for half of the renovation expense. The right to reimbursement is an equitable right and recovery should be .just and equitable under all the circumstances. See In re Marriage of Berger, 140 Ariz. 156, 680 P.2d 1217, 1225 (App.1983); Hartog v. Siegler, 615 S.W.2d 632 (Mo.App.1981). As both parties benefited from the expenditure upon the condominium's sale, Vernon should be obligated to pay for half of the expense. G. Did the Superior Court Err in Awarding Vernon $2,973.76 in Unpaid Rent? In a judgment dated October 27, 1989, the superior court awarded Vernon $2,973.76 for Helene's failure to pay the rent, pursuant to the November 10, 1988 order, from October 1988 through January 1989. Section 1(c) of the November 10, 1988 order directed Helene to pay $733.95 per month in rent, plus utilities, beginning October 1, 1988, and continuing through January 1989. Helene claims that while paragraph 1(c) required her to pay rent of $733.95 per month until she vacated, the parties stipulated to a fair market rental value for the condominium on December 7, 1988, of $775.00 per month. Helene claims that the $733.95 figure was mistakenly not adjusted once the parties reached their stipulation. She argues that Vernon should therefore receive a rental credit of only $387.50 per month, and not $733.95. We reject Helene's argument that the court's finding was clearly erroneous. Paragraph 2(g) of the order, which was modified by the stipulation, was limited to pre-trial obligations and was unrelated to current rent. The stipulation itself states that it is an agreement as to fair rental value from October 1986 until December 1988. Moreover, as Vernon argues, the higher amount of rent post-trial reflects Vernon's anticipated rental income from the property. While Judge Katz does not mention two rental amounts, one pre-trial and one post-trial, the stipulation clearly considered two amounts, as did the order. Judge Fabe's refusal to adjust the post-trial rental figure after the parties stipulated a fair rental value was not an abuse of discretion. H. Did the Superior Court Err in Awarding Vernon One-Half of the Condominium Expenses After Helene Vacated the Condominium? Under Vernon's 60(b) motion, the superior court awarded him one-half of the mortgage and utility payments until the time of sale. This modified the initial decision which would have ended Helene's contribution in January 1989, when she vacated the premises. The court found the original order assumed her cooperation with the sale of the condominium as ordered by the court. The court found this cooperation lacking. Helene claims she did not fail to cooperate, nor did she delay the condominium's sale. The record amply supports the superior court's findings. Helene did not vacate the apartment by the court ordered date. She refused to cooperate with getting the condominium inspected and renovated for the variance. Vernon's son tried to gain entry for work associated with the variance, but Helene repeatedly refused to admit him. Vernon had to travel to Hawaii to undertake the necessary renovations. Helene refused to sign a listing agreement pending the appeal's outcome. She also refused to authorize the sale once a buyer was found. Overall, this aspect of the superior court's award was amply supported by the record. The judgment is accordingly AFFIRMED in part, REVERSED in part, and REMANDED. . Helene received approximately |17,000 from 812 P.2d — 22 the sale of the home. . Under Civil Rule 52(a), these findings may be reversed only if clearly erroneous. Horton v. Hansen, 722 P.2d 211, 215 (Alaska 1986). Civil Rule 52(a) provides in part, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." We must view the evidence in the light most favorable to the prevailing party at trial. Horton, 722 P.2d at 215. "[T]his court will only disturb trial court findings when we are convinced that they were clearly erroneous; that is, when we are left with a definite and firm conviction on the entire record that a mistake has been made_" Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979) (citations omitted). . Contrary to Vernon's claim, it appears that the superior court did rely on the decision in Beal for determining the parties' pre-separation obligations. The court said it was adopting Vernon's approach on remedies and referred to the cases his attorney discussed. Vernon's attorney had argued in closing, "[Beal] says up until the point of separation in the relationship, you deal with [the] tenants in common property on the basis of the intent of the parties." . Applying the law to a given set of facts is a question of law subject to de novo review. Foss Alaska Line, Inc. v. Northland Services, 724 P.2d 523, 526 (Alaska 1986). . For questions of law, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Landgon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (citations omitted). The standard of review is de novo. Id. . Vernon believes the superior court's subsequent attempt at clarification of its order supports its final judgment. However, the clarification spoke mainly to the court's finding of law that the parties were tenants in common. Moreover, the clarification is ambiguous as to whether pre-separation expenses or post-separation expenses were made by Vernon as an "accommodation." Because the weight of the evidence comports with the court's initial finding that the pre-separation housing costs were paid by Vernon without expectation of recompense, we interpret the clarification in accordance with that finding. . Helene's other arguments concerning the award of attorney's fees lack merit. . Helene claims that the court erred in assessing prejudgment interest under Civil Rule 68 before the distribution of sale proceeds was calculated. Helene claims that the trial court must have concluded, possibly erroneously, that the distribution of sale proceeds would be less than Vernon's $20,000 offer of judgment. Vernon contends that his offer to pay Helene $20,000 was more favorable than the final judgment which was against her. We do not address this argument. Helene's brief cites no cases for her position. Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal. State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview Dev., Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S.Ct. 1374, 28 L.Ed.2d 642 (1971). Helene also does not cite to the offer of judgment, nor does she explain how the superior court misconstrued the offer of judgment. Without explanation, we are unable to consider this argument and therefore consider it abandoned. . Civil Rule 77(m) states the following: . Civil Rule 60(a) reads as follows: Clerical mistakes in judgments . arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.... Civil Rule 60(b) reads, On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reason[ ] (1) . not more than one year after the date of notice of the judgment or orders as defined in Civil Rule 58.-1(c). . Unpaid rent from October through January totalled |2,935.80; unpaid utilities totalled $37.96. . Section 1(c) said, in part: "Beginning October 1, 1988, and continuing until plaintiff vacates the condominium, she shall pay one-half of all monthly loan payments and condominium dues, plus . $733.95 per month in rent, plus utilities." . Section 2(g) states: "The sum of $9,687.50 (per stip/order 12/9/88), which represents one-half of the monthly fair rental value ($775.00) (per order 12/9/88) of the parties' condominium from October 1986 to the date of trial." . As we find the argument without merit, we do not address Vernon's argument that Helene's appeal on this issue was untimely or that Helene waived the right to appeal for failure to object to the inconsistency. . The standard for reviewing a denial of relief from judgment based on grounds of mistake, newly rediscovered evidence, fraud, equity, or for other reason is whether the trial court abused its discretion in denying the motion. See Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 472 (Alaska 1971). . This amounted to an award of $5,524.83 to Vernon, representing one-half of the amount of monthly loan payments and condominium association dues from October 1, 1988, through June 1, 1989. . As to Helene's remaining arguments, relating to travel expenses and storage charges, we find them without merit.

11945004

Daniel DeNARDO, Appellant, v. MUNICIPALITY OF ANCHORAGE and Brian Porter, Appellees

DeNardo v. Municipality of Anchorage

1989-05-26

No. S-2778

515

518

775 P.2d 515

775

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Daniel DeNARDO, Appellant, v. MUNICIPALITY OF ANCHORAGE and Brian Porter, Appellees.

Daniel DeNARDO, Appellant, v. MUNICIPALITY OF ANCHORAGE and Brian Porter, Appellees. No. S-2778. Supreme Court of Alaska. May 26, 1989. Rehearing Denied June 29, 1989. Daniel DeNardo, Anchorage, pro se. Mary A. Gilson, Asst. Mun. Atty., Richard D. Kibby Mun. Atty., Anchorage, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE and COMPTON, JJ.

2225

13913

OPINION COMPTON, Justice. Daniel DeNardo appeals the dismissal of his civil rights action against the Municipality of Anchorage (Municipality) and Police Chief Brian Porter (Chief Porter). DeNar-do sued the Municipality, alleging violations of his civil rights under 42 U.S.C. § 1983. Superior Court Judge Milton M. Souter granted the Municipality's motion for summary judgment, dismissed DeNar-do's action, and awarded the Municipality attorney fees. I. FACTS AND PROCEEDINGS DeNardo was issued four traffic citations by Municipal police officers in 1981. He challenged the validity of these citations by filing an Emergency Writ of Prohibition in superior court after arrest warrants based on the citations had been issued by the district court. In his Emergency Writ of Prohibition, DeNardo claimed that the district court lacked jurisdiction over these traffic offenses because the police officers issuing the citations had not subscribed to the oath of public office required by article XII, section 5 of the Alaska Constitution. The superior court denied the Emergency Writ of Prohibition, concluding that peace officers were not public officers within the context of article XII, section 5. DeNardo did not appeal this decision. DeNardo then filed a civil rights action under 42 U.S.C. § 1983 in the United States District Court, District of Alaska. This action challenged the same four citations and was based on the same claim that article XII, section 5 had not been complied with. This action was dismissed under the doctrines of res judicata and collateral es-toppel. The dismissal was affirmed by the United States Court of Appeals for the Ninth Circuit. DeNardo v. Cook, 772 F.2d 911 (9th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 919 (1986). DeNardo was issued one traffic citation in 1984 and two in 1985, in each instance by Municipal police officers. He was convicted in district court of these violations. He appealed the convictions to the superior court on the same grounds that he had challenged the citations issued in 1981, i.e., that the Municipal police officers had not complied with article XII, section 5 of the Alaska Constitution. The superior court concluded that Municipal police officers were public officers; however, the court further concluded that the oral oath taken by the police officers was within the definition of "subscribe." The court held that the citations were valid. DeNardo filed this action under 42 U.S.C. § 1983 against the Municipality of Anchorage and Chief Porter. He alleged that his fourteenth amendment due process rights had been violated by the Municipality in the following manner: The Municipality had a policy which allowed police officers who had not subscribed in writing to an oath of public office to issue traffic citations, that this policy was contrary to article XII, section 5 of the Alaska Constitution, thereby depriving him of lawful notice, and that he was, therefore, deprived of due process of law when he was incarcerated under arrest warrants based upon the traffic citations. He sought injunctive relief, a declaratory judgment and damages in excess of $1,000,-000. The Municipality asserted various affirmative defenses and moved for summary judgment. In granting the Municipality's motion, the superior court remarked that this issue had been litigated between these parties on three occasions, and that the Municipality had prevailed each time. The superior court dismissed the present suit under the doctrines of res judicata and collateral estoppel. DeNardo sought reconsideration, which was denied. Final judgment dismissing the suit and awarding attorney fees to the Municipality was entered. DeNardo timely appealed the dismissal and the award of attorney fees. II. DISCUSSION A. THE TRIAL COURT DID NOT ERR IN DISMISSING DENARDO'S SUIT BASED ON PRINCIPLES OF RES JUDICATA AND COLLATERAL ESTOPPEL. DeNardo argues that the Municipality's failure to require its police officers to subscribe to an oath as required by article XII, section 5 of the state constitution means that they are not public officers. He concludes that because only public officers can serve lawful notice, his traffic citations and subsequent incarceration deprived him of due process of law. The Municipality responds that the superior court correctly applied the doctrines of res judicata and collateral estoppel to this action, since this claim has been litigated at least two previous times by these parties. Res judicata bars the relitigation of the same claim between the same parties and their privies when (1) a court of competent jurisdiction, (2) has rendered final judgment on the merits, and (3) the same cause of action and same parties or their privies were involved in both suits. Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska 1985). Collateral estoppel is a related doctrine. It operates to preclude relitigation of issues when the issues "have been actually litigated and determined in the first action by a valid and final judgment, and the determination must have been essential to the judgment. When an issue is properly raised by the pleadings or otherwise, is submitted for determination, and is determined, the issue is actually litigated...." Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494 (Alaska 1986) (citation omitted). Collateral estoppel likewise bars relit-igation of issues erroneously decided in the first case. DeNardo v. State, 740 P.2d 453, 457 (Alaska 1987), cert. denied, — U.S. -, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987). The preclusive effect of this doctrine applies even where constitutional issues were decided incorrectly. See Buckeye Indus., Inc. v. Secretary of Labor, 587 F.2d 231, 234 (5th Cir.1979). Collateral estoppel precluded the instant action. At the time he instituted this action, DeNardo was litigating the issue of the Municipality's compliance with article XII, section 5 in his appeal against the Municipality. The issue raised in this case was actually litigated and determined by a valid and final judgment in the appeal, and the determination was essential to that judgment. The final judgment in the appeal was rendered before the summary judgment motion in this ease was filed. The same analysis warrants dismissal of the present action against Chief Porter. Prior judgments can be collaterally attacked if they are void. Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966). A judgment is void where the court was without subject matter or personal jurisdiction, or where the defendant was not given proper notice of the action and opportunity to be heard, or where the judgment was not rendered by a duly constituted court with competency to render it, or where there was a failure to comply with such requirements as are necessary for the valid exercise of power by the court. Id. (Citations omitted). None of these circumstances are present in this case. The superior court correctly applied the doctrine of collateral estoppel. B. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO THE MUNICIPALITY. DeNardo contends that because his action is an action to enforce the provisions of 42 U.S.C. § 1983, the superior court ought to have applied 42 U.S.C. § 1988 in considering the Municipality's request for attorney fees. He contends that the court erred in awarding the Municipality $550 in attorney fees under the Alaska Civil Rules. 42 U.S.C. § 1988 provides, in part, that in any action to enforce a provision of 42 U.S.C. § 1983 the court may, in its discretion, allow a prevailing plaintiff reasonable attorney fees as part of the costs. Congress' purpose in enacting this provision was to encourage private attorneys general to enforce fundamental constitutional rights. Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir.1980). Though section 1988 does not speak explicitly to the propriety of awarding attorney fees to prevailing defendants, Congress left no room for doubt as to its intent: [Plaintiffs] should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent's counsel fees should they lose. Such a party, if unsuccessful, could be assessed his opponent's fee only when it is shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes. S.Rep. No. 1011, 94th Cong., 2nd Sess. 4 (1976) (citations omitted), reprinted in 1976 U.S.Code Cong. & Admin.News at 5912. The United States Supreme Court has enforced this intent, holding that a civil rights defendant may recover attorneys fees from the plaintiff only if the court finds "that the plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith." Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657 (1978)). Section 1988 applies to actions in state court. Maine v. Thiboutot, 448 U.S. 1, 9, 100 S.Ct. 2502, 2506, 65 L.Ed.2d 555, 562 (1980); Rubio v. Carlsbad Municipal School Dist., 744 P.2d 919, 923-24 (N.M.App.1987). That this action was dismissed on common-law procedural grounds does not make Congress' purpose less relevant, nor does it make the rule of Hughes less applicable. Unless DeNardo's action was frivolous, unreasonable or without foundation, an award of attorney fees in favor of the Municipality would have the effect of discouraging meritorious civil rights actions. Although the Municipality prevailed, there is nothing in the record from which we could conclude that DeNardo's suit was frivolous, unreasonable or without foundation. Indeed, the trial court remarked in passing that his claim appeared to have merit. III. CONCLUSION DeNardo has previously litigated the issue in the present ease and lost. On those prior occasions the merits of his claim were reached. Therefore, the present action was properly dismissed under the doctrine of collateral estoppel. Thus, that decision of the superior court is AFFIRMED. This case was decided on common-law grounds unrelated to the constitutional issues raised by DeNardo. Moreover, the trial court remarked that his claim appeared to have merit. On this record we cannot conclude that as a matter of law, DeNardo's claim was frivolous, unreasonable or without foundation. Therefore, it was improper for the trial court to award attorney fees to the Municipality. Thus, its award is REVERSED. . Article XII, section 5 of the Alaska Constitution provides: All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as . to the best of my ability." The legislature may prescribe further oaths or affirmations. . 42 U.S.C. § 1983 provides in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . DeNardo initiated the instant action after these citations had been issued, but before the appeal addressing the same issue had been decided. . The fourteenth amendment in part provides: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . We need not determine whether DeNardo's prior federal action and the state action preceding it would also result in collateral estoppel. . 42 U.S.C. § 1988 provides in part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. .Civil Rule 82(a)(2) in part states: (a) Allowance to Prevailing Party. (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. . The Municipality's reliance on Caputo v. City of Chicago, 113 Ill.App.3d 45, 68 Ill.Dec. 843, 446 N.E.2d 1240 (1983), is misplaced. Caputo merely stands for the proposition that a state court need not award attorney fees under 42 U.S.C. § 1988 to a plaintiff who prevails solely on state or local grounds. Id. 68 Ill.Dec. at 845, 446 N.E.2d at 1242. The opinion says nothing about the propriety of awarding attorney fees to a prevailing defendant when the plaintiff's suit is not frivolous, unreasonable or without foundation. Moreover, the recent Supreme Court decision in Texas Teachers Ass'n v. Garland Indep. School Dist., — U.S.-, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), defining prevailing party status for purposes of 42 U.S.C. § 1988, may cast doubt on the continuing validity of Caputo.

11958097

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

Tagala v. State

1991-05-31

No. A-3076

604

613

812 P.2d 604

812

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Eugene F. TAGALA, Appellant, v. STATE of Alaska, Appellee. No. A-3076. Court of Appeals of Alaska. May 31, 1991. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Shelley K. Chaffin, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, 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.

4660

28618

OPINION COATS, Judge. Eugene F. Tagala was convicted of murder in the first degree and tampering with physical evidence. AS 11.41.100(a)(1)(A) and AS 11.56.610(a)(1). He contends that Superior Court Judge James A. Hanson erred in denying his motion to suppress. In his motion to suppress, Tagala argued that statements which he made to the police should be inadmissible because the police failed to administer Miranda warnings, and did not honor his request for counsel. He also contends that his statements were involuntary. Tagala also challenges the state's use of the computer system to obtain the criminal records of prospective jurors. We affirm. On October 2, 1988, David C. Stailey was shot and killed outside of the Baywatch Lounge in Homer. Witnesses informed the police that, just prior to the shooting, Stai-ley and Tagala were sitting together in the bar. Stailey left the bar a few minutes after Tagala. Moments later, gunshots were heard and Stailey came back into the lounge and fell to the floor. Witnesses also indicated that there was "bad blood" between the two men, prior assaults had occurred, and Tagala had previously stated that he carried a gun to protect himself from Stailey. The Homer police tried unsuccessfully to locate Tagala throughout the night of October 2. They had information concerning the car he was driving. The next morning, a patrol officer saw the car. Sergeant Luther Christopher then spotted the car, made a u-turn, put on his overhead lights and pulled over the car which Tagala was driving. Two more police cars arrived, and the officers conducted a pat-down search of Tagala. After the officers conferred among themselves, they decided not to formally arrest Tagala and so informed him. Instead, they asked him to come to the police station and answer some questions. He agreed. Tagala rode to the station in the front of a police car. He was not physically restrained. He entered the station house unaccompanied, and was directed to an interview room. Officer Andrew Klamser interviewed Ta-gala for less than two hours. The interview was tape-recorded. At the start of the interrogation, Tagala was again informed that he was not under arrest and that he was "free to leave." Klamser did not give Tagala a Miranda warning. At some point, Tagala admitted that he shot Stailey. Later, he agreed to provide blood and urine samples. After the interview ended, Tagala accompanied police officers to look for the weapon he had discarded. The police then dropped Tagala at a friend's house where he had been staying. The police kept the house where Tagala was staying under surveillance. Later that afternoon, Christopher returned to the house and asked Tagala to come back to the station for a second interview. He agreed. Christopher drove him to the station and then interviewed him. This time Christopher informed Tagala of his rights under Miranda. During both interviews, Tagala frequently alluded to the fact that he and Stailey were both in the business of selling drugs. At one point during the second interview, when the subject of drug sales came up again, Tagala asked to speak to an attorney: CHRISTOPHER: Okay, let's go over some of the . things that you've talked about. You said that during the evening . you were making your usual rounds, what do you mean, specifically, by "usual rounds"? TAGALA: I usually hit all the bars. And see if there's anything going on out there, taking care of transactions, or taking orders, more or less. CHRISTOPHER: Of drugs you mean? TAGALA: Yeah. CHRISTOPHER: Of the sales of drugs? Is that what [you're] talking about? TAGALA: Well, now I think we better, before we get into that there[,] I think I might have to talk to an attorney on that angle. I don't want this used against me. CHRISTOPHER: Of the sales of drugs you mean? TAGALA: Right. CHRISTOPHER: Okay.... [Y]ou spoke about the "future," what did you mean by the "future"? After this exchange, the interview continued. At its conclusion, Tagala was arrested. On October 7, 1988, he was indicted for murder in the first degree and tampering with physical evidence. Before trial, Tagala moved to suppress all of his statements to the police, claiming that they were obtained in violation of Miranda. The trial court denied the motion concerning the statements made in the first interview, finding that Tagala was not in custody during that interview. The court partially granted the motion in regard to the second interview, ordering any statements that Tagala made concerning the sale of drugs after he requested counsel to be suppressed. However, the court ruled that all of Tagala's other statements were admissible. Tagala first argues that the trial judge erred in denying his motion to suppress the statements which he made to the police. The issues in a suppression motion involve mixed questions of law and fact. We will accept the trial court's factual findings unless they are clearly erroneous. We will make the ultimate determination, after independently reviewing the record, whether a confession was voluntary and whether the defendant waived his Miranda rights. Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981); Van Cleve v. State, 649 P.2d 972, 976 (Alaska App.1982). The trial court denied Tagala's motion to suppress his statements to Officer Klamser during the first interview. The court ruled that Tagala was not in custody at that time. The court essentially adopted Taga-la's version of the facts, but specifically found that the police did not physically restrain Tagala, and that Tagala entered the station house unaccompanied by an officer. The court also found that the police specifically informed Tagala that he was not under arrest, that he was free to leave, and that he could choose not to talk about anything he did not wish to discuss. Tagala argues that his motion to suppress should have been granted because the facts show he was in custody at the time of the initial interview, and the police failed to advise him of his rights under Miranda. The state contends that the police did not subject Tagala to custodial interrogation, so that he was not entitled to the procedural protections of Miranda. A court determines whether a person is in custody using an objective test — would a reasonable person believe that he or she was not free to leave. Quick v. State, 599 P.2d 712, 717 (Alaska 1979); Hunter v. State, 590 P.2d 888, 895 (Alaska 1979); Thompson v. State, 768 P.2d 127, 130 (Alaska App.1989); Hampel v. State, 706 P.2d 1173, 1178 (Alaska App.1985). In applying this objective test, the court considers the events prior to, during and immediately after the interrogation. Hunter, 590 P.2d at 895; Thompson, 768 P.2d at 130. Courts do not require the police to give Miranda warnings for an investigative stop; however, if the initial stop ripens into "custody" for purposes of the fifth and sixth amendments, the police must administer the warnings. Berkemer v. McCarty, 468 U.S. 420, 440-43, 104 S.Ct. 3138, 3150-52, 82 L.Ed.2d 317 (1984); Blake v. State, 763 P.2d 511, 514-15 (Alaska App.1988). The trial court relied on Thompson in determining that Tagala was not in custody at the time of the first interview. In Thompson, the defendant voluntarily agreed to come to the trooper office; he was told he was not under arrest and was free to leave. This court affirmed the trial court's denial of the motion to suppress. Tagala argues that Thompson is distinguishable because the defendant there was "asked" to come to the station; he was clearly not in custody when he arrived. In contrast, Tagala contends that he was subject to a "felony stop" of his vehicle so that the interrogation was a continuation of the initial seizure. Tagala claims that two earlier cases, Lowry and Hampel, are more closely on point in this case. Lowry v. State, 707 P.2d 280 (Alaska App.1985); Hampel v. State, 706 P.2d 1173 (Alaska App.1985). In Hampel, the defendant's vehicle was stopped pursuant to a homicide investigation. With guns drawn, the police conducted a pat-down search of the defendant and placed him in a patrol car. During a three-hour interrogation, the defendant was never left alone. Despite the fact that he was told he was not under arrest, this court concluded that a reasonable person would have believed that he was not free to leave and therefore, he was in custody during the interrogation. Hampel, 706 P.2d at 1178-79. In Lowry, the defendant was also a suspect in a homicide investigation. In determining that he was not in custody during police questioning, the court stressed the fact that an officer initially telephoned Lowry, and Lowry agreed to meet with them. Before any show of force was used, the defendant indicated a predisposition to being interviewed. Lowry, 707 P.2d at 284. There is little question that Tagala was detained during the initial investigative stop. However, "a temporary stop cannot be equated with a formal arrest, even when considerable force is used in effectuating the stop." Id. at 283 (citation omitted). Tagala argues that the circumstances of that initial stop — the use of overhead lights, the presence of several police cars and officers and the request to come to the station for questioning — would have led a reasonable person to believe that he was in custody. Indeed, this court has expressed concern that such circumstances might convince a detainee that he or she is in custody despite assurances to the contrary. In such a case, there will be a significant risk that the detained person's consent to a station house interview stems not from any genuine desire to be interviewed but rather from the impression that refusal to consent would be futile — that custody already exists and there is no power to decline the request for a trip to the station. The risk of a consent so tainted can be obviated by expressly informing the detained person, before asking for consent to a station house interview, that the stop is a temporary investigative measure and that the person is, or shortly will be, free to go. Alternatively, the risk may be avoided when other attendant circumstances make the temporary nature of the stop reasonably apparent. Id. at 284. In this case, the other attendant circumstances were sufficient for the trial court to find that the defendant was not in custody. The police used a minimal amount of force in the initial stop and no guns were drawn. The police repeatedly assured Ta-gala that he was free to leave and that he was not under arrest. Tagala voluntarily agreed to come to the station. He rode in the front of the police car and walked, unaccompanied, into the station. He was never physically restrained, and left at the end of the interview. We conclude that the trial court could properly find that Tagala was not in custody during the first interview, and we affirm the trial court's ruling. Later in the day of October 3, 1988, Sergeant Christopher returned to the house where Tagala was staying. He drove Ta-gala back to the station for a second interview. At the start of the interview, Christopher read Tagala his Miranda rights. As we have previously pointed out in more detail, Tagala invoked his right to counsel at one point when the subject of drug sales came up again. The trial court apparently found that Tagala's statement was a limited invocation, applying only to questions concerning drug sales. The court suppressed any statements made after the request for an attorney, "which might tend to incriminate the defendant for illegal drug transactions." The state argues that Tagala was not in custody during the second interview. The state contends that the mere reading of Miranda warnings does not indicate custody; instead, the court must independently determine whether custody existed from the "totality of circumstances." The state alternatively argues that, even if Tagala was in custody at that time, his request for counsel was only a limited assertion of his rights under Miranda. The state contends that in that case, the court's order, suppressing only those statements relating to Tagala's request, was the proper remedy. We will assume, for purposes of this case, that Tagala was in police custody during the second interview. The general rule is that once an individual invokes his right to counsel, the police must terminate all further questioning unless counsel is present or the defendant initiates discussion. Arizona v. Roberson, 486 U.S. 675, 677, 108 S.Ct. 2093, 2096, 100 L.Ed.2d 704 (1988); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). When the assertion of the right is ambiguous or equivocal, the police may ask questions to clarify the defendant's request. However, they may not ask anything other than clarifying questions. Smith v. Endell, 860 F.2d 1528, 1533 (9th Cir.1988); United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985). A defendant may also make a limited assertion of the right to counsel. A limited assertion exists when a defendant requests the assistance of counsel only on one subject and not another, or agrees to talk only about certain issues. United States v. Eaton, 890 F.2d 511, 513-14 (1st Cir.1989); Bruni v. Lewis, 847 F.2d 561, 563-64 (9th Cir.1988). While this court accepts the factual findings of the trial court (such as the resolution of any testimonial conflicts), the ultimate determination of the type of invocation that occurred and whether there was a waiver of rights requires independent review. "The constitutional effect of the dialogue is a legal question subject to our independent review." Smith, 860 F.2d at 1532 n. 3. See also Connecticut v. Barrett, 479 U.S. 523, 527 n. 1, 107 S.Ct. 828, 831 n. 1, 93 L.Ed.2d 920 (1987). Tagala's initial request for counsel may have been ambiguous. However, when Christopher attempted to clarify his intention, Tagala did not equivocate. TAGALA: I think I might have to talk to an attorney on that angle. I don't want this used against me. CHRISTOPHER: Of the sales of drugs you mean? TAGALA: Right. A defendant may make an unambiguous but limited assertion of the right to counsel; the police then must restrict their questioning to matters outside the scope of the assertion. Any subsequent statements concerning the specific subject matter should be suppressed at trial. Barrett, 479 U.S. at 529, 107 S.Ct. at 832. Only ambiguous requests need to be interpreted broadly. Id. at 529-30, 107 S.Ct. at 832-33. In Mallott v. State, 608 P.2d 737, 742-43 (Alaska 1980), the court held that the defendant made a limited request for counsel concerning a breathalyzer test, but his assertion did not prohibit the police from otherwise questioning him. See also Eaton, 890 F.2d at 513-14 (defendant asserted right to remain silent in regards to some questions but not others). Tagala's request was limited to a specific subject matter — the sale of drugs. It was not ambiguous. Subsequent to a limited request, only questions regarding that subject matter must cease. The trial court's order reflects that requirement. This court makes an independent determination whether a confession is voluntary based on- the totality of circumstances. Thompson, 768 P.2d at 131; State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987). The question for this court is whether Ta-gala's will was overcome by coercive police conduct. The factors to be considered include: (I) age, mentality, and prior criminal experience; (2) length, intensity, and frequency of interrogation; (3) the existence of physical deprivation or mistreatment; and (4) the existence of threat or inducement. Thompson, 768 P.2d at 131 (citation omitted). Tagala argues that his confession was involuntary because the police were aware that he was extremely upset and frightened and used "psychological ploys" to coerce his statements. Additionally, the first interview was lengthy and he had consumed drugs during the previous night. The state counters that Tagala appeared calm and alert during the interview, and that similar tactics were approved in Thompson. Tagala is not a newcomer to the criminal justice system. He is forty-six years old with an extensive criminal background. He does not appear to have below-average intelligence. The interview was not especially lengthy or coercive. He was not restrained nor deprived. The police tactics used seemed primarily to involve expressions of understanding and concern that he had acted in self defense. Such tactics are not improper. See Thompson, 768 P.2d at 131. We conclude that the trial court could properly find that Tagala's confession was voluntary. The trial court did not err in denying Tagala's motion to suppress. Tagala next argues that the trial judge erred in denying his motion for a mistrial. After a prospective juror was arrested on an outstanding traffic warrant, defense counsel asked if the prosecutor had run criminal background checks on the others. The prosecutor admitted that the police had obtained print-outs and shared some of the information with her. It turned out that the police had run computer checks on at least twenty-six prospective jurors. Defense counsel argued that it was unlawful for the state to use the computer system in this manner, and moved for a mistrial. The court ruled that the use was proper under the relevant laws, and denied the defense motion. Tagala argues that the state's use of the computer system violates AS 12.62.030(a) and the corresponding regulations. Alaska Statute 12.62.030(a) provides in part: Except as provided in (b) and (c) of this section and in AS 12.62.035, access to specified classes of criminal justice information in criminal justice information systems is available only to individual law enforcement agencies according to the specific needs of the agency under regulations adopted by the commission under AS 12.62.010. Criminal justice information may be used only for law enforcement purposes or for those additional lawful purposes necessary to the proper enforcement or administration of other provisions of law as the commission may prescribe by regulations adopted under AS 12.62.010. The relevant regulations, 6 AAC 60.010 et seq., govern the access, use and dissemination of criminal justice information. Tagala argues that the plain language of the statute — "[cjriminal justice information may be used only for law enforcement purposes" — demonstrates that the state's use of the system was unlawful. He argues that jury selection is not a law enforcement purpose because it does not involve crime prevention or control. Alternatively, he argues that all of the relevant statutes, construed together, demonstrate a concern to protect the privacy and security of private citizens, like prospective jurors. The state responds that the prosecutor's use of the computer system for jury selection was a "lawful purpose necessary to administration." Because the prosecutor can challenge jurors under Alaska Criminal Rule 24(c)(ll)(ii), she can lawfully obtain the necessary information to make those challenges. Apparently, it is a common practice, in Alaska and other states, for the prosecutor to run criminal record checks on prospective jurors. Professor LaFave notes that such record checks, even when coupled with police investigation of the prospective jurors, are frequently challenged but rarely successful. LaFave, 2 Criminal Procedure § 21.3(b) at 725 (1984). This seems to be the first time the issue has been raised in this state. Tagala relies on State v. Bessenecker, 404 N.W.2d 134 (Iowa 1987), in support of his argument. In that case, the Iowa Supreme Court held that the state must seek a court order before obtaining computerized criminal justice information on prospective jurors. Id. at 139. However, in most cases, courts have upheld the practice. See United States v. Falange, 426 F.2d 930 (2nd Cir.1970); People v. Murtishaw, 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446 (1981); People v. Aldridge, 47 Mich.App. 639, 209 N.W.2d 796 (1973); Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972); Commonwealth v. Smith, 350 Mass. 600, 215 N.E.2d 897 (1966). Under AS 12.62.030, it appears that a prosecutor may use the computer systems to obtain criminal justice information for "law enforcement purposes or any other lawful purpose necessary for administration." Alaska Statute 12.62.070(6) provides: "law enforcement" means any activity relating to crime prevention, control, or reduction or the enforcement of criminal law, including, but not limited to, police efforts, to prevent, control, or reduce crime or to apprehend criminals, activities of criminal prosecution, courts, public defender, corrections, probation or parole authorities.... Since the criminal record of a prospective juror is relevant for the use of challenges for cause, we conclude that the prosecutor did not violate the statute. Tagala also argues that the state should have turned over the criminal records to defense counsel under Alaska Criminal Rule 16(b)(3). See Losavio, 496 P.2d at 1035 (juror information discoverable under Rule 16); Uniform Rules of Criminal Procedure (Supp.1987), 10 U.L.A.Rule 421 at 51 ("reports on prospective jurors" discoverable). The state argues that defense counsel is not entitled to the information under Criminal Rule 16(b)(3). Alternatively, the state argues that, even if he was entitled to it, Tagala failed to request the information or demonstrate that he could not obtain it elsewhere. The state contends the court did not err in denying Tagala's motion for a mistrial. A number of courts have held that the prosecuting attorney should disclose the criminal records of prospective jurors under a principle of fundamental fairness. See Bessenecker, 404 N.W.2d at 134; Murtishaw, 631 P.2d at 465; Aldridge, 209 N.W.2d at 800-02; Losavio, 496 P.2d at 1034-35. But see Falange, 426 F.2d at 933; People v. McIntosh, 400 Mich. 1, 252 N.W.2d 779 (1977); Monahan v. State, 294 So.2d 401, 402 (Fla. Dist.Ct.App.1974). In Aldridge, 209 N.W.2d at 801, the court stated: Our sense of fundamental fairness requires placing defendant upon an equal footing by requiring disclosure of the prosecutor's investigatory report upon prospective jurors. Since jurors are so important to our system of criminal justice, nondisclosure of information upon which defendant may exercise peremptory challenges places a premium on "gamesmanship" to the subversion of the trial's search for truth. In another case, the court found that disclosure was required to combat inequality and unfairness in the criminal process. See Murtishaw, 631 P.2d at 465. Criminal Rule 16 does not specifically provide for discovery of this information. However, the rule does promote expansive discovery in criminal cases. "Scope of Discovery.... [Discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system." See also DesJardins v. State, 551 P.2d 181, 188 (Alaska 1976) (Rule 16 designed to further discovery in order to eliminate jockeying for tactical advantage); II Standards for Criminal Justice § 11-1.1 and commentary (1982 Supp.) (advocating full and free discovery). Moreover, Criminal Rule 16(b)(7) provides: Other Information. Upon a reasonable request showing materiality to the preparation of the defense, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by subsections (b)(1), (b)(2), (b)(3), and (b)(6). Given the scope of this provision, we believe that the prosecutor should disclose to the defense, upon request, criminal records of jurors, at least in cases where the prosecution intends to rely on them. If the state is entitled to examine criminal records of jurors for jury selection, it is fair for the defense to have access to the same information. In this case, Tagala did argue before the trial court that he should have been given equal access to prospective jurors' criminal records. However, he failed to specifically request that the prosecutor turn over those materials or suggest other methods to cure the error. Nothing prevented Tagala from asking the jurors about their criminal records. It is difficult to say how he was harmed by the fact that he did not have access to the prosecutor's report. We conclude that Judge Hanson did not err in refusing to grant the severe remedy of a mistrial. Tagala never requested a less severe remedy. We therefore conclude Judge Hanson did not err in denying the mistrial motion. The conviction is AFFIRMED. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) [hereinafter, Miranda ]. . The gun was not found in the location Tagala had indicated but was later discovered in the yard of a Homer residence. . Tagala also relies on Smith v. Endell, 860 F.2d 1528 in support of his position that all of his statements should have been suppressed after he requested counsel. The state distinguishes Smith because that case involved a "conditional" invocation as opposed to a "limited" invocation. Whether or not a conditional invocation is the functional equivalent of a limited request, Smith is not helpful in this case. In Smith, the Ninth Circuit held that all questioning should cease when an unambiguous conditional request is made, and the police are aware that the condition has been satisfied. Id. at 1531. The facts in Smith are that while being questioned about drug possession, the defendant asserted his right to an attorney if they were "looking at [him] as a suspect." Id. at 1529. Because he was, in fact, a suspect in the homicide investigation, the majority of the court found that the condition had been satisfied and the interrogation should have terminated. This case differs significantly from the case before the court in Smith. First, there was no "condition" to be satisfied in Tagala's request for counsel. He simply asserted his right not to discuss drug sales, whether or not there was a pending investigation or charges were to be filed. Second, in Smith, the state sought to admit the defendant's statements in his trial for murder — the exact issue for which he wanted the assistance of an attorney. In this case, Tagala was tried for murder, which he had been willing to discuss with the police. His statements concerning the protected subject matter — drug sales — could be excised from the recording, and the state did not introduce them at trial. A fair reading of Tagala's statement shows that the police were only interested in Tagala's drug dealing to the extent that it explained the homicide. After Tagala's limited invocation of his rights, the police continued to appear interested only in the homicide, and any questions which covered drug dealing were incidental to the homicide. . Alaska Criminal Rule 24(c)(ll)(ii) reads: (c) Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. Every challenge for cause shall be determined by the court. The following are grounds for challenges for cause: (11) That the person within the previous two years: (ii) has complained against or been accused by the challenging party or attorney in a criminal prosecution. . Aldridge was limited by People v. McIntosh, 400 Mich. 1, 252 N.W.2d 779 (1977). The McIntosh court held that a court rule should be proposed dealing with this issue. Id. 252 N.W.2d at 782. Until that time, the prosecution need not share information concerning the jury with the defense, so long as that information is "reasonably available to the defense from other sources." Id. . We do not mean for the opinion to necessarily be the final word concerning the prosecutor's access to criminal background information concerning potential jurors, and defense access to that information. It appears that this may be a fruitful topic for the criminal rules committee to address.

10478470

Emma A. NICHOLSON, Appellant, v. Ralph SORENSEN, Executor of the Estate of Emil Peter Sorensen a/k/a Emil Peder Sorensen, Deceased, Appellee

Nicholson v. Sorensen

1973-12-28

No. 1881

766

772

517 P.2d 766

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

Emma A. NICHOLSON, Appellant, v. Ralph SORENSEN, Executor of the Estate of Emil Peter Sorensen a/k/a Emil Peder Sorensen, Deceased, Appellee.

Emma A. NICHOLSON, Appellant, v. Ralph SORENSEN, Executor of the Estate of Emil Peter Sorensen a/k/a Emil Peder Sorensen, Deceased, Appellee. No. 1881. Supreme Court of Alaska. Dec. 28, 1973. Robert N. Opland, Anchorage, for appellant. J. L. McCarrey, Jr. and J. L. McCarrey, III, Anchorage, for appellee. Before RABINOWITZ, Chief Justice, and CONNOR, FITZGERALD, and BOOCHEVER, Justices.

3273

19415

OPINION BOOCHEVER, Justice. Emil Peter Sorensen (hereinafter, the grandfather) died leaving a will which made no provision for four grandchildren who were alive at the time of the execution of the will. The guardian of the grandchildren filed a petition for a determination of heirship, claiming that the grandchildren were entitled to the shares of the estate which they would have received if their grandfather had died intes tate. The superior court approved the findings and recommendations of a master and denied the petition, from which judgment this appeal has been taken. The grandfather's son, Emil Laurence Sorensen, predeceased him on February 5, 1967, and the grandfather served as administrator of his son's estate from January 24, 1968 until his own death on February 2, 1972. He was serving as administrator when he executed his will on January 7, 1969; moreover, he was living in the small community of Dillingham, Alaska where the four grandchildren (the children of his deceased son) also resided. On the basis of these facts, the master found that the failure to mention the grandchildren in the will was not an oversight. Alaska's present pretermission statute, AS 13.11.115, became effective as part of the Uniform Probate Code on January 1, 1973, and provides in pertinent part: Pretermitted Children, (a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate . (emphasis added). The plain language of the statute indicates that subsection (a) applies only to the testator's children, and only to those of his children born or adopted after the execution of the will. Thus, under the new statute even if Emil Sorensen's grandchildren (who were alive at the time of the execution of the will) successfully argued that they were claiming through the estate of their father (the testator's son) so as to come within the "children" term of the statute, the fact that their father was not "born or adopted after the execution of [the] will" would defeat recovery. If, in the alternative, the grandchildren argued that "children" should be interpreted to mean "issue" (a dubious argument), the fact that the grandchildren were alive at the execution of the will would also defeat recovery. Under the new probate code, the appellant would clearly have no right of action. The former statute, AS 13.05.170, however, provided in pertinent part: RIGHTS OF CHILDREN OR THEIR DESCENDANTS. If a person makes his last will and dies, leaving a child or children, or descendants of the child or children in case of their death, not named or provided for in the will, although born after the making of the will or the death of the testator, the testator, so far as regards the child or children or their descendants not provided for, is considered to die intestate. The child or children, or their descendants, are entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees, and legatees shall refund their proportional part. The new probate code was enacted in 1972, and § 5 of chap. 78, SLA 1972 expressly repealed former Title 13, of which this earlier pretermission statute was a part. The executor argues that this repeal means that all pending proceedings are to be governed by the new law. But it is a generally accepted canon of construction that heirship is to be determined as of the date of death. We note also that it would be at least anomalous to have the former statute apply at the trial level and the superseding statute apply on appeal due to the fortuitous circumstance that the new code became effective in the interim. The executor of the grandfather's estate argues that even if AS 13.05.170 of the former code controls, it applies only to those descendants born after the making of the will or after the death of the testator. It is his contention that the clause "although born after the making of the will or death of the testator" is meant to restrict the class of pretermitted heirs to af-terborn descendants, rather than to enlarge the class of pretermitted heirs. We conclude that the clause is permissive, because: a. The plain meaning of "although" is permissive. If the legislature had wished to make the "afterborn" provision a restrictive rather than a permissive phrase, the use of "if" would have been more logical; b. Since a "pretermitted heir" is a child or descendant omitted by the testator, the argument might be made, in the absence of the permissive "after-born" provision, that one had to be in existence at the time of the execution of the will to be "omitted" by the testator. Thus, it seems that the purpose of the clause was to enlarge the class to include children or descendants who were born after the making of the will. c.The use of two time periods in the statute (i.e., born either (1) after the making of the will or (2) after the death of the testator) implies that the purpose of the provision was to enlarge the protected class rather than restrict it. If the purpose of the clause was to restrict the class, simply using the phrase "after the making of the will" would have eliminated any children in existence at the time of the execution of the will (the result contended for by appellee) . While there is no Alaska case authority directly in point concerning whether the statute is limited to afterborn children, the Alaska statute was derived from a similar Oregon statute, formerly codified as ORS 114.250, and we find persuasive the decisions of the Oregon courts regarding Oregon's former statutory counterpart to AS 13.05.170. In Barnstable v. United States National Bank, 232 Or. 36, 374 P.2d 386 (1962), the question before the court was whether an adopted child was entitled to recover under the statute where the will had incorrectly referred to her as a "foster child". While the rationale of the decision did not turn on it, the court did assume that the statute was applicable even though the child was alive and had been adopted at the time of the execution of the will. Similarly, in Towne v. Cottrell, the Oregon court assumed that the statute was applicable to grandchildren alive at the time of the execution of the will. Thus, both the statutory language and the manner in which a similar statute had been construed by the Oregon courts persuade us that AS 13.05.170 of the former probate code was applicable to grandchildren alive at the time of execution of a will. This now brings us to the focal issues of the case: may the intent of the testator be considered in applying AS 13.05.170 and, if so, must such intent be determined solely from the four corners of the will without reference to extrinsic evidence ? The statute, read literally, implies that any person who is in the protected class and is not "named or provided for in the will" is entitled to recover as an intestate heir. In construing the statute, however, we must look to its purpose. As we have indicated, the statute originated in Oregon; accordingly, it is presumed that it was adopted with the interpretation that had been placed upon it by the Oregon Supreme Court prior to 1900. In Gerrish v. Gerrish, the Oregon Supreme Court stated: Our statute is an exact copy of the Missouri statute, and the courts of that State having been called upon frequently to construe it, we must look principally to the decisions of that State to ascertain its proper judicial construction. In that State it is held that the statute does not require that an actual provision shall be made for the children, nor that the children shall be designated by name; that its object is not to compel parents to make testamentary provision for children, but to prevent the consequences of forgetfulness or oversight. Thus, the presumed purpose of the Alaskan pretermission statute was not to create any "rights" of inheritance in the protected class similar to common law dower, so that the testator would be assumed as a matter of law to have intended to provide for unnamed children or descendants unless he explicitly excluded them; rather, its intent was to protect those children or descendants from an unintentional disinheritance. There is then ample authority for looking to the intent of the testator in determining the applicability of AS 13.0S.170. The grandfather's will contains detailed provisions for a guardianship and two trusts, but nowhere therein is there a reference to his deceased son, Emil Laurence Sorensen, or his children. Evidence extraneous to the will is more than sufficient to sustain the finding of the superior court that the grandfather intentionally omitted reference to the grandchildren, and that the failure to name or otherwise provide for them was not the result of oversight. The grandfather had served as administrator of his son's estate for approximately one year at the time he executed his will. Moreover, he lived in the small community of Dillingham, where the grandchildren also resided. If extraneous evidence can be considered, the decision of the court below upholding the terms of the will should be affirmed; but if the intent of the testator may be ascertained only by reference to the express terms of the will, the grandchildren would inherit by operation of law. Looking again to the Oregon decisions, we find three recent cases which touch on this question. In Voden v. Yates, the Oregon Supreme Court stated that: We first read the will, which was drafted with the aid of counsel, to ascertain whether the intention of the testatrix can be determined. This intention is required to be ascertained from the language of the will. ORS 114.210. But in Philpott v. Yeoman, an Oregon appellate court did look outside the will to divine whether the decedent had intentionally or inadvertently neglected to mention two of her grandchildren in her will: Here the trial court, after hearing the testimony, concluded appellants were intentionally omitted. The evidence showed that the testatrix was fully aware of the existence of both of them. It also showed that the relationship between her and her son, Otto Bronson, and the members of his family, including the appellants, became one of estrangement and upon occasion even of bitterness and obloquy, and that this continued after the death of Otto Bronson. We agree that the appellants were not unintentionally omitted and that the decedent was fully aware of their existence at the time she executed her will. The Oregon Supreme Court had similarly looked beyond the four corners of a will in Towne v. Cottrell. The decedent in that case had left a will in which she named her two living children and stated, "My son Thomas A. Towne has predeceased me." She provided for one of Thomas's children but made no mention of the other three. Looking to the will itself, there could have been either an intentional disinheritance of the three grandchildren or an inadvertent omission due to lack of knowledge of their existence. But the defendant children had admitted that they were known to the decedent. In upholding the lower court's decision to enforce the terms of the will against the claim that the pretermission statute should apply, the court stated: When we look to the reasons behind the statute, it appears probable in this case that the testatrix had neither forgotten nor unintentionally omitted her granddaughters. The fact that they were known to her is admitted by the defendants, although they now claim that their allegation of this fact in their answer does not mean that the grandchildren were in her mind at the time of making of the will. This contention strains the inferences to be drawn from such allegation. Thus, the court relied on facts ascertained outside the four corners of the will (although they could be found in the pleadings). In this appeal, the finding of the superior court as to the testator's intent is supported by the fact that he served as administrator of his son's estate and filed pleadings therein indicating that the grandchildren were known to him and resided in the same small community as the grandfather. The court below could properly take judicial notice of the contents of the pleadings filed in the probating of the son's estate. We fail to see a basis for distinguishing between the superior court's consideration of facts to be found in pleadings relating to other matters filed in the same court, on the one hand, and the Oregon court's reliance upon facts contained in the pleadings filed in the very case involving the pretermission statute, on the other. In each instance, evidence of intent obtained from very restricted sources extraneous to the will is relied upon. In both instances the underlying purpose of the pre-termission statute is not defeated; a child or his descendant is protected against an unintentional omission in a will. Because intent is to be determined only from un-controverted facts established by pleadings or from an inspection of the will itself, the floodgates have not been opened to permit all manner of testimony that might hypothetically touch on a testator's intent. Thus, to the limited extent that the testator's intention may be ascertained from matters of record, we hold that it is permissible to look beyond the four corners of the will to ascertain the applicability of AS 13.05.170. In this case, the grandfather was cognizant of the death of his son, the existence of his grandchildren, and the inheritance available to them and their mother by virtue of the son's estate, which the grandfather was administering. The superior court's finding that the omission of the grandchildren was intentional is thus supported by the evidence, and the judgment below is affirmed. Affirmed. ERWIN, J., not participating. . A pretermission statute applies when a testator fails to mention his children (and sometimes other descendants) in his will. It usually provides that such child or the children of a deceased child shall share in the estate as though the testator had died intestate. . AS 13.06.005 et seq. . Bank of Delaware v. Hitchens, 173 A.2d 339 (Del.Ct.Chan.1961); Boston Safe Deposit & Trust Co. v. Schmitt, 349 Mass. 669, 212 N.E.23 202 (1965); In re Kirkpatrick, 39 Misc.2d 133, 240 N.Y.S.2d 342 (N.Y.Sur.Ct.1963); Philpott v. Yeoman, 6 Or.App. 498, 488 P.2d 811 (1971); Dean v. Lancaster, 233 S.C. 530, 105 S.E.2d 675 (1958). See generally 4 Page on Wills § 34.4 (3rd ed. 1961). . The clause "after the making of the will" specifically refutes any contention that the heirs had to be in existence at the execution of the will to be "omitted" by the testator; the phrase, "after the death of the testator", refutes any contention that the language " . . and dies, leaving a child. ." (emphasis added) means that the child had to be in existence at the death of the testator. . The Oregon statute was adopted for Alaska by the United States Congress in 1900; see the Carter Code of June 30, 1900, chap. 15, § 143; the Compiled Laws of the Territory of Alaska of 1913, § 569, p. 304; the Compiled Laws of Alaska, 1933, § 4617, p. 890; and the Alaska Compiled Laws of 1949, § 59-4-1. The language of the statute remained essentially unchanged until the 1962 codification of the Alaska Statutes. The minor changes in wording in the 1962 codification were no doubt made by the codifier for the sake of clarity; they in no way change the sense of the statute or otherwise affect the provisions here under consideration. .Repealed ch. 591, § 305 (1969). The statute provided: If any person makes his will and dies, leaving a child or children, or, in case of their death, descendants of such child or children, not named or provided for in such will, although born after the making of such will or death of the testator, every such testator, so far as regards such child or children or their descendants, not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate . . 236 Or. 151, 387 P.2d 576 (1963). . See also In re Halle's Estate, 29 Wash.2d 624, 188 P.2d 684 (1948), implying that the Washington pretermission statute (which is also similar to the Alaska statute) applies to heirs in existence at the time of execution of a will. . While a construction of a similar statute by the highest court of another state rendered after adoption of the statute by Alaska .may be persuasive, a statute is presumed to have been adopted with the interpretation that had been placed upon it prior to its Alaska enactment by the highest court of the state from which it was taken. City of Fairbanks v. Schaible, 375 P.2d 201 at 207-208 (Alaska 1962). . 8 Or. 351 (1880). . Id. at 354. . Although there is a wide discrepancy in the language of the pretermission statutes from state to state, most fall within two general types, either the "Massachusetts" or the "Missouri" formulas. The Massachusetts prototype usually provides that an omitted heir has the rights of an intestate's heir unless it appears that the omission was intentional, and not occasioned by accident or mistake. The Missouri genre simply provides that if said heir is "not named or provided for in the will," intestacy rights attach. While the early cases applied this distinction strictly so as to consider intent where the Massachusetts-type statute was involved (see cases at 65 A.L.R. 473-474) and to ignore intent where the Missouri-type was involved (cases at 65 A.L.R. 481-482), the modern trend is to consider intent in both situations. 170 A.L.R. 1317 (1947) ; 88 A.L.R.2d 616 (1963). Thus, even though the former Oregon statute, ORS 114.250, and the former Alaska statute, AS 13.05.170, were Missouri-type statutes with no specific provision for the intent of the testator, the Oregon court has consistently held that the intent is to be considered. Towne v. Cottrell, 236 Or. 151, 387 P.2d 576, 577 (1963); Barnstable v. United States National Bank, 232 Or. 36, 374 P.2d 386 (1992); Gerrish v. Gerrish, 8 Or. 351 (1880). . According to the 1967 U.S. Census, Dilling-ham's population was 424. . 252 Or. 110, 447 P.2d 94 (1968). . Id. at 95. . 6 Or.App. 498, 488 P.2d 811 (1971). . Id. at 815. . 236 Or. 151, 387 P.2d 576 (1963). . Id. at 577-578. . Shuttlesworth v. City of Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 22 L.Ed.2d 162, 171 (1969); Wells v. United States, 318 U.S. 257, 260, 63 S.Ct. 582, 87 L.Ed. 746, 748 (1943); In re Martin's Retail Liquor License No. 1517, 15 Alaska 171 (1954) ; Application of Capper, 11 Alaska 480 (1948). .Our opinion is addressed solely to the construction of AS 13.05.170 and has no application to AS 13.11.115 of the new probate code, which contains express guidance for determining intent.

10483576

Max Ray MARTIN et al., Appellants, v. STATE of Alaska, Appellee

Martin v. State

1974-01-02

No. 1785

1389

1399

517 P.2d 1389

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

Max Ray MARTIN et al., Appellants, v. STATE of Alaska, Appellee.

Max Ray MARTIN et al., Appellants, v. STATE of Alaska, Appellee. No. 1785. Supreme Court of Alaska. Jan. 2, 1974. Herbert D. Soli, Public Defender, Larry A. Jordan, Asst. Public Defender, Anchorage, for appellants. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

5917

36338

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ. FITZGERALD, Justice. These cases come to us as a consolidated appeal seeking declarations of the rights of the defendant in criminal proceedings to bail under the constitution and laws of Alaska and the constitution of the United States. Although the factual circumstances of each case are somewhat different, all three cases challenge the concept of preventive detention. On June 7, 1972, appellant Richard Snyder was arraigned in the superior court on a charge of forgery. At the time of this arraignment, Snyder was free on bail following three indictments issued previously on other charges. At his arraignment and at a later hearing for plea, Snyder requested the court to set bail on the forgery charge. The trial court refused to set bail finding that Snyder was "a danger to society." On August 10, 1972, a notice of appeal was filed on the decision denying bail. However, on November 9, 1972, the court on the motion of the prosecutor dismissed the forgery charge against Snyder. Appellant Max Martin was arraigned August 3, 1972 in the superior court on a petition to revoke probation. Almost two years earlier, Martin had been convicted of larceny in a building. For that offense he received a five-year sentence, but four years were suspended upon conditions of probation. At his arraignment and at a hearing four days later, Martin requested the court to set bail for his release pending the revocation hearing. The court refused to set bail, reasoning that there was a high probability of truth in the allegations, and that it was within the court's discretion to deny bail after conviction. Notice of appeal from the denial of bail was filed on August 10, 1972. On September 18, 1972, Martin's probation was revoked, and he was ordered to serve the remaining four years on his larceny conviction. Appellant Aloyisus Fabian was arraigned in the superior court on May 18, 1972, on a charge of burglary not in a dwelling. Following arraignment, he was released on his own recognizance to participate in the Salvation Army alcoholic rehabilitation program. On May 25, 1972, the state moved that Fabian's recognizance release be revoked, and that bail be set at $500 because he was no longer participating in the Salvation Army program. Fabian, through his counsel, admitted violating the conditions of his release but requested to be released again on recognizance, contending that his financial status would make any bail amount prohibitive. Rejecting the suggestion that Fabian reenroll at the Salvation Army, the court offered to release him to the custody of the Anchorage Native Program for Alcoholic and Drug Abuse. Fabian's counsel agreed to attempt to enroll him in the native program, and the appellant was incarcerated in the meantime. Attempts to enroll him in the native program failed. Since his counsel did not reapply for bail, the appellant remained in jail until his trial. Notice of appeal from the ruling of the superior court was filed August 10, 1972. On October 3, 1972, Fabian appeared in superior court and was convicted upon his plea of guilty and was sentenced to a term of one year of confinement. The appellants claim a substantive right to bail arising from the Alaska Bail Reform Act, from Article I, sections 11 and 12 of the Alaska Constitution, and from the eighth amendment of the United States Constitution. We cannot ignore, however, the preliminary procedural difficulties which these cases present. In each case before us, it is argued that the issues arising on appellant's application for bail have been mooted by either a subsequent dismissal, a conviction, or a revocation of probation. An application for review of an order of the trial court denying bail should be promptly filed. The Alaska procedures for review of a denial for bail are designed to ensure speedy consideration at the appellate level. Although in this appeal the slower appellate process was utilized, we undertake to consider the substantive claims raised by appellants because they involve important recurring issues of law which may be capable of evading review. Appellants would have us interpret the eighth amendment of the federal constitution to create a right to bail. The eighth amendment provides in pertinent part: "Excessive bails shall not be required . " Appellants' argument raises two questions for consideration: 1) whether the fourteenth amendment due process clause incorporates the excessive bail provision of the eighth amendment; 2) whether the excessive bail provision includes the unqualified right to bail. As to the first question, the United States Supreme Court has not ruled on whether the eighth amendment bail provision applies to the státes through the fourteenth amendment. The most recent discussion on this subject by the Supreme Court occurred in Schilb v. Kuebel, 404 U. S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502, reh. denied, 405 U.S. 948, 92 S.Ct. 930, 30 L.Ed.2d 818 (1971). In Schilb the issue before the Supreme Court related to the constitutionality of Illinois' bail statutes which permitted a defendant in some instances to post 10% of the bail directly to the court, of which the state retained 10% of the posted security as administrative "bail bond costs." Justice Blackmun, in the course of defining the issue before the court, stated: "Bail, of course, is basic to our system of law . . . and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. . . . But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness." 404 U.S. at 365, 92 S.Ct. at 484, 30 L. Ed.2d at 511 (citations omitted). The question of incorporation by the fourteenth amendment would seem to await a more definitive answer in future adjudication. There remains a substantial controversy over the eighth amendment's inclusion of an unqualified right to bail. Much of the discussion on the issues appears prompted by the District of Columbia Court Reform and Criminal Procedure Act of 1970. The Act allows courts of the District to detain a defendant without bail for up to 60 days prior to trial if the court concludes that the defendant's release would constitute a danger to the community. D.C.Code Ann. § 23-1321 to 23-1332 (1973). Perhaps the most widely cited case for supporting a right to bail under the eighth amendment is Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Stack, however, is not convincing authority for supporting an unconditional eighth amendment right to bail. Although the opinion speaks to the right of release before trial, this discussion relates to federal statutes providing a right to bail following arrest for a noncapital offense. Once this stat utory right to bail is recognized, then the eighth amendment excessive bail provision assures a reasonable bail. In Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) the Supreme Court in a case involving the deportation of certain aliens classified as dangerous held that in such circumstances, the eighth amendment did not require the petitioners to be released on bail. "The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept." 342 U.S. at 545, 72 S.Ct. at 536, 96 L.Ed. at 563 (footnotes omitted). Carlson, however, is a special case involving the Internal Security Act of 1950, 8 U.S.C. § 137 (1970). It is, however, not necessary in this appeal to decide whether appellants were entitled to bail under the eighth amendment to the United States Constitution. Article I, § 11 of the Alaska Constitution provides: "In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record. The accused is entitled to be informed of the nature and cause of the accusation; to he released on hail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." (emphasis supplied) Article I, section 11 was originally introduced as section 12 of Committee Proposal No. 7, offered by the Committee on the Preamble and Bill of Rights to the Alaska Constitutional Convention in December, 1955. Section 12 of the committee proposal read in part: "The accused is also entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses . . . ." The commentary attached to the proposal indicated that section 12 was intended to give defendants "the opportunity to be released on bail except in capital offenses." When the committee's proposal was discussed on the floor of the convention, Delegate Victor Fischer introduced an amendment to qualify the right to bail in cases involving capital offenses by adding the words "when the proof is evident or the presumption great." The delegate's comments on this amendment clearly indicate the guarantee of a right to bail: "The language in the Federal Constitution reads generally to the effect that excessive bail shall not be required. A number of states have changed that language to provide more or less the language we have, that the accused may be released on bail except for capital offenses. But in practically every case where this new language is used, the words, 'when proof is evident and the presumption great' and that is a necessary protection for the accused and we shall follow the majority of the states in this case. It has proven a desirable practice. The actual determination of when a person is released on bail, if charged with a capital offense, is still up to the judge." Our study of Article I, section 11 thus compels a conclusion that the Alaska Constitution without doubt guarantees to every accused person the right to be released on bail except for capital offenses where the proof is evident or the presumption great. Some jurisdictions with similar bail provisions have created an implied limitation on this constitutional right. But in Alaska such an implied limitation would necessarily contravene both the plain language of this constitutional provision and its intended purpose as stated at the constitutional convention. In Reeves v. State, 411 P.2d 212 (Alaska 1966), we held that indigent defendants did not have an absolute right to be released on personal recognizance prior to trial. In Reeves, the defendant was charged in a four count indictment of serious offenses, including first degree murder, burglary and robbery. The trial court first set bail at $50,000, which was later reduced to $10,000. On appeal, the issue was limited to a claim that all indigent defendants were entitled to pretrial release as a matter of right. We rejected this contention as unsound and approved the rationale of Pilkinton v. Circuit Court, 324 F.2d 45 (8th Cir. 1963). Reeves, however, as was pointed out in Doe v. State, 487 P.2d 47 (Alaska 1971), should not be taken as denying the right to bail provided under Article I, section 11. Doe v. State was a delinquency proceeding involving a child. His attorney requested a continuance on a hearing. The court continued the case briefly but ordered the child detained during the interim. In considering the child's right to remain free pending an adjudication, this court discussed the right to bail as it is expressly provided in the Alaska Constitution: "Under the Alaska Constitution, all persons accused of a criminal offense are entitled to be released on bail except for capital offenses where the proof is evident or the presumption great." 487 P. 2d at 51 (footnote omitted). Apart from Article I, section 11, one additional provision of the Alaska Constitution has to do with bail. Article I, section 12 of the Alaska Constitution provides in part: "Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted." This section was originally section 9 of Committee Proposal No. 7 introduced by the Committee on the Preamble and Bill of Rights to the Alaska Constitutional Convention in December, 1955 It is not necessary to determine whether or not Article I, section 12 of the Alaska Constitution guarantees a right to bail and, indeed, such an interpretation would be superfluous in view of the right to bail provision found in Article I, section 11. It is enough to say that the excessive bail provision insures the fixing of a reasonable bail and is to be considered in conjunction with the right to bail provision of Article I, section 11. We note that California's constitutional provisions for bail are substantially identical with those of Alaska. The Supreme Court of California, applying that state's constitutional provisions, recently rejected the so-called "public safety" exception for bail: "Our constitutional language expressly providing that all persons shall be bailable except for a capital offense was consciously added to the 'no excessive bail' language adopted from the Eighth Amendment in order to make clear that, unlike the federal rule, all except the one class of defendants were to be bailable. As pertinent statutory provisions may not be read to impose greater limits on the right to bail as guaranteed by the California Constitution, there is no validity in the argument that there is an implied 'public safety' exception in statutory or other provisions guaranteeing the right to bail and we hold that such an exception does not exist in view of the clear direction of article I, section 6. 'If the constitutional guaranties are wrong, let the people change them — -not judges or legislators.' " In re Underwood, 9 Cal.3d 345, 508 P.2d 721 (1973). In addition to the constitutional guarantee of bail, a right to bail is found in the Alaska statutes. AS 12.30.010 provides that The defendant in a criminal proceeding is entitled to be admitted to bail before conviction as a matter of right. This section was part of the original Alaska Bail Reform Act and has remained unchanged. In 1966 AS 12.30.020(a) and (b), read as follows: "(a) A person charged with an offense shall, at his first appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer unless the officer determines that the release of the person will not reasonably assure the appearance of the person as required. (b) If a judicial officer determined under (a) of this section that the release of a person will not reasonably assure the appearance of the person, the judicial officer may (1) place the person in the custody of a designated person or organization agreeing to supervise him; (2) place restrictions on the travel, association, or place of abode of the person during the period of release; (3) require the person to return to custody after daylight hours on designated conditions; (4) require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security, a sum not to exceed 10 per cent of the amount of the bond; the deposit to be returned upon the performance of the condition of release; (5) require the execution of a bail bond with sufficient solvent sureties or the deposit of cash; or (6) impose any other condition considered reasonably necessary to assure the defendant's appearance as required." (emphasis added) Since both sections, AS 12.30.010 and AS 12.30.020, were part of the Alaska Bail Reform Act, section 12.30.020 must be taken to recognize and to implement the right to bail afforded by AS 12.30.010. Subsection (a) of AS 12.30.020 requires a defendant to be released on his personal recognizance or upon the execution of an unsecured appearance bond "unless the officer determines that the release of the person will not reasonably assure the appearance of the person as required." The "unless" clause relates only to denial of personal recognizance or an unsecured appearance bond and not to the right of bail. Subsection (b) provides that in the event the judicial officer should determine that a personal recognizance release or an unsecured appearance bond would not reasonably assure the appearance of a defendant, the judicial officer could impose other requirements to assure the presence of the defendant. Section (b) (6) authorizes a judicial officer to impose any other reasonable conditions to assure the defendant's appearance. But this may not be interpreted so as to empower a judicial officer to absolutely deny the right to bail. Such a construction would not only be inconsistent with the basic purpose of the Bail Reform Act but would be unconstitutional under Article I, section 11 of the Alaska Constitution. In 1967 the Alaska legislature amended AS 12.30.020 by Ch. 112, SLA 1967. The "unless" clause of subsection (a) was amended to read "unless the officer determines that the release of the person will not reasonably assure the appearance of the person as required, or will pose a danger to other persons and the community." Subsection (b) (6) was amended as follows : "If a judicial officer determines under (a) of this section that the release of a person will not reasonably assure the appearance of the person, or will pose a danger to other persons and the community, the judicial officer may (6) Impose any other condition considered reasonably necessary to assure the defendant's appearance as required and the safety of other persons and the community." The State urges that these amendments permit the detention of defendants without bail when the judicial officer determines that the defendant "will pose a danger to other persons and the community." To support this argument the State refers to the Judiciary Committee Report on House Bill No. 166 : "This bill provides that a judge in determining the amount of bail to be posted for release of an individual accused but not yet tried may consider the amount necessary to guarantee his appearance for trial and also the safety of other persons and the community. The concept of the safety of other persons and the community is a new matter. This reason may be used to set higher bail or even to refuse bail." 1967 Alaska H.R. Jour. 339. The committee's intent seemingly was to permit a judicial officer to consider "danger to the community" as a factor in setting bail. The legislature could not, of course, infringe upon the constitutional right of bail. Thus the amendment to subsection (a) of AS 12.30.020 operates to add another factor to be considered in determining whether an accused person is entitled to be released on personal recognizance or on an unsecured appearance bond. This amendment does not amount to a repeal of the right to bail found in AS 12.30.010. In like manner, the amendment to paragraph (b)(6) of AS 12.30.020 added another factor to consider in determining whether additional conditions should be imposed on a defendant. Neither provision may be read as empowering a judicial officer to deny bail. In reaching this construction, we consider it significant that the legislature did not undertake to amend AS 12.30.010 which we have noted remains as in the original Alaska Bail Reform Act and expressly provides for right to bail. Although the trial court may not deny bail to an accused, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. We hold therefore that the 1967 amendments, Ch. 112, SLA 1967, to the Bail Reform Act do not permit the detention of persons without bail. Moreover, a legislative enactment expressly permitting the detention of persons without right to bail would be unconstitutional unless a constitutional amendment were adopted. It follows that the trial court erred in refusing to grant the right to bail to appellant Richard Snyder afforded by Article I, section 11 of the Alaska Constitution and by the Alaska Bail Reform Act. It is true unfortunately that crimes including those involving assaults, robbery and the theft of property are all too commonplace. Public safety has become a matter of the most serious concern to all law-abiding citizens. But alternatives other than preventive detention of an accused must be examined in the efforts to achieve reasonable and adequate public safety. In the case of appellant Aloyisus Fabian, the trial judge offered to release the defendant to the custody of the Anchorage Native Program for Alcoholic and Drug Abuse. However, efforts to enroll Fabian in the program failed. He remained in jail because his counsel, for reasons unexplained, failed to reapply for bail. In this instance the trial judge afforded an opportunity for defendant to be released. Under these circumstances, the trial court did not deny Fabian his right to bail. The case of Max Ray Martin presents different considerations. Article I, section 11, as we have said, guarantees the accused in a criminal prosecution the right to bail. However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence. Although this court in Hoffman v. State, 404 P.2d 644 (Alaska 1965), required the appointment of counsel to indigent probationers in a revocation hearing, that decision rested on a statutory interpretation of AS 12.55.110 consistent with the equal protection clauses of both the Federal and Alaska Constitutions. Hoffman does not hold that probation revocation hearings are to be equated to a criminal prosecution. We do not interpret Article I, section 11 of the Alaska Constitution to extend the right of bail to probation revocation proceedings. While the Alaska Constitution and statutes insure to the accused in all criminal prosecutions a right to bail, Martin was not the accused in a criminal prosecution at the time he requested bail from the trial court. Nor do we find that appellant was entitled to bail under the Alaska Bail Act. His reliance on AS 12.30.010 is misplaced, because the right to bail under this statute is guaranteed prior to conviction. When a defendant reaches the status of a probationer, he can no longer claim the right to bail protected by AS 12.30.010. Nor can he claim bail under the probation statutes, since they fail to mention bail, and AS 12.30.040, which provides for release after trial is limited in application to convicted persons awaiting sentence or whose appeal is pending. While we hold that appellant Max Ray Martin was neither entitled to bail under the Alaska Constitution nor the Alaska Bail Act, we suggest bail should be withheld pending revocation proceedings only in unusual cases. Trial judges have wide latitude in imposing suitable conditions for prehearing release, other than the denial of bail. The denial of bail may constitute a needless disruption of the probation process negating the program's objectives of rehabilitation and eventual integration into society. Furthermore, the recent expansion in the area of probationer's rights by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) suggests the granting of bail. In Gagnon, the Court, inter alia, required as a matter of due process that a probationer be afforded a prompt preliminary hearing to determine whether probable cause exists to believe a violation of probation has occurred. Following this preliminary hearing, a final hearing must be allowed prior to an ultimate determination concerning the revocation of probation. The Gagnon due process requirements were adopted by this court in Trumbly v. State, Opinion No. 957, 515 P.2d 707 (1973). Both Trumbly and Gagnon evinced a concern for considering the rehabilitative treatment afforded by probation as a factor in determining whether probationary status should be revoked. As this court stated in Trumbly, "The requirement that probation revocation follow after a showing of 'good cause' requires the trial judge to find that continuation of probationary status would be at odds with the need to pro tect society and society's interest in the probationer's rehabilitation. Revocation should follow violation of a condition of probation when that violation indicates that the corrective aims of probation cannot be achieved." Trumbly v. State, Opinion No. 957, 515 P.2d 707 (1973) (footnotes omitted). In Martin's case, there has been no showing that there was abuse of the trial judge's discretion in refusing to allow Martin's release on bail pending a revocation hearing. We conclude that appellant Richard Snyder was entitled to bail. The appeals of Aloyisus Stephan Fabian and Max Ray Martin are dismissed. . The appellant was charged in a four-count federal indictment for conspiracy, robbery, and possession of firearms by a convicted felon, a one-count Alaska indictment for burglary not in a dwelling, and a nine-count Alaska indictment for burglary not in a dwelling. Both state indictments postdated the alleged date for commission of the forgery. . On September 14, 1972, Snyder filed a motion pro se with this court requesting release on his own recognizance. By order dated November 17, 1972, Justice Boocbever denied the motion on the basis that the intervening dismissal of charges rendered the question moot. . AS 12.30.010 et seq. . See App.R. 23, 24. The need for rapid re-review of bail orders is also reflected in the Alaska Bail Reform Act of 1966, AS 12.30.-030: "(a) A person who remains in custody after a review provided for in § 20(f) of this chapter may move the court having original jurisdiction over the offense to amend the order. The motion shall be determined promptly. (b) When a court denies a motion under (a) of this section or conditions of release have been imposed by the court having original jurisdiction over the offense, an appeal may be taken to the court having appellate jurisdiction over the court denying the motion or imposing the conditions subject to the rules of the Supreme Court of Alaska, and the District Court Rules of Criminal Procedure. The order of the lower court shall be affirmed unless it is found that the lower court abused its discretion. If it is held that the lower court did abuse its discretion, the appellate court may modify, vacate, set aside, reverse, remand the action for further proceeding, or remand the action directing entry of the appropriate order, which may include ordering the person to be released under § 20(a) of this chapter. The appeal shall be determined promptly." . See Doe v. State, 487 P.2d 47 (Alaska 1971). . U.S.Const. amend. VIII. . U.S.Const. amend. XIV, § 1. . Por literature on the application of the federal bill of rights to the states through the fourteenth amendment see Emerson, Haber & Dorsen, Political and Civil Rights In The United States 1379-80 (3d ed. 1967). See also Countryman, The Role of a Bill of Rights in a Modern State Constitution, Why a State Bill of Rights?, 45 Wash.L.Rev. 453, 454-474 (1970). . In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court held that a California statute, which made addiction to the use of narcotics a criminal offense, inflicted a cruel and unusual punishment in violation of the eighth and fourteenth amendments. The court has yet to rule whether the provision against excessive bail is similarly incorporated by the due process clause of the fourteenth amendment. . For a discussion of this controversy see Foote, The Coming Constitutional Crisis in Bail (pts. 1-2), 113 U.Pa.L.Rev. 959, 1125 (1965) ; Meyer, Constitutionality of Pretrial Detention, 60 Geo.L.J. 1140 (1972) ; Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va.L.Rev. 1223 (1969) ; Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va.L.Rev. 371 (1970). . In Stack, twelve petitioners were charged with violating the Smith Act, 18 U.S.C. § 371, 385 (1970). Bail was first set for each defendant in varying amounts ranging from $2,500 to $100,000. Subsequently, bail was uniformly fixed at $50,000. In an effort to reduce bail, petitioners presented uncon-troverted evidence concerning financial resources, family relationships, prior criminal records and other information. The government, on the other hand, presented evidence showing that four persons previously convicted under the Smith Act had forfeited bail. In vacating the lower court order denying petitioners' writs of habeas corpus, the Supreme Court held that the lower court had 'not followed proper criteria delineated in the Federal Rules of Criminal Procedure in fixing a reasonable bail. .It is clear from the opinion that this right to bail referred to the Federal Judiciary Act of 1789, 1 Stat. 73, 91 and Federal Rules of Criminal Procedure, Rule 46(a)(1), not the eighth amendment. . 6 Alaska Constitutional Convention, Minutes, Appendix V, at 65 (1963) (hereinafter cited as Minutes], . Minutes, supra, Appendix V, at 72. . 2 Minutes, supra, at 1344. . 2 Minutes, supra, at 1344-345. See American Law Institute, Code of Criminal Procedure 338-41 (1930) which indicates that 40 states had similar constitutional provisions providing for the right to bail except in capital offenses. See also Application of Corbo, 54 N.J.Super. 575, 149 A.2d 828, 833 (1959). . Sections 66-16-43 and 66-16-44, ACLA 1949, which provided for the death penalty were rexsealed by the territorial legislature in 1957. Ch. 132, SLA 1957. Repeal, of course, does not preclude the legislature from ever establishing capital offenses, but since there are no capital offenses in Alaska at this time, every criminal offense carries the right to bail. . "The early common law did not permit bail in felony cases; later on bail was permitted before trial, but not during trial. When bail was permitted, it was a matter of discretion with the court, not a matter of right. . Most states have limited the judicial discretion of the common law by guaranteeing, by constitutional or statutory provision, that all persons shall be bailable by sufficient sureties except in certain cases." 8 Am.Jur.2d Bail and Recognizance § 22, 23, at 796-797 (1963) (footnotes omitted). . See, e. g., State v. Johnson, 61 N.J. 351, 294 A.2d 245, 250 (1972). New Jersey has a similar constitutional bail provision to that of Alaska. There the court said in part: "Expressed in pragmatic terms this right to bail means that the accused has the right to pretrial liberty on such bond in such amount as in the judgment of the trial court under the circumstances of the ease will insure his appearance at the trial. If, however, the court is satisfied from the evidence presented on the application for bail that regardless of the amount of bail fixed, the accused if released will probably flee to avoid trial, bail may be denied." . Pillcintom provided that a state may require bail in some amount and that the eighth amendment excessive bail provision does not provide a right of pretrial release if the defendant is unable to post bail. . The commentary to the proposal indicated that section 9 was identical with the excessive bail provision of the eighth amendment to the United States Constitution. 6 Minutes, supra, Appendix Y, at 72. . In his dissent Justice Burke suggests that since the Constitution of California recognizes the inalienable right of all men "to enjoy and defend their life and liberty, and to protect their property, and to pursue and obtain safety and happiness", the courts should exercise an inherent power to achieve a suitable balance between society's rights and the defendant's right to bail. This suggestion rests wholly on the questionable assumption that man's inalienable rights are incompatible with the constitutional right of an accused to bail. An additional argument for the "public safety" exception advocated by the dissent is that courts may accomplish the same result when the judge fixes an amount of bail which the particular defendant is unable to furnish. According to Justice Burke, this merely evades the issue and does indirectly what may not be done directly, and moreover violates the prohibition against excessive bail. Such an argument furnishes little support for the central thesis in Justice Burke's contentions. To the extent it suggests that difficulty in application of a constitutional principle provides justification for its rejection, the argument itself evades the issue. .SLA 1966, Oh. 20, § 1. .Other factors to take under consideration are enumerated in AS 12.30.020(c). "In determining the conditions of release under (b) of this section the judicial officer shall take into account (1) the nature and circumstances of the offense charged, (2) the weight of the evidence against the person, (3) the person's family ties, (4) the person's employment, (5) the person's financial resources, (6) the person's character and mental condition, (7) the length of the person's residence in the community, (8) the person's record of convictions, (9) the person's record of appearance at court proceedings, (10) the flight of the accused to avoid prosecution or his failure to appear at court proceedings. . Note, Preventive Detention, 79 Harv.L. Rev. 1489, 1500 (1966). "In those states [which guarantee the right to bail in non-capital cases], denial of bail in a noncapital case for preventive purposes, no matter how great the dangers posed by release, would be permissible only by constitutional amendment." (footnote omitted) . Criminal Rule 45 requires a trial within four months from the "date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first." This rule is intended to make effective the right of the accused to a speedy trial as well as bringing about a prompt disposition permitting incarceration of a dangerous offender hopefully for rehabilitation. In recognition of this policy, trial courts should grant continuances of criminal trial sparingly and only when necessary. . Trumbly v. State, Opinion No. 957, 515 P. 2d 707 (1973). Gagnon v. Scarpelli, 411 U.S. 778, 414, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656, 651-662 (1973) (Probation revocation, like parole revocation, is not a stage of a criminal prosecution! but does result in a loss of liberty." (footnote omitted)). Cf., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972). . AS 12.55.110 governs revocation of probation proceedings. . Efforts to broadly interpret Hoffman as eliminating the technical classifications between administrative and criminal proceedings for purposes of the double jeopardy clause, were rejected by this court in Alex v. State, 484 P.2d 677 (Alaska 1971). We rejected this argument by noting that Hoffman only involved an equal protection analysis, not the expansion of any substantive rights as claimed by the defendant. . Cf. In re Law, 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621 (1973) (where the Cal-fornia Supreme Court denied a parolee's right to bail pending a hearing investigating alleged violations of parole). . AS 12.55.080 and AS 12.55.110. . We note that federal probationers are by court rule provided with an opportunity for release pending a hearing. Federal Rule of Criminal Procedure 32(f).

10478424

SUMNER DEVELOPMENT CORPORATION and Alaska Mutual Savings Bank, Petitioners, v. James SHIVERS, d/b/a S & S Construction Co., Respondent, and Security Title and Trust Company of Alaska et al., Additional Respondents

Sumner Development Corp. v. Shivers

1974-01-02

No. 2036

757

766

517 P.2d 757

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

SUMNER DEVELOPMENT CORPORATION and Alaska Mutual Savings Bank, Petitioners, v. James SHIVERS, d/b/a S & S Construction Co., Respondent, and Security Title and Trust Company of Alaska et al., Additional Respondents.

SUMNER DEVELOPMENT CORPORATION and Alaska Mutual Savings Bank, Petitioners, v. James SHIVERS, d/b/a S & S Construction Co., Respondent, and Security Title and Trust Company of Alaska et al., Additional Respondents. No. 2036. Supreme Court of Alaska. Jan. 2, 1974. Jerry E. Melcher, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for petitioner. James L. Johnston, Anchorage, for respondent Shivers. Before RABINOWITZ, C. J„ and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

5093

31570

OPINION BOOCHEVER, Justice. We granted this petition for review in order to consider important questions respecting the application of Alaska's contractor's licensing statutes to civil litigation among subcontractors, contractors and owners. In August of 1972, the respondent Shivers, doing business as S & S Construction, entered into a contract with petitioner Sumner Development Corporation for the performance by S & S of site work on Majestic View Subdivision. The subdivision was partially owned by Sumner which, as general contractor, was developing it. Neither at the time of entering into the contract nor during the performance of it was Shivers licensed by the State of Alaska or bonded according to its statutes. The chief executive of Sumner Development Corporation, Del Sumner, was aware of the lack of bonding of Shivers. Del Sumner, a third person and Shivers had formed the Northwind Corporation to provide a bond and license under which Shivers could work. Shivers was no longer affiliated with Northwind at the time of the transactions relevant to this case. Del Sumner represented to Shivers that the latter could work under the bond and registration of Northwind or Sumner Development Corporation on the site work contract. Shivers commenced work on the site, digging basements, hauling trees, installing sewer lines and septic tanks, and backfilling. A dispute arose regarding the performance of and payment for the work. On December 7, 1972, Shivers d/b/a S & S filed liens totaling $26,944.50 against various lots in the Majestic View Subdivision. On December 20, 1972, Shivers commenced this action to foreclose those liens. Alaska Mutual Savings Bank now owns the relevant property, having secured it by deed in lieu of foreclosure. Sumner Development Corporation and Alaska Mutual Savings Bank filed a joint amended answer in which they denied the operative allegations of the complaint. They asserted as affirmative defenses failure to state a claim upon which relief could be granted, accord and satisfaction, estoppel to enforce the lien, failure of consideration, and voidness of the largest of the lien claims; and finally, they counterclaimed against Shivers for breach in failing to do the work in a competent and workmanlike manner and for malicious prosecution/abuse of process. After engaging in discovery petitioners moved for summary judgment on the lien foreclosure claims against respondent upon several grounds, the only one of which material here is the admission of respondent that he was not a bonded and registered contractor. The motion for summary judgment was denied by Judge Victor Carlson on July 6, 1973. On July 16, 1973, Justice Fitzgerald ordered a stay of trial to facilitate this petition for review, filed by Sumner Development Corporation and the bank after the denial of the motion. RATIONALE FOR EXTRAORDINARY REVIEW We first shall discuss our reasons for our grant of extraordinary review. Under Appellate Rule 23(e) review of an interlocutory order may be granted where postponement will result in injustice "because of unnecessary delay, expense [and] hardship . . . . " Ordinarily the mere denial of summary judgment will not work an injustice upon a party sufficient to authorize review. Here, however, Shivers sought foreclosure of filed mechanic's liens. If the petitioners were entitled to summary judgment, they also were entitled to have their land freed from the cloud upon title. The interest in releasing a large block of property held and developed solely for the purpose of sale substantially outweighs the ordinary interest in mere avoidance of the expense of an adversary trial. We further note that, regardless of other claims raised by the parties, release of property subject to liens frequently results in material advancement of the whole of the litigation. Ample ground exists under Appellate Rule 24(a) for grant of review to these petitioners. First, wherever Appellate Rule 23(e) authorizes review, the same factors will ordinarily move our discretion under Appellate Rule 24(a)(2). Further, the petition presents issues "of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court . . . ." Shivers has argued that we ought not to grant review because the assertion of his rights as counterclaims (assuming they are barred from affirmative presentation) against Sumner Development Corporation and the bank in their action for breach of contract will result in a trial of the identical issues as if the action proceeded with Shivers' lien claims affirmatively asserted and the petitioners' countering. Thus the course of litigation would not be advanced. We shall discuss the question of presentation of barred claims as- setoffs extensively later; here let it suffice that respondent's argument does not rebut the injustice of perpetuating invalid lien claims, nor does it completely respond to the argument that the course of this litigation would be materially advanced by entry of summary judgment. We therefore granted review. Turning to the merits, we must decide whether AS 08.18.151 bars this action by an unlicensed subcontractor to foreclose a mechanic's lien against a contractor-owner and a subsequent owner, whether the issue was properly raised, and, if so, whether any reason not to apply the statute to these parties exists. APPLICATION OF THE STATUTE AS 08.18.151 bars actions for compensation for work done by unlicensed contractors: No person acting in the capacity of a contractor may bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that he was a registered contractor at the time he contracted for the performance of the work. That the contract between the parties denominated Shivers a subcontractor is immaterial. The licensing statute defines "contractor" by the nature of the work performed. If the work falls within a single craft classification, done under the supervision of a general contractor, the person doing the work is nevertheless a "contractor" for the, purposes of the statute, although he may be referred to as a "spe-ciality contractor". Shivers' work falls within that specified by the legislature; thus, the licensing act applies to this action. Other jurisdictions hold that similar statutes comprise actions by subcontractors. Actions to foreclose mechanic's liens are of the genre prohibited. The Arizona Court of Appeals, acting upon a statute indistinguishable in operative language from Alaska's, said: "An action to foreclose a lien is an action seeking 'collection of compensation for the performance' of work for which a license is required." Statutes barring actions by unlicensed, unbonded contractors and judicial constructions thereof disallowing quantum meruit, mechanic's lien and equitable actions protect the public from incompetent and irresponsible contractors. Other jurisdictions rule similarly to Arizona upon the same grounds. No contrary authority has been cited or found. PROCEDURAL POSTURE Respondent argued below, although he does not contend here, that a motion for summary judgment is not a proper time to raise the defense of the statute and that the statute was waived by failure specifically to plead it in the answer. Assuming the arguments are before us, we reject them. ESTOPPEL TO ASSERT THE STATUTE The trial court denied the motion for summary judgment upon the theory that the conduct of Sumner Development Corporation (which respondent argued should be imputed to the bank also) es-topped the petitioners from raising the bar of AS 08.18.151. As a general rule, a party is not estopped from asserting the illegality of a contract because of his participation in or encouragement of the illegality. The general rule applies where the fault is the failure of a party to have a required contractor's license. An assertion by one party that a contract may be legalized through some questionable tactic, like Sumner's promise that Shivers could shelter under Northwind's bond, has raised little sympathy in reported decisions. Even where the owner's foreknowledge of the contractor's lack of license was combined with a specific promise not to rely on the statute and a representation that the owner had a license which he would consider to inure to the benefit of the contractor under joint venture or partnership theory, the Supreme Court of Nevada held a cause of action on the contract to he barred by the assertion of the licensing statute. Statutes which cause forfeitures are not favored. Where a bar to legal action is not mandated we approach the case from our own view of intelligent policy and with the thought of doing justice between the parties. Here, however, the legislature chose the closing of the doors of the courts as a fundamental tool to enforce its policy of ensuring competence and financial responsibility in those who undertake work as contractors. We are bound to enforce the legislative policies as we find them expressed in AS 08.18.011 et seq. Anyone engaged in building trades must be charged with awareness of the pervasive system of licenses and permits designed to enhance the public safety and confidence in the industry. Engrafting equitable exceptions onto the enforcement policy at best aids the ignorant and gullible, whom the legislature sought to regulate, and at worst creates fertile fields for the growth of sharp practice. We believe that the legislature favored the view of the California Supreme Court that: Knowing that they will receive no help from the courts and must trust completely to each other's good faith, the parties are less likely to enter an illegal arrangement in the first place. Taking the facts, as we must, in the light most favorable to the plaintiff, we find that Sumner Development Corporation's knowledge of Shivers' lack of bond and registration, its suggestion that Shivers could shelter under the bond and registration of Northwind, and the participation of its principle officer in a company previously designed for the purpose of providing a bond and registration for Shivers do not create an estoppel against Sumner to assert the defense of AS 08.18.151. We further reject the notion that Shivers can claim compliance with the licensing statutes by "sheltering" under the license and bond of another company. Such a theory disregards basic principles of suretyship and undermines the licensing statutes. Especially where the formation of a legitimate joint venture, one member of which is licensed, satisfies the statute, "sheltering" is unreasonable. Shivers has not argued that a joint venture or partnership of a nature that satisfies the statute existed. We decline to consider the issue of whether respondent complied substantially with the licensing statutes. Respo-nent failed to argue the point below and raised it here based upon unverifiable assertions in his brief. Even if those assertions were considered to be true, they do not measure up to the most liberal of substantial compliance holdings. Since AS 08.18.151 applies to the instant action, and no reason to ameliorate its impact appears, it follows that the court below should have entered summary judgment in favor of petitioners Sumner Development Corporation and the bank. Before concluding however, we dispose of one issue raised by the parties which will undoubtedly arise upon remand. BARRED CLAIM AS A SETOFF Shivers argued that we ought not to grant review because the assertion of his claims as a setoff against petitioners would result in trial of issues identical to those raised by the lien claims. Although we did not find this argument dispositive of the propriety of granting review, its being raised resulted in the briefing of an issue of vital importance and substantial controversy: whether a claim barred by the licensing statute may be raised as a setoff against the owner's action for breach of contract. Petitioners relied upon Hedía v. McCool, a recent decision of the United States Court of Appeals for the Ninth Circuit based upon Alaska law, for the proposition that setoff is interdicted. Hedía, if correct, is dispositive. In Hedía a firm of architects prepared defective plans for a commercial building. The owners sued for breach of contract, and the architects attempted to set off the value of their services rendered, despite the fact that the claim was barred from affirmative presentation because of the failure to comply with the applicable Alaska licensing statute. The Court held that no facts were adduced at trial to quantify an amount of setoff and then added the alternative holding that setoff was impermissible. After reviewing California authorities supporting counterclaim, the court concluded that Alaska would find that its licensing statute prohibits setoff because violation here is punishable as a crime and therefore is malum in se compared to malum prohibitum under California's statute. We respectfully disagree with the conclusion drawn from the authority cited. The California rule is summarized in a 1960 case: It is well settled that the failure to obtain a required contractor's license will bar the contractor from recovery for his work in an action brought by him, but will not bar him from offsetting as a defense sums which would otherwise be due him under the illegal contract. "It is to be noted that the statute merely prohibits a contractor from maintaining or bringing an action upon a contract. . It does not prohibit him when sued from setting up as a defense any sums which may be equitably due him from the plaintiff upon such illegal contract. Such a contract is not malum, in se but merely malum prohibitum." Marshall v. Von Zumwalt, 1953, 120 Cal. App.2d 807, 262 P.2d 363, 364. The contractor's license statute cannot be used as a shield to avoid a just obligation. Later California cases confirm the above rule. These later cases the Court contrasted with Alaska law upon the basis that the Alaska statutes provided a criminal penalty. However, Cal.Bus. and Prof. Code § 7028 provides: "It is a misdemean- or for any person to engage in the business or act in the capacity of a contractor within this state without having a license therefor. . . ." That statute has been in effect without substantial change since 1929 Since 1850, a California misdemeanor has been punishable by a fine of up to $500 and a jail term up to six months. The contrasting Alaska statute under which Hedla was decided, former AS 08.48.400(b), provided: Any person who violates any provision of this section is guilty of a misdemean- or and upon conviction is punishable by a fine of not less than $25 nor more than $500, or by imprisonment not to exceed six months. The statute applicable to contractors in the instant case, AS 08.18.141, simply denominates violation a misdemeanor. Further, the California setoff cases were decided in the face of a statute prohibiting suit without pleading and proof of licensing which is almost identical to AS 08.18.151. But in Hedla, the court was required to infer the result of illegality of contract since no similar pleading and proof requirement existed under the former Alaskan licensing statute there being construed. Finally, Corbin on Contracts, the authority cited in footnote 2 of Hedía, states in the cited section that the distinctions of malum in se and malum prohibitum are no longer good law. In determining whether restitution or some other judicial remedy will be granted despite the illegality, one must balance: the degree of criminality or evil, the comparative innocence or guilt of the parties, the extent of public harm involved, the moral quality of the conduct of the parties, and the severity of the penalty of forfeiture that will result from a refusal of relief. We find the California cases permitting setoff more persuasive than Hedla. Statutes requiring pleading and proof of a license give the owner a windfall when the contract has been fully or partially executed. It would be unseemly for the courts not only to countenance this windfall, but also to allow the owner to increase his bounty at the expense of the helpless contractor in a suit for breach of a construction contract. Allowing setoff achieves an equitable result of compensating the owner only if the damages caused are greater than the benefit received. There may, however, be cases where the contractor acted in a knowing and willful pattern to evade the licensing statute or to defraud the owner. We modify the California rule so as to disallow setoff where: "the degree of criminality or evil, the comparative innocence or guilt of the parties, the extent of public harm involved, the moral quality of the conduct of the parties, and the severity of the penalty of forfeiture that will result from refusal" of setoff clearly call for a disallowance, Since Sumner Development Corporation admitted that it knew of Shivers' lack of license and, in fact, encouraged Shivers to work under its bond or the bond of a company affiliated with Sumner Development Corporation we cannot say that the comparative conduct of the parties clearly calls for a disallowance of setoff. We conclude that Shivers correctly argued that an order by this court directing the trial court to enter summary judgment dismissing his lien foreclosure action will not prohibit the assertion of his claim against Sumner Development Corporation as a setoff against Sumner Development Corporation's claim respecting the Majestic View contract. Finding, as we have, that AS 08.18.151 bars Shivers' lien claims, we remand this case for proceedings consistent with this opinion. Specifically, we direct the superi- or court to enter summary judgment in favor of Sumner Development Corporation and the bank against Shivers; such judgment shall be in a form that does not prejudice the assertion by Shivers of the claims as a setoff against the petitioners in this action or the assertion by Shivers of a possible claim in deceit. Petition for review granted. Order reversed and case remanded with instructions. . AS 08.18.011 et seq. AS 08.18.011 requires registration with the Department of Commerce, AS 08.18.071 requires filing of a bond or cash deposit with the commissioner, AS 08.18.101 requires public liability insurance as a condition of licensing, and AS 08.18.151 bars suits by unlicensed contractors. . Appellate Rule 23(e) provides: An aggrieved party, including the State of Alaska, may petition this court as set forth in Rule 24 to be permitted to review any order or decision of the superior court, not otherwise appealable under Rule 5, in any action or proceeding, civil or criminal, as follows: (e) Where postponement of review until normal appeal may be taken from a final judgment or where it will result in injustice because of impairment of a legal right, or because of unnecessary delay, expense, hardship or other related factors. . See AS 34.35.050. . Appellate Rule 23(d) provides: An aggrieved party, including the State of Alaska, may petition this court as set forth in Rule 24 to be permitted to review any order or decision of the superior court, not otherwise appealable under Rule 5, in any action or proceeding, civil or criminal, as follows: (d) Where such an order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion, and where an immediate and present review of such order or decision may materially advance the ultimate termination of the litigation. . Appellate Rule 24(a) provides: A review is not a matter of right, but will be granted only: (1) where the order or decision sought to be reviewed is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court; or (2) where the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweigh ted by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision; or (3) where the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative tribunal, as to call for this court's power of supervision and review. . Appellate Rule 24(a)(1). . AS 08.18.171(2) defines "contractor": "contractor" means a person who, in the pursuit of an independent business, undertakes or offers to perform, or claims to have the capacity to perform, or submits a bid for a project to construct, alter, repair, move or demolish a building, highway, road, railroad, or any type of fixed structure, including excavation and site development and erection of scaffolding; a "general contractor" is a contractor whose business operations require the use of more than two distinct trades whose work the general contractor superintends; the terms "general contractor" and "builder" are synonymous; a "speciality contractor" is a contractor whose operations do not fall within the definition of "general contractor." . Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713, 721 (1957). See Annot., Failure of Artisan or Construction Contractor to Procure Occupational License or Permit as Affecting Validity or Enforceability of Contract, 82 A.L.R.2d 1429. But cf. Dow v. United States, 154 F.2d 707 (10th Cir. 1946). . Chickering v. George R. Ogonowski Construction Co., 18 Ariz.App. 324, 501 P.2d 952 (1972), A.R.S. § 32-1153. . Chickering v. George R. Ogonowski Construction Co., 18 Ariz.App. 324, 501 P.2d at 955. This argument is particularly strong in Alaska since the legislature repealed former AS 08.18.290 (§ 1 ch. 164 SLA 1966) which provided: "Nothing in this chapter (construction contractors) shall be construed to affect an applicable lien law . . . ." . Chickering v. George R. Ogonowski Construction Co., 18 Ariz.App. 324, 501 P.2d at 954. See Gates v. Rivers Construction Co., 515 P.2d 1020, 1022 (Alaska 1973). The absolute statutory language leaves no option for us to consider the equitable principles discussed in Gates. . Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713, 721 (1957) ; General Insurance Co. of America v. Superior Court of San Bernardino County, 26 Cal.App. 3d 176, 102 Cal.Rptr. 541 (1972) ; Albaugh v. Moss Construction Co., 125 Cal.App.2d 126, 269 P.2d 936, 940 (1954) ; Stewart v. Hammond, 471 P.2d 90, 92 (Wash.1970); Harry Berenter, Inc. v. Berman, 258 Md. 290, 265 A.2d 759 (1970) ; Martinez v. Research Park, Ine., 75 N.M. 672, 410 P.2d 200 (1965) (statutorily compelled). . Statutes which require a party to plead and prove the existence of an occupational license make the existence of the license a necessary element of a cause of action. Chickering v. George R. Ogonowski Construction Co., 18 Ariz.App. 324, 501 P.2d 952, 954 (1972) ; General Insurance Co. of America v. Superior Court of San Bernardino County, 26 Cal.App.3d 176, 102 Cal.Rptr. 541, 542-547 (1972) ; Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200, 205 (1965). Thus the general defense of failure to state a claim upon which relief could be granted sufficiently raised the issue. Failure to state a claim may be raised on motion for summary judgment at any rate. Civ.R. 12(h) ; Horwitz v. Food Town, Inc., 241 F.Supp. 1 (E.D.La.1965), aff'd 367 F.2d 584 (5th Cir. 1966) ; 5 Wright and Miller, Federal Practice and Procedure [§ 1392] 861, 862. . Inter-Continental Promotions, Inc. v. Miami Beach First National Bank, 441 F.2d 1356, 1360-1361 (5th Cir. 1971) (defendant not barred from asserting illegality of boxing promotion contract despite defendant's ability to perform in a legal manner and obligation on face of contract to do so where parties contemplated illegal transaction ab initio) ; Le John Mfg. Co. v. Webb, 95 U.S.App.D.C. 358, 222 F.2d 48, 52 (1955) (accepting and performing at profit contracts obtained by agent acting on contingent fee basis does not estop contractor from asserting illegality of contingent fee against agent's suit to collect): Moving Picture Machine Operators Local 236 v. Cayson, 281 Ala. 468, 205 So.2d 222, 232 (1967) (party who acquiesced in and took advantage of seniority provision in collective bargaining agreement not estopped to assert illegality thereof under right-to-work law) ; Clark v. Tinnin, 81 Ariz. 259, 304 P.2d 947, 950 (1956) (undisclosed principal secured on illegal liquor license); City Lincoln-Mercury Co. v. Lindsey, 52 Cal.2d 267, 339 P.2d 851, 856 (1959) (abuse of car does not estop buyer from asserting illegality of sale contract); Prime v. Hyne, 260 Cal.App.2d 397, 67 Cal. Rptr. 170, 174 (1968) (heirs to estate not estopped to assert illegality under rule against perpetuities of contract for sale of expectancy from estate made before death of testatrix where purchaser had gone into possession under lease and incurred great expense improving property) ; Milton Frank Allen Publications, Inc. v. Georgia Ass'n of Petroleum Retailers, 224 Ga. 518, 162 S.E.2d 724, 730 (1968) (advertising, publications and membership contract of over 20 years does not create estoppel) ; Whitney v. Continental Life and Accident Co., 89 Idaho 96, 403 P.2d 573, 579 (1965) (illegal insurance contract asserted by carrier) ; Kaiser v. Thomson, 55 N.M. 270, 232 P.2d 142, 144 (1951) (see infra n. 15) ; P. I. P. Agency, Inc. v. I. T. T. Life Insurance Co. of New York, 70 Misc.2d 740, 334 N.Y.S.2d 758, 760 (Spec. Term 1972) (promise to pay illegal bonus to agents for generating new business) ; Somerset v. Reyner, 233 S.C. 324, 104 S.E.2d 344, 347 (1958) (excessive covenant not to compete not supported by estoppel) ; Farha v. Elam, 385 S.W.2d 692, 695 (Ct.Civ.App.Tex.1964) (no accounting for profits of unlicensed architectural partnership) ; Cooper v. Baer, 59 Wash.2d 763, 370 P.2d 871, 872 (1962) (one who procured another to arrange illegal poker game not estopped to assert illegality despite knowing misrepresentation that game was licensed by local government). . Kaiser v. Thomson, 55 N.M. 270, 232 P.2d 142, 143-144 (1951) ; Murphy v. Campbell Investment Co., 79 Wash.2d 417, 486 P.2d 1080, 1088 (1971). . Cooper v. Baer. 59 Wash.2d 763, 370 P.2d 871, 872 (1962). . Magill v. Lewis, 74 Nev. 381, 333 P.2d 717, 718-719 (1958). The court in Magill did uphold an action based upon the same facts under a theory that the owner's inducement of the contractor to enter the illegal contract while planning to assert the statute to avoid payment constituted the tort of deceit. Deceit actions are beyond the purview of licensing statutes. We approve of the holding in Magill, but in the instant case neither the complaint nor the materials before the court upon motion for summary judgment discloses facts sufficient to constitute an action for deceit. Summary judgment entered in this case should not bar an action by Shivers if he can plead and prove deceit. See also Pickens v. American Mortgage Exchange, 269 Cal.App.2d 299, 74 Cal.Rptr. 788 (1969); Grant v. Weatherholt, 123 Cal.App.2d 34, 266 P.2d 185, 191 (1954). . Gates v. Rivers Construction Co., 515 P.2d 1020, 1022 (Alaska 1973). . Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713, 719 (1957). . 17 Am.Jur.2d [Contractor's Bonds § 6] 195; 50 Am.Jur. [Suretyship § 29] 921. Gf. 17 Am.Jur.2d [Contractor's Bonds § 8] 196, 197; AS 08.18.071(a). . Cooper v. Johnston, 283 Ala. 565, 219 So. 2d 392, 395-396 (1969). See Power City Communications, Inc. v. Calaveras Tel. Co., 280 F.Supp. 808, 814 (E.D.Cal.1968). . Murphy v. Campbell Investment Co., 79 Wash.2d 417, 486 P.2d 1080 (1971). See Desert Springs Mobile Home Ranches Inc. v. John H. Wood Construction Co., 15 Ariz. App. 193, 487 P.2d 414 (1971); Latipac, Inc. v. Superior Court of Marin County, 64 Cal.2d 278, 49 Cal.Rptr. 676, 411 P.2d 564 (1966); Famous Builders, Inc. v. Bolin, 264 Cal.App.2d 37, 70 Cal.Rptr. 17 (1968). The most recent of the California cases, General Insurance Co. of America v. Superior Court of San Bernardino County, 26 Cal.App.3d 176, 102 Cal.Rptr. 541, 544-546 (1972) contains an excellent summary of substantial compliance doctrine and the underlying rationale. . 476 F.2d 1223 (9th Cir. 1973). . Former AS 08.48.150 (enacted § 2, ch. Ill SLA 1949, repealed § 1 ch. 179 SLA 1972). Hedla v. McCool, 476 F.2d at 1227. . Id. at 1228. The trial judge in Hedía found that the accountants had paid the architects approximately $2,000; taking this and other factors into account he found that the equities between the parties were sufficiently balanced that, on the facts, no setoff was justified. The criteria applied were " 'the degree of criminality or evil, the comparative innocence or guilt of the parties, the extent of public harm involved, the moral quality of the conduct of the parties, and the severity of the penalty or forfeiture that will result from refusal of relief.' 6A COR-BIN ON CONTRACTS § 1534 at 818 . . . . " Hedla v. McCool, 476 F.2d at 1228 n. 2. The embracing of a balancing of the equities as a third alternative holding further weakens the conclusion that Alaska policy interdicts setoff. The knowledge of and active participation in the illegality by Sumner Development Corporation distinguish the instant case from Media regarding the justification for setoff between the relevant parties. . S & Q Construction Co. v. Palma Ceia Development Organization, 179 Cal.App.2d 364, 3 Cal.Rptr. 690, 692 (1960) [citation omitted]. . Dahl-Beck Electrical Co. v. Rogge, 275 Cal.App.2d 893, 80 Cal.Rptr. 440, 445 (1969) ; Culbertson v. Cizek, 225 Cal.App.2d 451, 37 Cal.Rptr. 548, 560 (1964); Steinwinter v. Maxwell, 183 Cal.App.2d 34, 6 Cal.Rptr. 496, 499 (1960). . Hedla v. McCool, 476 F.2d at 1228. . [1929] Cal.Stat. ch. 791 § 1 1st sent. p. 1595; [1931] Cal.Stat. ch. 578 § 1261; [1933] CahStat., ch. 573 § 1 p. 1483; [1937] Cal-Stat. ch. 499 § 11 p. 1488; [1939] Cal. Stat. eh. 37 § 1 p. 384; [1955] Cal.Stat. ch. 1062 § 1 p. 2030; [1963] Cal.Stat. ch. 1883 § 2; [1969] Cal.Stat. ch. 1583 § 4. . Cal.Pen.Code § 19, [1850] Cal.Stat. ch. 99 § 143 p. 247. . Cal.Bus. & Prof.Code § 7031 provides : No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract. . . 6A Corbin on Contracts [§ 1534] 818; accord 15 Williston on Contracts [§ 1764] 236 (3rd ed. Jaeger). . Id. . Thus, based upon the relative conduct and positions of the parties, we might well have reached a result identical to the Ninth Circuit's in Hedla, although the rationale would be different. See supra, note 25.

10483595

Max Ray MARTIN, Appellant, v. STATE of Alaska, Appellee

Martin v. State

1974-01-18

No. 1820

1399

1403

517 P.2d 1399

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

Before CONNOR, ERWIN, and BOOCHEVER, JJ.

Max Ray MARTIN, Appellant, v. STATE of Alaska, Appellee.

Max Ray MARTIN, Appellant, v. STATE of Alaska, Appellee. No. 1820. Supreme Court of Alaska. Jan. 18, 1974. Herbert D. Soil, Public Defender, Brian Shortell, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

1682

10430

ERWIN, Justice. OPINION Before CONNOR, ERWIN, and BOOCHEVER, JJ. This case involves revocation of appellant's probation. On December 4, 1970, appellant Max Martin pleaded guilty to the charge of larceny in a building. He was found guilty based upon his plea and was sentenced to five years' imprisonment. Four years of this sentence were suspended, and he was placed on probation for four years. The order of probation imposed seven conditions upon Martin, among which the following are here relevant : 1. The defendant shall violate no laws or ordinances of Federal, State or local governments; 3. The defendant shall maintain residence approved by the Probation Officer; 5. The defendant shall not use alcoholic beverages or drugs except as otherwise prescribed by a physician; 6. The defendant shall not associate with known alcoholics or felons, except as may be required by the probation authorities ; On August 3, 1972, a petition was filed requesting that appellant's probation be revoked. The petition contained allegations that Martin had attempted to "pass" a forged check, used alcohol without permission, and associated with convicted felon Terry Park, in violation of conditions 1, 5, and 6 of the order of probation. Appellant was arrested that day on a bench warrant and, with counsel from the Public Defender Agency, appeared in superior court where the charges were recited and explained to him. He again appeared in court on August 7 and requested two weeks to prepare his defense. His request was granted and hearing was set for August 21. On August 17 his counsel moved for a continuance and hearing was re-set for August 22. On that date appellant's counsel indicated he was ready to proceed, and a hearing was then held to determine whether appellant had violated his probation. Testimony by the state's witnesses established that appellant had attempted to cash a check at an Anchorage bank while identifying himself as one Terry Park, whose purported signature appeared on the check. The check was drawn against Park's Be-thel, Alaska account. It was further related that appellant had presented bank personnel with a driver's license issued to Terry Park as proof of his identity, and had attempted to justify the overdrawn condition of the account (still maintaining he was Terry Park) by stating he had recently mailed in a deposit to cover all outstanding checks. The state also introduced a statement appellant had given police in which he admitted signing Park's name to the check, related his continuous association with Park during a drinking spree lasting several days, and claimed that Park had authorized him to write and cash checks on Park's account. Based upon this evidence, the superior court found appellant in violation of the conditions of his probation. On September 28, 1972, after a further hearing before the superior court judge who had originally allowed probation, appellant's probation was revoked and the previously suspended sentence of imprisonment was ordered into effect. Appellant initially challenges the revocation by alleging that the evidence was insufficient to support a finding that he had violated the law. He argues that the state did not establish his intent to defraud, a necessary element of the statutory crime of uttering a forged instrument, since it failed to produce any evidence that he lacked authority to sign and cash the check in Park's name. In Snyder v. State, this court adopted the standard of review set forth in United States v. Feller where revocation of probation is based upon the violation of conditions amounting, in- themselves, to a crime. What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the Court has not been abused; and that the facts revealed at the hearing satisfy the Court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. At the hearing the bank's cashier testified that appellant had identified himself as Park, produced a driver's license bearing that name, and maintained that identity even after being informed that the check would not be honored. A police investigator who was called to the bank testified that appellant continued to masquerade as Park until it became evident that this position was no long tenable, whereupon appellant for the first time claimed that Park had authorized him to sign and cash the check. Furthermore, although appellant testified on other matters at the hearing, he did not attempt to explain why he had waited so long to admit his true identity and assert his claim of authorization. While there was no direct evidence on the point, we feel that this testimony properly supported an inference by the hearing judge that appellant lacked authority to sign and cash the check. Under the standard of Snyder we find no abuse of discretion here. Next, appellant claims that the court erred by finding him in violation of condition 3 of the probation order, requiring him to maintain an approved residence, because he received no notice of this charge prior to the hearing. We note that no objection was made to this finding at either hearing below. Failure to object to an error during the proceedings will preclude its consideration on appeal unless the defect may be said to constitute plain error. This occurs when the irregularity affects substantial rights and is "obviously prejudicial". Failure to notify a probationer, prior to the revocation hearing, of an allegation that he has violated a condition of probation is a denial of procedural due process. Denial of a constitutional right affects substantial rights. Therefore, plain error will result unless the defect is harmless beyond a reasonable doubt. Here, it does not appear that the revoking court considered the violation of condition 3 at all in reaching its decision. From the court's lengthy discussion of appellant's prospects for rehabilitation, it is evident that the revoking judge concerned himself solely with appellant's violations of conditions 1 and 5. Complete inattention to the allegation that appellant had not maintained an approved residence, despite extended consideration of the significance of his failure to refrain from drinking and engaging in criminal activity, persuades us beyond a reasonable doubt that the alleged violation of condition 3 played no part in the superior court's decision to revoke probation. There is no plain error. Appellant also alleges that imposition of the condition requiring him, an avowed alcoholic, to abstain from alcohol was unreasonable and contrary to the intent of article I, section 12 of the Alaska Constitution. Consequently, he ' argues, the condition was void, and it was error to base revocation of his probation upon violation of such a condition. We find this contention devoid of merit. Appellant's drinking problems were discussed at some length prior to his original sentencing and again at the revocation hearing. The condition was initially imposed because appellant himself blamed his criminal behavior upon excessive drinking, stating "I've either got to quit to [sic] drinking or spend the rest of my life in jail because every time I get drunk I end up in jail." Under these circumstances it was certainly reasonable for the sentencing court to conclude that appellant's rehabilitation was dependent upon his abstention from alcohol and so make abstention a condition of probation. Subsequently, at the revocation hearing, it was well within the court's discretion to decide that appellant's failure to abide by this condition interfered with his rehabilitation, making it unlikely that further probation would benefit him. Finally, appellant contends that reinstating the full four years of his original sentence of imprisonment is excessive punishment. We cannot agree. The sentence of imprisonment stems from appellant's larceny offense, and it lay within the sound discretion of the superior court to reinstate that sentence upon revocation of probation. Under the circumstances of this case we find no abuse of discretion. Affirmed. RABINOWITZ, C. J., and FITZGERALD, J., did not participate. . This explanation also indicated that appellant knew the account was overdrawn in Bethel, and that he attempted to cash the check in the hope that similar checks had not yet reached the Bethel bank. . AS 11.25.020 states in part: A person who, with intent to injure or defraud another . . . knowingly utters, passes, or tenders in payment as true and genuine, a . forged . check, or other evidence of debt is punishable by imprisonment in the penitentiary for not less than one year nor more than 20 years. . 496 P.2d 62, 63 (Alaska 1972). . 17 Alaska 417, 156 F.Supp. 107 (1957). . Id. at 424, 156 F.Supp. at 110. . The state attempted to introduce an affidavit of forgery executed by . Park, and his oral statement to his probation officer that he had not given Martin authority to sign or cash the check. Both were excluded as hearsay. . Apparently the superior court inadvertently made reference to condition 3 (maintenance of an approved residence) rather than condition 6 (association with known felons) in announcing its findings. Condition 3 was not cited in the petition for revocation; nor was it relied upon by the state during the hearings. . Alaska R.Crim.P. 47(b). . E. g., Burford v. State, 515 P.2d 382, 383 (Alaska 1973). . Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1771, 36 L.Ed.2d 656, 662 (1973); Morrissey v. Brewer, 408 U.S. 471, 488-489, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484, 498-499 (1972). See Hoffman v. State, 404 P.2d 644, 645 (Alaska 1965). . Burford v. State, 515 P.2d 382, 383 (Alaska 1973). See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1967); Bargas v. State, 489 P.2d 130, 133 (Alaska 1971). . Alaska Const, art. I, § 12 states in part: Penal administration shall be based on the principle of reformation and upon the need for protecting the public. . Snyder v. State, 496 P.2d 62, 63 (Alaska 1972).

10483513

G & A CONTRACTORS, INC., and Alaskan Construction & Investment, Inc., Appellants, v. ALASKA GREENHOUSES, INC., Appellee

G & A Contractors, Inc. v. Alaska Greenhouses, Inc.

1974-01-16

No. 1763

1379

1388

517 P.2d 1379

517

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:39:57.873958+00:00

CAP

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

G & A CONTRACTORS, INC., and Alaskan Construction & Investment, Inc., Appellants, v. ALASKA GREENHOUSES, INC., Appellee.

G & A CONTRACTORS, INC., and Alaskan Construction & Investment, Inc., Appellants, v. ALASKA GREENHOUSES, INC., Appellee. No. 1763. Supreme Court of Alaska. Jan. 16, 1974. Albert Maffei, Anchorage, for appellants. Kenneth P. Jacobus of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee. Before RABINOWITZ, C. J., and CON-NOR and BOOCHEVER, JJ.

4257

26411

OPINION CONNOR, Justice. G & A Contractors, Inc. ["G & A"] and Alaskan Construction and Investment, Inc. ["ACI"] appeal from the June 8, 1972, judgment of the superior court, enjoining them from future siltation of Chester Creek and holding them jointly and severally liable in damages of $15,661.25 and prejudgment interest of $1,318.27. We have already affirmed the equitable portion of the lower court's judgment. This opinion articulates in greater detail the reasons for that decision and in addition discusses the non-equitable questions presented in the appeal. Plaintiff-appellee Alaska Greenhouses, Inc. ["Greenhouse"] is the family business of Mann Leiser, former horticulturist for the City of Anchorage. It engages in year-around retail greenhouse and horticultural activities. In 1969 it entered into a long-term lease, with option to purchase, of a 30-acre parcel of land located on the east side of Muldoon Road just south of De-barr Road. Unique to this parcel at the time of purchase was Chester Creek, which ran across the property in its natural condition. Leiser's plans at the time of purchase included using Chester Creek as the focus of a garden showplace, recreation area, and arboretum. Defendants-appellants G & A and ACI are corporations owned or controlled by John Graham. At all times relevant to this case, G & A owned a 53-acre parcel of land bordering on and immediately south of the Greenhouse property. In its natural state, Chester Creek passed through the G & A tract in two places. Graham had plans to develop the 53-acre G & A tract into a high-density, multi-family housing project. Those plans included the rerouting of Chester Creek. It is the two stream-diversion projects undertaken by the Graham corporations and others which form the subject matter of this case. In April or May 1970, Graham, .through ACI, employed men to reroute the creek into a straight-line ditch along the common boundary line of the Greenhouse tract. It appears that much of this rerouting was undertaken before ACI had secured a permit to divert the stream. On June 19, 1970, the employees of one Tom Carey completed excavations on an "L-shaped" diversion in the northeast corner of the G & A tract. Carey, who was named as a defendant in the trial below, owned through Kobuk Investment Company a tract somewhat south of the G & A tract. This property Carey wished to develop as a trailer court, and in furtherance of this plan he excavated a drainage ditch along the eastern boundary of the G & A tract with Graham's permission. There apparently was an informal arrangement between Carey and Graham to the effect that Graham would allow Carey to run the ditch across the G & A tract, and in return Carey would do the digging across and square off the creek at the northeast corner of the G & A tract. In the course of both excavation projects there were numerous trespasses on the Greenhouse property by heavy earthmoving equipment hired by Graham and later by Carey which caused extensive damage to trees and ground cover. Furthermore, because of design deficiencies in both ditches, erosion occurred in the process of drainage from both the Carey and the G & A tracts and sediment deposits developed in the portion of Chester Creek running across the Greenhouse lot. Greenhouse sought to recover damages from G & A, ACI, and Carey for injury to its property and to the creek occasioned by the trespasses, and in addition sought an injunction against G & A and ACI to prevent future trespasses and future impairment of its riparian rights. After a trial lasting nearly three weeks (and covering over 2000 pages of transcript), the court rendered extensive findings of fact and conclusions of law. The findings in essence established the following: 1. As a direct result of the re-rout-ings of Chester Creek described above, siltation of the creek has occurred on Greenhouse property. This is a continuing trespass for which G & A and ACI are 92½% jointly and severally liable. 2. G & A, ACI, and Tom Carey did not act reasonably in constructing either stream diversion project; their acts were the proximate cause of sil-tation build-up in the portion of Chester Creek on Greenhouse property. 3. Greenhouse uses its property for purposes peculiar to its business; therefore restoration is necessary. 4. ACI trespassed on Greenhouse property. 5. Greenhouse is entitled to an injunction against further pollution and a mandatory injunction requiring correction of past silt pollution. There is no adequate remedy at law. A diversion, drainage, and desiltation program should be carried out on both Greenhouse and G & A property in accordance with the plan pro-, posed by Kyle Cherry, Regional Environmental Engineer for the State of Alaska Department of Environmental Conservation. The total damage award against G & A and ACI amounted to $15,661.25, itemized as follows: $10,560 for destruction of ground vegetation and natural shrubs 1,140 for destruction of 38 large trees 855 for destruction of 57 small trees 450 for restriction on the use of Greenhouse property pursuant to policies of the Greater Anchorage Area Planning Commission 1,156.25 for business interruptions and future clean-up operations 1,500 for time spent by Mann Leis-er (controlling shareholder and manager of Greenhouse) in attempting to solve the sil-tation and trespass problems. Appellants raise five arguments on this appeal: (1) the court should have turned the case over to the Department of Natural Resources under the doctrine of primary jurisdiction rather than proceeding itself; (2) reasonable use of G & A's land includes siltation, so no injunction should have issued; (3) evidence adduced at trial is insufficient to establish that Greenhouse was harmed by the siltation of Chester Creek; (4) reduction in value of the land was the proper measure of damages rather than cost of restoration; (5) it was error to allow damages for Mann Leiser's lost time. I PRIMARY JURISDICTION Briefly summarized, appellants argue that this case presents a situation that should be handled by the appropriate administrative agency rather than by the courts. Indeed, they observe, the Department of Environmental Conservation, through Kyle Cherry, its Regional Environmental Engineer, has already drafted plans and specifications which appellants have agreed to implement, and "therefore there was no need for court intervention." The legal theory which forms the touchstone of appellants' argument is founded on the administrative law doctrine of primary jurisdiction. We are instructed by Professor Davis that the doctrine of primary jurisdiction deals with the question of whether a court or an administra tive agency should make the initial decision on a given issue. 3 K. Davis, Administrative Law Treatise § 19.01 at 2 (1958). Its purpose is to help a court decide whether it should refrain from exercising its jurisdiction until after the agency has determined some question or an aspect of some question arising in the proceedings before the court. The operational concept underlying the doctrine is the need for an orderly and reasonable coordination of the work of agencies and courts. Whatever the agency's expertise, opines Davis, the court should not act on a subject peculiarly within the agency's specialized field without first taking into account what the agency has to offer. Otherwise, litigants who are subject to the agency's continuous regulation may become victims of uncoordinated and conflicting requirements. This, of course, is hardly to say that the courts must in each and every case defer to an agency determination. For implicit in the concept of orderly and reasonable coordination is the requirement that the question of deferring to agency expertise be decided with reference to the unique facts of each case. In our opinion, the facts of the instant case militate against resort to the doctrine of primary jurisdiction. The very statute which establishes the Department of Environmental Conservation, AS Title 46, Chapter 3, specifically permits private court actions of the kind instituted by appellee Greenhouse. AS 46.03.870(c) provides: "This chapter does not estop the state, persons or political subdivisions of the state in the exercise of their rights to suppress nuisances, to seek damages, or to otherwise abate or recover for the effects of pollution or other environmental degradation." Such actions to suppress nuisances and to recover damages caused therefrom are traditionally cognizable by the courts without reference to agency expertise. The case has progressed through a trial of nearly three weeks duration. The judgment specifically incorporates the terms of the agreement between the principal shareholder of defendants-appellants and the Regional Environmental Engineer of the Department of Environmental Conservation. We are satisfied that the lower court had full advantage of' the considerable contribution that the agency could make to the solution of the siltation problem. Accordingly, we reject appellants' request that we reverse and remand the judgment of the lower court under the doctrine of primary jurisdiction. II REASONABLE USE OF APPELLANTS' LAND Appellants cite us to Weinberg v. Northern Alaska Development Corp., 384 P.2d 450 (Alaska 1963). They read Weinberg as standing for the proposition that Alaska has adopted the reasonable use doctrine with respect to a landowner's right to drain his land of surface waters. Here, they argue, G & A was merely providing the drainage necessary for subdivision development. Its tract naturally drained into Chester Creek. Thus, they conclude, the court could find them liable only by erroneously applying a rule of strict liability rather than reasonable use. "In another case it might appear that immediate equitable intervention is necessary, that an administrative proceeding would not give the plaintiff the relief to which he is entitled. Or if the water resources commission refuses to act on a plaintiff's petition seeking relief, or if, before the applica-hility of the primary jurisdiction doctrine is asserted, judicial proceedings have advanced to a point where it would he unfair to remit the plaintiff to another and duplicative proceeding, a court of equity might well conclude that the proper administration of justice requires it to retain jurisdiction and itself to decide the matter. There are no absolutes, each case must he decided on its own facts. (Footnotes omitted, emphasis added.) As we read Weinberg, it lends neg- ' ligible support to appellants' cause. While this Court indeed adopted the reasonable use doctrine in Weinberg, we applied it only to the drainage of "surface waters" and not to the alteration of "watercourses" : "Plaintiffs contend that the Old Slough [the ditch which defendant corporation filled in thereby causing melting snow to run onto plaintiff Weinberg's land eroding his access road] was a watercourse, in the sense that the term is used to denote water flowing in a definite channel which defendant could not divert without being liable for the resulting injury to plaintiffs. We disagree. The evidence showed that normally water flowed through the slough only during the spring thaw and on infrequent occasions during the summer months when there were heavy rains. Such periodic flow is not of such frequency or duration as to make it practicable to classify the slough as a watercourse. Instead, it must be classified as a drain-way for surface waters, i. e., waters from melting snow or rain which flow on the surface of the earth but do not form part of a watercourse." 384 P.2d at 451-52. (Footnotes omitted.) It seems clear beyond doubt that Chester Creek is a watercourse and not merely a "drainway for surface waters." And at common law, "[Ejvery proprietor upon water flowing in a definite channel so as to constitute a water course has the right to insist that the water shall continue to run as it has been accustomed, and that no one can change or obstruct its course injuriously to him without being liable to damages." Chicago, R. I. & P. Ry. v. Groves, 20 Okl. 101, 93 P. 755, 759, 22 L.R.A., N.S., 802 (1908), quoted in Weinberg v. Northern Alaska Development Corp., supra, at 451, n. 1. Even if we were to give appellants the benefit of the doubt and to adopt the reasonable use test for the case at bar, it is not a broad license to impose harm on others whatever the circumstances. As we said in Weinberg: "In determining whether defendant is legally responsible for the damage to the Morgan Way road, we adopt the rule of reasonable use with respect to one's right to drain his land of surface waters. That rule, as stated by the New Jersey Supreme Court, provides 'that each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.' " 384 P.2d 452. (Footnote omitted, emphasis added.) The question before us in Weinberg was whether the defendant constructed the Morgan Way ditch, to accommodate surface waters that previously flowed across his land, in a reasonable manner. 384 P.2d at 452. The evidence adduced at trial on this issue was conflicting, and we ruled that "[i]t was the trial judge's province to resolve the conflict in the evidence." 384 P.2d at 452. Thus even positing a reasonable use test, we read Weinberg as standing, inter alia, for the proposition that the trial court's ruling on the evidence of reasonableness will be disturbed by this Court only on a showing of clear mistake. Returning to the case at bar, the lower court specifically found that appellants did not act reasonably in diverting the creek to establish either drainage ditch. All appel lants offer in opposition to this finding is their affirmation and belief that they acted reasonably. But appellants directly caused extensive damage to trees and ground cover, as well as erosion of, and sedimentary deposits on, the Greenhouse property. Supporting the court's finding is evidence that construction was undertaken on these drainage ditches before any permit was issued on ACI's application for a water diversion permit. There was no error in the court's finding that appellants acted unreasonably. Ill HARM TO GREENHOUSE FROM SILTING OF STREAM Appellants challenge the sufficiency of the evidence to support the trial court's conclusion that Greenhouse was harmed by the siltation of Chester Creek. They dredge up ¡testimony to the effect that the creek will cjear itself in two to five years, underscore Leiser's testimony on cross-examination that Greenhouse is keeping up with its projected pro forma plan for corporate development, and charge that "No evidence was ever produced at trial to show that Greenhouse had ever suffered any economic loss or that they were prevented from using the Creek in the normal manner in which they had anticipated using it." In response, appellee Greenhouse cites us to Graham v. Rockham, 504 P.2d 1351, 1353-1354 (Alaska 1972) wherein this Court reiterated its position on reviewing evidence on appeal: " 'One who contends that the evidence is insufficient to support a finding of the trial judge has the task of convincing this court that a definite mistake has been made — that the finding in question is clearly erroneous.' "Moreover, an appellate court must take the view of the evidence most favorable to the prevailing party below." (Footnotes omitted.) Here the lower court found that appellants' siltation of the stream caused a continuing trespass on Greenhouse property, that Greenhouse will sustain $1,156.25 expense for future cleanup operations attributable to silting caused by appellants and has already sustained $1,500.00 damages for Leiser's lost time spent trying to solve the siltation and trespass problems, and that Greenhouse is entitled to a mandatory injunction because there is no adequate remedy at law. From our reading of the record, we are satisfied that these findings and conclusions are supported by Leis-er's testimony and corroborated by Kyle Cherry's testimony. Appellants having failed to sustain their burden of showing the findings to be clearly erroneous, this argument fails. IV RESTORATION DAMAGES According to the Restatement of Torts § 929(a) i, a plaintiff who has been injured by an invasion of his land not totally destroying its value may elect as damages either the loss in value or "the cost of restoration which has been or may be reasonably incurred." The lower court awarded Greenhouse $10,560.00 for restoring ground vegetation and natural shrubs in the area of the Graham diversion (a strip 880 feet long x 12 feet wide x $l/square foot restoration cost), $1,140.00 for replacing 38 large trees and $855.00 for replacing 57 small trees. Appellants argue that inasmuch as the land in question is "muskeg and tundra with scrub spruce" it would be impractical and thus unreasonable to require resodding and replanting of spruce. Their analysis commences with an articulation of the distinction between permanent and temporary damages: "Only where the cause of the injury to real property is fixed and indeterminable, so that the property must always remain subject to the damages, are the damages permanent, in which case there can be but one recovery. The test whether damages to real estate are permanent or temporary is whether the act producing the injury is productive of all of the damage which can result from the injury, and no further damage can ensue, or whether the injury is intermittent and occasional, or the cause thereof capable of being remedied, removed or abated. In the former case the damages are permanent and in the latter case the damages are temporary." Riddle v. Baltimore & O. R. Co., 137 W.Va. 733, 73 S.E.2d 793, 803 (1952). As a general rule, only where damages are temporary is restoration an appropriate measure. At this juncture appellants' argument takes a curious tack. They urge that the damage is permanent and conclude that diminution in fair market value is thus the appropriate measure. The essential questions are (1) whether the injury was temporary and if so, (2) whether the trial court's finding of the amount of damages was reasonable. All we have on the side of permanent injury is appellants' assertion. We cannot reasonably accept their claim that the injury to Greenhouse's land is fixed and irreparable. Surely trees and vegetation will grow there once more. In any case, speculation is unnecessary. Under the evidentiary test of Graham v. Rockman, supra at 1385, appellants must convince this Court that the trial judge's findings of fact setting forth the quality, extent and amount of damage are clearly erroneous. This they have failed to do. Accordingly, the award for restoration must stand. V SPECIFIC DAMAGE AWARDS Appellants' last argument in this appeal challenges three specific damage awards. 1. Loss to Greenhouse of Leiser's time. The Court awarded Greenhouse $1,500.00 for 60 hours time spent by Leiser (at $25/hour) in attempting to solve the siltation and trespass problems. Appellants argue that Greenhouse suffered no loss by virtue of Leiser's lost time, and seek to support their position with the following observations and allegations: (1) Greenhouse's 1971 income was greater than its 1970 income; (2) no one was hired to replace Leiser; (3) there is no evidence to indicate what services were lost or how the corporation was damaged. Appellee Greenhouse counters with a citation to McCormick on Damages § 42, at 15S (1935): While there are decisions to the contrary, the better opinion would seem to be that under the present principle the plaintiff may properly claim as an item of damages the value of his own personal time and services expended in prudent. efforts to reduce the loss resulting from defendant's wrongdoing." (Footnote omitted.) We think the proposition is sound. Leiser is a man who is intimately and uniquely familiar with Greenhouse's needs and the peculiar problems presented by the siltation. To disallow compensation to the plaintiff-corporation on the grounds that no outside employee was hired would in effect sanction wasteful practices. Such a decision would require securing the services of one who by definition could not render comparable services. Leiser charges out time for his services at $25 per hour. Thus the open market has defined the fair hourly value of his time. All that is required is that Leiser have kept accurate time records. His "conservative estimate" was 100 hours, and the lower court somewhat more conservatively cut this to 60 hours. While we find the lower court's approach to this issue to be somewhat informal, we find nothing erroneous in it. Briefly to round out the discussion, we fail to see the relevance of comparing Greenhouse's 1970 and 1971 incomes. If Leiser had not had to spend time on this siltation and trespass unpleasantness, he could have benefited the corporation in countless other ways. A proper comparison would be between the corporation's 1971 income and the income it would have made (or, e. g., the capital improvements it could have added) had Leiser's time been otherwise spent. In any event, no error having been demonstrated, this award must stand. 2. Restoration cost. Appellants observe that Leiser paid merely $4,000/acre for his tract. The court's award of $12,550 for restoring the 10,560 square feet (including replacing the destroyed trees) computes to approximately $50,000/acre. The award, argue appellants, is grossly disproportionate to any loss in value. Inasmuch as appellants have not shown the court's findings of fact underlying this award to be clearly erroneous, this challenge must be dismissed. Leiser's testimony indicated that the principal value of the property was from the creek running through it. His intended use was to enhance the attractiveness of the stream sides, to create a showplace in connection with his nursery business. Thus, computing damages on an acreage basis was, on the facts of this case, irrelevant. • It was not error to award the reasonable cost of restoring the property to its original condition. 3. Loss of use of land adjacent to diverted stream. Finally, appellants challenge the $450 allocated for Greenhouse's loss of the use of its land adjacent to the diverted stream. They argue that no evidence supports the finding on which the award is based, and in this instance we think they are correct. The court based its findings on its perception of "a utilization deprivation to the Plaintiff", but it admitted uncertainty as to the degree of loss and conceded that "there was no direct testimony on — on this subject." Finding no support in the record to sustain this award, we agree with appellants that it cannot stand. Accordingly, we remand with instructions to decrease the money judgment by $450. In all other respects, the judgment is affirmed. ERWIN and FITZGERALD, JJ., not participating. APPENDIX SCHEMATIC DIAGRAM (Not to scale) Relative location of Greenhouse, G & A, and Carey properties, with approximate flow characteristics of Chester Creek both before and after the stream-diversion projects. . The G & A tract drained into Chester Creek, and is upstream from the Greenhouse tract. . Appended to this opinion is a schematic diagram not drawn to scale but, for purposes of this opinion, illustrative of the relevant legal relationships. .AS 46.15.180 makes it a misdemeanor to "divert[s] . a significant amount of water from any source without a permit or certificate of appropriation . . . ." . Mr. Cherry was called as a witness by both sides, (although he appeared principally on behalf of Greenhouse), testified extensively during the trial, and submitted for introduction into evidence, inter alia, a fairly detailed plan covering the specifications for proper drainage ditching. . Cf. Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1032-1033 (Alaska 1972). . As the court said in White Lake Improvement Association v. City of Whitehall, 22 Mich.App. 262, 177 N.W.2d 473, 483 (1970) : .W. Prosser, Law of Torts § 89, 90 at 591 et seq. (4th ed. 1971). . For example, Leiser testified that he has held back on development of his arboretum because a muddy stream is aesthetically unsatisfactory and that arboretum showcases tend to bring in big landscape jobs, . See, e. g., 22 Am.Jur.2d, Damages § 134, 135: "In case of an injury of a permanent nature to real property, the proper measure of damages is the diminution in the market value of the property by reason of that injury, or in other words, the difference between the value of the land before the injury and its value after the injury. " . . . Most courts agree that when the injuries to the real estate are found to be temporary — or reparable — the diminished market value of the property will not be used as the measure of recovery. The reason for not using diminution of market value appears to be a concern on the part of courts that this would be overcompensating plaintiff — for the plaintiff should not have the decreased value and then be able to repair the damage at a lesser cost. "A number of cases have combined the principle of granting the plaintiff damages measured by the cost of repair (providing that this amount is not out of line with the diminution in the market value of the property) with the rule allowing damages for loss of use of the premises during the time the injury continued. This is probably as close to a general rule as the eases can approach. It recognizes two interests of the plaintiff which have been invaded: (1) his interest in having the property in its condition prior to the injury, and (2) his interest in having full use of the property during the time the injury continued. Any general statement will necessarily be modified by the facts of a particular case." 22 Am.Jur.2d at 194, 196, 198 (1965). (Footnotes omitted.)

11772024

VECO, INC., Appellant and Cross-Appellee, v. Constance I. ROSEBROCK, Appellee and Cross-Appellant

VECO, Inc. v. Rosebrock

1999-02-19

Nos. S-7080, S-7120

906

925

970 P.2d 906

970

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before MATTHEWS, J., EASTAUGH, FABE, Justices, and RABINOWITZ, Justice Pro Tern.

VECO, INC., Appellant and Cross-Appellee, v. Constance I. ROSEBROCK, Appellee and Cross-Appellant.

VECO, INC., Appellant and Cross-Appellee, v. Constance I. ROSEBROCK, Appellee and Cross-Appellant. Nos. S-7080, S-7120. Supreme Court of Alaska. Feb. 19, 1999. Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, for Appellant and Cross-Appellee. Robert P. Owens, Copeland, Landye, Bennett and Wolf, Anchorage, and Timothy D. Dooley, Anchorage, for Appellee and Cross-Appellant. Before MATTHEWS, J., EASTAUGH, FABE, Justices, and RABINOWITZ, Justice Pro Tern. Sitting by assignment under Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

11873

74670

OPINION MATTHEWS, J. I. INTRODUCTION Many issues are presented in this sexual harassment and wrongful termination case. The two most important ai'e: (1) Can an employer be liable for acts of a supervisor which create a hostile work environment even though the supervisor is acting outside the scope of his employment? (2) Can punitive damages be imposed for a supervisor's acts outside the scope of his employment? We answer "yes" to the first question because the supervisor is enabled by his position with the employer to impose unwelcome sexual conduct on the employee. We answer "no" to the second question because it is unfair to punish an employer for acts committed by employees who are in no sense pursuing objectives of the employer. II. FACTS AND PROCEEDINGS Constance Rosebrock began working for VECO in Anchorage in April 1991. In September she transferred to Arctic Rentals, a VECO subsidiary located on the North Slope. Rosebrock worked for Arctic Rentals on the North Slope for approximately six weeks, from September 11 until September 26, and from October 3 until October 26. On October 30 or 31 she was notified that she had been laid off. Rosebrock claims that during her employment with VECO on the North Slope, Rick Rorick, the supervisor in charge of Arctic Rentals, subjected her to hostile environment sexual harassment. In addition, she claims that she was sexually assaulted by a VECO employee toward the end of her second tour of duty. She claims that VECO wrongfully terminated her when she complained about the assault. In December 1991 Rosebrock filed a complaint with the Alaska Human Rights Commission. She also filed suit in superior court against VECO and Bill Dropps, the employee who allegedly sexually assaulted her. After settlement negotiations in which Rosebrock agreed to dismiss Dropps as a party, Rose-brock's claims of hostile environment sexual harassment and wrongful termination proceeded to a jury trial. At trial, Rosebrock testified that Roriek had sexually propositioned her on several occasions. She also testified that Roriek made several explicit comments about the size of her breasts. Furthermore, Rosebrock testified that she, Bobby Clark, and Bill Dropps gathered in Dropps's room on October 23 to watch the World Series game. She testified that when Clark left the room, Dropps grabbed her by her arms and legs and threw her onto the bed. They straggled, and he hit her in the ribs. After more struggling, however, he released her and begged her to not tell anyone. Rosebrock also testified that early the next morning she reported the assault to Clark, who was her supervisor on duty at that time. She also claimed that she showed her bruises to a eo-worker, Peggy Gerhardson, who assured her that she and Clark would take care of the problem. Rosebrock went on leave two or three days later. She testified that before she left, the administrator, Norm Denison, approved her work schedule for the next five months. On October 30 or 31, however, Denison called her at home to tell her that she had been "laid off." Rosebrock testified that she then called Denison several times to see what VECO was doing about her complaints of sexual assault. Rosebrock claimed that De-nison told her VECO had taken care of the problem. Rosebrock stated that when she asked him what had been done, he told her, "you're gone." The jury found VECO liable for Rose-brock's hostile environment sexual harassment 'claim and her wrongful termination claim. It awarded her $27,500 for emotional distress damages, $75,000 for lost wages, and $1,500,000 for punitive damages. VECO then moved for a judgment notwithstanding the verdict, for a new trial, and for a remitti-tur. The superior court granted a partial remittitur, reducing the award for lost wages to $4,000. It denied VECO's other motions. VECO appeals this judgment. Rosebrock cross-appeals on discovery sanction issues, in the event this court remands for a new trial. III. DISCUSSION We discuss the following issues in this case: A. Sexual Harassment 1. Did the superior court properly instruct the jury as to whether VECO could be held liable for hostile environment sexual harassment committed by a supervisor acting outside the scope of his employment? 2. Did the superior court err in denying VECO's motions for JNOV and for a new trial on Rosebrock's hostile environment sexual harassment claim? a. Was the evidence sufficient to support a finding that the harassment was severe or pervasive? b. Was the harassment committed by a supervisor whose actions can be imputed to VECO? 3. Are damages for emotional distress caused by sexual harassment barred by the exclusive remedy provision of the Alaska Workers' Compensation Act? B. Wrongful Termination 1. Did the superior court err by permitting Rosebrock to amend her complaint after the trial had concluded? 2. Did the superior court properly instruct the jury as to whether VECO could be held liable for the alleged wrongful termination of Rosebrock? 3. Did the superior court properly instruct the jury on mixed motives? 4. Did the superior court err in denying VECO's motions for JNOV and for a new trial on Rosebrock's wrongful termination claim? C. Punitive Damages 1. Are punitive damages authorized under AS 18.80.220 and AS 22.10.020®? 2. Did the jury instructions err in permitting the jury to award punitive damages against VECO for acts of a supervisor beyond the scope of the supervisor's employment? 3. Did VECO properly object to the punitive damage instruction? The parties have also briefed additional issues which do not require discussion for reasons set out in footnote 38, page 925. A. Sexual Harassment A section of Alaska's anti-discrimination statute makes it unlawful for an employer "to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's . sex . when the reasonable demands of the position do not require distinction on the basis of . sex...." AS 18.80.220(a)(1). In French v. Jadon, Inc., 911 P.2d 20 (Alaska 1996), we held that this section prohibited sexual harassment. Further, we accepted the customary division of sexual harassment claims into those involving a quid pro quo and those which merely involve a hostile work environment. (1) Conduct of a servant is within the scope of employment if, but only if: (a)it is of the kind he is employed to perform; Concerning the former, we noted that "[q]uid pro quo gender harassment occurs when an employer conditions employment benefits on sexual favors. It arises when an employer relies upon his or her authority 'to extort sexual consideration from an employee.'" Id. at 26 (citation omitted) (quoting Canada v. Boyd Group, Inc., 809 F.Supp. 771, 777 (D.Nev.1992)). With respect to the latter we noted that in hostile work environment cases, "employees work in offensive or abusive environments. Conduct which unreasonably interferes with work performance can alter a condition of employment and create an abusive working environment."... . [Discriminatory behavior sufficiently severe or pervasive to alter the conditions of the victim's employment and to create a discriminatory hostile work environment violates AS 18.80.220. Id. at 28 (citations and footnote omitted) (quoting Ellison v. Brady, 924 F.2d 872, 875, 877 (9th Cir.1991)). Quid pro quo harassment requires proof that "a tangible employment action resulted from a refusal to submit to a supervisor's sexual demand." "Unfulfilled threats" or "offensive conduct in general" may fall within the hostile work environment classification. Often a hostile work environment is created by co-employees or supervisors acting beyond the scope of their employment. They are acting for personal reasons and not, even in part, to serve then- employer. However, in the case of supervisors, harassment, though beyond the scope of their employment, may be facilitated by them position with the employer. (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. An employer is generally vicariously liable only for acts of employees acting within the scope of their employment. However, vicarious liability may also be imposed based on apparent authority or where an employee is aided in accomplishing a tort by the employee's position with the employer. But an employer's vicarious liability for punitive damages is limited by the Restatement (Second) of Agency to acts of (1) managerial employees (2) while acting within the scope of their employment. Alaska case law has eliminated the requirement that the employees be managerial, but not the requirement that their acts be within the scope of their employment. These principles are dispositive of the present case. 1. Did the superior court properly instruct the jury as to whether VECO could be held liable for hostile environment sexual harassment committed by' a supervisor acting outside the scope of his employment? VECO claims that the superior court's instructions on liability were erroneous because they allowed the jury to impose "strict liability" on it if a low-level supervisor subjected Rosebrock to hostile environment sexual harassment, or if a low-level supervisor knew about the harassment, but failed to take remedial action. It argues that it should only be liable for a supervisor's hostile environment sexual harassment if a management-level employee knew or should have known about the harassment and failed to take proper and effective remedial action. Rosebrock, however, argues that an employer should always be liable for hostile environment sexual harassment if it is committed by its supervisors or if its supervisors had knowledge and failed to take remedial action. The superior court instructed the jury on liability as follows in Instruction No. 16: If you find that VECO employees subjected Rosebrock to a sexually hostile working environment as previously defined, you must decide whether VECO itself is liable for its employees' conduct. You must first consider the role of VECO supervisory employees. You shall find VECO liable for the conduct of its supervisory employees if you find that it is more likely than not that: 1. One or more of YECO's supervisory employees encouraged, caused, permitted, ratified, or participated in the conduct; or 2. One or more of VECO's supervisory employees, knowing of the conduct, excused it or failed to take remedial action reasonably calculated to end the harassment. Such remedial action must be immediate and must remedy the conduct without adversely affecting the terms or conditions of the complaining party's employment. You shall find VECO liable for the conduct of its non-supervisory employees if you find that it is more likely than not that such employees were acting within the scope of their employment, and if VECO knew or should have known of the harassment and failed to take remedial action as discussed above. The first paragraph of the instruction directs the jury to proceed if "VECO employees," supervisors or otherwise, subjected Ro-sebrock to a hostile work environment. The second paragraph defines when VECO will be liable for the acts or omissions of its "supervisory employees." The subparagraph numbered one allowed the jury to impose liability on VECO if its supervisory employees "encouraged, caused, permitted, ratified, or participated" in the harassment. It did not require the jury to find that those supervisors had acted within the scope of their employment or used their delegated authority to carry out the harassment. In addition, it did not require the jury to find that a management-level employee knew or should have known about the harassment. Thus this subparagraph allowed the jury to impose liability on VECO for the sexual harassment by a low-level supervisor, acting outside the scope of his employment, even if VECO management-level employees did not know or have constructive knowledge of the harassment. Subparagraph number two allowed the jury to impose liability on VECO if a supervisor knew about the harassment, but did not take proper remedial action. It did not limit VECO's liability to an omission by a management-level employee, but allowed the jury to impose liability on VECO for a low-level supervisor's failure to take proper remedial action. Instruction 17 defined "supervisor" as follows: A supervisor is one who serves in a supervisory position and has corporate authority to affect the terms and conditions of the employees he supervises. In other words a person is a supervisor if he has the authority to hire, fire, promote, discipline, or in any other manner affect the terms or conditions of an employee's employment. Taken together these instructions allowed the jury to impose liability on VECO for the acts or omissions of Rosebrock's immediate supervisors, regardless of whether they were acting within the scope of their employment, and regardless of whether management-level employees knew or should have known about the harassment. The scope of an employer's liability for its employees' hostile environment sexual harassment is an issue of first impression in Alaska. In interpreting Alaska's anti-discrimination laws, we have looked to federal Title VII cases for guidance. See French, 911 P.2d at 28 n. 8. We have observed, however, that AS 18.80.220 "is intended to be more broadly interpreted than federal law to further the goal of eradication of discrimina tion." Wondzell v. Alaska Wood Prods., Inc., 601 P.2d 584, 585 (Alaska 1979). The United States Supreme Court addressed the issue of employer liability in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Because the factual record had not been fully developed in the trial court, the majority opinion refused to "issue a definitive rule on employer liability," but stated that we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency § 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Id. at 72, 106 S.Ct. 2399. The Court stated that the court of appeals was "wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case." Id. at 73,106 S.Ct. 2399. Justice Marshall, concurring with three other justices in Meritor, reached the issue of employer liability, and stated that employers should be held liable for a supervisor's hostile environment sexual harassment of an employee under his supervision, regardless of notice. See 477 U.S. at 74, 76-77, 106 S.Ct. 2399 (Marshall, J., concurring). He stated: [I]t is the authority vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates. There is therefore no justification for a special rule, to be applied only in "hostile environment" cases, that sexual harassment does not create employer liability until the employee suffering the discrimination notifies other supervisors. No such requirement appears in the statute, and no such requirement can coherently be draum from the law of agency. Id. at 76-77, 106 S.Ct. 2399 (first and third emphasis added). He emphasized that a supervisor's authority is not limited to changing employees' status by hiring, firing, or disciplining them; instead, a supervisor also has the responsibility to supervise the daily work environment and to ensure a safe, productive work environment. See id. at 76, 106 S.Ct. 2399. We agree with Justice Marshall's view. Harassment by supervisors is facilitated, made more serious, and is less apt to be reported because supervisors are "understood to be clothed with the employer's authority." Id. at 77, 106 S.Ct. 2399. The Restatement (Second) of Agency § 219(2)(d) supports imposing vicarious liability in such circumstances. It provides: (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation. (Emphasis added.) The Massachusetts Supreme Court has employed this theory to hold employers vicariously liable for hostile environment sexual harassment by their supervisors: [Hjarassment by a supervisor carries an implied threat that the supervisor will punish resistance through exercising supervisory powers, which may range from discharge to assignment of work, particularly exacting scrutiny, or refusal to protect the employee from coworker harassment. Quid pro quo harassment may be easier to identify as an abuse of the authority vested in a supervisor because of the effect on tangible job conditions, but it does not define the limit of a supervisor's authority. Although coworkers or even outsiders may also be capable of creating a sexually harassing work environment, it is the authority conferred upon a supervisor by the employer that makes the supervisor particularly able to force subordinates to submit to sexual harassment. College-Town v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 508 N.E.2d 587, 593 (Mass.1987) (emphasis added) (citation omitted). Even where the employer has issued a policy prohibiting sexual harassment, and where the employer has established procedures for the receipt of employee complaints, the employer will still have aided the supervisor in committing the harassment. See Meritor, 477 U.S. at 76-77, 106 S.Ct. 2399 (Marshall, J., concurring). Therefore, we hold that an employer is vicariously liable for the hostile work environment created by its supervisors regardless of whether management-level employees knew or should have known about the harassment, and regardless of whether the supervisors were acting within the scope of their employment. Agency principles also provide an important limitation on employer liability, however. An employer will only be vicariously liable for the acts of the complainant's supervisor, because only then will the supervisor be using his position with the employer to alter the conditions of the complainant's employment. See French, 911 P.2d at 28 (defining hostile work environment as "discriminatory behavior sufficiently severe or pervasive to alter the conditions of the victim's employment"). As Justice Marshall stated, a supervisor who does not oversee the complainant should be treated as a co-worker. See Meritor, 477 U.S. at 77, 106 S.Ct. 2399 (Marshall, J., concurring). In that situation, the supervisor does not have authority over the complainant and may not be aided by his position in the workplace. Furthermore, when a coworker or supervisor with no control over the complainant creates a hostile environment, the complainant should be less hesitant to report the situation, since the harasser could not retaliate by changing the conditions of the complainant's employment. Thus, employers are only vicariously liable for hostile environment sexual harassment committed by the complainant's supervisor. These same principles apply to determine the scope of an employer's liability when its supervisors know about sexual harassment by a co-worker or by a supervisor who does not have authority over the complainant, but fail to take appropriate remedial action. There is no basis for distinguishing between supervisors' acts of harassment and their failure to remedy known harassment. Supervisors who allow other employees to sexually harass employees they supervise have used their delegated authority to allow the harassment to continue. For the above reasons we conclude that the trial court correctly instructed the jury on VECO's liability for hostile environment sexual harassment by a supervisor acting-outside the scope of his employment. 2. Did the superior court err in denying VECO's motions for JNOV and for a new trial on Rosebrock's hostile environment sexual harassment claim? VECO filed motions for judgment notwithstanding the verdict (JNOV) and for a new trial, alleging that the evidence was insufficient to support' a finding of liability for hostile environment sexual harassment. VECO claims that the evidence did not support the jury's implied findings that the alleged harassment was severe or pervasive or that the alleged harassers were supervisors whose actions could be imputed to VECO. a. Was the evidence sufficient to support a finding that the harassment was severe or pervasive? In French, we held that "discriminatory behavior sufficiently severe or perva sive to alter the conditions of the victim's employment and to create a discriminatory hostile work environment violates AS 18.80.220." 911 P.2d at 28. VECO argues that the evidence at trial does not support the jury's verdict, because the evidence consisted of name-calling and insults, which was not severe or pervasive harassment. Viewing all the evidence in the light most favorable to Rosebrock, we disagree. The evidence of sexual harassment, in part, is as follows. Rosebrock testified that on her first tour of duty, when she was introduced to her supervisor, Rick Rorick, he stated, "Let's get down to business. Are you married, and do you fool around?" Rose-brock also testified that Rorick told her that strange things happened to women in the middle of the night. In addition, Rorick would say to her, on occasion, "You're in a good mood. Who are you doing?" He would ask her if her back ached, or why she did not fall over, apparently referring to the size of her breasts. , Rosebrock also testified that when she approached Rorick to complain about not receiving a room assignment, he asked her to come to his room later that night. She stated that when she did go to talk with him, for the purpose of receiving a room assignment, he said, "I knew you from [another job on] rig 9. You were the redhead with the big tits." He also said that she could stay with him in his room, so long as no one saw her leave in the morning. Also, Rosebrock testified that soon after she started her second tour of duty, Rorick pointed to her in public and shouted, "Boone and Crocket." Rosebrock discovered that the comment referred to her breasts. She claimed that it became common for people at VECO to call her by that name, and that to avoid hearing it, she would refrain from entering the dining hall for two meals every day and would go there late for dinner. Viewing all of the evidence in the light most favorable to Rosebrock, reasonable jurors could have concluded that Rorick's behavior was severe or pervasive enough to alter the conditions of Rosebrock's employment and create a hostile work environment. The sexualized name-calling, in particular, was recurrent. While any single incident of name-calling might not have been severe, taken together, these incidents constitutes a pattern of harassment which might reasonably be regarded as severe or pervasive. See, e.g., Ellison v. Brady, 924 F.2d 872, 876-81 (9th Cir.1991) (indicating that the required showing of severity varies inversely with the pervasiveness of the conduct). b. Was the harassment committed by a supervisor whose actions can be imputed to VECO? VECO claims that the alleged harassment was not committed by a supervisor whose actions can be imputed to VECO. We have held that VECO may be vicariously liable if Rosebrock's supervisors subjected her to hostile environment sexual harassment. VECO offered the jury instruction which defined supervisor as follows: A supervisor is one who serves in a supervisory position and has corporate authority to affect the terms and conditions of the employees he supervises. In other words a person is a supervisor if he has the authority to hire, fire, promote, discipline, or in any other manner affect the terms or conditions of an employee's employment. Therefore, the only question is whether the evidence, taken in the light most favorable to Rosebrock, could lead reasonable jurors to infer that the harasser, Rorick, was Rose-brock's supervisor. The evidence supports such a conclusion. First, and most persuasive, Rorick admitted that he had the authority to fire Rose-brock, and that he had the power to disci pline and sanction employees. Rorick also testified that he would expect Rosebrock to complain to him about room assignments. We thus hold that the evidence was sufficient to support the jury's verdict that VECO was liable for hostile environment sexual harassment, because Rosebroek's supervisor subjected her to severe or pervasive sexual harassment. The superior court did not err in denying VECO's motions for a new trial or JNOV on Rosebrock's hostile environment sexual harassment claim. 3. Are damages for emotional distress caused by sexual harassment barred by the exclusive remedy provision of the Alaska Workers' Compensation Act? VECO argues that Rosebrock should not have been able to obtain emotional distress damages. It contends that these were barred by the exclusive remedy provision of the Workers' Compensation Act. Alaska Statute 22.10.020© authorizes a court finding a violation of any of the provisions of AS 18.80 to award "any other relief including the payment of money, that is appropriate." We have held that this includes an award of compensatory damages. See Loomis Elec. Protection, Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976). In Loomis we observed that the objective of the anti-discrimination law was to afford complete relief to parties injured by discrimination. The language of the statute is clearly intended to provide a litigant complete relief in an appropriate ease. In view of the strong statement of purpose in enacting AS 18.80, and its avowed determination to protect the civil rights of all Alaska citizens, we believe that the legislature intended to put as many "teeth" into this law as possible. We fail to see how, consistent with that purpose and intent, the legislature could have contemplated a statutory scheme that would not have included the right to recover damages. Otherwise, there would be many cases in which no meaningful relief would be available to the injured party, the one whose civil rights have been violated and whom the law seeks to protect. Id. at 1343 (footnotes omitted). The Alaska Workers' Compensation Act does not provide compensation for emotional distress which does not result in permanent or partial disability. It would be inconsistent with the legislative purpose of affording complete relief to those injured by discrimination to hold that nonduplicative damages are barred by the exclusive remedy provision of the Workers' Compensation Act. In declining to so hold we join the courts of many other states which have held that the exclusive remedy provisions of their workers' compensation laws do not bar intangible injury claims resulting from sexual harassment. See Hart v. National Mortgage & Land Co., 189 Cal.App.3d 1420, 235 Cal. Rptr. 68, 75 (Cal.App.1987); Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71, 73 (Ga.App.1983); O'Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349, 351-52 (Mass.1987); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116, 120-21 (N.C.App.1986); Palmer v. Bi-Mart Co., 92 Or.App. 470, 758 P.2d 888, 891 (Or.App.1988). B. Wrongful Termination 1. Did the superior court eiT by permitting Rosebrock to amend her complaint after the trial had concluded? Rosebrock's pleadings did not explicitly allege that her wrongful termination claim was brought pursuant to AS 18.80.220(a)(4). Rather, the complaint stated: 20. Plaintiffs termination was wrongful in that she was discharged for asserting her right as an employee to be free from sexual assault and harassment, a right that is of important public interest as reflected in both federal and state statutes and case law. 22. Defendant VECO's action in discharging plaintiff for this reason was willful, wanton and malicious and beyond the bounds of socially tolerable conduct, warranting the assessment of punitive damages against defendant VECO. In response to VECO's summary judgment motion, the superior court ruled that Rosebrock's wrongful termination claim could proceed to trial. It stated that if she prevailed, Rosebrock would be entitled to "damages for emotional distress and punitive damages, since wrongful termination in violation of public policy constitutes a tort." Thus, the superior court permitted the wrongful termination claim to proceed as a public policy tort. At trial, however, the claim was presented to the jury as a retaliation claim in conformance with the elements that would be necessary for a wrongful termination claim under AS 18.80.220. Then, after the trial concluded, the superior court permitted a retroactive amendment of Rose-brock's complaint to include a wrongful termination claim under AS 18.80.220. VECO argues that it was unfairly prejudiced by the retroactive amendment of Rosebrock's complaint. We believe that Rosebrock's pleadings sufficiently placed VECO on notice that it was being sued for wrongful termination, and that punitive damages would be sought. While the superior court did state, in ruling on a summary judgment motion, that the wrongful termination claim would proceed as a public policy tort, the trial, in fact, conformed to a retaliation claim under AS 18.80.220. Additionally, VECO has not established that it was prejudiced by the retroactive amended pleading — that is, it did not suggest how it might have tried the case differently if it had known throughout the lawsuit that Rosebrock would prosecute her wrongful termination claim under AS 18.80.220. Therefore, we hold that the superior court did not abuse its discretion by allowing the post-trial amendment of Rose-brock's complaint. 2. Did the superior court properly instruct the jury as to whether VECO could be held liable for the alleged wrongful termination of Rosebrock? Quoting only a portion of Jury Instruction Number 21, VECO claims that it is erroneous because it allowed the jury to rule in favor of Rosebrock on her wrongful termination claim by finding only that Rosebrock demonstrated that VECO's stated reason for her termination was pretextual. VECO argues that the jury was not required to find that its reason for terminating Rosebrock was retaliatory. In determining whether an employer has violated AS 18.80.220 when there is no direct evidence of discriminatory intent, we have adopted the three-part framework used in Title VII cases. See Haroldsen v. Omni Enterprises, Inc., 901 P.2d 426, 480 (Alaska 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). This test also governs actions for retaliatory discharge. See Miller v. Fairchild, Industries, Inc., 797 F.2d 727, 730-31 (9th Cir.1986). The Miller court stated: To establish a prima facie case of discriminatory retaliation, a plaintiff must show that: (1) she engaged in an activity protected under Title VII; (2) her employer subjected her to adverse employment action; (3) there was a causal link between the protected activity and the employer's action. Causation sufficient to establish a prima facie ease of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge.... Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-retaliatory explanation for the action.... To satisfy this burden, the employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." If the employer successfully rebuts the inference of retaliation that arises from establishment of a prima facie case, then the burden shifts once again to the plaintiff to show that the defendant's proffered explanation is merely a pretext for discrimination. Id. at 731 (citations and footnote omitted) (quoting Texas, Dep't of Community Affairs v. Burdine, 450 U.S. 248, 257,101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Instruction Number 21, read in its entirety, properly instructed the jury on Ro-sebrock's wrongful termination claim. The jury was instructed that Rosebrock first had to prove facts that gave rise to an inference of wrongful termination — that "she complained to VECO supervisory or management employees about sexual harassment and/or sexual assault," and that "after she complained of sexual harassment and/or assault, she was terminated." Next, the instruction informed the jury that VECO had alleged a legitimate, non-discriminatory reason for terminating Rosebrock. Finally, the instruction placed the burden of persuasion on Rosebrock to prove that "it is more likely than not that VECO's real reason for terminating her was the fact that she complained of sexual harassment and/or sexual assault." Contrary to Veco's claim, the instruction did not allow the jury to impose liability based solely on its disbelief of VECO's stated reason for terminating Rosebrock. We therefore hold that when the text of Instruction Number 21 is considered in its entirety, the instruction is not erroneous. 3. Did the superior court properly instruct the jury on mixed motives? VECO claims that Jury Instruction Number 21, as it relates to mixed-motive sexual harassment, is incorrect. Specifically, VECO claims that mixed-motive causation does not apply to cases of retaliation, and also claims that Rosebrock had to choose either a pretext claim or a mixed-motive claim, but could not pursue both simultaneously. VECO cites no authority for the proposition that consideration of mixed motives is impermissible in wrongful termination retaliation cases. Authority does support the opposite proposition, however. See, e.g., Os-trowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 185 (2d Cir.1992) ("We reject the district court's view that a claim of retaliation necessarily presents only a pretext ease and cannot be a mixed-motives case."); see also Haroldsen, 901 P.2d at 432 n. 12 (noting that our anti-discrimination laws condemn employment decisions based on a mixture of legitimate and illegitimate considerations). The question of whether a mixed-motive theory applies to wrongful termination depends on the interpretation of the term "because" in AS 18.80.220. In interpreting Title VII, the United States Supreme Court, in Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), held that the words "because of . sex" mean that "gender must be irrelevant to employment decisions." It emphasized that the words "because of' do not mean "solely because of," and held that Title VII prohibited decisions "based on a mixture of legitimate and illegitimate considerations." Id. at 241, 109 S.Ct. 1775. The Court then held that if the plaintiff shows that gender was a "motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id. at 244-45, 109 S.Ct. 1775 (footnote omitted). The analysis that the Supreme Court applied to Title VII sexual discrimination is equally applicable to a wrongful termination claim pursuant to AS 18.80.220(a)(4). In both situations, the employer is prohibited from making an employment decision where an illegitimate consideration is a motivating factor in the decision. Requiring plaintiffs in wrongful termination cases to prove that their termination was caused solely by their protected actions would unnecessarily restrict the term "because," and would hinder achieving the purpose of AS 18.80.220, eradicating discrimination. We therefore hold that a wrongful termination claim pursuant to AS 18.80.220(a)(4) can be based on mixed-motive causation. We also reject VECO's argument that the plaintiff must choose between pursuing a mixed-motive theory and a pretext theory. The Supreme Court in Price Waterhouse held that a plaintiff can assert a mixed- motive claim when the employer considered both legitimate and illegitimate reasons in making its employment decision. See 490 U.S. at 241, 109 S.Ct. 1775. However, "[i]f the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision, then she may prevail only if she proves . that the employer's stated reason for its decision is pretextual." Id. at 247 n. 12,109 S.Ct. 1775. Thus, Price Waterhouse does explicitly contemplate that a plaintiff can pursue a mixed-motive claim and a pretext claim simultaneously. There is no reason to make the plaintiff elect which theory to present to the jury. If the jury finds that there is direct evidence that the employer considered a forbidden characteristic in terminating the plaintiff, it will apply the mixed-motive framework. However, if the jury does not find direct evidence, the plaintiff can still prevail by using the pretextual framework. We thus hold that a plaintiff can present both mixed-motive and pretext claims to the jury, and reject VECO's argument that Rosebrock had a forbidden "second bite at the apple." 4. Did the superior court err in denying VECO's motions for JNOV and for a new trial on Rosebrock's wrongful termination claim? VECO claims that Rosebrock failed to offer evidence which would prove the elements of her wrongful termination claim. Specifically, VECO argues that Rosebrock failed to establish a prima facie case of retaliation because she failed to show: (1) that she engaged in a protected activity; (2) that an adverse employment decision was made; and (3) that there was a causal connection between the two. First, Rosebrock testified that she complained to a supervisor, Bobby Clark, that she was sexually assaulted by another VECO employee. VECO offers no support for the proposition that VECO would have been justified for terminating her for complaining about such an assault. Nor does VECO claim or offer any support for the proposition that such a report was not a protected activity. Therefore, Rosebrock offered sufficient evidence to demonstrate that she engaged in a protected activity. Second, VECO claims that it did not take adverse employment action against Ro-sebrock. However, Rosebrock was laid off. Therefore, there is no real dispute that VECO made an adverse employment decision against Rosebrock. Finally, VECO claims that there was no causal connection between Rosebrock's complaint and her termination, and that Ro-sebrock was laid off as part of a general reduction in force because she was a junior office worker. However, Rosebrock testified that, following her termination, she spoke to a VECO employee who told her that VECO had "taken care of the problem" because "you're gone." Also, Rosebrock was laid off about six days after she complained, which in context of Rosebrock's "you're gone" testimony, is inferential evidence of a causal connection. See Miller, 797 F.2d at 731 (stating that causation can be proved by inference from a close proximity in time between the protected activity and the allegedly retaliatory discharge); see also Mack A. Player, Employment Discrimination Law § 5.48, at 404 n. 284 (1988). Reviewing this evidence in the light most favorable to Rosebrock, we find that the jury could reasonably have found that Rose-brock's complaint about the sexual assault was a cause of her termination. We thus affirm the superior court's denial of VECO's motions for JNOV and a new trial as to Rosebrock's wrongful termination claim. C. Punitive Damages 1. Are punitive damages authorized under AS 18.80.220 and AS 22.10.020(i)? VECO claims that Rosebrock cannot recover punitive damages under Alaska's anti-discrimination statute, AS 18.80.220. However, in Loomis Electronic Protection, Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976), this court stated that plaintiffs may recover punitive damages under AS 18.80. We stated that the broad language of AS 22.10.020(c) indicates a legislative intent to authorize an award of compensatory and punitive damages for violations of AS 18.80, in addition to the equitable remedies such as enjoining illegal employment activities and ordering back pay as a form of restitution. Id.; see also Johnson v. Alaska State Dept. of Fish & Game, 836 P.2d 896, 906 (Alaska 1991) (citing Loomis for the proposition that AS 22.10.020(c) authorizes punitive damages for violations of AS 18.80, but holding that the statute did not specifically allow punitive damages against the state). Nevertheless, VECO claims that this court's statements in Loomis and Johnson were merely dicta, and that we should reconsider the question of punitive damages. Specifically, VECO claims that the issue in Loomis concerned whether a prospective employee was entitled to a jury trial, and that the language regarding punitive damages is therefore superfluous. It also argues that in Johnson, we simply assumed that punitive damages were recoverable, but never decided the propriety of such damages. While VECO accurately summarizes the question presented in Loomis, we think that VECO is incorrect in claiming that the punitive damage reference is mere dicta. Dicta is defined as "[ojpinions of a judge which do not embody the resolution or determination of the specific case before the court. Expressions in court's opinion which go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases as legal precedent." Black's Law Dictionary 454 (6th ed.1990). In Loomis, this court's discussion of the relief afforded by Alaska's civil rights statute was necessary for our holding that the prospective employee was entitled to a jury trial. See 549 P.2d at 1343. The language was not superfluous to the "specific case before the court," and did not "go beyond the facts." Similarly, in Johnson, we necessarily accepted the holding in Loomis that punitive damages were recoverable pursuant to AS 18.80 before reaching the issue of whether punitive damages could be assessed against the state. See 836 P.2d at 906. The plain language of AS 22.10.020© authorizes the superior court to award "any other relief, including the payment of money." Further, in a consistent line of decisions, this court has held that punitive damages are recoverable in discrimination cases. See Loomis, 549 P.2d at 1343; Johnson, 836 P.2d at 906; cf. McDaniel v. Cory, 631 P.2d 82, 87 (Alaska 1981) (affirming holding in Loomis that punitive damages are available in civil action, but distinguishing administrative action where punitive damages are not available). Moreover, under the common law, Alaska's superior courts possess the authority to award punitive damages for outrageous conduct. See Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702 (Alaska 1962). Allowing punitive damages under AS 18.80.220 does not reach beyond settled expectations. We therefore follow our prior holdings that punitive damages are authorized under AS 18.80.220 and AS 22.10.020(i). 2. Did the jury instructions err in per-, mitting the jury to award punitive damages against.VECO for acts of a supervisor beyond the scope of the supervisor's employment? VECO claims that the superior court's instruction on punitive damages was erroneous because it allowed the jury to award punitive damages based on vicarious liability. Citing Restatement (Second) of Agency § 217C (1958), it argues that this court should apply agency principles to limit the award of punitive damages to instances where the employer has committed a wrong. The jury instructions allowed the jury to award punitive damages against VECO based on four different theories of employer liability: (1) wrongfully terminating Rose-brock; (2) sexual harassment by an employee acting within the scope of his employment if VECO knew about the harassment and failed to take corrective action; (3) sexual harassment by a co-worker or supervisor who did not have authority over Rosebrock, if Rose-brock's supervisor knew about the harassment and failed to take corrective action; and (4) vicarious liability for sexual harassment by Rosebroek's supervisor, unlimited by the scope of the supervisor's employment. The jury found that VECO was liable for both wrongful termination and sexual harassment and awarded punitive damages. No special verdict answer specified whether punitive damages were awarded for the wrongful termination or the sexual harassment claims, or for both. Thus, it is possible that the jury's award of punitive damages could have been based solely on VECO's vicarious liability for actions of Roriek outside the scope of his employment. We must now determine whether an employer can be liable for punitive damages based solely on vicarious liability for its employees' actions outside the scope of their employment. Restatement (Second) of Agency § 217C provides: Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if: (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d)the principal or a managerial agent of the principal ratified or approved the act. The comments to section 909 of the Restatement (Second) of Torts, which is identical to section 217C of the Restatement (Second) of Agency, provide: The rule stated in this Section results from the reasons for awarding punitive damages, which make it improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously. It is, however, within the general spirit of the rule to make liable an employer who has recklessly employed or retained a servant or employee.... Nor is it unjust that a person on whose account another has acted should be responsible for an outrageous act for which he otherwise would not be if, with full knowledge of the act and the way in which it was done, he ratifies it, or, in cases in which he would be liable for the act but not subject to punitive damages, he expresses approval of it. In these eases, punitive damages are granted primarily because of the principal's own wrongful conduct. Although there has been no fault on the part of a Corporation or other employer, if a person acting in a managerial capacity either does an outrageous act or approves of the act by a subordinate, the imposition of punitive damages upon the employer serves as a deterrent to the employment of unfit persons for important positions. Restatement (Second) of Torts § 909 cmt. b (1979) (emphasis added) (illustrations omitted). We generally agree with VECO that the Restatement properly balances the interests in imposing vicarious liability while precluding punitive damages when the employer has not acted wrongfully. Other courts which have used agency principles to impose vicari ous liability on an employer for its supervisor's hostile environment sexual harassment have also limited the employer's punitive damage liability based on the agency principles enunciated in § 217C of the Restatement (Second) of Agency. See, e.g., Kelly-Zurian v. Wohl Shoe Co., 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457, 468-69 (Cal.App.1994) (holding that employer is not liable for punitive damages based on supervisor's sexual harassment unless the employer acted wrongfully, as defined by Restatement (Second) of Torts § 909); Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 464 (N.J.1993) (applying agency principles to hold employer vicariously liable for supervisor's hostile environment sexual harassment, but limiting liability for punitive damages to situations of actual participation by upper management or willful indifference). We have indicated that liability for punitive damages might be imposed in one situation where the Restatement would not impose them' — where an employee who is not necessarily employed in a managerial capacity acts within the scope of his employment. See Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 948-49 (Alaska 1986); cf. Murray v. Feight, 741 P.2d 1148, 1158-59 (Alaska 1987). We decline, however, to extend this exception and allow vicarious liability for punitive damages when the employee is acting outside the scope of his employment. [Wjhen an employee commits a wrongful act which would subject him personally to punitive damages, the essential inquiry must be whether the act was committed while the employee was acting within the scope of his employment. . If the employee was acting within the scope of his employment, the corporation will be liable for punitive damages regardless of whether that employee may be classified as "menial." If an employee is acting outside the scope of his employment, he is not acting in any way to further the goals of the employer. See Restatement (Second) of Agency § 228(l)(c) (providing that employee is not acting within the scope of his employment unless his actions are "actuated, at least in part, by a purpose to serve the master"). The interest of preventing sexual harassment is served by holding an employer vicariously liable for its supervisors' sexual harassment, regardless of whether they are acting within the scope of their employment, because the employer may be deterred from delegating authority to untrained or incompetent supervisors. However, this does not mean that an innocent employer should be punished by an award of punitive damages when its supervisors are acting outside the scope of their employment. Punitive damages are disfavored and are allowed only within narrow limits. See Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995). The instructions given in this case went beyond those limits in permitting punitive damages to be awarded based on vicarious liability for acts of employees outside the scope of their employment. When a jury award may be based on any one of several theories, one of which has been erroneously submitted to the jury, a new trial is required. See Matomco Oil Co. v. Arctic Mechanical, Inc., 796 P.2d 1336, 1343-44 (Alaska 1990). This rule applies here, for there is no means for determining whether the punitive damage award was based on the direct liability theories which would support the award or on the vicarious liability theory which would not support the award. 3. Did VECO properly object to the punitive damage instruction? Civil Rule 51(a) provides that "[n]o party may assign as error the giving or the failure to give an instruction unless the party objects thereto . stating distinctly the matter to which the party objects and the grounds of the objection." We now address whether VECO satisfied this rule with respect to punitive damages for vicarious liability. The superior court gave a substantially similar instruction on punitive damages as that submitted by VECO. This instruction did not inform the jury that it could not impose punitive damages based on vicarious liability for acts of supervisors beyond the scope of their employment. However, VECO objected to the instruction which stated that it could be held vicariously liable for the acts of its supervisors. VECO's counsel referred to its "running objection", referring to its prior arguments on this point. VECO clearly asserted its position that it could not be vicariously liable for sexual harassment. But it did not state that this objection applied to punitive damages. In our view, such a statement was not necessary in order to preserve its appellate rights. VECO's objection to vicarious liability was inclusive of all forms of damages. Liability for punitive damages was subsumed within its objection. rv. CONCLUSION The judgment of the superior court is AFFIRMED as to compensatory damages, REVERSED as to punitive damages, and REMANDED for a new trial where the issues will be whether punitive damages should be assessed against VECO and, if so, the amount of such damages. COMPTON, Chief Justice, not participating. Rosebrock has requested that you award a separate amount of money in order to punish VECO and to deter VECO and others from repeating similar acts. You may award such an amount of money only if you have decided that VECO is liable on one or more of Rose-brock's claims, and if you decide that VECO's conduct which forms the basis of your verdict was outrageous. VECO's conduct was outrageous if it was the result of maliciousness, bad motive, or was undertaken with a reckless indifference to Rosebrock's interests and rights. Rosebrock must prove the outrageousness of VECO's conduct by clear and convincing evidence. An alleged fact is established by clear and convincing evidence if the evidence induces belief in your minds that the alleged fact is highly probable. It is not necessary that the alleged fact be certainly true or true beyond a reasonable doubt or conclusively true. However, it is not enough to show that the alleged fact is more likely than not true. . VECO admits that Arctic Rentals is merely a division of VECO, and does not argue that it is a separate corporate entity. . While Rosebrock originally alleged both quid pro quo and hostile environment sexual harassment claims, the jury only decided the hostile environment sexual harassment claim. . Rosebrock testified that Clark was her supervisor when Roriek was not on the slope. Dropps was also a supervisor, but he was not Rose-brock's supervisor and did not have any authority over her. .Counsel for VECO on appeal did not serve as its trial counsel. . Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). . Id. . Restatement (Second) of Agency § 228 defines scope of employment as follows: . Section 219 of the Restatement (Second) of Agency provides in relevant part: (1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation. . Section 217C of the Restatement (Second) of Agency provides: Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if: (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act. . See Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 948-49 (Alaska 1986). . Jury instructions involve questions of law, which this court reviews using its independent judgment. See Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1130 n. 4 (Alaska 1994). An erroneous statement of law in jury instructions will not be reversed unless prejudice is shown. Id. . A management-level employee has been defined as one who has the "stature and authority of the agent to exercise control, discretion and independent judgment over a certain area of a business with some power to set policy for the company." Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1263 (10th Cir.1995); see also Albuquerque Concrete Coring Co. v. Pan Am World Servs., Inc., 118 N.M. 140, 879 P.2d 772, 777 (N.M. 1994) (defining managerial employee "as one who 'formulates, determines and effectuates his employer's policies, one with discretion or authority to make ultimate determinations independent of company consideration and approval of whether a policy should be adopted.' ") (quoting Kemner v. Monsanto Co., 217 Ill.App.3d 188, 160 Ill.Dec. 192, 576 N.E.2d 1146, 1157 (Ill.App.1991)). . Paragraph three imposes liability on VECO for hostile environment sexual harassment by non-supervisors who acted within the scope of their employment, as long as VECO knew or should have known about the harassment. VECO does not challenge this part of the instruction. . Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the United States Supreme Court held that Title VII prohibits hostile environment sexual harassment. . In Meritor, a female bank employee alleged that her supervisor, who was a bank vice-president and branch manager, had sexually harassed her. 477 U.S. at 59-60, 106 S.Ct. 2399. In dicta, the district court held that the bank could not be held liable because it did not have any knowledge of the alleged harassment. Id. at 61-62, 106 S.Ct. 2399. The Court of Appeals for the District of Columbia reversed, holding that the bank was liable for sexual harassment by its supervisory personnel, regardless of whether or not it knew or should have known about the conduct. Vinson v. Taylor, 753 F.2d 141, 150 (D.C.Cir.1985). It held that a supervisor is an agent of his employer and, even if he lacks authority to hire, fire, or promote, "the mere existence — or even the appearance — of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees." Id, (footnote omitted). . Meritor does not prohibit courts from imposing vicarious liability on employers for hostile environment sexual harassment committed by their supervisors. Rather, it only prohibits federal courts from "concluding that employers are always automatically liable for sexual harassment by their supervisors." 477 U.S. at 72, 106 S.Ct. 2399 (emphasis added). Thus, Meritor allows federal courts to impose vicarious liability in some instances. . In response to Meritor, lower federal courts fashioned confusing and even contradictory rules for when employers can be held vicariously liable for sexual harassment committed by their supervisors. See Frederick J. Lewis & Thomas L. Henderson, Employer Liability for "Hostile Work Environment" Sexual Harassment Created by Supervisors: The Search for an Appropriate Standard, 25 U. Mem. L.Rev. 667 (1995) (providing a survey of the standards which the various federal circuits have employed). . In Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), both decided after this case was briefed and argued, the United States Supreme Court revisited the subject of hostile work environment sexual harassment cases and made a number of observations relevant to this case. The Court noted that for sexual harassment to be actionable it must be "severe or pervasive," that the non-statutory terms "quid pro quo" and "hostile work environment" illustrate the distinction between cases which involve a threat which is carried out and generally offensive conduct, but are not in themselves controlling as to tire imposition of vicarious liability, and that generally "sexual harassment by a supervisor is not conduct within the scope of employment." Burlington at 2265, 2267. The Court endorsed the application of the "aided in agency" theory expressed in the Restatement (Second) of Agency § 219(2)(d). However, where no tangible employment action has been taken, the Court devised an affirmative defense for the employer. The defense consists of two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. Burlington at 2270, Faragher at 2293. While these recent cases are thus in several respects supportive of the views we express herein as to the liability of an employer for the harassive acts of a supervisor, we have no occasion to consider whether the affirmative defense which they announce should be adopted as a feature of Alaska anti-discrimination law. Understandably, the issue of the adoption of such a defense was not raised below or on appeal. . The parties have used the term "strict liability" to describe holding the employer liable for the acts of its supervisors. Since our analysis is based on agency principles, the liability is more accurately defined as "vicarious liability." . As stated in Diamond v. Wagstaff, 873 P.2d 1286, 1290 (Alaska 1994): When reviewing a motion for a judgment n.o.v., we determine whether evidence, when viewed in the light most favorable to the non-movant, is such that reasonable persons could not differ in their judgment. We neither weigh the evidence nor judge the credibility of witnesses. Rather, we employ an objective test: If there is room for diversity of opinion among reasonable people, then a jury question exists. We review the superior court's denial of a motion for a new trial for an abuse of discretion. An abuse of discretion occurs only if the evidence supporting the jury's verdict was either completely lacking or slight and unconvincing, so that the verdict was manifestly unreasonable and unjust. Again, we draw all inferences from the facts in the light most favorable to the non-movant. When reviewing a jury verdict under these standards, this court necessarily considers hypothetical explanations for the jury's determination. Otherwise, we would not be able to review verdicts at all. (Citations omitted.) .The trial in this case was held before we decided French. However, the superior court used the same standard called for in French, and VECO does not challenge the superior court's employment of the severe or pervasive standard. The superior court also instructed the jury that, in evaluating whether the behavior complained of was severe or pervasive, "You should consider this question from the perspective of a reasonable woman: would a reasonable woman consider the conduct sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment?" In French, we specifically declined to decide whether to adopt the "reasonable woman" standard. French, 911 P.2d at 28 n. 10. VECO does not appeal this instruction, so we have no occasion to review it. . Statutory interpretation is a question of law which this court reviews using its independent judgment. See Huf v. Arctic Alaska Drilling Co., 890 P.2d 579, 580 n. 2 (Alaska 1995). . AS 23.30.055. . The superior court is accorded wide discretion in ruling on motions to amend pleadings. See Rodriguez v. Rodriguez, 908 P.2d 1007, 1011 (Alaska 1995). .AS 18.80.220(a)(4) provides that it is an unlawful employment practice for "an employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against a person because the person has opposed any practices forbidden under AS 18.80.200- 18.80.280 or because the person has filed a complaint, testified, or assisted in a proceeding under this chapter...." . See Knight v. American Guard & Alert, Inc., 714 P.2d 788, 791 (Alaska 1986) (stating that pleadings should be construed liberally). . VECO does claim that it would have pursued a different tactic. However, we are unable to distinguish between the trial tactic that VECO actually used and the tactic that it claims it would have used. .VECO also argues that it was prejudiced if this court rules that AS 18.80.220 does not support punitive damages, since Alaska does not recognize a public policy tort that would serve as an alternative grounds for imposing punitive damages. Since we hold that this statute does authorize awards of punitive damages, see infra III.C.l., VECO was not prejudiced. We do not reach the issue of whether a public policy tort should be recognized in the circumstances of this case or whether such a claim would support an award of punitive damages. . The superior court's instructions in their entirety as they pertain to Rosebrock's wrongful termination claim provide: Rosebrock's second claim is for wrongful termination. Rosebrock claims that she was terminated in retaliation for complaining of sexual harassment and/or sexual assault. In order to find that Rosebrock was wrongfully terminated, you must find that it is more likely than not that: 1) Rosebrock complained about sexual harassment and/or sexual assault; 2) VECO terminated Rosebrock; and 3) There was a causal connection between Rosebrock's complaints and the termination. There are two ways that Rosebrock can show that there was a causal connection between her complaints and her lay-off. She may show, first, that VECO's only reason for terminating her was retaliatory. In such case, she must demonstrate that any reason stated by VECO for its actions was merely pretextual, and not true. This is called a "pretext" claim. Second, she may show that even if VECO had a legitimate motive for terminating her, retaliation was also a causal factor in the lay-off. This is called a "mixed motive" claim. To prevail on either of these claims, Rose-brock must first prove two things. First, she must prove that she complained to VECO supervisory or management employees about sexual harassment and/or sexual assault. Second, Rosebrock must prove that after she complained of sexual harassment and/or assault, she was terminated. To prevail on her pretext claim, Rosebrock must next establish that it is more likely than not that VECO's real reason for terminating her was the fact that she complained of sexual harassment and/or sexual assault. VECO claims that it laid Rosebrock off as part of company-wide cost-cutting reductions in force. In managing its affairs, a business is entitled to exercise managerial discretion. This means that even though you think a particular decision is wrong and you would have acted differently had it been up to you, as long as complaints of sexual harassment or sexual assault were not a causal factor in the decision, it is lawful. You must decide whether VECO's stated reason for Rosebrock's lay-off was "pretextual," or not the true reason for Rosebrock's termination. If you decide that it is more likely than not that VECO's stated reason was pretex-tual, you must find that Rosebrock has established her claim for wrongful termination. To prevail on her mixed motive claim, Rose-brock need not establish that her complaints constituted the sole motivation or even the primary motivation for VECO's action. Plaintiff must prove that it is more likely than not that her complaints were a causal factor in her termination, even though VECO may also have been motivated by other factors. If you find that Rosebrock has proved that her sexual harassment and/or sexual assault complaint was/were motivating factor(s) in her termination, then you must find for Rosebrock on her mixed motive wrongful termination claim, unless you also find that VECO has proved that it is more likely than not that it would have made the same decision, if Rose-brock had not complained of sexual harassment and/or sexual assault. If you find that VECO would have made the same employment decision if Rosebrock had not made her complaint, then you must find for VECO on the mixed motive wrongful termination claim. The fact that Rosebrock was an "at will" employee who could be terminated without cause does not mean that VECO could terminate Rosebrock because she complained of sexual harassment or sexual assault. . AS 18.80.220(a)(4) provides that it is unlawful for an employer to "discharge, expel, or otherwise discriminate against a person because the person has opposed any practices forbidden under AS 18.80.200-18.80.280 or because the person has filed a complaint, testified, or assisted in a proceeding under this chapter...." (Emphasis added.) . Bobby Clark served as the alternate equipment manager when Rick Rorick was away from the North Slope. . Statutory interpretation is a question of law which this court reviews using its independent judgment. See Huf v. Arctic Alaska Drilling Co., 890 P.2d 579, 580 n. 2 (Alaska 1995). 33. AS 22.10.020(c) was subsequently codified as AS 22.10.020(i). It provides in relevant part: The [superior] court may enjoin any act, practice, or policy which is illegal under AS 18.80. and may order any other relief, including the payment of money, that is appropriate. . We have indicated that an employer is vicariously liable for punitive damages for acts of employees within the scope of their employment. See Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 948-49 (Alaska 1986) (holding owner of mobile home park liable for punitive damages for acts of managers within the scope of their employment) (citing Stroud v. Denny's Restaurant, 271 Or. 430, 532 P.2d 790, 793 (Or.1975)); cf. Murray v. Feight, 741 P.2d 1148, 1158-59 (Alaska 1987) (holding defendant liable for punitive damages for act of partner in the ordinary course of partnership business). Our holding today concerns vicarious liability for acts of employees outside of the scope of their employment. . In Smalley we adopted the majority rule for an employer's vicarious liability for punitive damages, relying on Stroud v. Denny's Restaurant, Inc., 271 Or. 430, 532 P.2d 790, 793 (Oregon 1975). The rule as expressed in Stroud requires that the employee be acting within the scope of his employment: . In Doe v. Samaritan Counseling Center, 791 P.2d 344, 348 (Alaska 1990), we stated the "motivation to serve" test would be satisfied "where tortious conduct arises out of and is reasonably incidental to the employee's legitimate work activities". To the extent that this language suggests that the employee's act need not be motivated in fact at least to some degree to serve the master's business we disapprove of it. Doe was a patient whose counselor had consensual sex with her. The question was whether the employer of the counselor could be vicariously liable for the abuse of the patient-counselor relationship. We held that there was a question of fact as to whether the counselor had acted within the scope of his employment. We did not mention the possibility of vicarious liability under an aided in agency theory like that contained in section 219(2)(d) of the Restatement (Second) of Agency which would be applicable regardless of scope of employment considerations. On reflection, vicarious liability under such a theory would seem to be justified. And imposing vicarious liability under a scope of employment theory absent at least a partial purpose on the part of the employee to serve the employer seems unjustified. . Instruction No. 31 states: . VECO has raised numerous evidentiary objections. We have reviewed each of them and find that the rulings complained of were either correct or, if erroneous, harmless in that they did not affect VECO's substantial rights. VECO also claims that Rosebrock's attorney violated professional standards in his closing argument. However, as no objection was made to this conduct, we regard it as waived. We have reviewed the conduct under a plain error standard and find that plain error does not exist. Finally, VECO claims that it was entitled to exercise a peremptory challenge to the trial judge under Civil Rule 42(c) after a co-defendant had already made a Rule 42(c) challenge. VECO argues that its interests were hostile to those of the co-defendant, but it did not make this argument below. We therefore consider the point to be waived. Rosebrock's cross-appeal was based on a discovery sanction issue which was relevant only to proving liability for wrongful termination. Since we affirm the judgment of liability, we do not reach the cross-appeal.

11766364

Paul Thomas MORINO, Appellant, v. Anne Elizabeth SWAYMAN, Appellee

Morino v. Swayman

1999-01-15

No. S-8331

426

433

970 P.2d 426

970

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Paul Thomas MORINO, Appellant, v. Anne Elizabeth SWAYMAN, Appellee.

Paul Thomas MORINO, Appellant, v. Anne Elizabeth SWAYMAN, Appellee. No. S-8331. Supreme Court of Alaska. Jan. 15, 1999. William T. Ford, Anchorage, for Appellant. Steven Pradell, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4096

25897

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Paul Morino filed a motion in superior court to modify a court-approved visitation schedule to allow him an additional overnight visitation per week with his children. He appeals the superior court's denial of his motion and its award of $1,370 in attorney's fees to Anne Swayman, the children's mother. The court denied Morino's motion without a hearing, ruling that Morino had failed to demonstrate a substantial change in circumstances. It also awarded Swayman her actual attorney's fees because Morino's financial resources were greater than Swayman's and because the court found that his motion was not filed in good faith. We conclude that the court should have held a hearing on Morino's motion to modify. II. FACTS AND PROCEEDINGS Paul Morino and Anne Swayman were divorced on February 12,1996. They have two young children of the marriage. During the divorce proceedings, Morino and Swayman signed a "Custody, Visitation, and Child Support Agreement." The agreement provided that Swayman would have sole legal custody of both children. Morino would have two consecutive overnight visitations per week, one three-hour evening visitation mid-week, and summer and holiday visitation. The agreement also provided that beginning on September 1, 1999, the parties would change the visitation to a 50/50 visitation schedule by which they would rotate custody on a weekly basis. The superior court incorporated the agreement into the divorce order, finding that the custody and visitation agreement was in the best interests of the children. On July 25, 1997, Morino filed a motion to modify visitation to allow him three consecutive overnight visitations per week, and also filed an accompanying motion requesting a hearing. He affied that from September 1996 until late June 1997, he had visitation with the children for three overnights per week pursuant to an informal agreement with Swayman. He also affied that in early June, he had asked Swayman to sign a stipulation to formally change the visitation schedule to reflect the actual visitation. Approxir mately two weeks later, however, Swayman informed him that she would not agree to the modification, and would instead return to the original visitation schedule because she felt the modification was not in the children's best interests. Morino argued that the parties' informal agreement to modify the visitation schedule and the ten-month period when the visitation had actually changed was a substantial change in circumstances and that it was in the best interests of the children to continue with the modified schedule. Swayman opposed the motion, arguing that she had merely tried to accommodate extra visitation, but had not agreed to a formal modification of the visitation order. She argued that Morino had failed to demonstrate a substantial change in circumstances entitling him to an evidentiary hearing and increased visitation would not be in the children's best interests. The superior court denied Morino's motions without a hearing, holding that Morino failed to show a change in circumstances. It also denied Morino's motion for reconsideration, emphasizing that an informal accommodation in visitation is not a changed circumstance, because such a result would discourage custodial parents from allowing favorable deviations from visitation agreements. Swayman then moved for actual attorney's fees under AS 25.20.115. The court awarded her $1,370 in actual attorney's fees, finding that Morino's relative financial resources were clearly greater than Swayman's and that Morino's motion was "vexatious and not in good faith." Morino appeals the superior court's denial of his motion to modify visitation, as well as the award of actual attorney's fees to Sway-man. III. DISCUSSION The Superior Court Should Have Conducted a Hearing Because Morino Alleged Facts Which Could Have Justified a Modification Reasoning that Morino had failed to demonstrate a substantial change in circumstances, the superior court denied Morino's motion to modify visitation and denied his motion for a hearing. Morino argues that the court erred in failing to hold an eviden-tiary hearing because the agreement with Swayman to modify the visitation schedule constituted a substantial change in circumstances. A trial court may modify a visitation award if it determines that "a change in circumstances requires the modification of the award and the modification is in the best interests of the child." AS 25.20.110(a). The parent moving for modification has the burden of proving a substantial change in circumstances as a threshold matter. See Long v. Long, 816 P.2d 145, 150 (Alaska 1991). The change in circumstances required to modify visitation, though, is not as great as that required for a change in custody. See Carter v. Brodrick, 816 P.2d 202, 204 (Alaska 1991). A movant who demonstrates a change in circumstances is entitled to an evidentiary hearing to determine whether the modified visitation would be in the child's best interests. See A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995). However, a trial court is not required to grant a hearing on a modification motion if it is "plain that the facts alleged in the moving papers, even if established, would not warrant a change." Deivert v. Oseira, 628 P.2d 575, 578 (Alaska 1981). We recently clarified that the question of whether the moving party has met its burden of demonstrating a change in circumstances so as to be entitled to an evidentiary hearing is a matter of law which we review de novo. See C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998). Thus if a trial court denies a motion to modify visitation without a hearing, "[w]e will affirm if, in our independent judgment, the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or eonclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of material fact requiring a hearing." Id. Because the superior court denied Mori-no's motion to modify visitation without a hearing, the issue is whether Morino alleged facts that, taken as true, could warrant modification. Morino presented the following in support of his motion. He affied that beginning in September of 1996 Swayman consented to his keeping the children overnight on his mid-week visitation instead of just visiting with them for three hours pursuant to the visitation order. Morino also affied that he subsequently began keeping the children for three consecutive overnights, which replaced his mid-week visitation. Swayman agreed to this change in a letter to Morino. She wrote: Starting Thursday, February 6, 1997, you'll have the kiddos from 6:00 p.m. until Sunday at 12:00 p.m. This will give us the same schedule with them without breaking up their routine as much. Morino argued that it was in the best interest of the children to continue with this schedule, that the children benefitted from the increased time which they spent with him, that the informal agreement to the schedule "demonstrates that such a scheme meets the children's mental, emotional and social needs," and that the schedule "is easier on the children because it involves fewer change-overs." In response to Swayman's opposition, Morino contended that since the new visitation arrangement had been in place since September of 1996 another change would be destabilizing and contrary to the children's best interests. Further he contended that the children while in his custody were nurtured in a placid and stable home life while, by contrast, in Swayman's household they were exposed to considerable domestic strife. Morino argues that the informal agreement and de facto change in the visitation schedule constitute a substantial change in circumstances which entitles him to an evi-dentiary hearing. It is uncontested that the parties informally agreed to modify the visitation schedule. For a ten-month period the informal agreement effectively substituted one additional overnight visitation per week for Morino's three-hour mid-week visitation. The original visitation schedule had only been in effect for seven months before this change in visitation. Arguably, this substitution could be regarded as a substantial change from the original visitation schedule. Custodial parents should have the flexibility to experiment with new visitation schedules without fearing that every temporary change could be the basis for modifying visitation. See Gaston v. Gaston, 954 P.2d 572, 574 n. 4 (Alaska 1998) ("Alaska's family law encourages custodial parents to be flexible in experimenting with visitation schedules, and in most cases parents should feel free to end such experiments if they conclude that they are not working."). As noted by the superior court, if temporary variations in visitation schedules always constituted a substantial change in circumstances, primary custodians would be discouraged from allowing any favorable deviation from the visitation order. Nonetheless, at some point, informal or de facto modifications of custodial or visitation arrangements should be formalized. Child support amounts and the number of visitation days allotted to the non-custodial parent are interdependent under Civil Rule 90.3(a) and (b). A premise of the rule is that it is in the best interests of the children that child support amounts bear a prescribed relationship to the time the children spend with each parent. But this can only be accomplished where the decree reflects actual practice. Thus, justice is best served if the child support amount reflects the actual responsibilities and burdens of the parties. A de facto change with respect to the custody of a child may be a change of circumstances for the purpose of changing a custodial decree. It follows that a de facto change with respect to visitation of a child may be a change of circumstances for the purpose of modifying decreed visitation. Of course, experimental changes lasting only a few months should not qualify as a change in circumstances. Just as surely, de facto changes of a lengthy duration, especially when they are such as to change child support payments when given de jure status, should qualify. It is a fair question whether the interests of flexibility and experimentation are outweighed by the interest in formalizing a de facto change in this case. We are unable to say as required by Deivert that it is "plain that the facts alleged . would not warrant a change." 628 P.2d at 578. Nor can we say, to use the terms of C.R.B., that "the facts alleged . cannot warrant modification." 959 P.2d at 378. Instead, we have what appears to be a case where the facts as alleged may or may not warrant modification. An exercise of the trial court's judg ment is required. That judgment should be exercised by a fully informed trial court judge after the parties have an opportunity to make their presentations at an evidentiary hearing. Our disposition in this case concerning the need for a hearing on Morino's motion for modification requires that the court's award of attorney's fees be vacated. IV. CONCLUSION For the reasons stated, the orders denying Mormo's motion to modify and granting an award of attorney's fees to Swayman are VACATED and this case is REMANDED for further proceedings consistent with this opinion. FABE, Justice, with whom BRYNER, Justice, joins, dissenting. . See Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996): Child support awards should be based on a custody and visitation order. If the parties do not follow the custody order, they should ask the court to enforce the custody order or should move to modify the child support order. Cf. Karpuleon v. Katpuleon, 881 P.2d 318, 320 (Alaska 1994) (burden is on parents to apply promptly for modification when a child changes residency). . See Boone v. Boone, 960 P.2d 579, 582 (Alaska 1998) (children's change in residence for a period of ten months a material change in circumstances even though former custodial parent argued that it was a "temporary, and voluntary, physical custody arrangement which was never ordered by the court"). .As previously noted, the substantive requirements for a modification are findings of a substantial change of circumstances and that modification is in the best interest of the children. Supra at 428. Our conclusion that Morino made a prima facie case justifying a hearing thus necessarily applies to both requirements. As to the best interest requirement, the showing he made summarized above is sufficient. The duration of the informal modification implies that continuity and stability interests will be advanced. Tire modified schedule brings closer-to-equal contact with each parent and implies improved transitions now, as well as an easier transition to equal contact which will occur as agreed on September 1, 1999. The fact that Swayman agreed to the informal change implies that she thought initially that the changed schedule was at least not in conflict with the children's best interests.

10402400

Louie KINEGAK, Appellant, v. STATE of Alaska, Appellee

Kinegak v. State

1987-12-11

No. A-1769

541

546

747 P.2d 541

747

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Louie KINEGAK, Appellant, v. STATE of Alaska, Appellee.

Louie KINEGAK, Appellant, v. STATE of Alaska, Appellee. No. A-1769. Court of Appeals of Alaska. Dec. 11, 1987. Karen R. Hegyi, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert M. Miller, Asst. Dist. Atty., Bryan E. Schuler, Dist. Atty., Bethel, and Ronald W. Lorenson, Acting Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2906

18063

OPINION SINGLETON, Judge. A jury convicted Louie Kinegak of the sale of liquor without a license, AS 04.11.-010. Magistrate Craig R. McMahon sentenced Kinegak to sixty days with thirty days suspended and imposed a fine of $2,000 with $1,000 suspended. Kinegak appeals, arguing that the trial court committed prejudicial error in its response to an inquiry from the jury during deliberations. We agree and reverse. The evidence presented at trial showed that Kinegak was working at the Kuskok-wim Inn in Bethel when he was approached by Norman Black, an undercover police officer. Black requested that Kinegak purchase a bottle of whiskey for him and gave him $100. Kinegak agreed, left the restaurant, and, with the money that Black had given to him for the purchase, bought a bottle of Windsor Canadian Whiskey from an unidentified person in the area. Upon returning to the restaurant a few minutes later, Kinegak gave Black the bottle of whiskey and the change from the purchase. Kinegak testified that he did not receive any money or other form of profit from the transaction. At the close of the case, Magistrate McMahon gave the following instruction on affirmative defenses: It is an affirmative defense to this charge that no profit was involved in the solicitation or receipt of an order for the delivery of an alcoholic beverage. Therefore, if you find it more likely than not that no profit was involved, then you must find the defendant not guilty. An instruction on accomplice liability was given as well: The defendant is legally accountable for the conduct of another constituting an offense if with intent to promote or facilitate the commission of offense, the defendant aids or abets the other in planning or committing the offense. During its deliberations, the jury sent Magistrate McMahon a note requesting a definition of profit. Specifically, the jurors wanted to know how far back in time they should go in considering whether any profit was made. Defense counsel wanted the profit issue limited solely to the transaction between Kinegak and Black, while the district attorney wanted the profit question to cover the transaction between Kinegak and the unidentified party as well. When the attorneys could not reach an agreement, Magistrate McMahon decided that no clarification would be given. The jurors were told "to use their common sense in deciding the meaning of profit." The jury continued to deliberate and subsequently reached a verdict of guilty. On appeal, Kinegak argues that the court erred when it failed to instruct the jury that the issue of profit applied only to the transaction between himself and Black. Alaska Statute 04.16.200(c) provides that it is an affirmative defense to prosecution for the sale of liquor without a license that "no profit was involved in the solicitation or receipt of an order for the delivery of an alcoholic beverage." According to Kine-gak, AS 04.16.200(c) requires that a defendant be acquitted if he establishes, by a preponderance of the evidence, that he did not personally profit from the sale of an alcoholic beverage. Kinegak contends that, unless the profit question is limited to the transaction involving he and Black, the affirmative defense provided for in AS 04.-16.200(c) may never be successfully asserted because there is always someone who profits from an illegal sale of liquor. This is especially true, as in this case, when the alcoholic beverage is distributed nationally. The state argues that Kinegak was an accessory to the sale of whiskey to Black by the unidentified third party, and that the unidentified third party's profit was imputed to Kinegak, thereby defeating the affirmative defense. Under the state's accomplice theory, it makes no difference that Kinegak did not personally profit from the sale. Instead, inquiry focuses on whether Kinegak aided and abetted someone who did profit from the sale to Black. In the state's view, the evidence at trial showed that the unidentified third party made a profit, and Kinegak aided and abetted the unidentified third party by carrying the money from the buyer to the seller and carrying the whiskey from the seller to the buyer. According to the state, having "step(ped] into the seller's shoes," Kinegak was no longer entitled to assert the affirmative defense. We must therefore interpret the applicable statutes. Specifically, we must determine the effect of the affirmative defense on a theory of accomplice liability. In so doing, it is helpful to differentiate between one who commits an offense "by his own conduct," whom we will call the perpetrator, and one who commits an offense by means of, or in aid of the "conduct of another person for which he is legally accountable," whom we will call an accomplice. See AS 11.16.100. The legislature has provided a defense to a charge of illegal sale of alcohol for one who does not profit. The question is whether an accomplice may avail himself of this defense if the perpetrator receives a profit. Having carefully considered the arguments of the parties, the facts of this case, and the applicable statutes, we conclude that he may not avail himself of this defense. In our view, in order to make a prima facie case justifying submission of this defense to the jury, a defendant charged as an accomplice must offer some evidence that both he and the perpetrator did not profit from the transaction. This reading of the statute is most consistent with the language describing the defense and the offense, and will most effectively serve the legislative goal of restricting the unlicensed distribution of alcoholic beverages. Our decision necessarily rejects the argument that the defense under consideration incorporates the "purchasing agent" theory of defense to a sale of contraband which is available in a number of jurisdictions. See United States v. Moses, 220 F.2d 166 (3d Cir.1955) (narcotics); People v. Hall, 44 Colo.App. 535, 622 P.2d 571 (1980) (narcotics); People v. Lam Lek Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200 (1978) (narcotics); People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208 (1978) (narcotics); People v. McCrory, 222 N.Y.S.2d 112 (N.Y.Sup.Ct.1961) (alcohol offense); Durham v. State, 162 Tex.Cr.R. 25, 280 5.W.2d 737 (1955) (narcotics). But see State v. Hecht, 116 Wis.2d 605, 342 N.W.2d 721 (1984) (rejecting purchasing agent defense). In cases adopting a purchasing agent defense, the court recognizes that the language of the respective statutes would be broad enough to cover an "agent" of the purchaser, but declines to read them that broadly. Two reasons are offered in support of this position. First, most legislation sharply differentiates between sellers and buyers of contraband, imposing substantial penalties on the former and minimum or no penalties on the latter. The defense thus mitigates the harsh penalties imposed on sellers. Second, the courts rely on the proposition that a buyer of contraband is not an accomplice of the seller. See Howard v. State, 496 P.2d 657, 660 (Alaska 1972). If a buyer is not the seller's accomplice, the courts reason, the buyer's agent should not be deemed the seller's accomplice. The Alaska Supreme Court has specifically rejected the purchasing agent theory for narcotics offenses. See McKay v. State, 489 P.2d 145, 152-53 (Alaska 1971). We recognize that McKay could be distinguished. It could be argued that the purchasing agent theory developed as a common law defense to a statutory offense where the defense was not specifically recognized in the statute. The drug offenses considered in McKay were not subject to a statutory gratuitous transaction defense. In contrast, the legislature has specifically recognized lack of profit as a defense to a charge of an unlicensed liquor offense. Further, the legislature has sanctioned the unlicensed sale of liquor, but has not imposed similar sanctions on purchase or mere possession. While recognizing these distinctions, we nevertheless follow McKay and decline to interpret AS 04.16.200(c) as establishing a purchasing agent defense to a charge of an unlicensed sale of liquor. The legislature, in defining the defense, required that "no profit [be] involved in the solicitation or receipt of an order for the delivery of an alcoholic beverage." If a purchasing agent is viewed as a mere conduit or intermediary, then the buyer places his order with the perpetrator. The plain language of the statute would seem to require a defendant to establish that the person who receives the order, i.e., the perpetrator, receives no profit. The legislature could easily have expressly provided that the defendant was entitled to a defense if he did not personally profit. It did not do so. Furthermore, common sense teaches that sellers of contraband will frequently act through intermediaries so that recognition of a purchasing agent defense might render suc cessful prosecutions virtually impossible, thus frustrating the evident legislative purpose to eliminate unlicensed transactions in intoxicating liquor. A purchasing agent defense is not necessary to prevent draconic penalties from being visited upon the victims of contraband abuse in order to reserve sanctions for those commercially involved in the contraband industry. Unlike illegal drug transactions, which may be felonies, unlicensed sale of alcohol is normally a misdemeanor. AS 04.16.200(a). Finally, trial courts have appropriate sentencing discretion, subject to appellate sentencing review, to insure that only those commercially involved in illegal sales receive substantial sentences. Compare Peruski v. State, 711 P.2d 573 (Alaska App.1985) (approving sentence of one year for participant in major illegal liquor distribution system) with Nicholas v. State, 689 P.2d 510 (Alaska App.1984) (jail sentence inappropriate for first offender incidentally involved in unlicensed liquor transaction). In our view, a sentencing judge is in a far better position to determine the extent of a defendant's involvement in the commercial distribution of contraband, by virtue of his or her greater access to all relevant facts, than is a trial jury deciding a specific case. Our rejection of a purchasing agent corollary to the statutory affirmative defense should not be misunderstood as eliminating the state's burden of proving that the defendant aided and abetted the perpetrator of the offense. Alaska Statute 04.-11.010(b) imposes upon the state the duty to prove a specific, unlawful transaction involving solicitation or receipt of an order for alcoholic beverages. The affirmative defense provided for under AS 04.16.200(c) plainly relates to the specific transaction at issue in any given case. When the complaint charges the accused as an accomplice in an illegal transaction involving the joint participation of two or more people, the affirmative defense is inapplicable if any of the joint participants received a profit. As we have indicated, this holds true regardless of whether the accused acted as an agent of the buyer or the seller. McKay v. State, 489 P.2d at 152-57. Conversely, in order to establish the affirmative defense, the accused need only show that no profit was involved in the illegal transaction that is the focus of the charge. When no profit is made by any participant in the charged transaction, the affirmative defense bars conviction, and it is immaterial that profit may have been made in some separate, antecedent transaction. In light of the foregoing, the trial court erred in failing to respond more informatively to the jury's inquiry regarding the affirmative defense. An argument could be made that the error was harmless, since our interpretation of the interplay between the no-profit affirmative defense and accomplice liability is consistent with the state's theory of the case and inconsistent with the defendant's theory of the case. See Alaska Criminal Rule 47(a). We are nevertheless persuaded to grant the defendant a new trial. Kinegak was charged with sale of a nationally manufactured and distributed alcoholic beverage. Clearly, at some stage in its distribution, somebody made a profit. There is at least a risk that one or more members of the jury might have interpreted the trial court's reference as suggesting that the defense might, in the exercise of the jury's collective common sense, be limited to locally manufactured beverages and not apply to nationally distributed beverages where a profit at some stage of distribution was virtually certain. Moreover, Kinegak was charged with participating in an unlawful sale of alcohol to Black, the state's undercover agent. The illegal sale could arguably have been characterized as a transaction between Black and Kinegak's supplier, in which Kinegak acted as an intermediary. If the jury determined that either Kinegak or his supplier received a profit, Kinegak could properly have been convicted as an accomplice. Under the instructions actually given, however, as long as the jury found that Kinegak's supplier received a profit, the jury was free to reject the affirmative defense without deciding whether the supplier acted as a participant in the sale to Black. We are unable to find harmless error. Therefore, in the interest of justice, we are satisfied that a new trial is in order. The judgment of the district court is REVERSED and this case is REMANDED for a new trial. . Alaska Statute 04.11.010 provides: License or permit required, (a) Except as provided in AS 04.11.020, a person may not manufacture, sell, offer for sale, possess for sale or barter, traffic in, or barter an alcoholic beverage unless under license or permit issued under this title. (b) A person may not solicit or receive orders for the delivery of an alcoholic beverage in an area where the results of a local option election have, under AS 04.11.490-04.11.500, prohibited the board from issuing, renewing or transferring one or more types of licenses or permits under this title, unless the person is licensed under this title and the order is actually received by that person from the purchaser of the alcoholic beverage. A person who violates this subsection is punishable upon conviction under AS 04.16.200(a) or (b). . Alaska Statute 04.16.200 provides, in pertinent part: Unlicensed persons, (a) A person who violates AS 04.11.010 is, upon conviction, guilty of a class A misdemeanor. (c) It is an affirmative defense to a prosecution under (a) of this section that no profit was involved in the solicitation or receipt of an order for the delivery of an alcoholic beverage. However, the affirmative defense created under this subsection is not available in a prosecution of a person charged with selling or offering for sale alcoholic beverages to a person under 21 years of age. .Alaska Statute 11.16.110 provides: Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another constituting an offense if (1) the person is made legally accountable by a provision of law defining the offense; (2) with intent to promote or facilitate the commission of the offense, the person (A) solicits the other to commit the offense; or (B) aids or abets the other in planning or committing the offense; or (3) acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct. . Our treatment of accomplice liability relies on the Alaska Revised Criminal Code. See AS 11.-16.100 et seq. The parties have assumed the applicability of these provisions to prosecutions under AS 04.11.010. We will honor that assumption in deciding this case. See Knutson v. State, 736 P.2d 775, 779 (Alaska App.1987) (holding that AS 11.16.100-.110 apply to fish and wildlife offenses). . Alaska Statute 11.16.100 provides: Legal accountability based upon conduct. A person is guilty of an offense if it is committed by the person's own conduct or by the conduct of another person for which the person is legally accountable under § 100 of this chapter, or by both. . We are not prepared to decide on this record what the term "profit" means in context since this issue has not been briefed. We stress, however, that the "profit," if any, must be connected with an illegal transfer of alcohol to defeat the defense. . Thus one court views the "agency" defense as a means to give judge and jury flexibility to differentiate between the wide spectrum of persons who participate in drug distribution ranging from "predators" motivated by profit on one hand, and those casually involved or impelled by "medical and sociological aspects" on the other. Roche, 407 N.Y.S.2d at 686, 379 N.E.2d at 211. . Furthermore, from the prosecution's final argument, it appears possible that the jury might have found Kinegak guilty as an accomplice to the sale between his supplier and himself. Unless Kinegak's supplier was found to have acted as a participant in the sale to Black, such a result would clearly have been improper, since it is well settled that the purchaser of an illegal substance cannot be convicted as an aider and abetter of the sale. See Howard v. State, 496 P.2d at 660. . Kinegak and the state agree that the trial court erred when it discussed the jury's inquiry with counsel in Kinegak's absence, and in responding to the jury's inquiry off the record and outside the parties' presence. We agree with this conclusion. Our disposition of this appeal makes it unnecessary to determine whether these errors would independently require a new trial.

10407290

Gary Dale DIXON, Appellant, v. Sherilyn Barber DIXON, Appellee

Dixon v. Dixon

1987-12-24

No. S-1413

1169

1175

747 P.2d 1169

747

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Gary Dale DIXON, Appellant, v. Sherilyn Barber DIXON, Appellee.

Gary Dale DIXON, Appellant, v. Sherilyn Barber DIXON, Appellee. No. S-1413. Supreme Court of Alaska. Dec. 24, 1987. Mark Rausch, Terry C. Aglietti, Aglietti, Pennington & Rodey, Anchorage, for appellant. Alexis G. Foote, Anchorage, for appellee.

3512

21058

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. COMPTON, Justice. In this divorce case the husband appeals certain aspects of the trial court's property division and awards of support, fees and costs. Except for the issue of support and attorney's fees, which we remand for reconsideration, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Gary and Sheri Dixon were married in 1966 and separated in 1984. They had two children, Gary, Jr. and Debra Lyn. At the time of trial, Gary, Jr. was 19. Debra Lyn was 15, living with her mother. At the time of trial, Gary was earning $6,972.57 gross (approximately $4,900 net) per month as an employee of the Teamster's Union. Sheri was earning a gross salary of $1800 ($1400 net) per month as a bookkeeper. Sheri testified that her monthly expenses were $3,608.27. The trial court found that Sheri had "played a key role as homemaker and companion of the defendant in support of his advancement professionally." Sheri had almost completed her second accounting course and was working toward an associate's degree on a part-time student basis. The parties accumulated considerable debts, including substantial mortgages on an Anchorage house and a Seattle condominium. They owed $17,000 to the Internal Revenue Service and over $49,000 on consumer credit. Their principal assets included the Anchorage house in which Sheri and Debra Lyn lived, the Seattle condominium in which Gary lived, Gary's pension, a boat and a motorhome. The trial court sought to divide the assets, excluding Gary's pension, and liabilities equally. The largest asset, the Anchorage house, was awarded to Sheri. Stating that it wished to effect an equal property division, the court ordered Sheri to pay Gary $43,909. The court expressly recognized that the Anchorage house was the primary asset from which Sheri could obtain the funds to pay Gary and assumed that Sheri would either sell the home or refinance it. The court ordered that this payment would not become due until July 1, 1986, with interest at 10.5% per annum, commencing on that date, giving Sheri six interest-free months from the entry of the divorce decree in which to sell or refinance the house. Sheri received a total of $1,945 per month interim family support from Gary. The trial court ordered Gary to pay $600 per month child support and $800 per month for two years and $600 per month for two additional years as alimony. Before trial, each party had been ordered to obtain appraisals of certain assets. Although requested by Gary to do so, the trial court made no order readjusting the burden of appraisal fees, in effect leaving each party to bear the costs of the appraisals he or she had obtained. Finally, in dividing the parties' liabilities, the court included $6,000 for attorney's fees on Sheri's side of the ledger. Gary claims the court failed to credit him for payments he had already made toward Sheri's legal bills, thus improperly reducing his share of the marital estate. On appeal Gary asserts that the trial court erred in 1. awarding interest on Gary's judgment from July 1, 1986, rather than the date the divorce decree or findings of fact were entered; 2. awarding too high an amount for alimony; 3. failing to divide appraisal costs equally between the parties; 4. calculating the fraction of Gary's pension earned during the marriage by the date of divorce rather than the earlier date of separation; and 5. failing to credit Gary for payments previously made towards Sheri's attorney's fees. For the reasons stated below, we affirm the trial court's rulings on issues 1, 3, and 4 above and reverse and remand for further proceedings on issues 2 and 5. II. DISCUSSION A. INTEREST ON THE JUDGMENT. The divorce decree was entered December 30, 1985. The decree incorporated the findings of fact, which awarded Gary a judgment of $43,909, due July 1, 1986 with 10.5% interest running from that date. Gary asserts that the trial court erred in delaying the imposition of interest. He relies on Morris v. Morris, 724 P.2d 527, 530 (Alaska 1986), in which we held that an award of prejudgment interest was not, as a matter of law, improper in a divorce proceeding. In Morris we held: [W]e recognize that a divorce proceeding should not produce winners or losers and that a division of marital property generally is not viewed as a damage award for or against either party. However, the basic principles behind prejudgment interest remain applicable. In divorce cases, a judge has discretion in choosing a reasonable date to value the marital property. See Hunt v. Hunt, 698 P.2d 1168, 1172 (Alaska 1985). The court also should have discretion to award prejudgment interest from that date, if one partner in the marriage had use of money or other property for a period when the other partner was actually entitled to it. Cf. Farnsworth [v. Steiner, 638 P.2d 181, 184 (Alaska 1981)]. Id. at 530. It is clear from Morris that a court has discretion either to award or withhold prejudgment interest in a divorce proceeding. It is also clear that courts may award interest on a judgment in a domestic relations proceeding to the same extent interest on judgments generally is allowed by statute. See, e.g., Wuest v. Wuest, 72 Cal.App.2d 101, 164 P.2d 32, 37 (1945); Williams v. Budke, 186 Mont. 71, 606 P.2d 515, 519 (1980); 45 Am.Jur.2d, Interest and Usury § 60, at 57-58 (1969); Annot., Right to Interest on Unpaid Alimony, 33 A.L.R.2d 1455, 1456 (1954 & Supp.). The question presented here is whether the trial court is vested with discretion to deny or postpone interest on the judgment. Martin v. Martin, 350 P.2d 270 (Okla.1960), is directly on point. There the court held: In divorce actions where one party seeks or is awarded a money judgment in lieu of alimony or properly settlement, there is no specific previously existing obligation or liability. The obligation or debt is created or fixed by such judgment, and the awarding of interest on the amount of such judgment is within the discretion of the court in adjusting the division of property. As indicated in Harden v. Harden, [191 Okl. 698, 130 P.2d 311 (1942) ] the trial court has broad discretionary powers in divorce actions to settle the affairs of the parties. It is obvious that the trial court in the present case determined that plaintiff required time in which to liquidate assets in order to pay this sum. As above shown, it was specified in the journal entry in the divorce action that "plaintiff is ordered to pay to said defendant within thirty (30) days from this day the sum of $145,-000.00". There inheres in such judgment herein, a determination that the «debt or obligation therein created, although fixed as of April 20, 1958, should not become due and payable for thirty (30) days, by the judgment's own terms. The statutory rate of interest would not be applicable during such time. Id. at 273-74. Accord Williams, 606 P.2d at 519-20; Primrose v. Primrose, 663 P.2d 755, 759 (Okla.App.1983); Griffin v. Griffin, 34 Or.App. 765, 579 P.2d 885, 887 (1978). Sheri's situation is not unlike the wife's in Griffin. The Griffin court recognized that it may be in some instances inequitable to impose interest; for example, where the obligor does not have the ability to make prompt payment. In this case the assets held by the wife are all nonliquid. The cash she brought into the marriage has all been spent. In order to discharge the lien she will have to accumulate the funds from her income or the payments on the land sale contract, sell some of her assets or borrow the necessary amount. She does not . have the ability to withhold the funds until the due date and use them for her own purposes. 579 P.2d at 887. The Griffin court therefore upheld the trial court's refusal to award the husband interest on a two year lien imposed on assets awarded to the wife. Id. Given the myriad considerations the trial court must balance and the broad discretion generally exercised by the trial court in cases such as these, see, e.g., Hunt v. Hunt, 698 P.2d 1168, 1171 (Alaska 1985); Merrill v. Merrill, 368 P.2d 546, 547 (Alaska 1962), the power to award or withhold interest on a judgment should prove a useful tool in effecting a just resolution of a divorcing couple's financial affairs. We hold that the trial court did not abuse its discretion in giving Sheri six months interest-free time in which to liquidate the equity in the Anchorage house to provide funds to satisfy Gary's judgment. B. ALIMONY. The trial court ordered Gary to pay alimony to Sheri in the amount of $800 per month for two years and $600 per month for an additional two years. The court found: The plaintiff has played a key role as homemaker and companion of the de fendant in support of his advancement professionally. As such, she has worked in the home for the majority of the marriage. During the past seven years working for the same employer, she has reached a salary of $1,800 gross, $1,400 net, per month. The plaintiff is taking courses to improve her earning capacity and will need spousal maintenance for a period to realize her potential and to allow her to grow professionally, as she helped the defendant to grow and develop. Gary asserts that since Sheri did not testify that she intended to decrease her work time in order to increase her school time, alimony should be limited to a total of $1,200, the cost of her tuition and books. Gary asserts that the support awarded, totalling $33,600, would provide Sheri with a financial windfall. Gary argues, "there was no need for the trial court to support Sheri as though she were a full-time student." We agree that Sheri has not presented a sufficiently detailed course plan and degree goal to justify an award of "rehabilitative alimony" as we used that term in Bussell v. Bussell, 623 P.2d 1221, 1224 (Alaska 1981). As we recently held in Miller v. Miller, 739 P.2d 163 (Alaska 1987), an award of rehabilitative alimony must be supported by a finding that the recipient spouse "intends to apply the alimony toward job training." Id. at 165. Sheri's plan to take three units each semester toward the 54 necessary for her degree will not prevent her from working full-time and therefore cannot justify the trial court's substantial award of $800 per month for two years and $600 per month for an additional two years. We recognize, however, that someone in Sheri's position, who is accustomed to living on a combined annual income of over $100,000, will have a very difficult time adjusting to a significantly lower single income after divorce. When a couple has sufficient assets, the spouse with the smaller earning capacity can and should receive a larger share in the property distribution to aid him or her in this transition. See Merrill, 368 P.2d at 547 n. 4; Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984). But here the trial court divided the assets and liabilities equally and instead awarded Sheri alimony. Alaska law requires that alimony awards be "just and necessary." AS 25.24.-160(a)(2). In addition, the court should consider: the respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any. Messina v. Messina, 583 P.2d 804 n. 3 (Alaska 1978) (quoting Merrill, 368 P.2d at 547-48 n. 4). These are the same factors we have instructed trial courts to consider in making equitable divisions of marital property. Id. We have announced a policy of encouraging trial courts to provide for parties' financial needs by property disposition, rather than by alimony. Hunt, 698 P.2d at 1172; Malone v. Malone, 587 P.2d 1167, 1168 (Alaska 1978); Messina, 583 P.2d at 805. But this rule obviously presumes that there is sufficient property to provide for the parties' needs. In this case, the parties acquired substantial marital assets, but were also deeply in debt. The trial court could have awarded to Sheri a greater portion of the equity in the Anchorage house instead of awarding her alimony. Gary testified, however, that he had over $23,300 in credit bills that were due or past due. In addition, the parties owed $17,000 to the IRS. It therefore appears that the trial court justly and necessarily concluded that the equity in the Anchorage house was needed to ease the parties' immediate financial crisis. An alimony award of limited duration designed to aid Sheri in reorienting her lifestyle to her new financial circumstances may be appropriate. Indeed, "reorientation alimony" may be the only feasible method of achieving an equitable resolution of the parties' financial affairs in this case, but there is insufficient evidence in the record for us to determine the proper amount and duration of such award. As stated above, Sheri's vague education plans do not support the trial court's rehabilitative alimony award. Accordingly, we remand the case with instructions that the trial court make specific findings regarding the propriety of either a rehabilitative or reorientation alimony award and the proper amount thereof. C. APPRAISAL COSTS. In the course of pre-trial proceedings, the trial court ordered: 1. The parties shall cooperate in appraising marital assets by inventorying the same and arranging for appraisals/opinion letters which fairly value the contents of the marital estate. Each party shall be responsible for obtaining valuations for the items which they have in their possession and control. 2. The parties shall split all costs associated with obtaining the appraisals contemplated in paragraph 1 of this order. (Emphasis added). The original findings are silent about appraisal costs. When Gary requested the trial court to make additional findings regarding appraisal costs, it refused to do so, crossing out the appraisal costs paragraph of a proposed order prepared by Gary's counsel. In effect, each party was required to pay for any appraisals he or she obtained. Gary obtained an appraisal and an opinion letter on the Anchorage house at a total cost of $430, duplicating the appraisal obtained by Sheri at a cost of $300. Since Sheri was residing in the Anchorage house, it was not in Gary's possession and control. Therefore, the appraisal and opinion letter obtained by Gary on the Anchorage house were not "appraisals contemplated in paragraph 1" of the pre-trial order. The trial court correctly refused to order Sheri to share these costs. As for the remaining appraisal costs, Gary obtained an appraisal of his Seattle condominium and his teamster pension, which cost $350 and $370 respectively (totalling $720) and were appraisals contemplated by the order. Thus, Sheri would owe Gary one-half the difference between what he had paid for appraisals contemplated in paragraph one ($720) and what she had paid ($300), or $210. However, given the great disparity in the parties' earning capacities, we conclude that the trial court did not abuse its discretion in requiring Gary to pay $210 more for appraisals than Sheri. D. CUT-OFF DATE FOR EVALUATING THE MARITAL PORTION OF GARY'S PENSION. Gary asserts that October 3, 1984, the date of the parties' separation, should have been used to determine when the marital contribution to his pension benefits ended. The trial court used October 15, 1985, just after trial, as the cut-off date. In Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986), we stated: We decline to specify, as a matter of law, that the effective date when [post-separation] earnings become severable from marital property is at separation or at filing for divorce. Each case must be judged on its facts to determine when the marriage has terminated as a joint enterprise. At trial Gary testified that he believed Sheri should be responsible for half of almost $10,000 in charges made on his American Express account after separation "because I believe that everything until this thing's final is equal, should be 50/50." The trial court apparently agreed since it included these American Express charges as a marital liability. He also testified that Sheri should be partly responsible for $23,-300 in consumer credit that he incurred after separation. The trial court did not agree that these loans were marital liabilities. This testimony nonetheless indicates that in Gary's view the marriage continued as a "joint enterprise" until the trial. The trial court did not abuse its discretion in adopting October 15, 1985, as the date of termination of the joint enterprise and thus as the cut-off date for valuing Sheri's interest in Gary's pension. E. ATTORNEY'S FEES. Gary claims that he was double charged for Sheri's attorney's fees because he was not given credit for $5,500 in payments he had made toward her fees prior to entry of the decree. When the trial court made its equal division of assets and liabilities, it listed the full $6,000 as a liability on Sheri's side of the ledger. Earlier, $5,500 attorney's fees had been calculated into Sheri's expected expenses, to be paid out of the $1,945 per month interim family support she was to receive from Gary. At trial Sheri testified that she incurred approximately $3,000 in unexpected expenses during this interim period which prevented her from making payments toward her attorney's fees. In addition, she testified that Gary was occasionally late with payments or paid less than he owed and that she incurred increased grocery costs while Gary, Jr. lived with her. One interpretation of the trial court's resolution of the attorney's fees issue is that it intended simply to make an after-the-fact modification of the interim support award when it refused to credit Gary for payments toward Sheri's attorney's fees. However, the trial court made no findings so indicating, and we are not otherwise able to determine from the record what was intended by this omission. If Gary is correct, he will have already paid Sheri $5,500 that should have been applied by her to her prospective attorney's fees. Nevertheless Gary may have to pay an additional $3,000 to Sheri for unexpected expenses. The trial court's allocation of an additional $3,000 for attorney's fees as a cost to Gary is vacated and the issue remanded for redetermination. In no event may the award to Sheri exceed the actual attorney's fees incurred by her. III. CONCLUSION For the reasons stated above we AFFIRM the trial court's delay of interest on the judgment, disposition of appraisal costs, and determination of the proper cutoff date for calculating the portion of Gary's pension earned during the marriage. We REVERSE the alimony award and attorney's fee award and REMAND for further proceedings consistent with this opinion. . The court awarded Sheri 50% of the benefits earned during the marriage if and when the benefits are received. On appeal, Gary contests only the cut-off date used by the court for determining benefits earned during the marriage. . At oral argument Gary's counsel withdrew his challenge of the child support award. . Gary does not contest the propriety of the July 1, 1986 payment date. He claims only that he was entitled to interest in the interim. . A contrary holding was reached in Ovens v. Ovens, 61 Wash.2d 6, 376 P.2d 839, 842 (1962) where the court found, "it is an abuse of discretion, in the absence of a sound reason, to fail to provide for interest upon deferred payments allowed in equitable division of property." A subsequent Washington case interpreted Ovens, making clear that when the trial court does have a sound reason, it does not abuse its discretion in refusing to impose interest on a judgment. In re Marriage of Yates, 17 Wash.App. 772, 565 P.2d 825, 826 (1977). Although we conclude that the trial court in this case expressed a sound reason for refusing interest on Gary's judgment since the findings expressly assume that Sheri will most likely satisfy the judgment by either selling or refinancing the Anchorage home, we leave these determinations to the broad discretion of the trial court. Hunt v. Hunt, 698 P.2d 1168, 1171 (Alaska 1985). We reject the Washington courts' requirement that die trial court justify a decision to withhold interest in a marital property distribution proceeding. . We can affirm a decision on grounds different than those advanced by the trial court, even on grounds not raised by the parties below, so long as the record supports our resolution. Foster v. Foster, 684 P.2d 869, 872 n. 6 (Alaska 1984); Native Village of Eyak v. G.C. Contractors, 658 P.2d 756, 758 (Alaska 1983); Carlson v. State, 598 P.2d 969, 973 (Alaska 1979).

10402457

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

Covington v. State

1987-12-31

No. A-2158

550

554

747 P.2d 550

747

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Charles COVINGTON, Appellant, v. STATE of Alaska, Appellee. No. A-2158. Court of Appeals of Alaska. Dec. 31, 1987. Charles Easaw, Asst. Public Advocate, Fairbanks, and Brant McGee, Public Advocate, Anchorage, for appellant. Kenneth S. Roosa, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2761

17610

OPINION SINGLETON, Judge. Charles Covington was convicted of two counts of lewd and lascivious acts towards a child, former AS 11.15.134, and four counts of sexual assault in the first degree, former AS 11.41.410(a)(4)(B). He received a composite sentence of forty years with ten years suspended. Covington appealed, challenging his conviction and sentence. We initially reversed, see Covington v. State, 703 P.2d 436 (Alaska App.1985) (Covington I), but on rehearing we affirmed Covington's conviction and remanded his case for resentencing in light of intervening cases. See State v. Covington, 711 P.2d 1183 (Alaska App.1985) (Covington II). On remand, the trial court imposed the same sentence and Covington appeals. We reverse and remand for re-sentencing to a term not to exceed fifteen years, including suspended time. THE OFFENDER Charles Ray Covington was born on September 15, 1941, and was forty-two years old at the time of his initial sentencing in October 1983. He has no prior criminal record. Covington has not completed high school or attained a GED degree. He has, however, been, steadily employed during the majority of his life as an industrial worker, chiefly in the field of aircraft maintenance. He has apparently been a good worker and has an offer of immediate employment if he is released from prison. Covington does not appear to suffer from any major mental or emotional illnesses and is apparently not a drug user or an alcohol abuser. After his initial sentencing, he was assigned to the federal correctional institute in Texarkana, Texas, where he has served approximately three years. His institutional record has been good, and he seems to get along well with correctional personnel and other inmates. Although he has declined educational opportunities, he apparently has been a good worker in the prison food service operations. THE OFFENSE We described the offense in Covington I as follows: Covington's victim was his natural daughter, D.C.O. She testified at trial that Covington began sexually abusing her when she was nine or ten years old. D.C.O. was eighteen years old at the time of trial. D.C.O. testified that Cov-ington slept with her, touched her breasts, and penetrated her vagina with his finger. After D.C.O.'s mother's death in November 1977 when D.C.O. was thirteen years old, Covington told her that she reminded him of her mother and had D.C.O. sleep with him in his bed. Shortly before D.C.O.'s sixteenth birthday [in approximately 1980], Covington began having sexual intercourse with her. D.C.O. testified that she had sexual intercourse with Covington "practically every night," until she moved out in March 1983 [when she was eighteen years of age]. Covington allegedly told her that he did not want her to "grow up naive like [her] mother." 703 P.2d at 438. Covington testified in his own defense at trial. He denied any sexual improprieties with D.C.O. and explained her testimony as lies intended to aid her in obtaining custody of her younger sister and prevent Coving-ton from moving out of state with the younger sister. Id. at 438. Covington continues to maintain his innocence and refuses to discuss the charges. RESENTENCING Superior Court Judge Jay Hodges held a resentencing hearing on July 8, 1987. The only new evidence introduced was an updated presentence report, outlining Covington's progress while incarcerated. The trial court heard argument from the parties and offered Covington an opportunity for allocution, which Covington essentially declined. The trial court reimposed the original sentence. In explaining the sentence, Judge Hodges indicated that he was influenced by a number of factors. One factor was that the victim suffered psychological harm. The trial court was apparently primarily influenced, however, by the duration of the abuse and the fact that it commenced when the victim was nine years old, and only terminated after her eighteenth birthday when she left the home and sought refuge with friends. DISCUSSION Our decision in this case is complicated by the trial judge's incorporating by reference his remarks at the original sentencing, as justification for the sentences imposed at resentencing. This practice has been criticized. See Amidon v. State, 604 P.2d 575, 578 n. 7 (Alaska 1979) (suggesting that in such a case it is unclear that the trial judge rendered a thorough and thoughtful sentencing decision). The practice is particularly troubling in this case because the parties have not included the judge's original sentencing remarks in the record. Nevertheless, we are satisfied that this case can be decided based on the record provided. In our view, this case is controlled by Polly v. State, 706 P.2d 700 (Alaska App.1985). Polly had apparently been engaging in sexual contact with his two stepdaughters for a period of six years prior to being discovered. The conduct included repeated acts of fellatio, mutual masturbation, and fondling. Id. at 701. Polly, like Covington, did not accept responsibility for his acts. Polly fled the state in an attempt to avoid sentencing. The trial court ultimately sentenced Polly to an aggregate term of forty years with twenty years suspended. We reversed Polly's sentence and remanded his case for resentencing, directing the trial court to impose a total sentence that did not exceed fifteen years' imprisonment. We based our decision on State v. Andrews, 707 P.2d 900 (Alaska App.1985) aff'd, 723 P.2d 85 (Alaska 1986), where we held that the appropriate sentencing range for first offenders convicted of aggravated offenses of sexual abuse or sexual assault on minors is between ten and fifteen years of unsuspended incarceration. Longer terms of imprisonment, we cautioned, would be permissible only in truly exceptional cases. Id. at 913. In Polly, we pointed out that a continuing course of sexual abuse alone would not be a sufficient basis for treatment of a first offender as a worst offender. Polly, 706 P.2d at 702. We concluded that a sentence in excess of twenty years would only appear appropriate where the defendant's conduct had been particularly violent or where circumstances, such as a prior prosecution for similar acts, demonstrated that the accused is a recalcitrant offender. Id. at 702-03. Sentences of ten to fifteen years are generally reserved for the most serious offenders. See Pruett v. State, 742 P.2d 257, 264-68 (Alaska App.1987). D.C.O.'s testimony that Covington sexually abused her for nine years, subjecting her to virtual daily intercourse during the last two years, certainly qualifies Covington as an aggravated offender deserving of an aggravated sentence. There is nothing in this record, however, that would justify a sentence in excess of the ten- to fifteen-year benchmark established in Andrews. Cf. Hancock v. State, 741 P.2d 1210, 1215 (Alaska App.1987) (prior felony convictions for which Hancock had served in excess of one year's imprisonment and a history of violence justified departure from ten- to fifteen-year sentencing benchmark for child sexual abuser). In fact, Covington's conduct appears to be indistinguishable from the conduct of a number of individuals whose sentences fall within the ten- to fifteen-year benchmark. See, e.g., Soper v. State, 731 P.2d 587, 592 (Alaska App.1987) (affirming a sentence of fourteen years with four years suspended where Soper, convicted of one count of sexual assault in the first degree under former AS 11.41.-410(a)(4), sexually abused a number of his daughters and stepdaughters, including numerous acts of genital intercourse without their consent, over a twenty-year period.) We recognize that we approved a sentence of fifteen years in Polly, and fourteen years with four years suspended in Soper, despite the fact that each defendant's conduct was virtually indistinguish able in terms of the relevant sentencing criteria. Each year in prison is a very long time for the person who must serve it, and Polly and Covington could well argue that, under a system that seeks to insure uniformity and avoid disparity in sentencing, it is not fair that they serve five more years than Soper. Our sentence review powers, however, are limited. See McClain v. State, 519 P.2d 811, 813 (Alaska 1974) (analytically, the clearly mistaken test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify). Our review of the reported cases, particularly decisions of our Alaska Supreme Court, has led us to conclude that the permissible range of reasonable sentences for first offenders convicted of aggravated instances of child sexual abuse is ten to fifteen years. Andrews, 707 P.2d at 913. Sentences within that range are not clearly mistaken. This range serves to reconcile legislative concerns about disparate sentencing with the broad sentencing discretion which the legislature has given trial courts. See Langton v. State, 662 P.2d 954, 962-63 (Alaska App.1983) (acknowledging that application of the clearly mistaken test to sentence review results in substantial, continuing disparity between those similarly situated). Because Coving-ton's sentence is not within this range, we must conclude that his sentence is clearly mistaken. See McClain, 519 P.2d at 813. The sentence of the superior court is REVERSED. This case is REMANDED for imposition of a total sentence including any suspended time not to exceed fifteen years. . Statutory aggravating factors used to enhance a sentence must be proved by clear and convincing evidence and set out by the trial judge with specificity. AS 12.55.155(f). Where the trial judge relies on findings of fact other than aggravating factors to enhance a sentence, those fact findings must be supported by substantial evidence verified in the record. See, e.g., Nukapi gak v. State, 562 P.2d 697, 701 (Alaska 1977), aff'd on rehearing, 576 P.2d 982 (Alaska 1978). In this case, the trial court could certainly infer that some psychological injury would naturally result from a nine-year period of sexual abuse. There is no specific evidence in the record, however, indicating that D.C.O. has any longstanding emotional or mental problems as a result of her abuse, nor is there evidence particularizing her mental health in any way. The trial court alluded to testimony at trial and at the original sentencing, but the parties have not specified this testimony for inclusion in the record. Thus, we cannot say, based upon this record, that D.C.O. suffered any psychological harm, sufficiently different from that suffered by any victim of longstanding sexual abuse, that would justify deviation from the ten- to fifteen-year benchmark governing sentences for first offenders convicted of aggravated cases of sexual abuse. . In his sentencing remarks, Judge Hodges characterized Covington as a "dangerous offender," which he clarified by pointing out that he meant in the sense of one who caused "personal injury to the victim involved." Judge Hodges was no doubt referring to the duration of the abuse and the fact that it only terminated when the victim fled. Nevertheless, the phrase "dangerous offender," like the phrase "habitual criminal," with which it is used interchangeably in this jurisdiction, is a term of art used to refer to men and women with more than one past felony conviction who have served over one year's imprisonment within the preceding five years. See, e.g., Pruett v. State, 742 P.2d 257, 264 & n. 8 (Alaska App.1987). Covington, a first offender, clearly does not satisfy this test. . It appears that both victims accused Polly of genital intercourse and later recanted. The trial court did not, however, rely on genital intercourse in imposing sentence. 706 P.2d at 701 n. 1. . Polly and Covington were convicted of multiple counts of sexual abuse and received consecutive sentences. Polly was convicted of offenses against two of his stepdaughters. 706 P.2d at 701. Covington's offenses involved a single victim. There is a preference for consecutive sentences under current law, AS 12.55.125(e). The court's power to impose consecutive sentences, however, does not, standing alone, warrant a sentence beyond the ten- to fifteen-year benchmark for aggravated offenses. Most individuals guilty of incest will have committed multiple offenses and will be vulnerable to multiple charges. Plea bargaining aside, convictions will normally turn on the respective credibility of the victim and the accused. If the jury believes the victim as to one incident, it will normally accept his or her testimony as to other incidents as well. We have cautioned, however, that the prosecutor's decision as to how many charges to bring should not be permitted to dictate the sentence imposed. See State v. Andrews, 707 P.2d 900, 908-09 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). The trial court must consider the totality of the defendant's conduct in order to determine an appropriate sentence no matter how many charges are filed. All other things being equal, a person who has committed many sexual assaults should receive a more severe sentence than a person who has committed a single assault. Id. at 910. This is so whether the separate incidents involve separate convictions or only a defendant's admissions or substantial independent evidence verified at the sentencing hearing. Consequently, a composite sentence, including consecutive increments in cases of aggravated sexual abuse, should, except in extraordinary cases, be within the ten- to fifteen-year benchmark. See id. at 910 n. 10 (duty to impose eight-year presumptive term does not mandate stacking presump: tive terms where defendant is convicted of multiple counts of first-degree sexual assault or abuse). . There are no psychological or psychiatric evaluations in this record. In Polly's case, there were adverse psychological reports. In reducing Polly's sentence, we referred to our prior holdings, cautioning trial courts against giving undue emphasis in sentencing to the purely predictive aspects of psychological evaluations. 706 P.2d at 703 n. 3. A fortiori, where the defendant has not been examined by a mental health practitioner, a trial judge should not independently diagnose mental illness and predicate future dangerousness on that diagnosis. See Salud v. State, 630 P.2d 1008, 1013-14 (Alaska App.1981). . We recently approved a sentence in excess of the Andrews benchmark for a first offender. Goolsby v. State, 739 P.2d 788 (Alaska App.1987) (approving a composite sentence of thirty-seven years with twelve years suspended). Goolsby was convicted of four separate sexual offenses involving violent assaults on separate victims who were strangers. Our opinion in Goolsby should not be read as holding that violent assaults on adult strangers are intrinsically more serious than repeated nonviolent assaults on a dependent victim related to the offender. See AS 12.55.155(c)(18) (offense is aggravated where victim of physical or sexual assault is a member of the same living group as the defendant). Rather, it was Goolsby's established pattern of violent assaults on strangers which led us to approve the unusually severe sentence he received. See also Nix v. State, 653 P.2d 1093 (Alaska App.1982) (approving a composite sentence of forty years for an offender with a felony record who was convicted of violent sexual assaults on multiple victims who were strangers). . Our decisions in this case, Soper, 731 P.2d 592, and Mosier v. State, 747 P.2d 548 (Alaska App.1987), should not be read as minimizing the conduct of people like Covington, Soper, and Mosier. Clearly, all three committed atrocious offenses against helpless victims, and are worthy of the utmost community condemnation. Mosier, Soper, and Covington deny guilt and express no remorse. Our holdings simply reconcile recognition of the enormity of their offenses with the legislative goal of ensuring reasonable uniformity and avoiding unjustified disparity in sentencing. The more outrageous a given defendant's conduct, the greater the risk that the sentence will not be reasonably related to other sentences imposed for conduct factually indistinguishable. It is when we dispassionately compare the conduct of Covington and Mosier to that of Soper and other defendants, who committed crimes of comparable seriousness, that we conclude that Mosier's and Coving-ton's sentences, to the extent that they exceed the ten- to fifteen-year benchmark, are unreasonably disparate and therefore clearly mistaken. When we examine sentences for first offenders convicted of homicide, serious physical assault, and sexual assault, it becomes clear that a sentence in the ten- to fifteen-year range adequately identifies the recipient as a particularly serious offender worthy of the utmost community condemnation. See Pears v. State, 698 P.2d 1198, 1204-05 (Alaska 1985) (sentences for reckless murder); Pruett, 742 P.2d at 266-68 n. 10 (sentences for the most serious physical assaults); State v. Krieger, 731 P.2d 592, 595-97 (Alaska App.1987) (sentences for homicide in general); Andrews, 707 P.2d at 913-14 n. 12 (sentences for sexual assault including incest).

11889166

Theodore P. THOMA, Appellant, v. Walter J. HICKEL, Appellee

Thoma v. Hickel

1997-08-15

No. S-6273

816

827

947 P.2d 816

947

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before RABINOWITZ MATTHEWS and EASTAUGH, JJ., and CARPENETI, Justice pro tern.

Theodore P. THOMA, Appellant, v. Walter J. HICKEL, Appellee.

Theodore P. THOMA, Appellant, v. Walter J. HICKEL, Appellee. No. S-6273. Supreme Court of Alaska. Aug. 15, 1997. Rehearing Denied Dec. 8, 1997. James McGowan, Sitka, Richard Friedman, John A Bernitz, Friedman, Rubin & White, Anchorage, for Appellant. John B. Gaguine, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before RABINOWITZ MATTHEWS and EASTAUGH, JJ., and CARPENETI, Justice pro tern. Sitting by assignment made under to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a). Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

6747

42492

OPINION MATTHEWS, Justice, joined by EASTAUGH, Justice, as to parts I, II, II.B, II.C, and IV; and by RABINOWITZ, Justice, and CARPENETI, Justice pro tern., as to parts I, III.A, III.C, and IV. Theodore P. (Chip) Thoma sued Governor Walter J. Hickel, alleging that Hickel in concert with others had engaged in a smear campaign against Thoma, that the campaign improperly used criminal justice system records, and that the campaign was conducted in retaliation for Thoma's protected political activity seeking the removal of Governor Hickel. The superior court ruled that Hickel was protected by the doctrine of public executive immunity and granted him summary judgment. Subsequently, the court awarded Hickel $77,865.50 in attorney's fees. In reviewing grants of summary judgment the facts are to be viewed in the light most favorable to the losing party, and reasonable inferences are to be resolved in favor of the losing party. Our recitation of the facts in this case is made from that perspective. Thoma, who describes himself as a political gadfly, filed an ethics complaint against Governor Hickel on May 3, 1991, which alleged that Hickel was attempting to use his official position for personal financial gain. Hickel discussed with his aides ways of retaliating against Thoma. They decided that Thoma's criminal record should be publicized. The record of the Alaska Public Safety Information Network (APSIN), a computer system which contains comprehensive criminal records, indicates that inquiries were made concerning Thoma's criminal history on May 7 and May 9,1991. The record does not show who made the inquiries. A printout of Thoma's criminal record was circulated among the governor's aides. After Thoma filed the ethics complaint against Hickel, he involved himself in an effort to recall the governor. In September of 1991, the Alaska chapter of the Sierra Club endorsed the recall effort. On September 20, 1991, Governor Hickel's press secretary, Eric Rehmann, sent a letter to the Alaska representative of the Sierra Club which stated in part: By joining the recall effort, you have aligned yourself with disreputable characters like Chip Thoma. Mr. Thoma, who proclaims himself to be an environmental activist, is a convicted felon who has spent time in jail for possession of cocaine. He has been found guilty of driving while intoxicated four times in a ten-year period. This is hardly a pillar of our community with whom your organization should wrap themselves around. Thoma's convictions are a matter of public record. The court records in Juneau show two DWI convictions in 1979 and a 1985 cocaine conviction. Thoma was convicted of two additional DWIs in Oregon. While the out-of-state convictions are public, they are not reflected in the Alaska court records. The convictions are, however, in Thoma's APSIN file. Certain members of Governor Hickel's staff had access to the APSIN file. Thus, there is inferential evidence that the APSIN file was the source of the information contained in Rehmann's letter concerning Thoma's four DWI convictions. Thoma sued Hickel in the superior court in Juneau, asserting claims under 42 U.S.C. § 1983 (deprivation of federal rights), public policy violations under state law, and interference with state and federal constitutional rights. Compensatory damages for reputa-tional losses and emotional distress were sought and a claim for punitive damages was asserted. After Thoma took the deposition of one of the governor's former aides, Hickel moved for summary judgment, arguing that the claims against him should be dismissed under the doctrine of public executive immunity. Thoma made a cross-motion for partial summary judgment on Hickel's immunity defense. The superior court ruled in Hiekel's favor. I. Public Executive Immunity from Tort Suits Under Alaska law, public officials in the executive departments of government have either absolute or qualified immunity from tort suits for discretionary acts committed within the scope of their authority. Absolute immunity is self-descriptive. Qualified immunity protects an official whose acts "are done in good faith and are not malicious or corrupt." Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 158 (Alaska 1987). Immunity is determined to be absolute, or merely qualified, based on the consideration of factors which are designed to "strike a balance between the public's interest in efficient, unflinching leadership [which is thought to be furthered by absolute immunity] and the interests of maliciously injured parties [which are redressable where an immunity is merely qualified]." Id. at 159. The factors which should be considered in striking this balance are: (1) The nature and importance of the function that the officer performed to the administration of government (i.e. the importance to the public that this function be performed; that it be performed correctly; that it be performed according to the best judgment of the officer unimpaired by extraneous matters); (2) The likelihood that the officer will be subjected to frequent accusations of wrongful motives and how easily the officer can defend against these allegations; and (3) The availability to the injured party of other remedies or other forms of relief (i.e. whether the injured party can obtain some other kind of judicial review of the correctness or validity of the officer's action). Id. at 159-160. In applying these factors in Aspen Exploration, we found that absolute immunity protected Governor Sheffield from claims that he had wrongfully ordered the State Department of Natural Resources to reject the plaintiffs applications for offshore prospecting permits. The governor "must feel unimpaired to direct [state officers] in the way he determines best . particularly . where the state's natural resources are concerned . " Id. at 160. Further, allowing inquiry into motive concerning rejection of a permit application would entail a lengthy and disruptive trial. Moreover, a well-marked path through administrative and judicial channels had been established as a remedy for unsuccessful permit applicants. Id. at 161-162. By contrast, we held that the plaintiffs claim for defamation was merely subject to qualified immunity. "[H]olding the governor to a standard of good faith in his public statements more than adequately protects the public interest in undeterred leadership," id. at 160-61; permitting inquiry into motive in defamation eases would not necessitate lengthy trials, id. at 161; and there are no alternative remedies available to one who has been defamed. Id. at 162. Federal law also recognizes absolute and qualified official immunity from tort suits. Certain officials having special functions are entitled to absolute immunity for all acts within the scope of their protected functions. Prosecutors, judges (including executive officers performing adjudicative functions), and legislators fall within this category. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1981). In addition, the President of the United States has status-based absolute immunity. Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1981). Most executive officers, however, have qualified immunity. Qualified immunity under federal law protects officials except where it is "clearly established" as of the time of the acts complained of that the acts violated the plaintiffs rights. Harlow, 457 U.S. at 818,102 S.Ct. at 2738. II. Thoma Has Not Asserted a Valid Federal Claim One of the purposes of qualified immunity is to protect public officials from the expense of litigation. A.C.L.U. of Maryland v. Wicomico County, 999 F.2d 780 (4th Cir.1993). Therefore, in a lawsuit in which qualified immunity is claimed, questions of immunity should be ruled upon at an early stage. Since, under federal law, the existence of qualified immunity depends on whether there is an underlying statutory or constitutional violation which can be described as clear, the first question that logically presents itself in such cases is whether the allegations of the complaint encompass any federal constitutional or statutory violations. As the Fourth Circuit said in A.C.L. U. of Maryland: In order to weed out insubstantial section 1983 claims without resort to a trial or extensive pretrial proceedings, a trial court confronted with an assertion of qualified immunity should first determine whether the plaintiff has properly asserted a constitutional violation. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). As a panel of the Eleventh Circuit has remarked: The district courts should first focus on whether the plaintiff has established a constitutional violation before determining whether material issues of fact are present. No material issues can be in dispute where the plaintiffs evidence fails to establish a constitutional violation. Bennett v. Parker, 898 F.2d 1580, 1534 (11th Cir.[1990]).... A preliminary evaluation of the plaintiffs allegations may resolve the immunity question at an early point in the litigation. See Anderson [v. Creighton], 483 U.S. [635] 646 n. 6,107 S.Ct. [3034] 3042 n. 6 [97 L.Ed.2d 523] (encouraging resolution of such claims at the "earliest possible stage"). If the plaintiffs allegations fail to establish a constitutional claim, the defendant is entitled to dismissal on the basis of qualified immunity, or, of course, under Federal Rule of Civil Procedure 12(b)(6). Id. at 784. Guided by this, we now consider whether Thoma has asserted any cognizable federal claims. On appeal Thoma limits his federal claims to those brought under 42 U.S.C. § 1983 (1994). This section provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. No substantive rights are created by section 1983. It merely provides a procedure by which rights already guaranteed by the federal constitution or a federal statute may be vindicated. E.g., Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979) (Section 1983 is "not itself a source of substantive rights but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes."). Originally part of the Civil Rights Act of 1871, section 1983 was enacted to enforce the provisions of the Fourteenth Amendment in response to the need to protect the constitutional rights of black citizens in the South following the Civil War. However, in line with its plain language, section 1983 has been interpreted to extend beyond racial discrimination and to apply to violations of any substantive rights secured by the federal constitution or federal laws. A. The Retaliation Claim Thoma claims that people have a constitutional right to be free from acts of retaliation by officials made in response to speech or other activities protected by the First Amendment to the Constitution. There is much support for this proposition. For example, in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a non-tenured teacher was not rehired because, as he claimed, he had publicly criticized the school administration. The Supreme Court held that despite the fact that the teacher "could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms." Id. at 283, 97 S.Ct. at 574. In Gibson v. United States, 781 F.2d 1334 (9th Cir.1986), the court held that an allegation that police helicopters frequently flew low over plaintiff's house in order to inhibit the plaintiffs nonviolent but confrontational political activities stated a claim under section 1983: State action designed to retaliate against and chill political expression strikes at the heart of the First Amendment_ Although plaintiffs may not recover merely on the basis of a speculative "chill" due to generalized and legitimate law enforcement initiatives . they have alleged discreet acts of police surveillance and intimidation directed solely at silencing them. Hence, we conclude that they have stated a judicially cognizable claim of "specific . objective harm" arising from the violation of their First Amendment rights. Id. at 1338 (citations omitted). Another example is found in Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310 (9th Cir.1989). Gasco, a fuel distributor, criticized the county air pollution control district publicly and filed suit against the district challenging various air pollution regulations. The district suspended certain permits held by Gaseo and wrote letters to Gasco's customers telling them that Gasco could not deliver gasoline to them while he was under suspension. The district court dismissed Gasco's section 1983 claim, concluding that Gaseo had no constitutionally protected property interest in the permits. Id. at 1314. The Ninth Circuit reversed, holding that "[i]f the plaintiffs can establish that the decision to suspend the permits was made because of Soranno's exercise of constitutionally protected rights, they have established a First Amendment violation, and are entitled to relief under section 1983.... [T]he Sorannos therefore need not establish a legally protected interest in the permits themselves." Id. In Soranno's the official act of retaliation was cancellation of permits; in Gibson it was harassment with helicopters; in Mi Healthy it was non-retention of a teacher. Here, the act of retaliation was a letter. As the letter was truthful, it is itself speech protected under the First Amendment. We have been cited to no case which holds that the federal constitutional tort of retaliation extends to retaliation by speech. We do not believe that imposing section 1983 liability on a public official who responds in kind to protected speech critical of the official would be consistent with the First Amendment. The First Amendment "was fashioned to assure unfettered interchange of ideas.... " New York Times, Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957)). "It is a prized American privilege to speak one's mind although not always with perfect good taste, on all public institutions . and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion.' " Id. The First Amendment is reflective of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id. at 270, 84 S.Ct. at 721. Debate is impossible where only one side can speak. Making public officials civilly liable for retaliatory speech would, in essence, convert the First Amendment model of an interchange into a one-way street. As we believe this would be fundamentally inconsistent with the values protected by the First Amendment, we conclude that no valid claim of retaliation has been asserted by Thoma. B. The Claim for Violation of Federal Regulations What remains is the question whether a section 1983 action may be maintained against Hiekel based on a claim that he improperly obtained and used Thoma's APSIN file. The answer to this question is no. Thoma has relied on 28 C.F.R. § 20.21 which requires states using systems like APSIN to promulgate a plan which ensures "that dissemination of noneonvietion data has been limited" to specified individuals and agencies. This regulation was not violated in this case as the letter to the Sierra Club made no reference to noneonvietion data. Further, even if a violation of this regulation were established, a section 1983 action could not be based on such a violation. In Polchowski v. Gorris, 714 F.2d 749 (7th Cir.1983), a claim was brought based on a violation of the enabling statute underlying 28 C.F.R. § 20. That statute, 42 U.S.C. § 3789g(a) & (b), forbade the release of criminal history information obtained from the Justice Department. Despite this prohibition, a police chief released information so obtained concerning a candidate for local of fice. The court held that no section 1988 action could be maintained based on this release as the enabling statute "does not create an enforceable right to prevent the disclosure of criminal history information." Id. at 751. Cline v. Rogers, 87 F.3d 176, 184 (6th Cir.1996), is similar to Polchowski The court held that a county sheriff who had allegedly disclosed protected criminal history records to a private citizen was not subject to suit under section 1983. The court relied on the same rationale as Polchowski, reasoning that the underlying statute does not create a privately enforceable right of action, and stating that subsection (b) of 42 U.S.C. § 3789g "imposes compliance obligations only on a federal agency, not upon the defendants [non-federal officials]." Id. at 183. We agree with the Polchowski and Cline decisions and conclude that no cause of action maintainable under section 1983 has been plead. III. Thoma Has a Claim for Violation of State Regulations But Not for Violation of the State Constitution We turn to Thoma's state law claims. He asserts three tort theories based on (1) violation of his right to free speech, guaranteed by article I, section 5 of the Alaska Constitution; (2) violation of his right to privacy, guaranteed by article I, section 22 of the Alaska Constitution; and (3) violation of the state regulations governing use and distribution of APSIN information, 13 AAC 25.260 and .280. For the reasons that follow we hold that a claim may be based on a violation of the regulations, but claims may not be based on the other provisions. A. State Regulation Claim 13 AAC 25.260 limits the dissemination of APSIN information "to law enforcement officers . for the purpose of the detection of crime and identification and apprehension of criminals." 13 AAC 25.280 prohibits the release of APSIN information to non-law enforcement officials "except upon order of a court of competent jurisdiction, issued for good cause shown and where [the information] will not be put to an improper use.... " In 1991 there was no explicit remedy provided for violation of these regulations. The Restatement (Second) of Torts § 874A (1979) provides: When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or new cause of action analogous to an existing tort action. We have followed the rationale of this section in Plancich v. State, 693 P.2d 855, 859 (Alaska 1985) (tort action based on statutory duty to keep seaplane docks accessible to seaplanes); see Walt v. State, 751 P.2d 1345, 1353 n. 17 (Alaska 1988) (Restatement § 874A discussed). In our view the rationale of section 874A is applicable with respect to 13 AAC 25.260 and .280. In the present case, unlike the situation in Walt, there is no remedial system of enforcement and thus no risk that the balance struck by the legislature in devising a remedial system might be skewed by permitting a private tort remedy. Further, it is evident that one purpose of the confidentiality provisions of sections .260 and .280 is to protect people whose APSIN files may contain damaging or embarrassing information from the injury that might result from the publication of those files. Thoma is a member of this class. Inferring a tort action from violations of sections .260 and .280 is, in our view, an appropriate way of enforcing their confidentiality provisions. Hiekel argues that Thoma's complaint does not encompass an action based on violation of the state APSIN regulations. We disagree. The complaint alleges that Hiekel's actions included "utilizing state criminal justice system resources to identify plaintiffs contacts with law enforcement entities in the criminal justice system . in an effort to embarrass, discredit and punish" Thoma. These actions were alleged to violate state public policy. The only shortcoming of these allegations is that the regulations concerning the state criminal justice system which express the state public policy were not specifically mentioned. This is not a fatal pleading defect. Under notice pleading, a complaint is sufficient when it reasonably informs the opposition of the nature of the claim. See Tremps v. Ascot Oils, Inc., 561 F.2d 41, 44-45 (7th Cir.1977) (complaint need not state specific provision of securities law under which defendant was liable). Further, Thoma did specify the regulations on which he relied in his memorandum in support of his motion for partial summary judgment and in opposition to Hiekel's motion for summary judgment. The memorandum stated: Defendant also violated state law. 13 AAC 25.260 allows distribution of information only to the subject of the information and "to law enforcement officers . for the purpose of the detection of crime and identification and apprehension of criminals." 13 AAC 25.280 states further that the information in the system is "confidential" and can be released to non-law enforcement personnel only "upon order of a court of competent jurisdiction, issued for good cause shown and where they will not be put to an improper use[.]" Defendant was not a law enforcement officer, did not have a court order, and was not using this information for proper purposes. In response to Hickel's argument that Thoma waived any cause of action under the state regulations, Thoma answered as follows in his reply brief: Thoma is not asserting a cause of action for violation of the regulations; he cites state regulations to show that his right to have APSIN used only for law enforcement purposes was clearly established. The cause of action is brought directly under the Alaskan Constitution, which was pled in the complaint. The key element of Thoma's state constitutional tort claim based on violation of the APSIN regulations is that Hiekel used information concerning Thoma obtained in violation of the APSIN regulations. Violation of the regulations is thus subsumed within Tho- ma's state constitutional tort theories. As Hickel has pointed out, the availability of alternative, non-constitutional remedies is a basis for refusing to accept a constitutional tort theory. E.g., Johnson v. Alaska Dep't of Fish & Game, 836 P.2d 896, 909 n. 23 (Alaska 1991) (remedies available under AS 18.80); State v. Haley, 687 P.2d 305, 317-18 (Alaska 1984) (AS 09.50.250 furnished alternative remedies). In order to determine whether this ground exists as a defense to Thoma's state constitutional tort theories, the validity of the alternative remedy based on violation of the state regulations must be determined. Thus the merits of the tort remedy based solely on the regulations are clearly before us. The language from Thoma's reply brief quoted above does not suffice to require that we consider whether Thoma has a state constitutional tort action based on violation of the APSIN regulations since, as we hold, a direct tort action based on the regulations exists. B. State Constitutional Claim Thoma's attempt at asserting tort claims based on state constitutional violations fails for a number of reasons. The claim based on the free speech clause, article I, section 5, lacks merit because as expressed above, a government official has a constitutionally protected right to speak, or write, in response to critical speech. Concerning Tho-ma's claim based on the constitutional right to privacy, Thoma has not established that publication of his APSIN file would violate article I, section 22. Further, given our decision that a private tort action may be main- . tained for violation of the APSIN regulations, a direct constitutional remedy would be superfluous. C. Immunity for State Regulation Claim The final question for resolution is whether Hickel is shielded by absolute immunity from Thoma's claim for violation of the state APSIN regulations. We conclude that qualified rather than absolute immunity should govern this action. Our analysis of this point largely tracks that which we used concerning the defamation claim presented in Aspen Exploration Corp. v. Sheffield, 739 P.2d 150,158 (Alaska 1987). There is little or no utility in permitting a governor to consult APSIN records for non-law enforcement purposes. Governors are unlikely to be subjected to numerous charges that they have improperly referred to AP-SIN records and when such charges are made they are unlikely to result in lengthy trials. No alternative remedies exist in favor of a person whose confidentiality rights have been violated. Id. at 160-162. Imposing a rule of absolute immunity would run counter to the legislative judgment implicit in AS 12.62.200. Finally, it is important that public officials be deterred from improperly using information which their office gives them access to. In view of our decision on the merits, the appeal concerning attorney's fees is mooted. IV. Conclusion Four justices have participated in the decision of this case. The court is evenly divided with respect to part II of the opinion, concerning whether valid federal claims have been asserted. A decision by an evenly divided court results in an affirmance. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993). Therefore, the decision of the superi- or court with respect to the federal claims is affirmed. Three justices concur in part III.A, concerning the state regulations claim. Therefore, the decision of the superior court is reversed with respect to the state regulations claim. Two justices concur in part III.B, relating to the state constitutional claim, and two justices would not reach this claim. This claim is therefore also affirmed by an evenly divided court. All justices concur in all other parts of the opinion not mentioned in this conclusion. Accordingly, the judgment of the superior court is AFFIRMED regarding the federal claims and the state constitutional claim, REVERSED regarding the state regulations claim, and REMANDED for further proceedings consistent with this opinion. CARPENETI, J. pro tem., dissenting in part, joined by RABINOWITZ, J. EASTAUGH, J., dissenting in part. COMPTON, C.J., not participating. . Walt v. State, 751 P.2d 1345, 1348 n. 2 (Alaska 1988). . See Stephanie E. Balcerzak, Qualified Immunity for Government Officials, 95 Yale L.J. 126, 127 n. 6 (1985). . 42 U.S.C. § 3789g(a) & (b) provides: Confidentiality of information (a) Research or statistical information; immunity from process; prohibition against admission as evidence or use in any proceedings Except as provided by Federal law other than this chapter, no officer or employee of the Federal Government, and no recipient of assistance under the provisions of this chapter shall use or reveal any research or statistical information furnished under this chapter by any person and identifiable to any specific private person for any purpose other than the purpose for which it was obtained in accordance with this chapter. Such information and copies thereof shall be immune from legal process, and shall not, without the consent of the person furnishing such information, be admitted as evidence or used for any purpose in any action, suit, or other judicial, legislative, or administrative proceedings. (b) Criminal history information; disposition and arrest data; procedures for collection, storage, dissemination, and current status; security and privacy; availability for law enforcement, criminal justice, and other lawful purposes; automated systems; review, challenge, and correction of information All criminal history information collected, stored, or disseminated through support under this chapter shall contain, to the maximum extent feasible, disposition as well as arrest data where arrest data is included therein. The collection, storage, and dissemination of such information shall take place under procedures reasonably designed to insure that all such information is kept current therein; the Office of Justice Programs shall assure that the security and privacy of all information is adequately provided for and that information shall only be used for law enforcement and criminal justice and other lawful purposes. In addition, an individual who believes that criminal history information concerning him contained in an automated system is inaccurate, incomplete, or maintained in violation of this chapter, shall, upon satisfactory verification of his identity, be entitled to review such information and to obtain a copy of it for the purpose of challenge or correction. . In 1994 the legislature enacted AS 12.62.200, which allows a person "whose criminal justice information has been released or used in knowing violation of [regulations adopted under AS 12.62 including 13 AAC 25.260 and .280]" to bring an action for damages in superior court. This section does not govern this case as it was enacted after the events in question here. It does however reflect a legislative judgment that enforcement of the regulations concerning AP-SIN through the mechanism of a private civil action is good public policy where there is a "knowing violation." . In reaching this conclusion we do not mean to imply that permitting a direct tort action for violation of state constitutional provisions would, in other circumstances, be appropriate. Direct tort actions for violation of certain provisions of the federal constitution have been recognized. The leading case is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have neither adopted nor rejected the Bivens approach with respect to state constitutional violations. Vest v. Schafer, 757 P.2d 588 (Alaska 1988). We have noted that federal courts have not permitted the Bivens remedy where alternative remedies are available. See Dick Fischer Dev. No. 2, Inc. v. Department of Administration, 838 P.2d 263, 268 (Alaska 1992). . See supra note 5.

10402475

Robert T. COMEGYS, Appellant, v. STATE of Alaska, Appellee

Comegys v. State

1987-12-31

No. A-2083

554

559

747 P.2d 554

747

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Robert T. COMEGYS, Appellant, v. STATE of Alaska, Appellee.

Robert T. COMEGYS, Appellant, v. STATE of Alaska, Appellee. No. A-2083. Court of Appeals of Alaska. Dec. 31, 1987. Michael Dieni, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant. Renee R. Erb, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2308

14710

OPINION SINGLETON, Judge. Robert T. Comegys pled no contest and was convicted of two counts of burglary in the second degree, a class C felony, AS 11.46.310, one count of theft in the second degree, a class C felony, AS 11.46.130(a)(1), and one count of theft in the third degree, a class A misdemeanor, AS 11.46.140(a)(1). For the first count of burglary and the count of theft in the second degree, he received concurrent sentences of three years with one year suspended. For the second count of burglary, he received a sentence of two years with one year suspended, to be served consecutive to the sentence previously imposed. For theft in the third degree, he received a sentence of six months with six months suspended, to be served concurrent with the second burglary count, but consecutive to the first burglary and theft counts. Thus, Comegys received a composite sentence of five years with two years suspended. He appeals, contending that his sentence is excessive. We affirm. THE OFFENDER At the time of sentencing, Comegys was twenty-three years of age. He only completed the eighth grade but apparently has received his GED. Comegys has a juvenile record which began in March 1979 when he was fifteen years of age. He was prosecuted for what his probation officer characterized as a minor arson in September 1979, littering and traffic offenses in December 1979, and unauthorized use of a vehicle in November 1981. As a result of these charges, he was incarcerated in a juvenile institution from November 1981 until January 1982, when he was released to facilitate his entry into the military. Comegys was dishonorably discharged from the Army on October 20, 1983. Comegys has been employed as a short order cook for a variety of employers between May 1984 and the present. He appears to have a substantial alcohol and drug abuse problem. Comegys' adult criminal record includes convictions for driving while intoxicated in 1986 and shoplifting in June 1984. For his shoplifting offense, Comegys initially received a suspended imposition of sentence for six months on condition that he pay $100 court costs and perform thirty-two hours of community service. He failed to comply with these conditions, which resulted in the imposition of thirty-two hours community service, thirty days with thirty days suspended, a $300 fine with $200 suspended, and one year of probation. THE OFFENSES The offenses charged in the indictment involve conduct occurring in December 1986. On December 2, 1986, Comegys, with two other men, burglarized the Hill-crest Day Care Center and stole property. In the course of their burglary, they ransacked the offices of the day-care center. On December 15, 1986, Comegys, again with two other men, burglarized the Anchorage Bible Fellowship Church and stole property. Comegys was arrested on January 22, 1987. The presentence report indicates that during the course of Comegys' contacts with the police, he used several different names, dates of birth, and Social Security numbers. Apparently, Comegys was involved in two other burglaries. Comegys agreed that the trial court could consider, for purposes of sentencing, his burglary and resulting thefts from Willis Flooring Company on January 22, 1987, and his burglary and theft from Inlet Glass on January 22, 1987. In addition, it appears that a petition to revoke Comegys' probation for his misdemeanor conviction was pending, because he allegedly did not avail himself of alcohol screening or contact correctional officers to schedule his community service. THE SENTENCES In imposing sentence, Judge Michalski properly considered the Chaney sentencing criteria. State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). He emphasized rehabilitation and protection of the community. In the court's mind, Comegys' sporadic employment, drug abuse, juvenile record, and multiple offenses required a period of incarceration to ensure Comegys' rehabilitation. Recognizing that a first offender should not receive a period of incarceration greater than the presumptive term for a second felony offender, see Austin v. State, 627 P.2d 657 (Alaska App.1981), the court imposed concurrent sentences of three years with one year suspended for the burglary and theft from the Hillerest Day Care Center. The trial judge concluded that the burglary committed two weeks later was a separate and distinct crime. The court followed the probation officer's recommendations and imposed concurrent sentences for the burglary and theft from the Anchorage Bible Fellowship Church, but made these sentences consecutive to the Hillerest Day Care Center sentences. DISCUSSION Comegys is a first felony offender sentenced for two groups of offenses. The first being the burglary and theft from the Hillerest Day Care Center, and the second being the burglary and theft from the Anchorage Bible Fellowship Church. The two burglaries and first theft, in this case, are class C felonies. The maximum sentence for each offense is five years' imprisonment, while the presumptive sentences are two years for a second felony offender, and three years for a third felony offender. See, e.g., AS 12.55.125(e). In Leuch v. State, 633 P.2d 1006, 1013, 1014 n. 22 (Alaska 1981), the supreme court suggested that first offenders convicted of property offenses should normally receive probation, defined to include incarceration of up to sixty days, and that longer sentences should require some justification in the record. In Austin, 627 P.2d at 657-58, we held that normally a first offender should receive a sentence more favorable than the presumptive sentence reserved for a second felony offender. In a subsequent case, we concluded that deviation from this rule should require a finding of aggravating factors, see, e.g., AS 12.55.155(c), or the kind of special circumstances that would warrant referral to a three-judge panel, see AS 12.55.165 and AS 12.55.175. Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983). Generally when we evaluate a sentence, we consider the whole sentence including suspended time. For the purposes of applying Austin, however, when we evaluate whether a sentence exceeds the presumptive term for a second felony offender, we primarily focus on that portion of the sentence which imposes a period of incarceration. Tazruk v. State, 655 P.2d 788, 789 (Alaska App.1982). When, however, a first offender receives a sentence of incarceration equal to the presumptive term for a second offender, and in addition, receives suspended time, aggravating factors or extraordinary circumstances must appear in the record. Brezenoff, 658 P.2d at 1362. Cf. McManners v. State, 650 P.2d 414 (Alaska App.1982) (in order to impose suspended time in addition to presumptive term, the court must find aggravating factors). Finally, before imposing a sentence on any offense, the trial judge must, hopefully with the assistance of counsel, inform himself or herself of sentences customarily imposed for similar offenses committed under similar circumstances by similar individuals. See, e.g., Pears v. State, 698 P.2d 1198 (Alaska 1985); Page v. State, 657 P.2d 850, 855 (Alaska App.1983). Comegys was sentenced separately for each burglary and accompanying theft. For the burglary and theft of the day-care center Comegys received concurrent sentences of three years with one year suspended. His sentences for the burglary and theft of the church also ran concurrent with each other, but ran consecutive to the prior sentence. Without justification in the record, a sentence of three years with one year suspended for the first burglary and theft violates the Austin rule. The trial court found no aggravating factors and found no extraordinary circumstances. Nevertheless, it imposed a sentence that exceeds, by one suspended year, the two-year presumptive term for a second felony offender convicted of a class C felony. As we have previously held, any increase over that presumptive term, even if suspended, must be justified by aggravating factors or extraordinary circumstances. Comegys also argues that the sentences imposed in this case violate the Pears rule because they are inconsistent with other sentences imposed for similar crimes on those similarly situated. See, e.g., Reynolds v. State, 736 P.2d 1154 (Alaska App.1987); West v. State, 727 P.2d 1 (Alaska App.1986); Parker v. State, 714 P.2d 802 (Alaska App.1986); and Tate v. State, 711 P.2d 536 (Alaska App.1985). In those cases we surveyed the range of sentences previously imposed for burglary and related theft convictions, and concluded that even when the Leuch rule did not require a suspended sentence, the total sentence should ordinarily not exceed the presumptive term for a second felony offender. In our view, the record establishes that a sentence in excess of sixty days' incarceration is not clearly mistaken. Reynolds v. State, 736 P.2d at 1155. In reaching this conclusion, we have considered: Comegys' juvenile record, his brief stay in a juvenile institution, his dishonorable discharge from the military, his commission of the instant offenses while on misdemeanor probation, his failure to comply with the conditions of probation, and verified information in the record that Comegys had committed two burglaries and related thefts for which he was not charged. This case is similar to Reynolds and Tate, in which we found sentences of five years with three years suspended for a first felony conviction of burglary in the second degree clearly mistaken because there were no extraordinary circumstances to justify a sentence in excess of the presumptive term for a second felony offender. As we noted in Austin, a first offender should generally receive a more favorable sentence than the presumptive term for a second felony offender. Nevertheless, Co-megys' conviction for two separate criminal transactions, his admission that he committed two other burglaries in related offenses, his juvenile incarceration, and dishonorable discharge, would permit the trial court to find extraordinary circumstances warranting a total composite sentence of five years with two years suspended. See Edwards v. State, 733 P.2d 1063 (Alaska App.1987). We are not satisfied that any of the factors standing alone would justify a sentence in excess of two years including suspended time. Viewed in their totality, however, we conclude that the trial judge acted within his discretion when he imposed the higher total sentence: five years with two years suspended. We are satisfied that Comegys would have been subject to a longer total sentence as a second felony offender. The state seeks to distinguish Wood v. State, 712 P.2d 420 (Alaska App.1986) and, by extension, the other cases in which we have recognized limitations on sentences for first offenders in burglary prosecutions. The state points out that Comegys was sentenced for two separate and distinct offenses and, that under AS 12.55.-025(e) and (g), he was subject to consecutive sentences. In State v. Andrews, 707 P.2d 900, 905-06 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), we noted that the trial court had discretion to impose consecutive or concurrent sentences under this statute, but that the legislature had indicated a slight preference for consecutive sentences. In the state's, view, so long as the sentences imposed for Comegys' separate offenses are each consistent with existing case law, any excess can be explained and justified by the trial court's power to impose consecutive sentences. We disagree. In Waters v. State, 483 P.2d 199, 202 (Alaska 1971), the supreme court recognized that a sentence that might appear excessive when viewed in isolation, might be appropriate in light of the total sentence imposed for multiple crimes. The converse would appear true as well. The sentence that might appear too lenient when viewed in isolation, might be appropriate as part of a composite sentence imposed for multiple crimes for which the defendant is simultaneously sentenced. See Larson v. State, 688 P.2d 592, 599 (Alaska App.1984). When a trial court is sentencing a defendant who has committed other offenses similar to those for which he or she is being sentenced, it is likely that the court will impose a greater sentence than if only a single offense had been committed. This is particularly true when a defendant is being simultaneously sentenced for multiple convictions. Regardless of the trial court's decision to sentence consecutively or concurrently, however, the total sentence must reflect the totality of the defendant's conduct considered in light of his or her background and experience, and measured against the standards of rehabilitation, deterrence of self and others, and affirmation of community norms. In addition, where a defendant has manifested by his or her conduct substantial resistance to deterrence and rehabilitation, the trial court may also consider isolation. See, e.g., State v. Chaney, 477 P.2d at 444. We note that in Pears v. State, 698 P.2d 1198 (Alaska 1985), the supreme court evaluated the totality of the defendant's conduct and measured it against sentences imposed upon similar individuals convicted of similar offenses in determining that the trial court had imposed too severe a sentence. Pears involved two separate sentences for negligent homicide involving two separate victims. The sentences were imposed concurrently. Consequently, we are not prepared to hold that under AS 12.55.-025(e) and (g), a court may ignore Austin and Pears when a first offender is simultaneously sentenced for multiple burglaries. The trial court must still justify the sentence actually imposed by reference to the Chaney criteria and by comparing it to sentences imposed on similar individuals committing similar crimes. Nevertheless, Comegys' conviction of two separate burglaries and related thefts, and in addition, his admission of two additional burglaries and related thefts, justifies a greater sentence than would a conviction of an isolated burglary and theft. The sentence actually imposed, while incrementally more severe than a single sentence for a single offense, did not constitute the kind of pyramiding of consecutive sentences criticized in Andrews, 707 P.2d at 910, 913. The sentence of the superior court is AFFIRMED.

10413182

Aileen Ann MEISSNER, Appellant, v. STATE of Alaska, Appellee; Vernon Dale BRANTLEY, Appellant, v. STATE of Alaska, Appellee

Meissner v. State

1986-03-07

Nos. A-1083, A-1084

714

715

715 P.2d 714

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Aileen Ann MEISSNER, Appellant, v. STATE of Alaska, Appellee. Vernon Dale BRANTLEY, Appellant, v. STATE of Alaska, Appellee.

Aileen Ann MEISSNER, Appellant, v. STATE of Alaska, Appellee. Vernon Dale BRANTLEY, Appellant, v. STATE of Alaska, Appellee. Nos. A-1083, A-1084. Court of Appeals of Alaska. March 7, 1986. James W. McGowan, Asst. Public Defender, Sitka, and Dana Fabe, Public Defender, Anchorage, for appellants. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

707

4570

OPINION BRYNER, Chief Judge. Aileen Ann Meissner and Vernon Dale Brantley were charged, in unrelated cases, with driving while intoxicated (DWI), in violation of AS 28.35.030(a). Both entered pleas of no contest to the charges and were separately sentenced by Judge Henry C. Keene, Jr. As first offenders, Meissner and Brantley were subject, under AS 28.-35.030(c), to a minimum term of seventy-two hours in jail. In keeping with a policy that he had apparently adopted several years previously, however, Judge Keene sentenced Meissner and Brantley to serve more than the minimum period of incarceration. Judge Keene required both Meiss-ner and Brantley to serve fifteen days in jail, with five days suspended. Both defendants subsequently moved for reduction of their sentences, contending that Judge Keene's policy of imposing first offense DWI sentences in excess of the statutory minimum was illegal. Following denial of their motions, Meissner and Brantley renewed their claims on appeal. Specifically, Meissner and Brantley assert that Judge Keene's policy of requiring first offenders to serve ten days in jail is inflexible and amounts to a de facto amendment of the seventy-two hour minimum sentence that the legislature established in AS 28.-35.030(c). Meissner and Brantley maintain that this "judicial amendment to statutes" is unauthorized and violates their right to individualized treatment in sentencing. Although it appears clear from the record that, as a matter of policy, Judge Keene typically sentences first offenders convicted of DWI to serve jail terms of fifteen days with five days suspended, it is not at all clear that this sentencing policy is rigid or inflexible. The circumstances involved in both Meissner's and Brantley's cases appear to fall well within the norm of seriousness for first offense DWI cases. Neither case seems particularly aggravated or mitigated. In neither case did defense counsel call the sentencing court's attention to any factors that might warrant imposition of a sentence lower than that which would be suitable for a typical DWI first offender. Indeed, prior to sentencing, defense counsel expressly acknowledged that Meissner's case was a typical first offense DWI. While counsel in Brantley's case made a conclusory statement that Brantley deserved the statutory minimum sentence, he offered nothing to support this eonclusion except the observation that no accident was involved in Brantley's case. The existence of an accident, however, appears to us to be an atypical circumstance that would serve to aggravate a normal DWI offense. We find no basis for concluding that the lack of an accident should render an offense less serious than the norm, thereby constituting a mitigating factor. Meissner and Brantley concede that use of a benchmark sentence exceeding the statutory seventy-two hour minimum for first offense DWI cases is not precluded. See Middleton v. Anchorage, 673 P.2d 283 (Alaska App.1983); Harker v. State, 637 P.2d 716 (Alaska App.1981), aff'd, 663 P.2d 932 (Alaska 1983). There is simply nothing in the record currently before this court to indicate that Judge Keene's sentencing policy is anything more than a sentencing benchmark for typical first offense DWI cases. We find no basis for concluding that Judge Keene would refuse to deviate from the benchmark term if faced with a case in which genuinely mitigating circumstances were presented to him. Accordingly, we reject the claim that Judge Keene's sentences amounted to a de facto amendment of the seventy-two hour mandatory minimum sentence established under AS 28.35.030(c). The sentences are AFFIRMED. . Meissner and Brantley do not contend that Judge Keene's sentencing remarks failed to adequately address the Chaney sentencing criteria. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). We note that, in each case, Judge Keene's remarks made it clear that Judge Keene believed adherence to a benchmark term exceeding the statutory minimum was appropriate in order to further the goals of deterrence and community condemnation.

10419039

Steven ST. JOHN, Appellant, v. STATE of Alaska, Appellee

St. John v. State

1986-03-21

No. A-779

1205

1213

715 P.2d 1205

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Steven ST. JOHN, Appellant, v. STATE of Alaska, Appellee.

Steven ST. JOHN, Appellant, v. STATE of Alaska, Appellee. No. A-779. Court of Appeals of Alaska. March 21, 1986. Rehearing Denied April 8, 1986. Robert H. Wagstaff, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and SINGLETON and SERDAHELY, JJ. Serdahely, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

4378

26553

OPINION SINGLETON, Judge. Steven St. John was convicted by a jury of one count of manslaughter, AS 11.41.-120(a)(1), and one count of assault in the second degree, AS 11.41.210(a)(2). The facts are not in dispute. At approximately 1:00 a.m. on November 5, 1983, St. John was driving on the wrong side of the road, travelling north in the southbound lane of a divided highway known locally as the Minnesota Bypass, between Raspberry Road and International Airport Road. St. John was driving without his lights on. He apparently engaged his lights moments before he collided head on with another vehicle proceeding in its proper lane of traffic. Shelly Reed, the driver of the other vehicle, was killed instantly and Karen Wuitschick, her passenger, was injured. St, John was charged with manslaughter for the death of Reed and second-degree assault for the injuries to Wuitschick. St. John appeals his conviction and sentence. We find prejudicial error in one of the jury instructions given and, therefore, reverse St. John's conviction. St. John argues that Instruction No. 13 misstated the law. The instruction provided: If you find that the defendant operated a motor vehicle at the time of the accident while under the influence of intoxicating liquor that is sufficient to establish recklessness on his part. A person is under the influence of intoxicating liquor when, as a result of the use thereof, his physical and mental abilities are impaired so that he no longer has the ability to operate or drive a vehicle under the same or similar circumstances with a caution characteristic of a person of ordinary prudence who is not under the influence of intoxicating liquor. In Edgmon v. State, 702 P.2d 643 (Alaska App.1985), we rejected a claim that similarity between Alaska's manslaughter and criminally negligent homicide statutes offended equal protection. The claim in that case rested on the assertion that when the actor is intoxicated the definitions of the mental states required for the two offenses are virtually identical. Alaska Statute 11.-41.120 provides: Manslaughter, (a) A person commits the crime of manslaughter if the person (1) intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree; or (2) intentionally aids another person to commit suicide. (b) Manslaughter is a class A felony. Alaska Statute 11.41.130 provides: Criminally Negligent Homicide, (a) A person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person. (b) Criminally negligent homicide is a class C felony. In Edgmon, we concluded that there were sufficient differences between the mental state of recklessness and the mental state of criminal negligence to distinguish the two statutes even when the actor is intoxicated. Alaska Statute 11.81.-900(a) provides in part: (3) a person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to' that risk; (4) a person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. We noted that the conduct and the risk to be perceived were the same for both negligent homicide and manslaughter, but that the mental states differed. To be reckless, a person must be aware of and consciously disregard a risk, while a person is criminally negligent if he or she fails to perceive, and therefore disregards, the risk in question. We further held that when a defendant is intoxicated and therefore unaware of a risk, "[t]he state is still obligated to prove that [the defendant], given his faculties, his education, his experience, and his intelligence, would have perceived that risk but for his intoxication." 702 P.2d at 645. Despite Edgmon, the state attempts to justify the instruction given in this case by reference to Lupro v. State, 603 P.2d 468 (Alaska 1979). In Lupro, the supreme court considered the interplay between intoxication and culpable negligence under former law and concluded that a prima facie case of the crime of negligent homicide was established once the state showed that a driver was intoxicated at the time of the accident, and that his intoxication was the cause of the victim's death. 603 P.2d at 475. The state argues that criminal negligence under current law and culpable negligence under former law are essentially the same, and that, consequently, the rule in Lupro would apply to a criminal negligence prosecution under current law. The state then reasons that the only difference between recklessness and criminal negligence is the actor's appreciation of the risk, unless the actor's only reason for failing to appreciate the risk is his intoxication. Thus, the state concludes: Under this definition of "recklessness," a person who drives an automobile while intoxicated must have acted recklessly. Under Lupro, the act of driving while intoxicated constitutes a "substantial and unjustifiable risk" as a matter of law. Now, either the defendant (a) was aware that he was driving while intoxicated — in which case he was aware of and consciously disregarded a substantial and unjustifiable risk of human death — or (b) the defendant was too intoxicated to perceive that he was driving while intoxicated — in which case he failed to perceive a risk that he otherwise would have been aware of but for his intoxication. In either case, the mental state of the driver satisfies one of the two alternative elements necessary for proof of "recklessness" rather than mere "criminal negligence." Thus, under the definitions of these two culpable mental states found in the criminal code, and given the holding in Lupro that driving while intoxicated is per se culpable negligence under the common law definition, it follows that driving while intoxicated is "recklessness" as a matter of law under Alaska's present criminal code. [Footnote omitted.] The state is correct that the Lu-pro court treated the terms "culpable negligence" and "recklessness" synonymously. In so doing, it apparently relied on the Restatement (Second) of Torts § 500 (1965) which used the term "recklessness" to cover both recklessness and criminal negligence as they are defined in the Model Penal Code and in the current Alaska Statutes. See Abruska v. State, 705 P.2d 1261, 1270 n. 7 (Alaska App.1985). The state's continued reliance on Lupro is misplaced, however, for two reasons. First, under former law, it was unnecessary for a jury to find that the actor had subjective knowledge of the risk his conduct posed to others in order to convict him of negligent homicide. O'Leary v. State, 604 P.2d 1099, 1104-05 (Alaska 1979), overruled on other grounds, Evans v. State, 645 P.2d 155 (Alaska 1982). Thus, while the supreme court treated the terms "culpable negligence" and "recklessness" interchangeably, it followed the Restatement view that recklessness did not necessarily require subjective knowledge of the risk. Current law defines recklessness to require subjective knowledge of the risk. This leads to the state's second error in interpreting Lu-pro and its progeny. The state confuses (1) a prima facie case, which will prevent a defendant from obtaining a judgment of acquittal; and, (2) a directed verdict of guilty on an element of an offense. As we pointed out in Pears v. State, 672 P.2d 903, 913 (Alaska App.1983) (Singleton, J. and Bryner, C.J., concurring) rev'd on other grounds 698 P.2d 1198 (Alaska 1985), in most eases, when the state shows that an intoxicated person drove a car and caused a death, it has made a prima facie case of manslaughter as defined in AS 11.41.120. This follows from the fact that if a reasonably prudent person, under all of the circumstances, would have been aware of a risk, a jury may, but is not required, to infer that the actor was aware of the risk. A prima facie case gets the case to the jury; it does not decide the case for the jury. The jury must still make the independent determination that this defendant, given all of his strengths and weaknesses, and the totality of the circumstances, was aware of the risk in question. Edgmon v. State, 702 P.2d at 645. In summary, evidence that a defendant drove while intoxicated and, as a result, caused the death of another person, may establish a prima fa-cie case of the recklessness necessary for a finding that the defendant committed manslaughter. Thus, the trial court erred in instructing the jury that a person who operates a motor vehicle while under the influence of alcohol is reckless per se, whether he is aware of the risks his conduct poses or not. Nevertheless, the state argues the error was harmless beyond reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710-11 (1967). The state makes a compelling case. Steven St. John did not testify, and the defense rested at the completion of the prosecution's case. There was limited cross-examination of the state's witnesses. There is nothing in the record to suggest that St. John is of limited intelligence or suffers from any disabilities of sight or hearing. The undisputed evidence established that he was driving on the wrong side of a divided highway at 1:00 a.m., without his lights, and only engaged his lights moments before the collision which caused the death and injuries for which he was convicted. It is highly likely that a jury would find that anyone, drunk or sober, and possessed of normal faculties, would realize that he or she could not drive on the wrong side of a divided highway in the middle of the night, without lights, without creating a "substantial and unjustifiable risk" that a motor vehicle accident will result and someone will be killed or suffer serious physical injuries. A risk that one's conduct will result in death or serious physical injury is of such a nature and degree, that disregard of that risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe. Nevertheless, to find harmless error on this ground would be, in effect, to direct a verdict of guilty on an element of the offense against the defendant, and this we may not do. Francis v. Franklin, 471 U.S. —, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). While we might be prepared to find harmless error, under the totality of the circumstances, in the trial court's failure to give an instruction on the lesser-included offense of negligent homicide, we do not reach that issue because of our holding that the jury was erroneously instructed on recklessness. There is a substantial risk that a jury considering the instructions in this case would find St. John guilty of manslaughter by reasoning that St. John was in fact intoxicated, and that his intoxication sufficiently interfered with his driving to contribute to Reed's death. Such a juror would never have considered St. John's subjective knowledge of the risk, which is an element of the offense. The error was, therefore, not harmless and requires a reversal and remand for a new trial. Certain other issues may arise on retrial, and we will briefly address them. St. John argues that the trial court erred in denying his motion to suppress his medical records. The record reflects that the state learned that a blood-alcohol test was administered to St. John for medical reasons on the night of the fatal accident. Based on that and other information, the state procured a search warrant for St. John's medical records. St. John's medical records were not presented at trial. Therefore, the trial court's denial of his suppression motion is moot to that extent. The records were presented to the grand jury, however, and the results of the blood-alcohol test were also presented to the trial jury. We, therefore, address the issue. We are satisfied that the affidavit presented in support of the search warrant established probable cause to believe that St. John was driving while intoxicated and that his intoxication contributed to the death of Shelly Reed. St. John contends that the reliability of the emergency room physician, Dr. Vasileff, was not shown. The affidavit supporting the search warrant application, relied upon statements from Dr. Vasileff to establish that St. John was intoxicated. The record establishes, however, that Dr. Vasileff was a citizen informant and a treating physician. Under the circumstances, it was not necessary to independently establish his reliability. See, e.g., State v. Jones, 706 P.2d 317, 325 (Alaska 1985) (reliability of citizen informant may be inferred if some details of information furnished by the informant are verified). Finally, we see no double hearsay problems. Bradley v. State, 662 P.2d 993, 996 (Alaska App.1983) (no error in admitting hospital blood test as business record). See also Resek v. State, 644 P.2d 877, 879 & n. 1 (Alaska App.1982) (treating double hearsay problems in search warrant applications). The warrant was not a "general warrant" and the physician-patient privilege does not apply in criminal proceedings. A.R.E. 504(d)(7). St. John next argues that the state's failure to procure and preserve a sample of his blood violated his due process right. He relies on Lauderdale v. State, 548 P.2d 376 (Alaska 1976) and Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). Lauderdale and Serrano establish a duty to preserve the ampules from a breath test so that the defendant may make an independent test. St. John analogizes the sample of his blood taken by Providence Hospital to a breath test ampule and reasons that the state was under a duty to preserve the blood sample. We disagree. See Bradley v. State, 662 P.2d 993 (Alaska App.1983). The blood test in this case was done by hospital personnel on St. John's behalf for medical reasons, and not by a police agency for the purpose of prosecuting St. John. See Russell v. Anchorage, 706 P.2d 687, 693 (Alaska App.1985). Consequently, there was no violation of the Lauderdale-Serrano rule. Nor do we find any violation of St. John's rights under the corresponding due process clauses of the state and federal constitutions. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the prosecutor is required to disclose evidence to a criminal defendant that is favorable to the accused and material either to guilt or punishment. In United States v. Bagley, 473 U.S. —, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), a majority of the United States Supreme Court concluded that in order for a criminal defendant to avail himself of relief under Brady, he must show that governmental action deprived him of "material evidence." Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 473 U.S. at —, 105 S.Ct. at 3384, 87 L.Ed.2d at 494 (opinion of Blackmun and O'Connor, J.J.) and 473 U.S. at —, 105 S.Ct. at 3385, 87 L.Ed.2d at 496 (opinion of White and Rehnquist, J.J. and Burger, C.J.). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." 473 U.S. at —, 105 S.Ct. at 3384, 87 L.Ed.2d at 494 (opinion of Blackmun and O'Connor, J.J.). The Alaska Supreme Court has adopted a similar standard of materiality, at least where, as here, the state is under no specific duty, derived from rule or case, to preserve the evidence in question. See Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980); Carman v. State, 604 P.2d 1076, 1080-81 (Alaska 1979) (recognizing that materiality test is essentially one of harmless error). St. John has not shown that preserving a blood sample for a retest by him would probably have affected the outcome of his trial. The record reflects that the blood sample was drawn and the test administered in the ordinary course of business at Providence Hospital, in order to safeguard St. John's life. There is no evidence, direct or circumstantial, that the tests performed were in any way inaccurate or that a retest by someone else would have resulted in exculpatory evidence. We are satisfied that the absence of an additional test did not substantially affect the jury's verdict. Love v. State, 457 P.2d 622, 630 (Alaska 1969). Under the circumstances, the trial court did not err in rejecting St. John's challenge to the admissibility of the blood test. St. John argues that the state knowingly presented false information to the grand jury. St. John points to statements by the pathologist in response to a grand juror's question as to whether Shelly Reed was subjected to a blood-alcohol or drug test. Dr. Propst responded: No alcohol was detected at all. The drug screen detected the presence of a proprietary medications found in an [sic] over-the-counter decongestants, but specifically, the drugs identified were ephedrine and phenylpropanolamine. Those are the kinds of things that any decongestant might have in them [and] are available across the counter. St. John points out that at the time of the grand jury, the state had information from Victoria Peterson and Karen Wuitschick, the passengers in Shelly Reed's car, that Reed had at least one beer and some "speed" before the car accident. St. John argues that the prosecutor "knowingly allowed [Dr. Propst's] testimony to be presented without correcting it, in response to a direct question by a grand juror, in spite of the obviously misleading effect which it was sure to have on the grand jury." Dr. Propst's testimony was not incorrect. He testified to the same effect at trial. He was reporting the results of laboratory tests he performed on the victim, Shelly Reed. It is certainly possible that the beer she consumed earlier that evening did not show up in her blood test and that the "speed" her friends thought she had consumed was the ephedrine and phenyl-propanolamine which Dr. Propst indicated are commonly found in decongestants sold over the counter. It is unlikely that disclosure of evidence from Reed's passengers about the "speed" and beer would have led the grand jury not to return an indictment. See Wren v. State, 577 P.2d 235, 238 (Alaska 1978) (contributory negligence of victim is not a defense in a criminal prosecution). We find no error. See, e.g., Frink v. State, 597 P.2d 154 (Alaska 1979). Finally, St. John argues that he was entitled to a judgment of acquittal. His argument borders on the frivolous. Uncontraverted evidence that he was operating a motor vehicle with a blood-alcohol level of .320, while driving the wrong way down a divided highway with his lights out at 1:00 a.m., clearly established a prima facie case of manslaughter. Judge Ripley did not err in sending the case to the jury. St. John's conviction is REVERSED and the case is REMANDED for a new trial. COATS, J., not participating. . Under former law, negligent homicide was manslaughter. Cf. Former AS 11.15.080 (killing by culpable negligence is manslaughter) with Former AS 11.15.040 (manslaughter). It required culpable negligence which the supreme court equated with "recklessness" but which did not require subjective knowledge of the risk. . In context, a prima facie case is conceptually similar to a presumption of recklessness. Cf. A.R.E. 303(b) (a statute providing that a fact or group of facts is prima facie evidence of another fact, establishes a presumption under this rule). Consequently, a jury instruction conveying this fact to the jury must comport with Alaska Evidence Rule 303(a), which provides: Presumptions Directed Against an Accused. In all criminal cases when not otherwise provided for by statute, by these rules or by judicial decision, a presumption directed against the accused imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. However, if the accused fails to offer evidence to rebut or meet the presumption, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. If the accused offers evidence to rebut or meet the presumption, the court may instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. Instruction No. 13 violates this rule by telling the jury that proof of driving while intoxicated is sufficient to establish recklessness. The instruction precluded the jury from finding, after reviewing the totality of the circumstances, that St. John was not aware, for reasons unrelated to the state of his intoxication, of the risks his conduct posed. The instruction was therefore erroneous and should not have been given. . In Brown v. State, 698 P.2d 671 (Alaska App.1985), we recognized that a jury instruction that misstated the law of self-defense could be harmless beyond reasonable doubt if no instruction on self-defense was warranted by the facts. A jury instruction on self-defense was necessary if there was "some evidence" in the record supporting a defense theory of self-defense. 698 P.2d at 673. A similar rule governs instructions on lesser-included offenses. A trial court must instruct a jury on a lesser-included offense if there is some evidence in the record supporting it. St. John argues that he was entitled to an instruction on the lesser-included .offense of negligent homicide, reasoning that there was some evidence in the record that he did not perceive the risks his driving entailed. In context, however, St. John points only to his intoxication, and expert evidence that a person with his blood-alcohol level would have been nearly unconscious. Since the legislature clearly precludes consideration of the degree of person's intoxication in determining whether he did or did not appreciate the risks his conduct entailed, it necessarily follows that a trial court would be within its discretion in rejecting a negligent homicide instruction in this case on the record as it was presented to the jury. We express no opinion as to whether a negligent homicide instruction would be appropriate on retrial, since we have no way of knowing what record will exist at the time jury instructions are under consideration. . In past cases, we have found harmless error where the court misdirected the jury on the elements of an offense, but the parties nevertheless tried the case on a theory which required the jury to make the proper findings in order to convict. See Reynolds v. State, 664 P.2d 621, 627-30 (Alaska App.1983). In this case, the state stressed the error in the jury instructions in its argument and the court acquiesced: PROSECUTOR: If you find that defendant operated a motor vehicle at the time of the accident while under the influence of intoxicating liquor that is sufficient to establish recklessness on his part. DEFENSE COUNSEL: Objection, Your Honor, counsel said to the jury that that is part of the definition of recklessness. It is not. It is not part of the definition in the statute. THE COURT: It is not part of the statutory definition, that is true. It is, however, the law of this case. Thank you, [Defense Counsel] be seated. Carry on. PROSECUTOR: The law of the state of Alaska which you were sworn to uphold is that driving drunk is reckless, per se. That is what Judge Ripley will instruct you on and you're sworn to follow the law. . St. John argues that he has a privacy interest under the state constitution in the contents of his medical records. See, e.g., Falcon v. Alaska Public Offices Comm'n, 570 P.2d 469 (Alaska 1977). He argues that this privacy interest pre-eludes a search warrant for the results of the blood-alcohol test. We disagree. Any privacy interest St. John has in his medical records is more than accomodated by the procedures leading to the issuance of the search warrant. . St. John argues that illegal seizure of his medical records invalidated the grand jury indictment. We have previously held that the search warrant authorizing seizure of the medical records was properly issued. There is, therefore, no merit in this argument. . St. John also claims error due to alleged improper remarks by the prosecutor during closing rebuttal argument. We have reviewed the trial transcript and conclude that the trial court's decision not to grant a mistrial was within its discretion. Any damage done was corrected by Judge Ripley's swift intervention and instruction to the jury to disregard the prosecutor's remark. . St. John argues that his presumptive sentence of five years was imposed in violation of the United States and Alaska Constitutions. Our decision to reverse makes it unnecessary to reach those issues in this case. We note, however, that this argument is foreclosed by our recent decision in Dancer v. State, 715 P.2d 1174, (Alaska App., 1986).

10418787

Russell ANSAY, Appellant, v. STATE of Alaska, Appellee; Paul DUNNING, Appellant, v. STATE of Alaska, Appellee

Ansay v. State

1986-03-21

Nos. A-829, A-831

1194

1198

715 P.2d 1194

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Russell ANSAY, Appellant, v. STATE of Alaska, Appellee. Paul DUNNING, Appellant, v. STATE of Alaska, Appellee.

Russell ANSAY, Appellant, v. STATE of Alaska, Appellee. Paul DUNNING, Appellant, v. STATE of Alaska, Appellee. Nos. A-829, A-831. Court of Appeals of Alaska. March 21, 1986. Carol A. Brenckle, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellants. James A. Hanley, Asst. Dist. Atty., Thomas A. Warded, Dist. Atty., Kenai, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2856

17608

OPINION SINGLETON, Judge. Russell Ansay and Paul Dunning appeal their convictions for driving while intoxicated (DWI), AS 28.35.030. Ansay was arrested and charged with DWI on June 24, 1984. An Intoximeter test conducted at the Kenai jail yielded a result of .215. Dunning was arrested and charged with DWI on June 30, 1984. An Intoximeter test conducted at the Kenai jail yielded a result of .212. A breath-alcohol sample was preserved on behalf of each man. On August 6, 1984, Ansay and Dunning, along with approximately thirty other DWI defendants, moved to suppress their Intox-imeter results on the grounds that the method of breath sample preservation employed by the state did not comply with our decision in Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). District Court Judge Glen C. Anderson eventually ruled that neither Ansay nor Dunning was entitled to suppression. In a written order, Judge Anderson found that the state had generally taken reasonable steps to preserve breath samples and that the state had chosen a system which would, in the absence of serious operator error or equipment malfunction, yield scientifically acceptable results. The method used by the state was the magnesium perchlorate tube (MPT) system. See Best v. Anchorage, 712 P.2d 892 (Alaska App.1985); State v. Kerr, 712 P.2d 400 (Alaska App.1985). However, Judge Anderson also noted the existence of evidence sufficient to "open the possibility of operator error with respect to those samples preserved at the Kenai Police Department." According to the court, this evidence was "insufficient, standing alone, to establish negligence that has denied to any individual defendant a reasonable opportunity to cross-examine his Intoximeter 3000 test result." Because evidence presented to the court established that there is an error factor of approximately 10% in both the Intoximeter and MPT systems, however, Judge Anderson concluded that any Kenai defendant whose MPT result differed from his Intoximeter result by more than 20% should be able to have his Intoximeter result suppressed. Since none of the defendants whose cases remained before the court fit into that category, no results were suppressed. Ansay and Dunning never had their MPTs analyzed, so the effect of Judge Anderson's ruling was to deny their motions to suppress. Their cases proceeded to trial in January. Each was convicted, based in part upon the Intoximeter evidence. Dunning and Ansay contend on appeal that the trial court erred in refusing to suppress the results of their Intoximeter tests. They reason that evidence developed in their case, and in other cases around the state (discussed in Best v. Anchorage and State v. Kerr), eliminates the need to show that a retest was attempted in order to establish standing and, in addition, establishes that the MPT system was so flawed that they were denied a reasonable opportunity for a retest as a matter of law. See Anchorage v. Serrano, 649 P.2d 256, 258 (Alaska App.1982). We disagree and affirm the decision of the trial court. This case presents an issue reserved for later decision in Best and Kerr: whether an attempted retest is a prerequisite to a motion to suppress an Intoximeter result on the grounds of alleged inadequacy in the MPT retention system, where the trial court expressly finds that the MPT system is properly functioning, but leaves open the possibility that retained samples might be defective in individual cases. Under such circumstances, we hold that the trial court does not abuse its discretion in requiring a retest before entertaining a challenge to the Intoximeter based on alleged deficiencies in the sample retained. The proceedings in this case must be governed by our decision in Anchorage v. Flack, 685 P.2d 108 (Alaska App.1984). In Flack, the arrestee was given an Intoxime-ter test, but no sample was preserved because no perchlorate tubes were available. The trial judge suppressed the Intoximeter result, but his written conclusions were ambiguous with respect to the standard used. Id. at 110. We held that the Serrano standard "is essentially one of negligence, not strict liability": If the governmental unit was free of fault in failing to provide the defendant a means of verifying the breathalyzer result, then suppression should not follow. We stress, however, that the duty is owed by the governmental unit, not its individual agents. Thus, a finding that an individual police officer or other person administering a breathalyzer examination was free from fault, would not satisfy Serrano if it was established that the governmental entity, through antecedent negligence, had created a situation in which individual officers administering the test could not provide the defendant a means of verification. Generally, a person asserting another person's negligence has the burden of proving it. We believe that there are some good reasons for departing from the general rule in this kind of case. First, as we pointed out in Serrano, in the typical case, the governmental agency will be in a position to furnish the defendant a basis for verification. 649 P.2d at 259. It is not unreasonable to require the governmental agency to establish that a particular case is not typical and justifies relieving it of the duty. Second, the circumstances preventing a governmental entity from complying with Serrano would be peculiarly within the knowledge of its agents. It is therefore not unreasonable to require it to establish its freedom from fault. We therefore conclude that a governmental entity seeking to excuse its failure to preserve a breath sample, or otherwise failing to enable a defendant to verify the results of a breathalyzer examination, has the burden of proving by a preponderance of the evidence its freedom from negligence. Id. Since it was unclear whether the lower court had applied this standard, we remanded for further proceedings. Id. at 111. We clarified Flack in our recent decision in State v. Kerr, 712 P.2d 400. In Kerr we stated: Under Flack, the defendant has the burden of showing that by virtue of some action or inaction on the part of the prosecuting authority, he was not furnished a reasonable means of verifying an adverse breath test result. He may show this by establishing either (1) that the means furnished were so generally and systematically defective that the results of an independent test should be inadmissible in evidence as a matter of law and without regard to the facts of his particular case; or (2) that the results of an independent test in his particular case were so inaccurate that they were worthless for the purpose of impeaching or verifying the original breath test results, regardless of whether the means furnished were generally yielding independent test results which were admissible in evidence. If the defendant succeeds in showing that the means furnished were systematically defective, he might not need to show, as a prerequisite to seeking suppression, that he attempted an independent test in his own case. Once the defendant has sustained his burden of showing that he was not furnished a reasonable means of verification, he has established a prima facie case that the breath test results should be suppressed. In order to avoid suppression, the governmental agency in question must then prove by a preponderance of the evidence that its failure to provide the defendant an independent means of verifying the result was free of fault. Kerr, 712 P.2d 400, 406 (footnote added). In Kerr, as in Flack, we remanded because it was unclear whether the court had applied the correct standard. Judge Anderson essentially concluded that the MPT system, as a system, was not so flawed that the results of retests should automatically be held inadmissible in evidence without regard to the facts of individual cases. Cf. Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970) (uncertainty regarding the general reliability of polygraph evidence warrants establishing a general rule that such examination results are never admissible). We view this as the equivalent of a finding that Ansay and Dunning had failed to satisfy the first prong of the test set forth in Kerr. If Judge Anderson's conclusion is correct, then under Kerr, Dunning and Ansay could not prevail unless they satisfied the second prong; i.e., unless they showed that the results of independent tests in their particular cases were so inaccurate that they were worthless for the purpose of impeach ing or verifying the original breath test. Kerr, 712 P.2d 400, 406. In reliance upon the record developed in their cases, and upon the records which we reviewed in Best and Kerr, Dunning and Ansay challenge Judge Anderson's conclusion that the results are not automatically inadmissible. They summarize the evidence in their cases as follows: The testimony . demonstrates that, although improvements have been made in [perchlorate] tube technology, there is no regular method of inspection of the adapter once it has been installed in the machine; that the quality control program set up by the state to check [perchlorate] tubes prior to use, does not involve checking each tube for defects or cracks; that there was no systematic retraining of personnel at the Soldotna or Kenai Police Departments in the collection of [perchlorate] tube samples; that there is no systematic procedure set up by these agencies to check the Adaptor O-Ring for signs of wear; that the check list used by both the Soldotna and Kenai Police Departments in collecting [perchlorate] tube samples does not conform to the checklist devised for that purpose by the Department of Health and Social Services. Furthermore, there was evidence introduced that five out of seventeen officers at the Kenai Police Department failed p.c. tests ordered by the Department of Health and Social Services to determine who could collect [perchlorate] tube samples properly. Officer Dale Oldham, the supervisor-instructor at the Kenai Police Department, was himself off 32.78 percent. It was also brought out that the Kenai Police Department took no corrective action. As of the date of the hearing, the five officers whose test results were 20% above the Intoximeter reading had not been retested as required by the Department of Health and Social Services. Twenty of the cases which were included in the Anderson motion were made by officers who had failed the p.c. test. Judge Anderson found that these factors opened the possibility of operator error with respect to samples preserved at the Kenai Police Department but held that they were insufficient to establish negligence. The question considered by us in Kerr and Best and presented to Judge Anderson in this case was one of policy: Do these cases lend themselves to resolution by recourse to a general rule either validating or invalidating the MPT retention system or do variations between cases require resolution on a case-by-case basis? A general rule saves the parties the cost in time and money of case-by-case adjudication. Case-by-case adjudication assures that individual differences between cases, where relevant, receive appropriate attention. In Kerr and Best we adopted a two-pronged test differentiating between a general rule evaluating the MPT system as a system and case-by-case adjudication. We are not prepared at this time to hold that Ansay and Dunning have satisfied the first prong of the Kerr test requiring us to adopt a general rule invalidating the MPT system. Without foreclosing the possibility that future briefing and a more persuasive mar-shalling of the relevant facts might make a general rule more attractive, we have concluded that Judge Anderson could reasonably have found that the kind of complaints summarized above, i.e., faulty training of administering officers, poor quality control of perchlorate tubes, and poor inspection practices regarding adapters installed in the Intoximeter, are appropriate for consideration under the second prong of the Kerr test rather than the first and lend themselves to case-by-case adjudication. We hold also that a trial court faced with a challenge based on the second prong of the Kerr test does not err by requiring, as a condition precedent, a retest of the retained sample. In order to satisfy the second prong of the Kerr test, a defendant must show that the result of a retest in his case is essentially worthless. Worthlessness in this context is the rough equivalent of inadmissibility. In other words, the test we have adopted essentially requires the defendant to produce evidence strongly suggesting that the results of a test of the magnesium perchlorate saved on his behalf would not be admissible at trial. The defendant's burden- is therefore the converse of the burden the state would bear in seeking to authenticate a re-test for admission into evidence. If the prosecution in a criminal trial were to attempt to introduce an MPT test, it would normally be required to demonstrate as a matter of reasonable certainty that the result was not affected by any accident, carelessness, error or fraud. See A.R.E. 901(a). In addition, a court considering whether to admit such evidence may require additional proof. A.R.E. 901(b). By analogy, a court considering whether a particular retained sample is worthless to the defendant would not be acting unreasonably if it refused to decide the issue without considering, in addition to any evidence the defendant could offer of accident, carelessness, error or fraud in the retention of the sample, the actual results of a laboratory test of the sample. Judge Anderson held in these consolidated cases that any defendant whose MPT result differed from his or her Intoximeter result by more than 20% was entitled to suppression. In Best v. Anchorage, 712 P.2d 892, 895, we noted that focussing on the variance between the MPT result and the Intoximeter result may not comport with the reasons behind our decision in Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). We pointed out that if all MPTs are so flawed that an accurate retest is impossible, the actual results obtained from such a retest would be essentially irrelevant. Best v. Anchorage, 712 P.2d 892, 895. Because the findings under consideration in Best were ambiguous with regard to the scope and nature of the problems with the MPT system, we could not affirm the court's decision to deny Best's suppression motion solely because of his failure to have his MPTs tested. Id. at 895-896 & n. 6. The ambiguity of the findings under consideration in Best serve to distinguish that case. We could not reasonably equate the findings under consideration in Best with either a finding that the first prong of the test set forth in Kerr had been satisfied, or a finding that it had not been satisfied. In contrast, we have already concluded that Judge Anderson's findings were roughly equivalent to a finding that Ansay and Dunning failed to satisfy the first prong. Despite Judge Anderson's perhaps improper focus on the variance between MPT and Intoximeter results, the concern underlying his decision was that no realistic assessment of the value of a particular MPT could be made without having a retest done. Viewed in light of Kerr, Judge Anderson's decision on this point was the equivalent of a finding that the second prong of Kerr could not be satisfied in the cases before him unless the defendants produced MPT results. In Best, we suggested that the lower court's decision could be read the same way, but we did not actually reach this question, because of the possibility that the court there essentially found that the first prong of Kerr was satisfied. See Best v. Anchorage, 712 P.2d 892, 895-896 & n. 6. Dunning and Ansay never satisfied either prong of the prima facie case for suppression established in Best and Kerr. It necessarily follows that the burden never shifted to the state to prove freedom from negligence. The trial court did not err in denying the motions to suppress. The decision of the district court is AFFIRMED. . Neither the three-judge panel in Fairbanks, Judge Andrews in Anchorage, nor Judge Anderson in this case, indicated whether they viewed this aspect of the question as a question of law or fact or, if of fact, whether adjudicative or legislative fact. See State v. Erickson, 574 P.2d 1, 4 & n. 14 (Alaska 1978); State v. Contreras, 674 P.2d 792, 799 (Alaska App.1983), petition for hearing granted (Alaska, April 5, 1984). The parties have not briefed this issue and so we do not decide it. . In their reply brief, Ansay and Dunning argue that a retest costs $129 which they cannot afford to pay. To require a retest as a condition for suppression, in their view, deprives them of constitutional due process and equal protection. This problem would exist regardless of the efficacy of the MPT retention system. We have never held that compliance with Serrano requires that defendants be furnished a cost-free retest. Ansay and Dunning do not claim that they sought court assistance in having their MPTs tested and were denied relief. We, therefore, do not address that issue.

10408853

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

Herter v. State

1986-02-28

No. A-1134

274

276

715 P.2d 274

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Gary L. HERTER, Appellant, v. STATE of Alaska, Appellee. No. A-1134. Court of Appeals of Alaska. Feb. 28, 1986. Gary R. Letcher, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, for appellant. Lisa B. Nelson, Asst. Atty. Gen., Crim. Div. Central Office, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETOljí, JJ.

1068

6958

OPINION BRYNER, Chief Judge. Following a jury trial, Gary L. Herter was convicted of driving while intoxicated (DWI), in violation of AS 28.35.030. Herter appeals, arguing that the trial court erred in admitting the results of his Intoximeter test. Alternatively, he argues that the court committed error in instructing the jury concerning the statutory presumption applicable to his breath test result. We affirm. Prior to trial, Herter moved to suppress the evidence of his Intoximeter test results, arguing that the state had failed to comply with regulations governing Intoximeter testing. AS 28.35.033(d). At a hearing before Magistrate Joseph D. O'Connell, Herter established two violations. First, he showed that the operator who administered his test was not properly certified. 7 AAC 30.030; 7 AAC 30.035. Herter's In-toximeter test was performed by Officer Larry Block on May 5, 1985. Block had previously been certified to operate the In-toximeter, but his certificate expired on February 10, 1985, approximately three months before he tested Herter. Block's certificate was renewed on July 13, 1985, approximately two months after he tested Herter. Second, Herter established that the Intoximeter instrument he was tested on was not calibrated at sixty-day intervals, as required under 7 AAC 30.050. The instrument on which Herter was tested was calibrated on March 21, 1985, forty-five days prior to Herter's test. It was recalib-rated twenty-three days after Herter's test, on May 28, 1985. Thus, a total of sixty-eight days elasped between the first and second calibration, but Herter's test occurred within the sixty-day period prescribed for recalibration. In allowing Herter's Intoximeter test result (a score of .152) to be admitted into evidence, Magistrate O'Connell ruled that, despite its failure to comply strictly with applicable regulations, the state had established substantial compliance. The magistrate's ruling was based on the testimony of Officer Block and Trooper Van Gelder. Block testified that he had worked in law enforcement for approximately ten years and had performed between three hundred and four hundred DWI arrests. Block was certified to operate the Intoximeter and had used the machine continually since it was introduced in Alaska in May of 1983. In becoming certified, he took all courses necessary for certification. Block stated that, when he administered Herter's test, he was unaware that his certificate had expired in February of 1985. Block continued to operate the Intoximeter instrument throughout the period of his certificate's expiration. According to Block, no changes in procedure for operating the In-toximeter occurred during the period of expiration. Prior to renewal of his certificate, Block took a recertification examination and received a score of 97 per cent. Trooper Van Gelder, who was responsible for performing maintenance on the Intoximeter instrument used in Herter's case, confirmed Block's testimony that no changes in testing procedures occurred between February and July of 1985. Van Gelder also testified concerning calibration of the machine. He stated that, while sixty days had been selected as the period for routine recalibration of the Intoximeter, that interval was unrelated to any specific function of the machine. According to Van Gelder, the instrument in the present case was checked on March 21 and May 28, 1985, and was accurate on both dates. No problems with the machine had been reported in the interim. Van Gelder concluded that the chances of any variance occurring in the accuracy of the machine between the sixtieth and sixty-eighth day after calibration were miniscule. On appeal, Herter first contends that strict compliance with applicable regulations should be a prerequisite to admission of breath test results. Herter acknowledges that this court has previously excused a lack of strict compliance where substantial compliance has been shown. See, e.g., Thayer v. Anchorage, 686 P.2d 721 (Alaska App.1984); Ahsogaek v. State, 652 P.2d 505 (Alaska App.1982). He nevertheless argues that we should overrule these decisions. We are unpersuaded by Herter's argument. In favoring a rule of substantial compliance and rejecting a requirement of strict compliance, our decisions have followed the position consistently taken by the Alaska Supreme Court. Cf. Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978) (affirming a DWI conviction based on a finding of substantial compliance); Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S.Ct. 60, 46 L.Ed.2d 54 (1975). Even assuming we were authorized to overrule these decisions, we find that Herter has advanced no sufficient reason to do so. Herter next contends that substantial compliance was not established in this case. We disagree. The testimony of Officer Block and Trooper Van Gelder provide ample basis to support the conclusion that the absence of strict compliance had no appreciable effect on the accuracy of Herter's breath test result. Herter has neither alleged nor established any potential adverse effect that might have resulted under the circumstances. Neither of the two violations was knowing or deliberate, and both were subsequently remedied. Moreover, with respect to the recalibration date, there is good reason to question Herter's standing to raise the issue, since his test occurred within sixty days of the most recent calibration. See Vaughn v. State, 538 P.2d 1124 (Okla.Crim.App.1975); State v. Kaser, 15 Or.App. 411, 515 P.2d 1330 (1973). We conclude that the trial court did not err in finding substantial compliance. Finally, Herter argues that the trial court committed error in giving the jury the standard instruction on presumptions arising from breath test results, as specified in AS 28.35.033(d). Herter urges us to hold that this instruction is appropriate only where strict compliance with applicable regulations is shown. We reject Herter's argument and conclude that an instruction on the statutory presumptions is appropriate regardless of whether admission of a breath test result is based on a finding of strict compliance or substantial compliance with applicable regulations. The jury is, of course, free to consider the absence of strict compliance in determining what weight, if any, to give to the statutory presumptions. Nothing in the instruction that was actually given in the present case precluded Herter's jury from evaluating the significance of the state's failure to comply strictly with applicable testing regulations. The conviction is AFFIRMED.

10366360

STATE of Alaska, DIVISION OF AGRICULTURE, AGRICULTURAL REVOLVING LOAN FUND, Appellant, v. Wayne M. CARPENTER, Appellee

State, Division of Agriculture, Agricultural Revolving Loan Fund v. Carpenter

1994-03-04

No. S-5228

1181

1185

869 P.2d 1181

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DIVISION OF AGRICULTURE, AGRICULTURAL REVOLVING LOAN FUND, Appellant, v. Wayne M. CARPENTER, Appellee.

STATE of Alaska, DIVISION OF AGRICULTURE, AGRICULTURAL REVOLVING LOAN FUND, Appellant, v. Wayne M. CARPENTER, Appellee. No. S-5228. Supreme Court of Alaska. March 4, 1994. Rehearing Denied March 31, 1994. Richard L. Musick, Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Joe P. Josephson, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

2326

14539

OPINION COMPTON, Justice. This case arises out of the purchase of, and failure to pay for, agricultural lands and agricultural loans. The State appeals the superi- or court's denial of its motion for a directed verdict on Carpenter's claim that his duty to pay on the loans was discharged based upon the theories of mutual mistake, commercial impracticability and misrepresentation. The State also appeals the superior court's denial of its motion for a directed verdict on Carpenter's counterclaim based on misrepresentation as to the underlying land sales contract. We reverse. I. FACTUAL AND PROCEDURAL BACKGROUND In April 1978 Wayne Carpenter purchased land from the Division of Lands of the Department of Natural Resources (DNR). In April 1981 he purchased more land from DNR. Both land sale contracts contained the same disclaimer: The Seller makes no warranty, express or implied, nor assumes any liability whatsoever, regarding the social, economic, or environmental aspects of the Parcel, to include, without limitation, the soil conditions, water drainage, or natural or artificial hazards. The contracts also disclaimed any guaranty of profitability. In addition, the contracts included farm conservation or development plans, requiring the buyer to improve and develop the land as a working farm. In 1980 and 1983 Carpenter borrowed money from the Agricultural Revolving Loan Fund (ARLF), a state agency created within DNR for the purpose of lending money to farmers to help them develop their land. Carpenter made repeated efforts over the year's to plant, but these efforts were unsuccessful. Spring flooding of the land became a perennial problem. As soon as the ground thawed in June, the water table rose and the land became too wet to support the equipment required for planting. In 1987 Carpenter abandoned efforts to farm the land. The land was reclassified as unsuitable for agriculture. Carpenter ceased making payments toward his ARLF loans. ARLF filed an action for damages, repossession and foreclosure. Carpenter filed an answer claiming he was excused from performing under the contracts, along with counterclaims based upon allegations of negligence, misrepresentation, mutual mistake of fact and breach of contract. The superior court granted the State's directed verdict motion on the claims of negligence and breach of contract, but denied the motion as to misrepresentation, mutual mistake of fact and commercial impracticability. The jury found that Carpenter was excused from his duty to repay the loans because of mutual mistake, commercial impracticability and misrepresentation. The jury also found that Carpenter proved his counterclaim of misrepresentation. The court, sitting without a jury for the purpose of considering equitable restitution, made decisions concerning the property to be returned to the State and the State's monetary obligation to Carpenter. Final judgment was entered in June 1992. The State appeals. II. DISCUSSION A. STANDARD OF REVIEW. In reviewing a ruling on a motion for a directed verdict, this court determines "whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable [people] could not differ in their judgment." Holiday Inns of Am., Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974). B. THERE WAS INSUFFICIENT EVIDENCE UPON WHICH A REASONABLE JURY COULD HAVE FOUND MUTUAL MISTAKE OF FACT. Carpenter contends that both he and the State held an honest but mistaken belief that the land could be farmed. He argues that he was not consciously uncertain of the suitability of the land for agriculture. He further contends that the "disclaimer" clauses were "boilerplate" clauses in form contracts. In addition, Carpenter argues that the jury could have reasonably inferred that because the loans were given to develop the land, there was a mutual mistake on the part of both parties as to the suitability of the land for agriculture. The State contends that the disclaimer clauses are unrebutted evidence of Carpenter's awareness of the possibility that the land might not be suitable for agriculture. Further, the disclaimers placed the risk of potential problems with the land on Carpenter. The State also argues that there was no showing that the character of the land was part of the "basic" assumption of the loan contracts. The State emphasizes that the record is devoid of any evidence that the loans were to be paid from Carpenter's agricultural earnings, "or that they were in any way linked to the success of Carpenter's farming efforts." Under Alaska law, [j]udicial relief from the provisions of a contract on the basis of mutual mistake is proper where there was a mistake of both parties at the time of contracting as to a basic assumption on which the contract was made; the mistake had a material effect on the agreed exchange of performances, and the party seeking relief did not bear the risk of the mistake. Mat-Su/Blackard/Stephan & Sons v. State, 647 P.2d 1101, 1104 (Alaska 1982); Fowler v. City of Anchorage, 583 P.2d 817 (Alaska 1978). We agree with the State that the law distinguishes between mistakes concerning the nature of the subject matter of a contract and conscious uncertainty concerning that nature. John D. Calamari & Joseph M. Perillo, Contracts § 9-26, at 382 (3d ed. 1987). "Where there is conscious uncertainty there is an assumption of the risk that the resolution of the uncertainty may be unfavorable." Id. The State correctly asserts that the detailed disclaimers of warranty as to the condition of the land demonstrate that Carpenter was consciously uncertain as to the character of the land. Furthermore, the State correctly contends that even if Carpenter was not consciously uncertain as to the character of the land, he failed to demonstrate that he did not contractually bear the risk of the mistake. See Mat-Su, 647 P.2d at 1101, 1104-05. The disclaimers in the land sale contracts place the risk of the condition of the land on Carpenter. The contracts provide: "The Seller does not warrant by such classification that the land is suited for [agricultural] use, nor does the Seller make any warranty, express or implied, that the use by the Purchaser under such classification shall be profitable." In addition, a contractual provision provided that Carpenter had examined the description of the parcel, "had inspected the parcel, or had voluntarily declined to do so, and was satisfied with [its] description and condition." These provisions demonstrate that the risk of the condition of the land was allocated to Carpenter. Although both parties may have intended that the land be developed for agricultural purposes, the disclaimers in the land sale contracts stand as unrebutted evidence that both parties were consciously uncertain of the suitability of the land for such a purpose. In addition, Carpenter contractually bore the risk of the condition of the land. The discharge of Carpenter's duty to pay the ARLF loans, based on mutual mistake, cannot stand. Therefore, we hold as a matter of law that the superior court should have granted the State's motion for a directed verdict as to the mutual mistake of fact claim. C. THERE WAS INSUFFICIENT EVIDENCE UPON WHICH A REASONABLE JURY COULD HAVE FOUND COMMERCIAL IMPRACTICABILITY. Carpenter argues that he never assumed the risk that his land would be unsuitable for agriculture. Carpenter argues that a basic assumption, both in buying the land and in borrowing money from the ARLF, was that the land could be developed as agricultural land. Therefore, when it became clear that the land was not suitable for agriculture, the purpose of the contracts was frustrated. Carpenter also claims that the impracticability of payment falls within the scope of commercial impracticability. Because farming his land was no longer a viable option, he contends that it was impracticable to pay off the ARLF loans. The State argues that the only performance required of Carpenter was to repay the loans. The State claims that commercial impracticability looks to the nature of the performance required, not the financial resources of the debtor. Here, when the only duty to be performed was repayment of a loan, commercial impracticability is inappo-site. Also, the State again argues that the disclaimers evidence that there was no mutual mistake that the land would be suitable for agriculture or that it would be profitable. In order for Carpenter to be excused from performing under the loan contracts on the theory of commercial impracticability he must show that his "performance under [the contracts was] impracticable without his fault because of a fact of which he [had] no reason to know and the non-existence of which [was] a basic assumption on which the contractfs] [were] made." Restatement (Second) of Contracts § 266(1) (1981). We find that Carpenter fails to meet these requirements. As discussed supra, the facts do not support Carpenter's contentions. The disclaimers in the land sale contracts disclaim any warranty as to the soil condition or profitability of the land purchased by Carpenter. The disclaimers make it clear that any problems in these areas were not unanticipated. Carpenter assumed the risk of the condition of the land that he purchased. Therefore, the feasibility of farming the land as well as the profitability resulting from the farming cannot be fairly categorized as a "basic assumptions" on which the contracts were made. Furthermore, the continuation of a party's financial solvency ordinarily is not a basic assumption on which contracts are made. See Restatement (Second) of Contracts § 261 cmt. a (1981). In addition, the condition of the land does not make repayment of the loans impracticable, only more difficult because farming the land has not been profitable. There was nothing in the loan contracts conditioning repayment on the profitability of the farming venture. Therefore, Carpenter's duty to pay on the ARLF loans was not discharged on the basis of commercial impracticability. We hold as a matter of law that the superior court should have granted the State's motion for a directed verdict as to the commercial impracticability claim. D. THERE WAS NO EVIDENCE UPON WHICH A REASONABLE JURY COULD HAVE FOUND MISREPRESENTATION. Under Alaska law, In order to avoid a contract on the ground of misrepresentation, a party must show four things: 1) that there was a misrepresentation, 2) which was fraudulent or material, 3) which induced the party to enter the contract, and 4) upon which the party was justified in relying. Bering Straits Native Corp. v. Birklid, 739 P.2d 767, 768 (Alaska 1987). Carpenter attempted to avoid his duty to repay the ARLF loans and also attempted to rescind the land sale contracts based upon the State's alleged misrepresentation of the nature of the land. Carpenter contends that despite the disclaimers in the land sale contracts, the jury could have reasonably found that the State Division of Agriculture, which oversees the "farm program and which, through its agent, [a loan examiner], advised [him] that there was money available to borrow through the ARLF, was holding out by implication that the land to be improved and developed was farmable land." He contends that the purpose of the State's loans to him was the development of his farm, consistent with the development plans incorporated in the land sale contracts. Carpenter admits that the State's alleged representations that continuous working of the land would dry it out over a period of years were made only after he had signed the land sale contracts and borrowed through the notes sued upon. Thus, these representations could not have induced him to enter the contracts. Further, his contention that he was justified in believing that the State would not sell land and make agricultural loans if the land was not suitable for agricultural development is without merit, considering the specific disclaimers in the land sale contracts. Viewing the evidence and the reasonable inference therefrom in the light most favorable to Carpenter, we conclude that fair minded jurors could not differ as to whether the State misrepresented to Carpenter the suitability of the land for agriculture, thus inducing him to enter into the land sale contracts or to enter into the loan agreements. The superior court erred in not directing a verdict in the State's favor on this misrepresentation claim, since the evidence is insufficient to support it. III. CONCLUSION We conclude that a directed verdict in favor of the State should have been granted on all claims. The decision of the trial court is REVERSED, and the case REMANDED for entry of judgment consistent with this opinion. . Carpenter also appears to assert a defense based on commercial frustration. The Restatement (Second) of Contracts § 266(2) (1981), provides: Where, at the time a contract is made, a party's principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty of that party to render performance arises, unless the language or circumstances indicate the contrary. For the same reasons discussed in our analysis regarding commercial impracticability, a defense of frustration cannot prevail. The disclaimers in the loan contracts are evidence that Carpenter was aware that his land potentially could be unsuitable for agriculture. See, e.g., Smelting, Refining & Mining Co. v. Wigger, 684 P.2d 850, 857 (Alaska 1984) ("[C]ommerciaI frustration is no defense if the event was foreseeable."); Restatement (Second) of Contracts § 265 cmt. a (1981) ("The frustration must be so severe that it is not fairly to be regarded as within the risks that [were] assumed under the contract."). . Carpenter later in his brief contends that assurances of the agricultural potential of the land began immediately after the land sales contracts were signed. However, Carpenter does not give specific dates or names of the persons who allegedly gave these assurances.

11113434

Thomas J. FARQUHAR, Appellant, v. ALASKA NATIONAL INSURANCE COMPANY, Appellee

Farquhar v. Alaska National Insurance Co.

2001-04-06

No. S-9485

577

583

20 P.3d 577

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Thomas J. FARQUHAR, Appellant, v. ALASKA NATIONAL INSURANCE COMPANY, Appellee.

Thomas J. FARQUHAR, Appellant, v. ALASKA NATIONAL INSURANCE COMPANY, Appellee. No. S-9485. Supreme Court of Alaska. April 6, 2001. Michael R. Wirschem, Houston & Houston, Anchorage, for Appellant. Roger F. Holmes, Biss & Holmes, Anchorage, for Appellee. Before FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.

3317

20846

OPINION «FABE, Chief Justice. I. INTRODUCTION Thomas Farquhar was badly injured in a traffic accident with a driver for Industrial Boiler and Controls, Inc. He settled with Industrial Boiler's insurer, Alaska National Insurance Company (ANIC), for Industrial Boiler's policy limit of one million dollars. Farquhar claims that ANIC should be liable for prejudgment interest on the settlement, although such liability would bring ANIC's total payment above its policy limit of one million dollars. We conclude that ANIC's contract did not oblige it to pay prejudgment interest beyond the policy limit. Because Farquhar raises public policy arguments that we rejected in the 1979 case Guin v. Ha, the principle of stare decisis precludes a different outcome in this case. Therefore, ANIC is not liable for prejudgment interest. _ II, FACTS AND PROCEEDINGS In December 1996 a vehicle owned by Industrial Boiler collided with another car, veered into oncoming traffic, and struck the vehicle driven by Thomas Farquhar. Farqu-har suffered serious head injuries from the collision and was rendered virtually unemployable. The parties do not dispute Industrial Boiler's liability for the accident. Industrial Boiler was insured by ANIC for up to one million dollars; apparently it had no other liability insurance coverage. In October 1998 Farquhar tendered a demand to ANIC for the liability policy limit, applicable Rule 82 attorney's fees, and unspecified interest. The parties reached an agreement, formalized in a release dated November 17, 1998. ANIC agreed to pay the one million dollar policy limit and attorney's fees of $102,500. Farquhar released ANIC and Industrial Boiler from all further Hability, with the exception of prejudgment interest. Far-quhar and ANIC agreed to litigate the question of whether the insurance company owed Farquhar prejudgment interest in excess of its one million dollar policy limit. Farquhar filed a complaint for declaratory judgment on the issue of prejudgment interest in May 1999. ANIC answered the complaint, and later moved for summary judgment. Farquhar opposed the motion and cross-moved for summary judgment in his own favor. After oral argument on these motions, Superior Court Judge Sen K. Tan granted summary judgment for ANIC and dismissed Farquhar's case with prejudice. Farquhar now appeals. III. STANDARD OF REVIEW Summary judgment is appropriate only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The parties do not dispute any factual issues. The questions of contract and statute interpretation and public policy raised in this case are issues of law, which we review de novo. IV. DISCUSSION In Guin v. Ha, we established two grounds for holding an insurer liable for prejudgment interest: (1) if the insurer contractually assumes liability by the terms of its policy with the insured, or (2) if public policy requires liability despite the language of the contract. Farquhar argues that ANIC is liable on both grounds. A. ANIC Is Not Liable for Prejudgment Interest Under the Terms of its Policy with Industrial Boiler. 1. The supplementary payment provisions ANIC's contract with Industrial Boiler provides: We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto." This provision is subject to the one million dollar policy limit. A supplementary payments provision of the contract states that ANIC will make payments beyond the one million dollar policy limit for: (5) All costs taxed against the "insured" in any "suit" we defend. (6) All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" we defend; but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance. -In construing insurance policies, we do not strictly adhere to traditional principles of contract interpretation; instead, we try to effectuate the reasonable expectations of lay parties. This flexible approach is appropriate regardless of whether the policy language is ambiguous. However, this approach "is not to be used as an instrument for ignoring or rewriting insurance contracts." The contractual provisions at issue in this case resemble the provisions that we interpreted in Hughes v. Harrelson and Guin v. Eg. In both cases, we found that the contract language did not require prejudgment interest payments in excess of the policy limit. The Hughes provision is particularly similar to the provision in this case. In Hughes, the insurer agreed to pay {interest on damages awarded in any suit we defend accruing after judgment is entered and before we have paid, offered to pay, or deposited in court that portion of the judgment which is not more than our limit of liability. We draw on parallels with the Hughes contract language in rejecting Farquhar's interpretation of the ANIC contract. Farquhar argues that under the express language of the supplementary payments provision, ANIC is obliged to pay prejudgment interest beyond the one million dollar policy limit. First, he claims that the provision for payment of "all interest . that accrues after entry of the judgment" includes prejudgment interest, because prejudgment interest cannot be calculated until after a judgment, and therefore does not accrue until that time. This interpretation is arguably supported by the plain meaning of "accrue"-Webster's first definition of the word is "to come into existence as an enforceable claim." However, because Farquhar's interpretation would render superfluous the policy's phrase "after entry of the judgment," it seems more likely that "accrue" in the contract means "to be periodically accumulat ed in the process of time"-Webster's third definition. This interpretation is consistent with our conclusion, in Hughes, that a provision which covered "interest . accruing after judgment" excluded prejudgment interest. Second, Farquhar argues that the second clause of the same provision-stating that "our duty to pay interest ends when we have paid . the part of the judgment that is within our Limit of Insurance"-mandates payment of prejudgment interest, because the clause does not qualify or limit ANIC's "duty to pay." A straightforward reading of provision (6) refutes this claim. The first clause of provision (6) establishes that: ANIC's "duty" is only to pay "(alll interest . that accrues after entry of the judgment." (Emphasis added.) Farquhar further argues that a lay reader would not understand ANIC's policy as excluding payment of prejudgment interest. Because ANIC did not expressly exclude such payments, he argues, the policy is unclear and Industrial Boiler could reasonably have expected the payments to be covered. Industrial Boiler's confusion is particularly likely, he says, because the one million dollar "limit" was in fact susceptible to increase by Rule 82 attorney's fees. These arguments fail. Both the costs of defending a lawsuit and the interest accruing after an entry of judgment are expenses specifically listed in the policy's supplementary payments provision. Farquhar's proposed reading would infer additional coverage for any expense not expressly excluded-a result that would not be within the reasonable reader's expectations. Moreover, we also found that the contractual provisions in Guin and Hughes excluded insurer liability for prejudgment interest, although those provisions also failed explicitly to state such an exclusion. 2. The term "policy limit" ANIC is obliged under the contract to pay damages, costs, and expenses up to its policy limit. Farquhar argues that under our decisions in State Farm Mutual Automobile Insurance Co. v. Harrington and Schultz v. Travelers Indemmity Co., the "policy limit" must be construed to include the one million dollar facial limit, Rule 82 attorney's fees, and $195,040.26 in prejudgment interest. ANIC disagrees, claiming that the cited decisions "went no further than to say 'policy limits' means that which the insurer would have to pay if it went to trial." ANIC's interpretation is correct. In Harrington, the parties stipulated that State Farm would pay the plaintiff "policy limits," as defined by this court. We determined that "policy limits" are "what an insurance company would have to pay under its policy if it went to trial and received an adverse verdict." Because we found that the Harrington policy did by its contractual terms cover prejudgment interest, an award of the policy limit in that case included such interest. In Schultz, we followed the same rule, stating that "[iln determining what constitutes the maximum limits of insurance coverage, i.e., policy limits, it is necessary for the court to review the contractual obligations undertaken by the insurer in the insurance policy in question in light of the applicable statutes, regulations and court opinions. In that case, the disputed policy apparently did not cover, and the plaintiffs did not claim, prejudgment interest. We found that "policy limits" meant the facial limit of the policy, plus Rule 82 attorney's fees. Farquhar also suggests that his prejudgment interest should be calculated based on a projected three million dollar court verdict rather than the one million dollar insurance settlement figure. In Harrington, we noted that the insured was entitled to prejudgment interest based on the amount actually paid by the insurance company: the facial limit of the policy plus attorney's fees. Farquhar offers no reason to depart from this. B. ANIC Is Not Liable for Prejudgment Interest Based on Public Policy. In Guin v. Ha, we held that a court may override the terms of an insurance contract and order an insurer to pay prejudgment interest if public policy so requires. However, we conclude that public policy does not require that ANIC be Hable for prejudgment interest in excess of its policy limit. 1. Alaska statutes do not create a policy preference for insurer hability in this case. In Hughes v. Harrelson, we drew on Guin's public policy provision, finding that two statutory provisions "convinee[d us] that public policy must intervene. The plaintiff in Hughes was injured by a motorist with an insurance policy limit of $50,000, the statutory minimum under AS 28.20.440(b) and AS 28.22.101(d). Alaska Statute 28.22.101(d) provides in part: A motor vehicle liability policy must provide coverage in the United States or Canada, subject to limits exclusive of interest and costs, with respect to each vehicle, as follows: (1) $50,000 because of bodily injury to or death of one person in one accident. Alaska Statute 28.20.440(b) restates the requirement, using nearly identical language. After considering the language of the statutes, we held that "an insurer must pay prejudgment interest on the minimum policy limits established in AS 28.20.440(b) and AS 28.22.101(d). Farquhar argues that the "subject to limits exclusive of interest and costs" language of AS 28.22.101(d) applies to all insurance pol-icles, not just those with the $50,000 statutory minimum policy limit, As he interprets the statute, AS 28.22.101(d) requires that all policies (1) provide coverage in the United States or Canada, (2) be subject to a limit exclusive of interest and costs, and (8) provide coverage with respect to each vehicle. Separately, AS 28.22.101(d)(1) requires that all policies provide a minimum of $50,000 coverage. If the requirements of subsection (d) applied only to policies with a $50,000 limit, he argues, then drivers with more than minimum coverage would be exempt from the "U.S. and Canada" language and the "with respect to each vehicle" language, as well as the "exclusive of interest and costs" language. We reject this reading of the statute. We interpret the qualifications listed in AS 28.22.101(d) as applying only to the $50,000 coverage required by subsection (d)(1). Thus, the statute does not prevent a motorist from purchasing additional coverage for only one of several vehicles, or coverage valid in Mexico but not the United States or Canada, or coverage that excludes prejudgment interest, so long as the first $50,000 of coverage complies with the requirements of AS 28.22.101(d). Our decision in Hughes strongly supports this reading. Although the holding in that case concerned a policy for the $50,000 minimum, we stated in dicta that "[t]o effectuate the language of the statutes, if the policy limit is the statutory minimum, an insurer must pay prejudgment interest in addition to the policy limit." We conclude that the statutes do not require insurers to pay prejudgment interest on damages above $50,000. Farquhar argues in the alternative that under AS 28.20.440(b) and AS 28.22.101(d), ANIC must pay the policy limit of one million dollars, plus the prejudgment interest on $50,000. As he interprets the statutes, they create a right to interest on $50,000 above and beyond any policy limit, even if the limit exceeds the sum of $50,000 and the interest on $50,000. We reject this interpretation. Alaska Statutes 28.20.440(b) and 28.22.101(d) protect collision victims by guaranteeing compensation of $50,000 plus interest. They do not require additional payments if the victim's total award or settlement already covers this amount. 2. Stare decisis precludes reconsideration of policy issues decided in Guin v. Ha. In Guin v. Ha, we stated that public policy could potentially require holding an insurer liable for prejudgment interest in excess of the policy limit. However, we concluded that the policy arguments advanced by the parties in that case favored both sides equally, and therefore did not justify overriding the contract. In Guin, we considered three policy arguments in favor of holding insurers liable for prejudgment interest in excess of the policy limit. First, the plaintiff argued that economic fairness required insurer liability for prejudgment interest because insured defendants would otherwise have to pay for interest actually retained by their insurers. We found that such a concern was not sufficient grounds for restructuring the contractual relationship between insured and insurer. Second, we rejected the argument that insurers should bear the burden of prejudgment claims as an incentive to early settlement. We expressed concern about burdening the insurer with a risk it had not contractually assumed. Finally, we rejected the argument that insureds were "at the mercy of the dilatory or uncooperative insurance company." Insureds have a cause of action for bad faith against insurers if the insurers do not accept reasonable settlement offers in a prompt fashion. We held in State v. United Cook Inlet Drift Ass'n that "the judicial doctrine of stare decisis accords the prior holdings of the highest courts of this State precedential value while still permitting the reconsideration of legal issues when conditions warrant. Farquhar has not advanced compelling arguments to show that conditions warrant departure from Guin's rule. Nor has he raised policy considerations not already considered in Guin. Although he argues that new issues arise in this case because it concerns auto insurance, rather than the medical malpractice insurance at issue in Guin, this difference cannot be the basis for a principled policy distinction. And Farquhar's argument that public policy has been violated because he was insufficiently compensated for his injuries does not pertain to insurer liability for interest. Moreover, the legislature has already determined the appropriate level for minimum coverage. We decline to reverse our holding in Guin. We note that Guin's conclusion is consistent with holdings in a number of other jurisdictions, and forms the basis of long-settled expectations of insurers in Alaska. V. CONCLUSION ANIC's contract did not provide that the insurance company would pay prejudgment interest in excess of the policy limit. Under Guin, public policy does not require that ANIC be held liable for such payments. Therefore, we AFFIRM the decision of the superior court. MATTHEWS, Justice, not participating. . 591 P.2d 1281 (Alaska 1979). . See Estate of Arrowwood v. State, 894 P.2d 642, 644 n. 2 (Alaska 1995). . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See id. at 1284. . See id. at 1284-85 (citing Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 65-66 (Alaska 1977)). . See Guin, 591 P.2d at 1285. . Id. . 844 P.2d 1106, 1106 n. 1 (Alaska 1993). Although Hughes ultimately required that the insurer pay for prejudgment interest, we found that "nothing in [the] insurance policy requires the payment of prejudgment interest." Id. at 1106 (emphasis added). . 591 P.2d at 1285. . 844 P.2d at 1107 n. 1. The contract in Guin v. Ha did not explicitly mention interest, but provided that "the liability of the Underwriters hereunder for damages shall not exceed the limit of liability set out in the Schedule . except that, subject to the provisions contained in Paragraph 3, the Underwriters will pay the costs and expenses incurred in the defense of any claim or suit." Guin, 591 P.2d at 1285. We determined that prejudgment interest was not included in the costs and expenses of defense, id. at 1285-86, but that the contract implicitly covered postjudgment interest. Id. at 1287 no. 13, 15. . Webster's Third New International Dictionary 13 (3d ed.1966). . Id. . Hughes, 844 P.2d at 1106 n. 1. . See Hughes, 844 P.2d at 1106; Guin, 591 P.2d at 1285-86. . 918 P.2d 1022 (Alaska 1996). . 754 P.2d 265 (Alaska 1988). . Harrington, 918 P.2d at 1026 (quoting Tucker v. United Servs. Auto. Ass'n, 827 P.2d 440, 441 n. 3 (Alaska 1992)). . Harrington, 918 P.2d at 1025-26. The policy in Harrington covered prejudgment interest for liabilities incurred by the insured, but did not cover prejudgment interest under its uninsured motorist provisions. Drawing on AS 21.89.020(c)(1), we concluded that the Habilities provision applied to the whole policy, and that the entire policy therefore covered prejudgment interest. Id. at 1024-26. . Schultz, 754 P.2d at 267. . See id. Prejudgment interest was relevant in Schultz, but only as an element in calculating attorney's fees. Id. . 918 P.2d at 1026. . 591 P.2d 1281, 1284 (Alaska 1979). . 844 P.2d 1106, 1107 (Alaska 1993). . See id. at 1106. . AS 28.20.440(b) provides in part: The owner's policy of liability insurance must (2) insure the person named and every other person using the vehicle with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle within the United States or Canada, subject to limits exclusive of interest and costs, with respect to each vehicle, as follows: $50,000 because of bodily injury to or death of one person. . Hughes, 844 P.2d at 1108. . Farqubhar's argument applies to AS 28.22.101(d) but not to AS 28.20.440(b). The statute explicitly excludes coverage over $50,000 from AS 28.20.440(b)'s requirements. AS 28.20.440(g) provides: A policy that grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a policy and the excess or additional coverage is not subject to the provisions of this chapter. With respect to a policy that grants excess or additional coverage the term "motor vehicle liability policy" applies only to that part of the coverage that is required by this section. . See Hughes, 844 P.2d at 1106. . Id. at 1107 (emphasis added). . Thus, on a policy with a limit of $50,001, an insurer must pay all prejudgment interest on the first $50,000, but need not pay interest on the last dollar if such a payment would exceed the policy limit. . 591 P.2d at 1284. . See id. at 1291. . See id. at 1290. . See id. . See id. at 1290-91. . See id. . Id. at 1291. . See id. . 895 P.2d 947, 953 (Alaska 1995). . See AS 28.20.440(b); AS 28.22.101(d). . See, e.g., Mayer v. Medical Malpractice Joint Underwriting Ass'n, 40 Mass.App.Ct. 266, 663 N.E.2d 274, 276-79 (Mass.1996); Runge v. Prairie States Ins., 393 N.W.2d 538, 542 (S.D.1986); Nielsen v. O'Reilly, 848 P.2d 664, 669-70 (Utah 1993); Dairyland Ins. Co. v. Douthat, 248 Va. 627, 449 S.E.2d 799, 801-02 (1994).

11113324

Connie S. BENNETT, Appellant/Cross-Appellee, v. William D. ARTUS, Appellee/Cross-Appellant

Bennett v. Artus

2001-03-30

Nos. S-9186, S-9225

560

567

20 P.3d 560

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Connie S. BENNETT, Appellant/Cross-Appellee, v. William D. ARTUS, Appellee/Cross-Appellant.

Connie S. BENNETT, Appellant/Cross-Appellee, v. William D. ARTUS, Appellee/Cross-Appellant. Nos. S-9186, S-9225. Supreme Court of Alaska. March 30, 2001. Thomas J. Yerbich, Law Office Thomas J. Yerbich, Anchorage, for Appellant/Cross-Ap-pellee. Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for Appellee/Cross-Appel-lant. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

4098

25864

OPINION EASTAUGH, Justice. I. INTRODUCTION A lawyer had a romantic relationship and business dealings with his client. When disputes arose, the client sued the lawyer for damages. He counterclaimed. After a bench trial, the superior court offset some of their claims and awarded the client about $66,000. Both parties appeal. We affirm in all respects. II, FACTS AND PROCEEDINGS Connie 'Bennett met attorney William Ar-tus in 1980 when she and her then-husband hired Artus to handle their personal bankruptcy. Bennett hired Artus in 1981 and 1986 to do legal work for her business; by mid-1987 their relationship had become romantic. Three of their business activities are relevant here: (1) they remodeled a condominium which Bennett bought on Artus's behalf; (2) Artus identified a Fairbanks office building that was for sale, helped Bennett purchase it, and performed legal services relating to its management; and 3) Artus represented Bennett in numerous foreible entry eviction and detainer (FED) lawsuits and in another matter. The proceedings germane to this appeal are not complex. In 1992 Bennett filed a multi-count complaint against Artus asserting claims not relevant here. Her 1993 amended complaint included claims alleging that Artus had defaulted on several loans and seeking reimbursement for items allegedly purchased on Artus's behalf. Artus counterclaimed to recover amounts Bennett allegedly owed him for the condominium remodel and for his services concerning the Fairbanks office building and the lawsuits. After dismissal or settlement resolved many of the parties' claims, the superior court held a bench trial on their unresolved disputes. It entered extensive written findings and conclusions and in May 1998 entered judgment for Bennett for $66,119.04, plus costs and attorney's fees. Bennett and Artus both appeal. III,. DISCUSSION A. Standard of Review We apply the clearly erroneous standard of review in evaluating the trial court's factual findings. We exercise our independent judgment when considering any questions of law. B. The Condomintum Remodel Credit Bennett argues that it was error to reduce the amount Artus owed her by what Artus expended in remodeling her condominium. Artus wanted to buy an Anchorage condominium but had difficulty getting financing. In November 1989 Bennett bought a condominium on Artus's behalf, with the oral understanding that they would remodel it and that he would later buy it from her by paying her the $119,000 purchase price, her remodel costs, and a mark-up. Artus did not put their agreement in writing. Bennett and Artus proceeded with the remodel. Artus treated the condominium as if he owned it. He commissioned an architect and hired George Janssen to act as general contractor. He also paid many remodel expenses himself. The remodel was comprehensive. It included new floors, new cabinets, a new bathroom, new sheet rock, and reinforced studs. But upon completion, Ar-tus could not obtain financing sufficient to purchase the condominium from Bennett as agreed. Artus's counterclaim alleged that he and Bennett had agreed that if he did not purchase the condominium from her, she would reimburse him for the actual costs and expenses he contributed to the remodel. He claimed that he spent more than $45,000 on the remodel. Bennett testified at trial that she had never authorized him to make independent expenditures to improve the condominium. She argued that because there was no written agreement between lawyer and client, Artus was entitled to no recovery. Following trial, the superior court found that Artus had contributed $89,544.64 to the remodel. Finding that his contributions ben-efitted Bennett "through enhanced market value," the superior court gave Artus a credit for the full $39,544.64, and subtracted that amount from what he owed Bennett. This "remodel credit" included $13,034.75 for legal services Artus provided to contractor Jans-sen to discharge a remodel bill that Bennett had refused to pay in full. The court therefore grounded its decision in the law of unjust enrichment or quantum meruit. We treat unjust enrich ment and quantum meruit claims as essentially the same. Under our law of unjust enrichment, Artus, as the party seeking the credit, had the burden of showing that (1) he conferred a benefit upon Bennett; (2) Bennett appreciated the benefit; and (8) Bennett accepted and retained the benefit under circumstances making it inequitable for her to retain the benefit without paying Artus the value thereof. Moreover, Artus had the burden of proving the value of the benefits he conferred upon Bennett. 1. Failure to "document" agreement The superior court found that Artus had entered into two business transactions with Bennett involving the condominium: one to purchase and remodel it, and another to furnish it. The superior court found that "Inlo executed documents evidence the agreements defendant and his client reached regarding either transaction. Without appropriate documents to protect his client, the defendant's use of the client's money to provide him with a fully remodeled, furnished residence lacks integrity, is unfair and inequitable." Relying on this finding, Bennett argues that the superior court erred by crediting Artus in quantum meruit for his remodel expenses. In effect, Bennett reasons that because the court found that Artus's conduct "lacked integrity," was "unfair," and "inequitable," Artus could not invoke equity to seek a credit for his remodel expenses. We disagree. Although the superior court condemned Artus's conduct, it could have permissibly concluded that a greater inequity would result if Bennett were to retain the benefit of Artus's uncompensated contributions. Further, we are not convinced that the quoted finding is inconsistent with the result. The finding addresses Artus's use of "the client's money." The court may not have intended the finding to apply to Artus's claim based on the expenditure of his, not her, money. Finally, Artus received only a setoff, not an affirmative recovery. 2. Legal services trade-out with the remodel contractor Artus hired Janssen, a friend and legal client, to be general contractor on the remodel. Janssen took instructions from both Artus and Bennett, but billed Artus for services through the early summer of 1990. Both Artus and Bennett paid those bills. Artus testified that he also traded his legal services for Janssen's contracting work. In July 1990 Bennett challenged one of Janssen's bills. She wrote Janssen a letter expressing her disappointment with the quality of work; although his bill was for $21,166.62, she sent him a check for $9,434.98. Her letter stated that the check would "cover all amounts due." Artus disagreed with Bennett's refusal to pay Janssen's bill in full. Artus testified that the work was "satisfactory," that Bennett's refusal to pay was "unreasonable," and that Janssen was a "friend and client." He said he was "not going to let him go unpaid." To satisfy the outstanding amount, Artus provided Janssen legal services worth at least $13,034.75. Because this $13,034.75 was included in the total $39,544.64 remodel credit, the superior court effectively required Bennett to reimburse Artus for this service trade-out. Bennett asserts that it was error to give Artus the $13,084.75 credit. She reasons that he breached a fiduciary duty he owed her because, by satisfying Janssen's bill, Ar-tus favored one legal client, Janssen, over another, Bennett; he was therefore ethically and equitably ineligible for any credit. She argues that satisfying the bill harmed her, and "effectively stripped [her] of her ability to contest the matter with Janssen." She also claims that by satisfying the bill, Artus became subrogated to Janssen's rights against Bennett, requiring that Artus prove Bennett "owed an obligation" to Janssen. Artus responds that Janssen billed him, not Bennett, for the condominium work, and that he could not have breached any duties to Bennett by paying a bill that he was personally liable to pay. Bennett does not deny that Artus may have been obligated on the bill. Bennett's argument is terse and undeveloped. It does not convince us that Artus breached any ethical duty by discharging an obligation Artus owed Janssen. Nor has Bennett established any other reason why Artus should be altogether disqualified from seeking a credit for the benefit he conferred on Bennett by satisfying the bill. 3. Value of benefit conferred Bennett next argues that any credit must be measured by the value of the benefit she received, not the expense Artus incurred. She contends that no specific fact findings support the superior court's determination that Bennett's benefit had value of $39,544.64. She claims that Artus's contributions did not confer a "dollar-for-dollar" benefit on her. In effect, she argues that Ar-tus's remodel expenditures did not benefit her to the extent found by the superior court. Artus was entitled to a credit measured by the value of the benefit he conferred on Bennetts. That value does not necessarily equal what he spent. The superior court observed that "[in determining the reasonable value of benefits retained, the court may consider the costs to the bestower together with the other evidence of value." In support of that proposition, it appropriately cited Fairbanks North Star Borough v. Tundra Tours, Inc. We review the superior court's fact findings for clear error. Two cireumstances lead us to conclude that the superior court did not clearly err in calculating the value of the benefit conferred at $39,544.64. Most importantly, it found that Artus had proved that he spent that much on the remodel. The superior court's page-specific citation of Tundra Tours confirms that it was well aware both that the cost to the bestower is relevant to the value conferred and that a quantum meruit recovery is measured by the value of the benefit conferred. The court's written decision twice found that Artus's remodeling expenses conferred a benefit on Bennett by enhancing the condominium's fair market value. Given its awareness of the principle that controls valuation of a quantum meruit recovery, we think it clear that the superior court implicitly and permissibly found that Artus's contributions conferred a benefit worth not less than what he paid. We also observe that there was evidence about what parts of the remodel Artus paid for, including payments for some basic repairs, such as new flooring and kitchen and bathroom cabinets. There was also evidence that some expenses he bore were for less important improvements, but it was. for the trial court to assess the effect of the improvements, and it permissibly could have found from this evidence that the cost incurred at least equalled the benefit conferred. Second, the general contractor, Janssen, testified that "any time that you remodel a building you add the value of the remodeling at least to the value of that particular piece of property." The court could weigh the value of that opinion in considering the value of the benefit. Bennett argues, however, that she personally spent between $110,000 and $115,000 on the remodel, and that there was evidence that the condominium's value had increased by no more than $75,000. From this she reasons that because the superior court gave Artus a dollar-for-dollar credit, it implicitly must have found that each dollar Bennett spent only increased the condominium's value by about thirty-two cents. Because no evidence supports that implied finding, she argues, Artus should receive only a pro rata credit, limiting his credit to $19,772, at most. But Bennett's analysis in part would require us to assume that any appreciation can be accurately measured by the difference between two tax appraisals. We have previously observed that tax appraisals do not reliably measure true value. Furthermore, although the purchase price of the condomin-tum was $119,000, that does not prove that the court thought the condominium was necessarily worth that much when Bennett purchased it. Finally, there was other evidence of substantially higher post-remodel value, including an appraisal in 1995 and Bennett's asking price in 1996. Therefore, the superior court may have justifiably reasoned that the remodel caused much greater appreciation than the maximum $75,000 Bennett claims. Some evidence would have permitted the court to conclude that the value increased by nearly $150,000, an amount not significantly less than the total of what Artus and Bennett claimed they spent on the remodel. A dollar-for-dollar eredit to Artus would not have been inconsistent with appreciation of this magnitude. In any event, the superior court was not obliged to find that all of the costs Bennett claimed to have incurred were properly attributed to the remodel or were adequately proved. For these reasons, it was not necessarily clearly erroneous to value the benefit Bennett realized by what Artus spent. Bennett also argues that Artus was not entitled to a dollar-for-dollar credit for the legal services trade-out. The evidence permitted a conclusion that Artus proved that his trade-outs conferred a benefit on Bennett, that Bennett appreciated that benefit, and that allowing Bennett to retain that benefit would be inequitable. But there was also evidence that Janssen's disputed service bill encompassed work that was deficient, requiring Bennett to hire new workers to correct the deficiencies at consid erable expense to her, and allegedly justifying her decision to pay him less than half the amount he billed. The amount of the trade-out was part of the $89,544.64 credit the court awarded, based on its finding that Ar-tus had contributed that amount to the remodel. What we said about the total value of the benefit conferred applies equally to this component of Artus's contribution. C. Bennett's December 1990 and May 1991 Payments to Artus Bennett asserts that it was error to find that two payments she made to Artus were payments for legal services, rather than loans he was obliged to repay. In the fall of 1989 Artus worked between forty and fifty hours a week to help Bennett acquire a Fairbanks office building. After she purchased it, Artus worked on legal matters concerning the building. Bennett paid Artus for legal services he rendered in connection with the building. M The checks Bennett wrote to Artus included a December 1990 check for $5,000 and a May 1991 check for $20,000. Bennett testified that these two payments were loans, but the superior court found that they were compensation for services Artus rendered, and thus were not to be repaid. To support her argument that these payments were loans, Bennett points to evidence that her tax returns did not deduct either payment, that Artus's tax returns did not declare either payment as income, and that her 1990 financial statement lists a $5,000 loan to Artus and her 1991 financial statement lists a $20,000 loan to him. Bennett asks us to hold that the superior court's finding was clearly erroneous. The superior court did not clearly err. No loan documents in evidence support Bennett's claim. In contrast, two other loans from Bennett to Artus were evidenced by formal loan documents. The checks contain no clear notations showing that they were loans. And the superior court noted Bennett's testimony that Artus worked forty-to-fifty hour weeks throughout the acquisition period; this evidence supported a conclusion he had earned these payments. Likewise, the superior court could have relied on its findings that Artus had performed substantial office building-related legal work for Bennett after the acquisition. And finally, the superior court apparently believed Ar-tus's trial testimony that Bennett had paid him for legal services rendered, and that he had received these two checks in the form of distributions from an informal partnership in the building. Artus also notes that Bennett did not request repayment of these monies in pre-suit correspondence listing monies owed. Given the evidence, it was not clear error to find that these two payments were for legal services and were not loans. D. Bennett's Request for Disgorgement of Legal Fees Bennett contends that it was error not to require Artus to disgorge $23,834.31 in legal fees that Bennett paid him in May 1990 for his Fairbanks office building services. Relying on Artus's expressed belief that they had an oral contingent fee agreement for the building, Bennett argues that Alaska Bar Rule 35(c) requires disgorgement. We are unpersuaded. The unenforceability of the contract he thought they had does not prevent Artus from retaining fees compensating him fairly for work benefitting his client. We held in Estate of Katchatag that even though an attorney operated under an unenforceable fee-sharing agreement, he could seek compensation in quantum meruit for his work. Artus advanced the same theory in the superior court to successfully defeat Bennett's disgorgement claim. Bennett admits on appeal that Artus performed valuable services for which she voluntarily paid what she thought were "reasonable" fees. The superior court did not err in concluding that Artus was entitled under quantum meruit principles to keep the monies Bennett paid him for his legal services. Bennett's reply brief raises a new argument for disgorgement. It asserts that because Artus was a full-time employee of Good Taste, Inc., a business owned by Bennett, when he performed the legal services, he could not be paid those fees for services performed on an hourly basis. We decline to address this argument because Bennett failed to raise it in her opening brief, and thereby denied Artus the opportunity to respond to it. E. The Litigation Legal Fees Artus argues in his cross-appeal that it was clear error to deny his $12,000 quantum meruit claim for services he rendered representing Bennett in numerous FED lawsuits against her tenants and in another lawsuit. The superior court denied this claim. In explaining its reasoning, the superior court referred to three factors, all supported by the record, each of which justifies denial of this claim. First, the court noted that Artus kept no records establishing the nature, seope, or duration of his legal services, and that this lack of disclosure prevented both client and court from determining the reasonableness of the fees per the guidelines set by Alaska Bar Rule 85(a). Second, the court found that Artus failed to establish by clear and convincing evidence that he was owed $13,900 for services on miscellaneous matters (including the litigation matters) and took note of evidence that the FED work "languished" and was in part incomplete. Consequently, there was a genuine dispute about the quality and value of this work, justifying a conclusion that Ar-tus had not proved the value of the benefit conferred. Third, the court referred to evidence justifying a conclusion that Artus did the FED work gratuitously, as Bennett argued below and argues on appeal. She points out that Artus submitted no evidence that he had expected payment for these services. She relies on our opinion in Brady v. State, where we held that "[It is not unjust to retain a benefit given without expectation of payment." There is ample evidence that Ar-tus offered his FED legal services gratuitously. When given the opportunity to bill Bennett for his services, Artus repeatedly declined to do so, even though his law firm had billed Bennett for court costs. Even on appeal, Artus does not argue that he had expected to be compensated for these services. And given the parties' personal relationship and Artus's testimony that he did not bill Bennett for legal services because "that's just the way it worked," the superior court could permissibly conclude that Artus did not expect to be paid. It was therefore not error to deny this claim. IV. CONCLUSION For the reasons discussed above, we AFFIRM the judgment in all respects. . See City of Hydaburg v. Hydaburg Co-op. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993); Alaska R. Civ. P. 52(a). . See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). . "Courts generally treat actions brought upon theories of unjust enrichment, quasi-contract, contracts implied in law, and quantum meruit as essentially the same. In fact, this 'terminology' is generally employed interchangeably, often within the same opinion." Alaska Sales & Serv., Inc. v. Millet, 735 P.2d 743, 746 n. 6 (Alaska 1987) (citation omitted), cited in Brady v. State, 965 P.2d 1, 13 n. 38 (Alaska 1998). But see Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1029 n. 15 (Alaska 1986) (dictum distinguishing between unjust enrichment and quantum meruit). . See Beluga Mining Co. v. State, Dep't of Natural Resources, 973 P.2d 570, 579 (Alaska 1999); Alaska Sales & Serv., 735 P.2d at 746. . See Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 465-66 (Alaska 1971). . Artus's involvement in the remodel apparently ended before 1993. Alaska Rule of Professional Conduct 1.8(a)(3), which took effect July 15, 1993, provides that "[al lawyer shall not enter into a business transaction with a client . unless . the client consents in writing thereto." When Artus entered into the condominium transactions, DR 5-104(A) of the Code of Professional Responsibility applied. It provided that "a lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." . The record is inconclusive about the exact amount of Artus's payments and trade-outs to Janssen. But the parties accept the superior court finding that Artus's $39,544.64 contribution included $13,034.75 in trade-outs with Jans-sen, and that this amount directly related to Janssen's challenged bill. . See Nordin Constr. Co., 489 P.2d at 465 (holding that party seeking recovery upon unjust enrichment theory must prove "the value to the [recipient] of the performance tendered"); see also George v. Custer, 862 P.2d 176, 180-81 (Alaska 1993); Fairbanks N. Star Borough, 719 P.2d at 1029 n. 15 ("In determining the measure of damages in a claim of unjust enrichment the court focuses upon the amount of benefit which the defendant received which would be unjustly retained, and does not necessarily focus on the value of money, labor, and materials provided by the plaintiff to the defendant."). . 719 P.2d 1020, 1029 (Alaska 1986). . Bennett purchased the condominium for $119,000 in November 1989. In May 1992, after the remodel was complete, the Municipality of Anchorage appraised the property at $185,000 (valued as of January 1, 1992), an apparent increase in value of only $66,000. The superior court found that Artus contributed $39,544.64 to the remodel. But it also noted that a Bennett exhibit listed her remodel costs as totaling between $110,000 and $115,000. Thus, Bennett and Artus together spent between $149,544.64 and $154,544.65 on the remodel. . See Zerbetz v. Municipality of Anchorage, 856 P.2d 777, 783 (Alaska 1993) (rejecting reliance on tax appraisals to show diminished value); State v. 45,621 Sq. Ft. of Land, 475 P.2d 553, 557 (Alaska 1970) (holding that tax appraisals are not admissible to establish fair market value because they are "notoriously unreliable as a criterion of true value"). . See Alaska Sales & Serv., 735 P.2d at 747 (equating '"appreciat[ion]" of benefit with defendant's acknowledgment that benefit received actually "enhanced the value" of defendant's property). . See Beluga Mining Co., 973 P.2d at 579. . See Fairbanks N. Star Borough, 719 P.2d at 1029. . Bennett's 1991 financial statement asserted that Artus owed Bennett $75,000. This total could plausibly include the alleged December 1990 $5,000 loan, an undisputed $50,000 loan, and the alleged May 1991 $20,000 loan. . Alaska Bar Rule 35(c) provides that "[a] contingent fee agreement will be in writing and will include the disclosure required under Alaska Rule of Professional Conduct 1.4(c) and state the method by which the fee is to be determined...." This language was in effect during the relevant periods. . 907 P.2d 458, 464 (Alaska 1995). . See K.E. v. J.W., 899 P.2d 133, 135 n. 2 (Alaska 1995) (holding appellant's argument waived because it was not raised in opening brief) (citing Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982) (holding that points are waived when argued only in reply brief and not in opening brief)}. . Alaska Bar Rule 35(a) provides that the reasonableness of an attorney's fee is affected by factors such as the time and labor involved, the customary fees for similar services, and the nature and length of the professional relationship. . 965 P.2d 1, 14 (Alaska 1998); see also Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988) ("Courts will allow the defendant to retain a benefit without compensating plaintiff in several situations, one of which is relevant to the case at hand: where the benefit was given gratuitously without expectation of payment.") (citing Murdock-Bryant Constr. v. Pearson, 146 Ariz. 48, 703 P.2d 1197, 1203 (1985)). . See Sparks, 750 P.2d at 342-43 (noting relevance of close personal relationships when evaluating evidence of gratuitousness).

10366102

Anthony W. SCHMIDT, Appellant, v. BEESON PLUMBING AND HEATING, INC., Great American Insurance Co., and Industrial Indemnity, Inc., Appellees

Schmidt v. Beeson Plumbing & Heating, Inc.

1994-02-25

No. S-5426

1170

1180

869 P.2d 1170

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Anthony W. SCHMIDT, Appellant, v. BEESON PLUMBING AND HEATING, INC., Great American Insurance Co., and Industrial Indemnity, Inc., Appellees.

Anthony W. SCHMIDT, Appellant, v. BEESON PLUMBING AND HEATING, INC., Great American Insurance Co., and Industrial Indemnity, Inc., Appellees. No. S-5426. Supreme Court of Alaska. Feb. 25, 1994. Richard L. Harren, Wasilla, and Susan D. Mack, Anchorage, for appellant. Richard L. Wagg, Russell, Tesche & Wagg, Anchorage, for appellees, Beeson Plumbing & Heating and Indus. Indent. Ins. Co. Phillip J. Eide, Eide & Miller, Anchorage, for appellees, Beeson Plumbing and Heating, Inc. and Great American Ins. Co. Toby N. Steinberger, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee, Alaska Workers’ Compensation Bd. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, JJ., and BRYNER, J. Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6584

41326

OPINION RABINOWITZ, Justice. I. INTRODUCTION In this workers' compensation appeal, Anthony Schmidt argues that a degenerative disc disorder in his neck and shoulder is a result of heavy lifting while he was employed with Beeson Plumbing & Heating, Inc. (Bee-son). The Alaska Workers' Compensation Board (the Board) denied his claim, on the ground that his employment with Beeson was not the cause of his condition. Schmidt argues that Beeson's workers' compensation carriers waived certain defenses, that his second hearing before the Board violated due process, and that the Board improperly appointed to the hearing panel a third member who had not been physically present at Schmidt's second hearing. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS Schmidt worked at Beeson from April 1987 to November 1988. During this time two successive carriers provided workers' compensation insurance for Beeson. Great American Insurance Co. (Great American) insured Beeson until mid-April 1988. Industrial Indemnity Insurance Co. (Industrial Indemnity) insured Beeson thereafter. In July 1987, while working on a project that spanned several months and involved frequent heavy lifting, Schmidt began to experience persistent pains in his right shoulder. Schmidt could not attribute the occurrence of this pain to any particular event, stating that he "just noticed the pain start" in his shoulder approximately one month after the project began. In August he sought treatment from Dr. Richard Strohmeyer for his shoulder problem, pain in his right knee, and a hand injury from a drill accident. In his chart notes, Dr. Strohmeyer stated that Schmidt did not relate his shoulder pains to any specific on-the-job injury but that Schmidt, "in working, using his shoulder a lot he has noticed the increased discomfort lately, in the right shoulder." Dr. Strohmeyer's diagnosis of the condition was degenerative joint disease in the AC joint. Schmidt testified that the doctor told him that the shoulder discomfort resulted from arthritis. Dr. Strohmeyer prescribed Motrin for the pain, and allowed him to return to work. Schmidt and Beeson filed a notice of occupational injury with the Board. Schmidt saw Dr. Strohmeyer twice over the next few months. At a September 1987 visit, which focused primarily on the knee and hand injuries, Schmidt "incidentally mentioned]" that his shoulder was better with the Motrin. Schmidt made a return visit in January 1988. The chart notes for this visit are focused almost solely on his knee injury, but a handwritten notation stated, "Shoulder helped by Motrin." Schmidt testified that the Motrin actually did little for his pain, but that because Dr. Strohmeyer told him that the shoulder was arthritic and that there was no cure, Schmidt made no further visits for over a year. Meanwhile, Schmidt continued working for Beeson, performing the sanie job duties with the same physical demands, until in November 1988 he took a vacation and was essentially laid off upon his return. In January 1989 Schmidt's pain intensified, spreading to his elbow, forearm, and hand. Schmidt returned to Dr. Strohmeyer's office in mid-February. Dr. Richard Dix, who was substituting for Dr. Strohmeyer at the time, diagnosed "a radiculopathy that is perhaps related to a degenerative disc." Dr. Stroh-meyer saw Schmidt at the end of February, found a herniated cervical disc of "progressive, unrelenting nature, present over . a long period of time," and referred Schmidt to Dr. Michael Newman. Dr. Newman examined Schmidt a few days later, and also identified cervical disc degeneration with radicu-lopathy. Dr. Newman saw Schmidt on two other occasions in 1989, and sent him to a colleague for injections of cervical epidural steroids. When Schmidt reopened his workers' compensation claim after his visit with Dr. Dix, both workers' compensation carriers controverted Schmidt's claim. Great American filed its controversion notice in March 1989, on the grounds that no medical documentation linked Schmidt's current condition to the events of July 1987, that the July 1987 injury was a temporary aggravation of a preexisting condition, and that the last injurious exposure rule relieved Great American of liability. Industrial Indemnity filed its notice of controversion in May 1989, on the grounds that it could not determine whether Schmidt suffered a new injury in 1989, and that no medical data showed a link between his condition and his employment with Beeson. In July 1989 Industrial Indemnity filed another notice of controversion, asserting that because Schmidt "suffered medical problems continuously after the 1987 injury and no injury has taken place during [the] Industrial policy period," Great American should cover his current injury. In November 1989 Schmidt filed an application for adjustment of his claim, seeking temporary total disability (TTD) benefits for the period from February 14, 1989 through May 9, 1989. He alleged that his current condition was related to the heavy lifting that he did in July 1987. Among his reasons for filing the application were that each carrier asserted that the other was responsible for his claim and that both carriers had controverted his claim. Great American and Industrial Indemnity filed separate answers to Schmidt's application. Great American's answer, filed in November 1989, contained one argument: The employee's claim of disability appears to arise from his February 14, 1989, injury date. Therefore, pursuant to the "last injurious exposure rule" this claim would appear to be the responsibility of the employer's carrier from the period 4/19/88 onward: Industrial Indemnity Company. Pursuant to AS 23.30.155(d) Industrial Indemnity should make all payments due during the pendency of this dispute. Industrial Indemnity's answer, filed in December of the same year, admitted the validity of Schmidt's TTD claim for February through May 1989, but included the following statement: "We reserve the right to raise further defenses after discovery." In December 1989, Industrial Indemnity paid TTD benefits covering the period for which Schmidt requested them. In its compensation report, Industrial Indemnity stated that it was "lifting [its] controversion at this time." A prehearing conference was held in February 1990. Industrial Indemnity stated that it had paid Schmidt TTD benefits pursuant to AS 23.30.155(d). The conference notes also indicate that Industrial Indemnity alluded to two possible defenses: that Schmidt's condition may have been the result of the 1987 injury alone, and that the carrier never received actual notice of Schmidt's injury. The notes also indicate that the carriers raised a last injurious exposure defense. In April 1990 Dr. Newman furnished Industrial Indemnity with an affidavit summarizing the results of his examinations of Schmidt. Dr. Newman stated his opinion that "Mr. Schmidt's cervical disc condition did not arise as a result of his work for Beeson . between the dates of April 19, 1988 and October 30, 1988," the period of Schmidt's employment during which Industrial Indemnity was Beeson's workers' compensation carrier. He further opined that Schmidt's employment during the same period neither "aggravate^] his underlying cervical disc disease nor was . [it] a substantial factor in Mr. Schmidt's present condition." In September 1990 Schmidt suffered a flare-up of shoulder and arm pain. He saw Dr. Newman, who put him on several medications and ordered a steroid injection. Schmidt also made a TTD claim for the five days his pain had incapacitated him. In early October the litigants assembled for another prehearing conference. Almost six months after receiving it, Industrial Indemnity disclosed Dr. Newman's affidavit to the other parties as evidence of Great American's liability. A little over three weeks later, Industrial Indemnity formally filed the Newman affidavit with the Board and served copies on the other parties. Subsequently, Industrial Indemnity scheduled a deposition of Dr. Newman, which took place in late November 1990. At his deposition Dr. Newman testified that Schmidt's condition since 1989 not only was unrelated to his employment during Industrial Indemnity's coverage period, but also was unrelated to the 1987 injury altogether. Another prehearing conference took place on February 27, 1991. At this conference the carriers indicated that they would raise defenses that Schmidt's injury neither occurred in the course of his employment nor was related to his employment with Beeson. Schmidt argued that the carriers had waived such defenses. He asked for a bifurcation of the ease so that the Board would address the waiver issue first. The Board refused this request, scheduled a hearing for April 5, 1991, and allowed Schmidt to raise his bifurcation and waiver issues at the hearing. In March 1991 Industrial Indemnity amended its answer to Schmidt's application for benefits. The carrier now stated that it was not liable for the TTD benefits that it had already paid, but rather had paid them only pursuant to AS 23.30.155(d). In addition, Beeson and Industrial Indemnity "reaffirm[ed] their position that the employee's employment during their period of coverage [was] not a substantial factor in the employee's disability or need for medical treatment as per the affidavit of Michael Newman, M.D. previously filed with the board and served on all parties on November 1, 1990." The carrier again reserved the right to raise further defenses following discovery. On April 2, 1991, Schmidt filed his list of witnesses. He identified four witnesses who would testify, among them Dr. Dix and himself. The Board held a hearing on April 5, 1991. As of this date, the benefits at issue were the five days of TTD that Schmidt had claimed for the September 1990 flare-up, and unpaid medical expenses through April 1991. At this hearing the Board ordered an independent medical examination (IME) of Schmidt pursuant to AS 23.30.110(g) and a continuance on the other issues. In response to a question from Schmidt's counsel concerning a possible additional deposition, the hearing panel's chair, Mark Torgerson, advised, "we gather that the parties were essentially ready to go today, and so we may — we may take a dim view of people trying to add to the record. Keeping in mind that if — that the results of the medical exam may compel us to change — to change on that." Dr. Douglas G. Smith conducted the IME on April 11 and submitted his evaluation on April 22. He found cervical disc degeneration, agreed with Dr. Newman that Schmidt's employment with Beeson probably did not cause Schmidt's condition, and attributed the condition to the aging process rather than to a traumatic event. Dr. Smith added that "no specific incident mentioned in the records or in Mr. Schmidt's history . would implicate the February, 1989 problem to any particular industrial exposure." At his deposition in late May, Dr. Smith reiterated: "I think the odds are . that the disk degeneration was caused by not being 18 years old." On April 19 Schmidt underwent surgery, in which Dr. Newman fused three vertebrae in his neck. In May Schmidt submitted a new application for adjustment of his claim. To his original claim he added the medical costs resulting from his recent neck surgery. He also filed a claim for TTD benefits from April 12, 1991 forward. On May 22, one week before the scheduled date for the second Board hearing, Schmidt moved for a further continuance. He argued that he needed more time to review the latest medical records and Dr. Smith's deposition testimony, and to redepose Dr. Newman. In addition, Schmidt contended that his new claim for additional benefits to cover his neck surgery would of necessity cause the hearing to last longer than a day. Finally, he asserted that by reason of his recent surgery, participating in the hearing at its scheduled date would endanger his health. Schmidt also filed a revised witness list, which increased the number of witnesses that he intended to have testify at the hearing from four to twelve. The second Board hearing was held on May 30, 1991. A two-member panel, consisting of Chair Torgerson and labor representative Harriet Lawlor, heard the case. The Board denied Schmidt's motion for a continuance and addressed only those issues that were pending before the Board at Schmidt's first hearing. The Board allowed Schmidt to present only the four witnesses identified on his first witness list. In addition, the Board rejected Schmidt's waiver arguments. The Board proceeded to hear the case on the merits. Beeson and the carriers relied on the opinions of Drs. Newman and Smith. Schmidt relied on the contrary opinion of Dr. Dix. In order to prevent the hearing from exceeding the time allotted, the Board limited the time for witness testimony. In the following month Chair Torgerson notified the parties that he and Ms. Lawlor had been unable agree on the proper disposition of the ease. In order to break the deadlock, he appointed a management Board member, Kichard Whitbeck, Sr., to the panel. Chair Torgerson stated that after Mr. Whit-beck reviewed the hearing tapes, the depositions, and the documentary evidence, the Board would render a decision. Schmidt objected to Mr. Whitbeck's participation on the grounds that Mr. Whitbeck would not be able to observe the witnesses' demeanor. In September 1991 the Board published its decision. It again rejected Schmidt's contention that the carriers had waived their right to assert that his condition was not work related because it pre-dated his 1987 injury. The Board also found, inter alia, that Schmidt's current medical condition was unrelated to his employment with Beeson. The Board denied Schmidt the five days of TTD benefits for September and medical costs through April 5, 1991. The Board expressly limited its decision to Schmidt's condition up to the date of the first April hearing, before his neck surgery. The superior court affirmed the Board decision. Schmidt now brings this appeal. III. DISCUSSION A. Implied Waiver of Defenses We have held that the Board has the discretion to invoke equitable principles, such as implied waiver or equitable estoppel, to bar an employer from asserting statutory rights. Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 588 (Alaska 1993). We will uphold a Board decision as to whether to apply equitable principles if it is supported by substantial evidence. See id. at 588-89. First, Schmidt argues that Great America's answer amounted to an implied waiver on the part of both carriers. He acknowledges that in their controversion notices both carriers initially asserted that Schmidt's injury was unrelated to his employment with Beeson. However, he alleges that Great American's answer raised only the last injurious exposure defense and that both carriers eventually "unequivocally abandoned" any other defense. Schmidt's efforts to impute Great American's position to Industrial Indemnity are without merit. Industrial Indemnity conducted a separate defense and filed its own answer in these proceedings. Industrial Indemnity's initial answer made no mention of the last injurious exposure rule and expressly reserved the right to raise other defenses. Moreover, Schmidt's contention that at the first prehearing conference the only defense raised was that of last injurious exposure is inaccurate. Though Industrial Indemnity focused on this issue, the carrier also raised a notice defense. Such acts do not meet the standard for implied waiver. See cases cited supra note 7. In addition, Schmidt's implication that the carriers are absolutely bound by the defenses raised in their answers has little substance. Parties may amend pleadings "at any time before award upon such terms as the board or its designee directs." 8 AAC 46.050(e). Moreover, the summaries of the prehearing conferences, .not the pleadings, control the subsequent course of the suit. See 8 AAC 45.066(c). Second, Schmidt argues that Industrial Indemnity's payment of TTD benefits to Schmidt indicated its abandonment of any defense other than one based on the last injurious exposure rule. At the February 1990 prehearing conference, Industrial Indemnity stated that it paid these benefits pursuant to AS 23.30.155(d). This statute includes the following language: When payment of temporary disability benefits is controverted solely on the grounds that another employer or another insurer of the same employer may be responsible for all or a portion of the benefits, the most recent employer or insurer who is party to the claim and who may be liable shall make the payments during the pendency of the dispute. AS 23.30.155(d) (emphasis added). Schmidt contends that on its face this requirement applies if a carrier controverts only on the grounds that another carrier is liable, and that Industrial Indemnity's payment of TTD benefits thus amounted to an admission that the carrier had no other defenses. Schmidt is mistaken. Payment of TTD benefits pursuant to AS 23.30.155(d) does not satisfy Milne ⅛ standard of direct, unequivocal conduct for waiver. Alaska Statute 23.-30.155(d) ensures that an employee receives the compensation due him or her while the carriers litigate the issue of who must pay. The purpose of this statute is not to circumscribe the defenses that a controverting carrier may raise. Finally, Schmidt's argument that he suffered prejudice from the carriers' actions has little merit. He contends that the carriers did not formally raise a defense that employment and injury were not connected until the February 27, 1991 prehearing conference, a little over a month before the scheduled hearing. However, the record indicates that Schmidt first knew that such a defense was possible in November 1990, when Dr. Newman was deposed. By admitting that the testimony had surprised him, Schmidt's counsel indicated that he was aware of its significance. Moreover, on February 11, 1991, well before the prehearing conference of February 27, Schmidt filed an affidavit opposing the employer's affidavit of readiness for hearing, in part on the grounds that he had not completed discovery and needed to obtain additional depositions from Schmidt's doctors. This document is a strong indication of Schmidt's awareness that the matter was no longer just one of deciding which carrier would pay. Thus, between Dr. Newman's deposition and the first Board hearing in early April 1991, Schmidt had approximately four months to conduct discovery and address the new issues. If prior to Dr. Newman's deposition he thought that the last injurious exposure rule was the only issue, he could not reasonably rely on this assumption after-wards. Nonetheless, Schmidt did not obtain additional deposition testimony during this time, despite his protestations that discovery had not yet been completed, and he did little to build a ease linking his injury to his employment. Instead, at the February 27 pre-hearing conference he focused predominantly upon the waiver issue. As his own briefs indicate, Schmidt's inaction after November 1990 was not a result of reliance on representations by the employer or the carriers. Schmidt contends that until Dr. Newman's deposition the carriers appeared to be building cases against each other, not against Schmidt. Therefore, his counsel "only monitored the litigation . and intentionally kept Schmidt's costs to a minimum," particularly given Schmidt's impression that only the five days of TTD for September were at stake at the time. Even after the Newman deposition, Schmidt avoided extensive discovery in the hope that he could win his case on the waiver issue alone. The superior court aptly viewed these tactics as a gamble, albeit a reasonable one given financial realities. Schmidt will not be accorded relief simply because his litigation strategy proved ineffective. B. The Board's Appointment of a Third Member to Break the Deadlock Schmidt argues that the Board's appointment of Mr. Whitbeck to break the deadlock on the two-member panel was improper. In particular, he argues that the superior court erred in relying on provisions of the Administrative Procedure Act, AS 44.-62, to uphold the Board's appointment. Because this question involves statutory interpretation, we review it under the independent judgment standard. Hood v. State, Workmen's Compensation Bd., 574 P.2d 811, 813 (Alaska 1978). The Alaska Workers' Compensation Board consists of five hearing panels, with three members each: a representative of labor, a representative of management, and either the commissioner of labor or his or her designated representative. AS 23.30.005(a). Two members of a hearing panel constitute a quorum for hearing claims. AS 23.30.005(f). In addition, a member of one panel may serve on another panel as long as a labor or management member replaces a counterpart on the other panel. AS 23.30.005(e). However, the Workers' Compensation Act offers no express procedure for breaking a deadlock on a two-member panel. The Administrative Procedure Act governs the procedures of the Board "where procedures are not otherwise expressly provided by the Alaska Workers' Compensation Act." AS 44.62.330(a)(15). The Administrative Procedure Act includes rules governing who within an agency may participate in deciding a contested case: If a contested case is heard before an agency (1) the hearing officer who presided at the hearing shall be present during the consideration of the case and, if requested, shall assist and advise the agency; and (2) a member of the agency who has not heard the evidence may not vote on the decision. AS 44.62.500(a). Though due process requires that administrative officers "hear" the evidence presented at a hearing, they need not physically attend the presentation of the evidence, and they may "hear" the evidence by making an informed judgment on evidence received through a hearing officer. Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 962 n. 1 (Alaska 1983); see also Alaska Transp. Comm'n v. Gandia, 602 P.2d 402, 405-06 (Alaska 1979). Schmidt argues that Earth Resources is not applicable because the Board does not employ hearing officers in proceedings and because Board members have broader duties than hearing officers. He argues that Board members must physically attend the hearing in order to take an active role in observation of witness demeanor, examination of witnesses, and immediate deliberations with Board members. Schmidt is mistaken. On grounds similar to those that Earth Resources cited, a majority of other jurisdictions allow current or new members of an administrative tribunal to participate in a decision even though they were not physically present when evidence was taken in a case, as long as they consider and act on the evidence received in their absence. See, e.g., Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 217 P.2d 630, 632-33 (1950) (interpreting statutory provision similar to AS 44.62.500(a), and holding that an agency member need not be physically present to hear evidence); Clairborne v. Coffeyville Memorial Hosp., 212 Kan. 315, 510 P.2d 1200, 1202-03 (1973) (holding that the term "hearing" relates "not to physical presence at the taking of evidence, but to certain procedural mínimums to ensure an informed judgment"); Lewandoski v. Vermont State Colleges, 142 Vt. 446, 457 A.2d 1384, 1385-88 (1983) (upholding finding of Labor Relations Board, even though no one member was present every day of a multi-day hearing, because a quorum of two members was present at all times). But cf. Miskovich v. City of Helena, 170 Mont. 138, 551 P.2d 995, 1001 (1976) (holding that a member of an administrative tribunal absent from part of a hearing should not participate in the final decision, because a transcript of the hearing may not be available). See generally E.H. Schopler, Annotation, Administrative Decision by Officer Not Present When Evidence Was Taken, 18 A.L.R.2d 606, 610-14 (1951). In the interest of promoting speedy summary proceedings, the Board has relaxed a number of formal procedural and evidentiary rules. For example, regulations permit Board members to participate in hearings by telephone, even though members who take part telephonically cannot observe the physical demeanor of witnesses. See 8 AAC 45.-070(k). Similarly, regulations permit the Board to receive in evidence depositions, even though such a practice prevents either the observation of witness demeanor or questioning of the witness. See 8 AAC 45.120(a). Chair Torgerson indicated that Mr. Whit-beck would review the hearing tapes, examine the depositions and documentary evidence, and deliberate with the other Board members at the Board's next scheduled hearing date. Assuming that Mr. Whitbeek did these things, he has "heard" the evidence and his attendance at its presentation was not necessary. Schmidt does not allege that Mr. Whitbeek failed to do these things. Therefore, we conclude that the appointment of Mr. Whitbeek to the hearing panel after the hearing took place was not improper. C. Amended Witness List Finally, Schmidt contends that by refusing his amended witness list, among other things, the Board violated his due process rights under the Alaska Constitution. See Alaska Const. art. I, § 7 ("No person shall be deprived of life, liberty, or property, without due process of law."). We review Board rulings that operate to exclude evidence for abuse of discretion. See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). We agree with Schmidt's arguments to the extent that we conclude that the Board's limitation of witnesses constituted an abuse of discretion. When submitting his amended witness list, Schmidt relied upon 8 AAC 45.-112, which provides that whenever the Board requires the filing of a witness list, the list "must be filed with the board and served upon all parties at least five working days before the hearing." As Schmidt notes, this regulation does not distinguish between an original hearing and a hearing that had been continued from an earlier date. Nonetheless, the Board concluded that limiting Schmidt's witnesses to the ones listed for the first hearing would be more efficient, and that if Schmidt needed to present additional witness testimony regarding events subsequent to the first hearing date, he could seek modification of the award, pursuant to AS 23.30.-130(a), for a change of conditions. The possibility for modification under AS 23.30.130(a) is not a satisfactory rationale for the Board's failure to allow the amended witness list. Between the April and the May hearing, there were several developments relevant to the substantive issues of the case. First, the parties received significant additional evidence: the medical report of Dr. Smith, summarizing the results of the IME which the Board ordered at the first hearing; and Dr. Smith's subsequent deposition testimony. Second, Schmidt's neck surgery raised new factual issues as to whether his condition was work related. Schmidt should have been permitted to present witnesses to rebut Dr. Smith's testimony and to testify on the outcome and significance of his recent neck surgery. Among Schmidt's proposed witnesses was Dr. Morris Horning, whose testimony would have challenged Dr. Smith's conclusion that Schmidt's condition was related solely to the aging process. When he saw Schmidt in 1989, Dr. Strohmeyer ordered a magnetic resonance imaging (MRI) scan of Schmidt's spine. The MRI scan revealed disc protrusions on the right side of the spine, which Strohmeyer mentioned in a February 1989 letter to Dr. Newman. The osteophytes, or bone spurs, which were removed during Schmidt's neck surgery were also on the right side, but neither Dr. Smith nor Dr. Newman explained why the osteophytes occurred on that side alone. According to the offer-of-proof that Schmidt presented at the second Board hearing, Dr. Horning would have explained this phenomenon and linked it to Schmidt's 1987 shoulder injury: Dr. Horning would testify that the changes occurring on that MRI in 1989 were probably the results [of an event] which occurred more than six months previously. Probably 12 to 18 months previously, and possibly longer_ He would state . that when discs occur [sic] abruptly, people are generally more attuned to them. But as often as that occurs, discs will have some trauma which sets a degenerative process in motion, and then the degenerative process occurs within the next following months. The process of degeneration includes dehydration of the disc space, and when that happens, the vertebrae move closer together and the space between them narrows. The settling of the two vertebras [sic] and this pressure between them often result in the disc punching out the back or the side and the pressing onto a nerve_ Dr. Horning would testify the spurs and osteophytes develop when a disc loses the cushioning integrity and begins to settle together, sometimes putting pressure on the end plates of the vertebrae from the disc pulling out the side. Given the importance of rebuttal testimony such as this, the Board's failure to allow Schmidt's amended witness list was not harmless error. The reliance of the workers' compensation carriers on Lajiness v. H.C. Price Construction Co., 811 P.2d 1068 (Alaska 1991), is not helpful to their argument. In Lajiness, we upheld the Board's refusal to permit the employee to call a previously unlisted witness, after the employee had filed an affidavit of readiness for hearing and had not included that witness among those specified at a number of prehearing conferences. Id. at 1069 & n. 2. Lajiness is inapposite here, because . Schmidt neither filed an affidavit of readiness nor committed himself to a set number of witnesses at the prehearing conference of February 1991. By allowing him to call only witnesses scheduled for the earlier April hearing, the Board gave too narrow a meaning to 8 AAC 45.112, and denied Schmidt an adequate opportunity to present his ease. Therefore, we hold that the Board abused its discretion in refusing Schmidt's amended witness list. We remand this case for new proceedings, at which Schmidt may present the witnesses necessary to fully support his claim. IV. CONCLUSION We REVERSE the Board's denial of leave for Schmidt to file an amended witness list, and we REMAND to the superior court for REMAND to the Board for further proceedings in accordance with this opinion. We AFFIRM the Board's rulings on all other issues. . The record indicates that he was offered 15 hours' work, and was promised part-time work on a regular basis, but the lack of available work caused the company to be unable to provide him with any further employment. . Under the last injurious exposure rule, if an employee suffers successive injuries while working for different employers, and both injuries contribute to the employee's disability, then the later employer incurs full liability. E.g., Olsen Logging Co. v. Lawson, 856 P.2d 1155, 1159 (Alaska 1993). . AS 23.30.155(d) states in part: When payment of temporary disability benefits is controverted solely on the grounds that another employer or another insurer of the same employer may be responsible for all or a portion of the benefits, the most recent employer or insurer who is party to the claim and who may be liable shall make the payments during the pendency of the dispute. . Alaska Statute 23.30.110(g) states in part: "An injured employee claiming or entitled to compensation shall submit to the physical examination by a duly qualified physician which the board may require." . This form was filed in June 1991, after correction of a technical error. . Because the superior court acted as an intermediate court of appeal, we do not give deference to its decision. Hester v. State, Public Employees' Retirement Bd., 817 P.2d 472, 474 (Alaska 1991). . The elements of equitable estoppel are "assertion of a position by word or conduct, reasonable reliance thereon by another party, and resulting prejudice." Id. at 588. Implied waiver, a variant of equitable estoppel, occurs when a party's course of conduct shows an intention to waive a right and such conduct is inconsistent with any intention other than a waiver, or if neglect to insist upon the right causes prejudice to another party. Id. at 588-89; Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978). Implied waiver cannot exist in the absence of "direct, unequivocal conduct indicating a purpose to abandon or waive the legal right, or acts amounting to an estoppel by the party whose conduct is to be construed as a waiver." Milne, 576 P.2d at 112 (emphasis added); see also Van Biene, 847 P.2d at 589 ("[Njeglect to insist upon a right only results in an estoppel, or an implied waiver, when the neglect is such that it would convey a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question."). . Furthermore, the text of Great American's answer provides little support for Schmidt's position: The employee's claim of disability appears to arise from his February 14, 1989, injury date. Therefore, pursuant to the "last injurious exposure rule" this claim would appear to be the responsibility of the employer's carrier from the period 4/19/88 onward: Industrial Indemnity Company. Pursuant to AS 23.30.155(d) Industrial Indemnity should make all payments due during the pendency of this dispute. (Emphasis added). The use of tentative language such as "appears to arise" and "would appear to be" does not evidence an intent to abandon Great American's previous position taken in its controversion notice. . Schmidt also argues that Industrial Indemnity's failure to disclose the Newman affidavit to the other parties until six months after the affidavit was obtained constituted a violation of 8 AAC 45.052(d). This regulation provides that every 30 days after the initial filing of an application or petition, a party must serve updated medical summary forms and medical reports to the other parties, if the party obtains a new medical report during the 30-day period. 8 AAC 45.052(d). Schmidt urges us to construe Industrial Indemnity's violation as a forfeiture of the right to raise further defenses after discovery. We decline to do so. Assuming arguendo that Industrial Indemnity violated the regulation, Schmidt has not shown how this violation establishes an intent to waive a defense. The regulation does not identify what penalty the Board might impose on violators. Nothing in the regulation's text mandates waiver of one or more defenses. . Schmidt also argues that no procedural regulations existed to permit the Board to appoint Mr. Whitbeck and that the action constituted an impermissible ad hoc procedure. The State contends that this argument has been raised for the first time on appeal. Examination of the record indicates that Schmidt indeed failed to raise this theory before the superior court or as a point on appeal before this court. He has therefore waived this argument. See Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991). Though we express no opinion on the propriety of appointing Mr. Whitbeck in the absence of express procedures for doing so, we suggest nonetheless the promulgation of regulations dealing with future Board deadlocks of this sort. . Schmidt also argues that if this court allowed the Board to appoint a third member to break a deadlock, the new member likely would not be able to review evidence before the running of the statutory period for issuing a decision. Alaska Statute 23.30.110(c) states in part, "Within 30 days after the hearing record closes, the board shall file its decision." Chair Torgerson announced the deadlock, appointed Mr. Whitbeck, and reopened the hearing record on June 20, within the 30-day period. Mr. Whitbeck was unavailable to review the tapes and hearing record until July 11. Upon Mr. Whitbeck's receipt of this material, deliberations on Schmidt's case and closing of the record were scheduled for the next regular meeting of the hearing panel. The Board met on August 8 to discuss the claim and close the record. The Board issued its final decision on Sept. 9. Though Schmidt notes that the Board released its decision 102 days after the May hearing, he does not challenge the decision as a violation of AS 23.30.110(c). Moreover, he does not expressly argue that a violation of this provision would occur if the Board exceeded the 30-day limit as a result of having appointed a third member to break a deadlock. . Schmidt relies on Shawley v. Industrial Comm'n, 16 Wis.2d 535, 114 N.W.2d 872 (1962), to support his argument that observation of witness demeanor is sufficiently important to require the physical presence of Board members. In Shawley, two hearings were held on a workers' compensation claim, the first before one examiner and the second before his replacement. The court concluded that a denial of due process occurred, on the ground that the second hearing examiner could not reproduce the personal impressions that the witnesses made on the first examiner. Id. 114 N.W.2d at 875-76; see also Adams v. Industrial Comm'n, 147 Ariz. 418, 419-20, 710 P.2d 1073, 1074-75 (App.1985) (finding that it was inappropriate for a replacement administrative law judge, who did not observe the testimony, to rescind the award of the original judge on the basis that it was not supported by "a preponderance of credible evidence"). Significantly, Shawley involved a single deci-sionmaker. Although ideally all decisionmakers who weigh evidence should be present to observe witness testimony, courts accept that the reality of administrative proceedings often makes that impossible. As noted above, courts generally will not overturn the decisions of tribunals, even when not every member was present at all times, as long as the court believes the entire tribunal considered the evidence in some form, and a quorum was present to observe all testimony. This is different from situations like Shawley's where the decisionmaking apparatus contains no one who observed the witnesses testifying. Compare, e.g., Younkin v. Boltz, 241 Md. 339, 216 A.2d 714, 716 (1966) (holding that zoning board members not present at hearings could participate in decision, because a three-member quo rum was physically present at hearings) with Clark v. County Bd. of Appeals, 235 Md. 320, 201 A.2d 499, 502 (1964) (overturning zoning hoard decision because members who attended hearings did not constitute a quorum). This concern does not arise in Schmidt's case, because the two-member panel at the May hearing constituted a quorum. See AS 23.30.005(f). . Alaska Statute 23.30.130(a) states in part: Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions, . or because of a mistake in its determination of a fact, the board may . review a compensation case under the procedure prescribed in respect of claims in AS 23.30.110. . Dr. Newman did not know why osteophytes would have formed only on the right side. Dr. Smith had not seen Dr. Strohmeyer's February 1989 letter until Smith's deposition, and did not address the question of the osteophytes. . Because we have remanded this case for new proceedings, we need not address Schmidt's contention that the Board's denial of his request for continuance was an abuse of discretion. Without citing case authority, Schmidt claims that the Board imposed impermissible time limits on the testimony of Schmidt's witnesses, specifically Dr. Dix. At the April hearing, Schmidt's counsel gave the Board an estimate of the number of witnesses that he would call and the length of their testimony. The record indicates that at the May hearing, the Board held not only Schmidt but also the other parties to the time estimates that they had given. Reasonable Board limits on the length of witness testimony are a permissible means of controlling the Board's hearing docket, and such limits do not violate the employee's due process rights. Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1190 (Alaska 1993). Furthermore, Schmidt failed to make an offer-of proof as to what new evidence would have been provided had Dr. Dix received enough time to testily. This omission is fatal to Schmidt's claim. See Adamson, 819 P.2d at 889-90.

10366597

Anna L. BASEL, A Citizen of Oregon, Personal Representative of the Estate of Ray Basel, Bernard Heaney, A Citizen of New York, Personal Representative of the Estate of Shawn Heaney; Olafia Johnsdottir, A Citizen of Iceland, Personal Representative for the Estate of Sveinn Ben Adalsteinsson; and Linda Perri, A Washington Citizen, Personal Representative of the Estate of Paul Rowe, Appellants, v. WESTWARD TRAWLERS, INC., Steuart Investment Co., Steuart Fisheries, Inc., Don Hanson, F/V Half Moon Bay, Rick Johnson, F/V Sunset Bay, Taiyo Fisheries Company, Western Alaska Fisheries, Inc., Viking Limited Partnership, Horizon Trawlers Inc., Robert Dooley, Hugh Riley, John A. Dooley, Sea Pacific, Inc., Appellees

Basel v. Westward Trawlers, Inc.

1994-03-04

No. S-4708

1185

1193

869 P.2d 1185

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Anna L. BASEL, A Citizen of Oregon, Personal Representative of the Estate of Ray Basel, Bernard Heaney, A Citizen of New York, Personal Representative of the Estate of Shawn Heaney; Olafia Johnsdottir, A Citizen of Iceland, Personal Representative for the Estate of Sveinn Ben Adalsteinsson; and Linda Perri, A Washington Citizen, Personal Representative of the Estate of Paul Rowe, Appellants, v. WESTWARD TRAWLERS, INC., Steuart Investment Co., Steuart Fisheries, Inc., Don Hanson, F/V Half Moon Bay, Rick Johnson, F/V Sunset Bay, Taiyo Fisheries Company, Western Alaska Fisheries, Inc., Viking Limited Partnership, Horizon Trawlers Inc., Robert Dooley, Hugh Riley, John A. Dooley, Sea Pacific, Inc., Appellees.

Anna L. BASEL, A Citizen of Oregon, Personal Representative of the Estate of Ray Basel, Bernard Heaney, A Citizen of New York, Personal Representative of the Estate of Shawn Heaney; Olafia Johnsdottir, A Citizen of Iceland, Personal Representative for the Estate of Sveinn Ben Adalsteinsson; and Linda Perri, A Washington Citizen, Personal Representative of the Estate of Paul Rowe, Appellants, v. WESTWARD TRAWLERS, INC., Steuart Investment Co., Steuart Fisheries, Inc., Don Hanson, F/V Half Moon Bay, Rick Johnson, F/V Sunset Bay, Taiyo Fisheries Company, Western Alaska Fisheries, Inc., Viking Limited Partnership, Horizon Trawlers Inc., Robert Dooley, Hugh Riley, John A. Dooley, Sea Pacific, Inc., Appellees. No. S-4708. Supreme Court of Alaska. March 4, 1994. Gerald W. Markham, Kodiak, for appellants. John A. Treptow, Atkinson, Conway & Gagnon, Anchorage, for appellees Westward Trawlers, Inc., Steuart Inv. Co., Steuart Fisheries, Inc., Don Hanson, F/V Half Moon Bay, Rick Johnson, F/V Sunset Bay. Herbert H. Ray, Jr., Bliss Riordan, Anchorage, for appellees Taiyo Fisheries Co., Western Alaska Fisheries, Inc., Viking Ltd. Partnership, Horizon Trawlers, Inc., Robert Dooley, Hugh Riley, John A. Dooley, Sea Pacific, Inc. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

4615

28649

OPINION RABINOWITZ, Justice. The F/V Alert, owned and captained by Melvin Wick, disappeared in the Shelikof Straits near Kodiak Island in February 1985. This appeal arises from wrongful death claims that Anna L. Basel and others (collectively Basel), in their capacities as personal representatives of four deceased crew members of the F/V Alert, asserted against the participants in a Magnuson Act joint fishing venture. 1. FACTS AND PROCEEDINGS Melvin and Shari Wick were the owners of the F/V Alert, and Melvin Wick was the vessel's master, when it disappeared in February 1985. The Wicks and the other owners of the catcher vessels appointed Westward as their agent in dealing with Taiyo. Under its agreements to participate with the Wicks and the owners of the other catcher vessels, Westward was to coordinate joint fishing operations and to act as a representative for the owners "in all dealings between the Fishing Vessels and Taiyo." As payment for its services, Westward was to receive "two and one-half percent (2⅜%) of the gross value of all consideration due Owner for deliveries of fish by Owner's Vessel to the Processing Vessels." Taiyo and Westward entered into a "Fishing Agreement — Alaska Pollack Fishing" in May of 1983. Under the terms of this agreement Taiyo was obligated to purchase Alaska pollack and other bottom fish and was further obligated to provide two processing vessels. Westward was to coordinate fishing operations, to arrange for seven American-owned catcher vessels to catch the pollack and other bottom fish, and to supply the fish to the two Taiyo processing vessels. Westward subsequently contacted Melvin Wick, who eventually agreed to participate in the 1983 fishery. Westward and Wick entered into an "Agreement to Participate in Joint Venture and to Appoint Agent." Under this agreement Wick was to provide a fully licensed and equipped F/V Alert, ready for fishing, and a crew. Westward entered into similar separate agreements with other catcher vessel owners. In 1983 Taiyo, Westward, the F/V Alert and six other American-owned catcher vessels engaged in a Magnuson Act joint venture fishing operation. Subsequently, Westward and Taiyo entered into a "Memorandum of Agreement for the 1986 Joint Venture Pollack Fisheries." This agreement incorporated the terms and conditions of the 1983 fishing agreement. Additionally, it established new tonnage limits and prices to be paid by Taiyo for the fish delivered by the catcher vessels during the 1985 fishery. In 1985, the catcher vessels entered into an oral agreement to share or "pool" certain receipts. In the event that a catcher vessel's delivery of fish reached or exceeded an agreed upon fifty metric ton limit, the extra revenue for the additional fish "would go into a pool that would be shared amongst the catcher vessels." This pooling agreement did not affect the price per pound that Taiyo paid for the fish purchased from the catcher vessels, since this price was the same whether or not a delivery exceeded fifty metric tons. Similarly, Westward's 2.5% compensation remained fixed whether or not a delivery exceeded fifty metric tons. After the disappearance of the F/V Alert, the personal representatives of four fishers who died on the vessel filed claims in a limitation proceeding initiated by Shari Wick pursuant to 46 U.S.C.App. § 183. These claims were eventually settled for approximately $1,810,000.00. After the settlement, Basel filed a complaint in the superior court against the 1985 Shelikof Fishery Joint Venture for wrongful death, pre-death pain and suffering, negligence, and unseaworthiness. In the superior court action Basel asserted that Westward/Steuart and Taiyo formed a common law joint venture with the Wicks and that this joint venture was the Jones Act employer of the decedents at the time of their deaths. In the event the joint venture was not found to be the Jones Act employer, Basel alternatively alleged that the joint venture was vicariously liable under the Jones Act for the negligence of the joint venturer skipper, Melvin Wick. Westward, Steuart, and the masters of the F/V Sunset Bay and the F/V Half Moon Bay moved for summary judgment, alleging that (1) no joint venture existed, because there was no evidence of the essential elements of profit and loss sharing and the right of joint control of the adventure; and (2) Melvin Wick was the owner and operator of the F/V Alert and the decedents' sole Jones Act employer. Taiyo and Westward also filed a motion for partial summary judgment, asserting that they were not Jones Act employers and were not liable for the unseaworthiness claim because they were neither owners of the F/V Alert nor joint venturers with Wick. Basel opposed the motions for summary judgment and cross-moved for summary judgment, requesting a determination that as a matter of law a joint venture existed among all the parties, and that the joint venture was the equitable owner of the F/V Alert and thus owed the Alert ⅛ crew a duty of seaworthiness. The superior court initially denied the summary judgment motions and cross-motion, concluding that genuine issues of material fact existed regarding whether there was a common law joint venture, who had equitable ownership of the F/V Alert, what the effect of the duty of seaworthiness was, and whether the joint venture was Wick's superior employer and thus liable to the decedent seamen. Taiyo and Westward subsequently moved for reconsideration on the ground that there had been no sharing of profits, an essential element of a joint venture under federal maritime law, Alaska law, and Washington law. The superior court granted Taiyo's motion for reconsideration and modified its prior decision, granting Taiyo summary judgment. The superior court reasoned that Basel offered no evidence of an "agreement to share profits and losses," that evidence in support of Basel's theory of joint venture by estoppel was insufficient to raise a genuine issue of material fact, and that use of the term "joint venture" in the parties' agreements does not necessarily mandate the conclusion that Tai-yo or Westward/Steuart was Basel's Jones Act employer. This appeal followed. II. JURISDICTION [T]he admiralty jurisdiction of the United States extends to all waters, salt or fresh, with or without tides, natural or artificial, which are in fact navigable in interstate or foreign water commerce, whether or not the particular body of water is wholly within a state, and whether or not the occurrence or transaction that is the subject-matter of the suit is confined to one state. Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 31-32 (2d ed. 1975). State courts may adjudicate claims in admiralty under the "saving to suitors" clause of 28 U.S.C. § 1333. Shannon v. City of Anchorage, 478 P.2d 815, 818 & n. 7 (Alaska 1970). In Shannon we said that "seamen may bring saving to suitors clause suits under the Jones Act in state courts. Apparently maritime rules of substantive law, as modified by the Jones Act, apply in saving clause cases in state courts under the Jones Act." Id. at 818 (footnote omitted). III. ARGUMENTS The parties do not contest that the F/V Alert disappeared in the 200 mile contiguous zone in the Shelikof Strait in waters between Kodiak Island and the Alaskan Peninsula. We therefore initially look to federal maritime law to determine whether the superior court correctly ruled that no genuine issues of material fact were presented relating to the existence of a joint venture between Tai-yo, Westward/Steuart, and the owners of the F/V Alert, and whether the superior court correctly held that as a matter of law Basel had failed to prove the existence of a joint venture between Taiyo, Westward/Steuart and the owners of the F/V Alert. A. Applicable Law The Jones Act does not contain a definition of "joint venture." The superior court, in holding that the showing of profits and losses is an essential element of a joint venture, did not specify what law it was applying. Basel argues that paramount maritime law does not require a showing of profits and losses for the establishment of a joint venture. She relies on two lines of federal authority, namely Davidson v. Enstar Corp., 848 F.2d 574 (5th Cir.), superseded, 860 F.2d 167 (5th Cir.1988) (joint venture in the context of litigation under the Longshore and Harbor Workers' Compensation Act, 83 U.S.C. § 901), and Fulcher's Point Pride Seafood, Inc. v. M/V "Theodora Maria", 935 F.2d 208 (11th Cir.1991) (litigation involving joint ventures and maritime liens under the Maritime Lien Act, 46 U.S.C. § 31342). State law applies in admiralty cases in the absence of either a controlling federal statute or a rule established by the federal courts. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 313-14, 75 S.Ct. 368, 370, 99 L.Ed. 337 (1955). Taiyo and Westward/Steuart contend that no maritime law defining joint venture exists. More particularly, they note that maritime courts apply the relevant state's law regarding joint venture in determining whether a joint venture exists. Review of the relevant authorities persuades us that no paramount or general federal maritime law defines joint venture in the context of Jones Act litigation. Further, we are not persuaded that there is a special need for uniformity regarding the defining elements of a joint venture. We thus turn to Alaska law. B. Alaska Law of Joint Venture Taiyo and Westward/Steuart take the position that Alaska law establishes that the right to share profits and losses is an essential element of a joint venture. They are correct. Alaska has approved Professor Wil-liston's formulation of the requirements of a joint venture. Nicholas v. Moore, 570 P.2d 174, 178 (Alaska 1977). According to Williston the requirements are (a) A contribution by the parties of money, property, effort, knowledge, skill, or other asset to a common undertaking; (b) A joint property interest in the subject matter of the venture; (c) A right of mutual control or management of the enterprise; (d) Expectation of profit, or the presence of "adventure," as it is sometimes called; (e) A right to participate in the profits; (f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise. 2 Samuel Williston, Williston on Contracts § 318A, at 563-65 (Walter H.E. Jaeger ed., 3d ed. 1959) (footnotes omitted); see also Fomby v. Whisenhunt, 680 P.2d 787, 790 (Alaska 1984); Alaska State Hous. Auth. v. Blomfield, Dudley & Ekness, 662 P.2d 114, 117 (Alaska 1983); Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1187 (Alaska 1977). Our decisions also require a sharing of the profits for the establishment of a joint venture. C.A Joint Venture Was Not Established as to Taiyo We affirm the superior court's ruling that Basel failed to establish the existence of a joint venture between Taiyo, Westward/Steuart, and the F/V Alert. Under the operative agreements between the parties, Taiyo's role was to purchase and then process fish purchased from the catcher boats. These agreements fixed the prices that Taiyo was to pay the catcher boats. Taiyo's obligation to pay these agreed-upon prices to the catcher boats remained fixed regardless of whether or not it made any profits from the fish it processed. Taiyo profited only in the larger sense of the word — that is, if it made a profit from the fish it purchased and processed. There is no evidence in the record that Taiyo agreed to share profits or losses with its alleged joint venturers. Taiyo's agreement to lend its resources and expertise to assist catcher boats in the search for and retrieval of lost cod ends does not establish that it was engaged in a joint venture with the catcher boats, nor does the fact that the relationship with Westward/Ste-uart was described as a joint venture. As noted above, the joint venture terminology results from the provisions of the Magnuson Act and the text of 50 C.F.R. § 611.2, which contains an extremely broad definition of joint venture. D. A Joint Venture Was Not Established as to Westward/Steuart Under the controlling agreement, Westward/Steuart was to receive a fixed percentage (2.5%) of the gross receipts paid by Taiyo to the catcher boats for fish sold to Taiyo. Westward/Steuart was to receive its 2.5% of the gross receipts whether or not any of the catcher boats made a profit on their sales to Taiyo. Westward/Steuart also received 2.5% of the gross sales receipts from any hauls of at least fifty metric tons of fish. There is no evidence in the record that Westward/Steuart agreed to share the profits or losses with other alleged joint ventur-ers. Westward/Steuart's compensation was based solely on a percentage of the catcher vessels' gross receipts, not any share in any profits as that term is normally understood. Just as "the sharing of gross returns does not of itself establish a partnership," AS 32.05.020(3), the sharing of gross receipts between Westward/Steuart and the catcher boats does not establish the existence of a joint venture. Therefore, we affirm the superior court's ruling that Basel did not establish the existence of a joint venture between Westward/Steuart, Taiyo and the F/V Alert. E. A Joint Venture Was Not Established as to Taiyo Since It Had No Right of Mutual Control of Management of the Alleged Adventure Basel argues that the relevant documents demonstrate that Taiyo, West ward/Steuart and the catcher vessels agreed to a detailed plan for the coordination of the combined efforts of the two processing vessels and the catcher vessels. Pursuant to those agreements, the parties delegated a significant degree of control to Westward, who was to act as the parties' coordinator. Basel contends that these agreements deprived the skippers of their freedom to depart from an assigned location in the face of danger: [T]he ALERT's master did not have the authority to unilaterally act for the paramount protection of his vessel and its crew.... Only when conditions deteriorated to the point of "extreme emergency" which "seriously " threatened the safety of the vessel or the crew, could the vessel owner arguably unilaterally leave, and only then at the risk of being assessed damages if his judgment of the situation was subsequently determined to be precipitous. In Nicholas we discussed the requirement that joint venturers have the right of mutual control over all aspects of the management of the enterprises. 570 P.2d at 178. Taiyo's control over the F/V Alert was insufficient to establish a joint venture or to impose vicarious liability upon it for Melvin Wick's alleged negligence. There is no evidence that Taiyo had the right' to control Wick's performance as master of the F/V Alert. Taiyo did not exercise any control over the management of the F/V Alert in the outfitting, equipping, and hiring or firing of the crew. Nor did Taiyo exercise any significant degree of control over the details of the navigation of the F/V Alert. F. A Joint Venture Was Not Established as to Westward/Steuart Since it Had No Right of Mutual Control or Management of the Alleged Joint Venture Study of the record persuades us that Westward is correct in its assertion that there is no evidence in the record establishing that Westward had a right of mutual control over the navigation of the catcher vessels. The fact that the parties' agreement provided for the coordination of catcher deliveries to the processing ships, a detailed manual calling for certain procedures, and control over the transfer of fish from a floating net does not establish that Westward had control over the navigation of the F/V Alert when it disappeared in February 1985. Rather, the sole authority and responsibility for the navigation of the F/V Alert remained with the master of the vessel. G. The Superior Court Correctly Entered Summary Judgment Against Basel on Her Joint Venture by Estoppel Claim Basel additionally argues that the superior court erred in granting summary judgment against her on her joint venture by estoppel claim. The essence of Basel's argument is that Taiyo and Westward/Steuart employed joint venture language in the agreements, and that this defined the relationship of the parties. Given the parties' use of joint venture terminology, Basel further contends that if Taiyo and Westward/Steuart wished to avoid joint venture liability "in the face of these agreements, at the very least they should have expressly so declared." Taiyo and Westward/Steuart counter that the superior court granted summary judgment on this issue on the ground that Basel had failed to show that the crew of the F/V Alert relied on the existence of a common law joint venture. Taiyo and Westward/Steuart also contend the superior court could have granted summary judgment in their favor on the estoppel issue on the basis that neither misrepresented that they were joint ventur- Taiyo and Westward/Steuart draw a valid distinction between a Magnuson Act joint venture and a common law joint venture. The only evidence Basel relies-on in support of her position is the 1985 Taiyo-Westward fishing agreement. Though this agreement constituted an agreement to participate in a Magnuson Act fishery joint venture, Basel adduced no evidence that either Taiyo or Westward/Steuart misrepresented that they were engaged in a common law joint venture. Further, review of the record fails to reveal any evidence that the crew of the F/V Alert relied on a representation by either Taiyo or Westward/Steuart that they had entered into a common law joint venture with Melvin Wick. Nor is there any evidence that the crew of the F/V Alert believed that they were employed by a joint venture consisting of Taiyo and Westward/Steuart. IV. CONCLUSION The superior court's grant of summary judgments in favor of Taiyo and Westward/Steuart are AFFIRMED. . The principal appellees in this case are (1) Taiyo Fishery Co., Ltd. (Taiyo), a Japanese fish processing firm whose processing ships participated in the Magnuson Act 1985 fishery; (2) Western Alaska Fisheries, Taiyo's wholly-owned subsidiary, which undertook certain services to Taiyo and possibly others in regard to the fishery; (3) Westward Trawlers (Westward), which functioned as a coordinator between the Taiyo processing vessels and the catcher vessels who had contracted with Westward to supply fish for sale to the processing vessel, and which determined where the vessels would fish and when they would deliver fish to Taiyo; and (4) Steuart Investment Co. and Steuart Fisheries, Inc. (Ste-uart), owners of the F/V Half Moon Bay and F/V Sunset Bay, and their skippers, Don Hanson and Rick Johnson. Steuart owned 50% of Westward and held two of three seats on Westward's board of directors. Westward in turn held part ownership interests in the Steuart vessels. Basel refers to the mutual . ' interests of these two enterprises as Westward/Steuart. . In 1983 Taiyo applied to the Department of Commerce to obtain foreign fishing vessel permits for two of its processing vessels to fish the "Bering Sea and Aleutian Islands Groundfish" as well as the "Gulf of Alaska." These permits were sought as part of a Magnuson Act joint venture in support of U.S. vessels. Taiyo's application was granted by the Department. .The Magnuson Act gives U.S. companies priority access to fishery resources located within a 200-mile zone in waters contiguous to the territorial sea of the United States; it allows foreign fishing only if an international fishing treaty permitting such activity existed at the time of the Act. 16 U.S.C. § 1821(b), (d); see also United States v. Seafoam II, 528 F.Supp. 1133, 1135 (D.Alaska 1982); see generally H. Gary Knight, Managing the Sea's Living Resources 83-85 (1977) (summarizing Magnuson Act) Warren G. Magnuson, The Fishery Conservation and Management Act of 1976: The First Step Towards Improved Management of Marine Fisheries, 52 Wash.L.Rev. 427 (1977) (discussing substance of • act, legislative history relating to it, and act's impact on U.S. foreign policy). As originally passed in 1976, it allowed foreign fisheries to sidestep some of the effects of the act by creating "joint business ventures." See Chris Blackburn, Alaskans Unwilling to Join Joint Venture, Kodiak Daily Mirror, July 13, 1978, at Al; Fear Partnership Is a Ploy, Kodiak Daily Mirror, Sept. 14, 1976, at Al. Foreign processor partnerships did not have to be licensed under the 1976 Magnu-son Act because they were not "fishing." The proliferation of "joint ventures" combined with an inability to regulate the field resulted in the 1978 Processor Priority Amendment. Pub.L. No. 95-354, 92 Stat. 519 (1978). The Department of Commerce through its administering agency, the National Oceanic and Atmospheric Administration, promulgated regulations that defined a joint venture as any operation by a foreign vessel assisting fishing by U.S. fishing vessels, including catching, scouting, processing and/or support. (A joint venture generally entails a foreign vessel processing fish received from U.S. fishing vessels and conducting associated support activities.) 50 C.F.R. § 611.2 (1992). . The Alert was officially registered in the name of Melvin and Shari Wick. Shari Wick commenced a limitation action on behalf of herself personally and as personal representative of the Melvin Wick estate. The action proceeded in federal court in a case captioned In Re: Complaint of Shari Wick, A85-639 Civil, and was settled without adjudication of the merits of any substantive issues. Though the settlement foreclosed future claims against the Wicks, it expressly allowed Basel to sue any other persons or entities allegedly liable for the accident. . Under the Jones Act, "[ajny seaman who shall suffer personal injury in the course of his employment may . maintain an action for dam ages at law . and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law." 46 U.S.C.App. § 688. . Westward/Steuart moved for summary judgment, arguing that they were not participants in a joint venture because they did not share profits. The superior court granted Westward/Steuart partial summary judgment, stating that there was insufficient evidence to support Basel's theory of joint venture by estoppel. The superior court scheduled oral argument on the issue of whether Westward/Steuart was part of a joint venture. The court subsequently issued an oral order granting Westward/Steuart summary judgment on the joint venture issue. The court ruled that Westward/Steuart did not share profits, therefore as a matter of law there was no joint venture. The superior court denied Basel's motion for reconsideration of its grant of partial summary judgment. Thereafter the parties filed a stipulation agreeing to dismiss with prejudice all remaining claims against Shelikof Fisheries so that Basel could immediately appeal from the summary judgment orders. . This statute provides in relevant part: 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. 28 U.S.C. § 1333. . See also Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir.1978). . See Itel Containers Int'l Corp. v. Atlanttrafik Express Serv. Ltd., No. 86 CIV. 1313 (RLC), 1988 WL 75262, at *3, 5 (S.D.N.Y. July 13, 1988), aff'd in part, vacated in part on other grounds, 909 F.2d 698, 701 (2d Cir.1990); see also Lyon v. Ranger III, 858 F.2d 22, 27 (1st Cir.1988) (applying Massachusetts law); Rowe v. Brooks, 329 F.2d 35, 40-41 (4th Cir.1964) (applying Virginia law); Hellenic Lines, Ltd. v. Commodities Bagging & Shipping, Process Supply Co., Inc., 611 F.Supp. 665, 679 (D.N.J.1985). . In reaching this conclusion we reject Basel's contention that the Davidson and Fulcher's Point lines of federal authority establish paramount federal maritime law to the effect that the show-tag of profits and losses and the right to joint control are merely important indicators of a joint venture relationship rather than essential elements of such a relationship. Fulcher's Point deals with maritime liens, not with employment status or tort liability under The Jones Act. 935 F.2d at 209. The emphasis of Fulcher was on nondilution of the credit of the vessel and the maintenance of this security for suppliers who are strangers to ownership of the vessel. See id. at 211, 213. Davidson involved the application of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901. 848 F.2d at 575. .But cf. Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987) (holding that uniformity is as important in maritime survival actions as it is in maritime wrongful death actions). . As Taiyo points out, a substantial majority of jurisdictions consider the right of the parties to share in the profits to be an essential element for the existence of a joint venture. See, e.g., Karl's, Inc. v. Sunrise Computers, Inc., 901 F.2d 657, 659 (8th Cir.1990) (applying and construing Oregon law); Nelson v. Serwold, 687 F.2d 278, 282-83 (9th Cir.1982) (construing Washington law). . Westward correctly argues that the uncontro-verted evidence in the case establishes that 1) the individual vessel masters decided where their vessels would fish, how long they would fish, and what gear they would use; 2) on February 13, 1985, it was the catcher vessel masters who decided to stop fishing because of deteriorating weather conditions; 3) Captain Wick was not required to advise Westward of his departure from the fishing grounds and did not need Westward's permission to do so; 4) it was Wick's unilateral decision to take his vessel to the Alaska Peninsula side of Shelikof Straits; 5) it was Captain Wick's unilateral decision to turn his vessel around and head east back toward Kodiak Island when his vessel began icing up; 6) navigation of any vessel in the Shelikof fishery was the responsibility of the captain. (Footnote omitted). . On this point Taiyo further elaborates: Pursuant to the agreement, Taiyo, a foreign corporation was to purchase fish from U.S. vessels within the FCZ. Taiyo had to obtain a joint venture permit from NOAA to participate in the fishery. The agreement was expressly conditioned on Taiyo's ability to obtain those permits. It is undisputed that Taiyo did obtain NOAA permits to participate in a Magnuson Act joint venture fishery and was purchasing fish from Wick pursuant to those permits. . Not until her reply brief does Basel develop in any significant respect her contention that the owners of the other catcher vessels were joint venturers with the owners of the F/V Alert. Basel's theory is based on the fact that the owners of the catcher vessels agreed to pool proceeds derived from tows exceeding 50 metric tons in order to compensate catcher vessels that went off to scout new areas to fish while the other vessels remained fishing in an area. We reject this argument. Sharing in proceeds is not the equivalent of a sharing in the profits and losses for purposes of establishing joint venture status.

10350766

SECURITY PACIFIC BANK, N.A., Appellant, v. HAINES TERMINAL AND HIGHWAY COMPANY, INC., an Alaska Corporation d/b/a White Pass Alaska, Appellee

Security Pacific Bank, N.A. v. Haines Terminal & Highway Co.

1994-03-04

No. S-5340

156

160

869 P.2d 156

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

SECURITY PACIFIC BANK, N.A., Appellant, v. HAINES TERMINAL AND HIGHWAY COMPANY, INC., an Alaska Corporation d/b/a White Pass Alaska, Appellee.

SECURITY PACIFIC BANK, N.A., Appellant, v. HAINES TERMINAL AND HIGHWAY COMPANY, INC., an Alaska Corporation d/b/a White Pass Alaska, Appellee. No. S-5340. Supreme Court of Alaska. March 4, 1994. Rehearing Denied March 31, 1994. Gregory W. Lessmeier, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellant. William G. Ruddy, Ruddy, Bradley & Kolkhorst, Juneau, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, and COMPTON, JJ.

2808

17624

OPINION MOORE, Chief Justice. INTRODUCTION In this commercial transaction dispute, Security Pacific Bank, a secured creditor of Chilkoot Lumber Company, appeals an order issued by the superior court allowing Haines Terminal and Highway Company, an unsecured creditor of Chilkoot Lumber, to recover approximately $23,000 from a bond posted by Security Pacific. The superior court based this decision on its finding that Security Pacific had improperly allowed Weyer-haeuser Corporation to receive part of the proceeds from the sale of collateral as an offset to prior debts owed by Chilkoot Lumber to Weyerhaeuser. We reverse. FACTS AND PROCEEDINGS Haines Terminal sold fuel on account to Chilkoot Lumber. Chilkoot Lumber's debt to Haines Terminal was unsecured. After Chilkoot Lumber's account became overdue, Haines Terminal filed a complaint against Chilkoot Lumber and Laurence Beck, the company's general manager, seeking $139,-162.26, the overdue amount. On June 13, 1991, Haines Terminal moved for prejudgment attachment. It sought to attach a load of lumber which was to be loaded and shipped from Haines on June 16-17. Chil-koot Lumber opposed the motion, arguing that the lumber was subject to a number of pre-existing security interests. The court signed the writ of attachment on June 15, 1991. Two days later, Security Pacific Bank moved to intervene. Security Pacific filed a motion to release the lumber, arguing that it possessed a superior security interest in the property. Security Pacific's secured status was evidenced by UCC-1 financing statements filed in July 1988 and January 1991. Security Pacific and its predecessor had filed these statements to secure two promissory notes with balances due of $6,667,000 and $3,772,011.90. At the time of the attachment, Chilkoot Lumber's total inventory and accounts receivable, including the shipment of lumber at issue, were valued at approximately $3,782,000. At a hearing before the superior court, Security Pacific argued that Haines could only attach property which was subject to execution, and that the lumber was not subject to execution due to Security Pacific's superior interest. Security Pacific noted that the debt owed by Chilkoot Lumber to Security Pacific far exceeded the value of lumber attached by Haines Terminal and the other inventory and receivables of Chilkoot Lumber. Haines Terminal responded by arguing that Chilkoot Lumber had an attachable interest in the lumber under AS 45.09.311 notwithstanding Security Pacific's superior position. Because the superior court was not prepared to render a decision immediately, Security Pacific offered to post a bond in the amount of $140,000 pursuant to Alaska Civil Rule 89(j) to obtain an immediate release of the writ of attachment. Upon the agreement of the parties, the court accepted the bond and quashed the writ. The court ordered an additional hearing to determine what should be done with the posted money. After further briefing, the court issued an Order on Motion to Release Property in July 1991. The court found that Security Pacific was a secured creditor and had established that Chilkoot Lumber's debt exceeded the value of the collateral. The court "inter-pretfed] AS 45.09.311 to mean that attachment may issue against any property held by a debtor in which the debtor has any interest above and beyond that of a secured party." Based upon this interpretation, the court concluded that [Haines Terminal] may not attach property that is subject to [Security Pacific's] security interest when that security interest is larger than any of [Chilkoot Lumber's] interests.... To the extent that the representations of counsel to the court are shown to be in fact what has happened to the funds in this ease, then the $140,000 bond posted by [Security Pacific] shall be released to [Security Pacific]. That is, when [Security Pacific] or [Chil-koot Lumber] shows by affidavit that the proceeds of the sale of this lumber all went to [Security Pacific], then the bond shall be released. The court also stated that "[n]either the intervenor nor the court . intended [the posting of the bond] to do anything other than to protect [Haines Terminal's] rights, to the extent that they had any rights, in [Chil-koot Lumber's] interest in the lumber...." The court thus concluded that "[i]f it is shown that the debtor in fact did not have any such interest in the property, then plaintiff suffered no injury." Further discovery and briefing revealed that Weyerhaeuser Corporation sold the lumber for $995,583.72. Weyerhaeuser paid for the lumber by depositing $968,375.42 with Security Pacific to reduce the indebtedness of Chilkoot Lumber. Chilkoot Lumber never had access to these proceeds. Weyerhaeuser, with the consent of Security Pacific, retained $27,208.30 from the sale. This amount consisted of $4000 which Wey-erhaeuser had advanced to Chilkoot Lumber to pay laborers to load the ship; $23,450 as an offset to correct an overpayment made to Chilkoot Lumber on a previous shipment; and a credit of approximately $200 to Chil-koot Lumber for a prior invoice. The $23,-450 overpayment on a prior transaction had been deposited with Security Pacific to Chil-koot Lumber's account. At oral argument in July 1992, the superi- or court concluded that Security Pacific did not have the right to allow its agents to protect itself with respect to the [funds] that . Chilkoot owed Weyerhaeuser from other transactions. And while I don't think that at that time [Haines Terminal] had any priority, there is no indication that Weyerhaeuser had any priority_ And [Haines Terminal] had taken the steps to protect its interest and has now obtained a judgment. And I think that to the extent that it was going to go to any unsecured creditor, it goes to [Haines Terminal]. Therefore, the court granted Haines Terminal $30,450 from Security Pacific's bond. Security Pacific now appeals this decision. DISCUSSION The issue before this court is whether the trial court erred in awarding Haines Terminal the $23,450 withheld by Weyer-haeuser from the sales proceeds remitted to Security Pacific. The underlying facts are not in dispute. This is a question of law, subject to de novo review. Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991) (review of question of law is de novo); Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1223 (Alaska 1992) (" 'we may review the application of . legal doctrine to undisputed facts without the usual deference to the superior court' ") (quoting Foss Alaska Line, Inc. v. Northland Servs., 724 P.2d 523, 526 (Alaska 1986)). We conclude that the trial court's order granting Haines Terminal $23,450 from the bond posted by Security Pacific was in error. Security Pacific's perfected security interest in Chilkoot Lumber's inventory and any proceeds from the sale thereof was clearly entitled to priority over Haines Terminal's right as an unsecured creditor to subsequently attach the lumber. See, e.g., State, Dep't of Natural Resources, Div. of Wildlife v. Benjamin, 41 Colo.App. 520, 587 P.2d 1207, 1209 (1978); Shaw Mudge & Co. v. Sher-Mart Mfg. Co., 334 A.2d 357, 359 (N.J.App. 1975). In its July 1991 Order on Motion to Release Property, the trial court properly held that Haines Terminal could not "attach property that is subject to a security interest when that security interest is larger than any of the debtor's interests." In this case, Security Pacific was substantially under-collater-alized. The debt to Security Pacific secured by the inventory and receivables of Chilkoot Lumber was in excess of ten million dollars. The collateral, including the attached shipment of lumber, was valued at less than four million dollars. Chilkoot Lumber had no equity in the lumber which Haines Terminal could hope to reach by attachment or execution. As the trial court noted, the bond posted by Security Pacific was intended "to protect [Haines Terminal's] rights, to the extent that they had any rights, in [Chilkoot Lumber's] interest in the lumber.... If it is shown that the debtor in fact did not have any such interest in the property, then [Haines Terminal] suffered no injury." Under the facts of this case, Chilkoot Lumber had no equity in the collateral. Therefore, we conclude that Haines Terminal has suffered no injury as a result of Weyerhaeuser's offset. We are also satisfied that Haines Terminal's right to the $23,450 retained by Weyerhaeuser was subordinate to Weyer-haeuser's right of setoff. Alaska Statute 45.-09.318(a) (Alaska's version of § 9-318 of the Uniform Commercial Code) provides: (a) Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in AS 45.09.206, the rights of an assignee are subject to (1) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom.... Under this provision, the rights of Security Pacific (the assignee of Chilkoot Lumber's right to payment for the lumber) were subject to whatever contractual claims and defenses Weyerhaeuser (the account debtor) would have been able to assert against Chil-koot Lumber (the assignor). Thus, Weyer-haeuser was entitled to offset its $23,450 overpayment on a prior lumber shipment from Chilkoot Lumber and Security Pacific. Under the facts of this case, its claim to those funds was superior to that of Security Pacific and, a fortiori, to the unsecured claim of Haines Terminal. This case involves facts strikingly similar to those addressed in Investment Serv. Co. v. North Pacific Lumber Co., 261 Or. 43, 492 P.2d 470 (1972). In Investment Service, the defendant purchased three shipments of lumber from a lumber producer who had previously transferred a security interest in its inventory to a bank. Id. 492 P.2d at 471. The defendant received the first shipment and remitted full payment directly to the bank. However, the lumber was later discovered to be defective. Id. The lumber producer then delivered the second shipment and again assigned the invoice to the bank. Id. The defendant partially offset its claim for the defective lumber by reducing its payment to the bank for the second shipment. Id. By the time the third delivery arrived, the defendant had determined the amount of loss on the first transaction and deducted the remaining amount from its payment for the third shipment. Id. The bank claimed that the defendant did not have any right of setoff. The court, however, disagreed. Id. The court relied upon UCC § 9-318 and concluded that [a]n assignee of a contract for the sale of the lumber is subject to any setoff the purchaser of the lumber might have because of a defect in the lumber sold. The setoff is available for use against any claim made by the assignee regardless of whether it has any connection with the claim asserted in the assignee's complaint. Id. The bank further argued that the setoff, if allowed, would impermissibly defeat the bank's security interest. Id. at 472. However, the court noted that the bank had directly benefited from the original overpayment: When [the lumber producer] assigned the invoice to the bank the bank took it subject to the defendant's right of offset for the defective lumber. When the defendant ;purchaser overpaid the bank because it did not know the lumber was defective, the bank became indebted to the defendant. The assignment and payment to the bank created a new relationship between the bank and the defendant Stated simply, because of the defective lumber in the first shipment, the defendant's overpayment, and the bank's receipt of the overpayment, the bank now owes defendant money. Id. (emphasis added). The reasoning of the court in Investment Service is applicable to the facts of the present case. Here, the original overpayment was made directly from Weyerhaeuser to Security Pacific for credit to the account of Chilkoot Lumber. Thus, Security Pacific had received a $23,000 windfall on the prior transaction. Weyerhaeuser's right of setoff was superior to the perfected security interest of Security Pacific and therefore necessarily superior to any claim to the secured property on the part of Haines Terminal. Finally, Haines Terminal maintains that the superior court's order should be affirmed on the grounds that Security Pacific's counsel misrepresented to the court that all of the proceeds of the sale of the lumber would be applied to Chilkoot Lumber's indebtedness to Security Pacific. Haines Terminal cites to the trial court's order, which states that [t]o the extent that the representations of counsel to the court are shown to be in fact what has happened to the funds in this case, then the $140,000 bond posted by intervenor shall be released to the interve-nor. That is, when intervenor or the defendant shows by affidavit that the proceeds of the sale of this lumber all went to intervenor, then the bond shall be released. (Emphasis added). While it is true that not all of the proceeds from the sale went directly to Security Pacific, we nonetheless find Haines Terminal's argument unpersuasive. First, the record indicates that counsel for Security Pacific informed the court prior to the issuance of its order that Weyerhaeuser would receive a portion of the proceeds. At oral argument below, the following exchange took place: The Court: [W]hat [counsel for Haines Terminal] is saying is . how does he know that the proceeds are all going to go to Security National instead of Chilkoot Lumber? Counsel for Security Pacific: The proceeds are all going to go to Security Pacific and Weyerhaeuser. There are already commitments as to how that is supposed to be applied. Based on this exchange, we are satisfied that no misrepresentation on the part of Security Pacific's counsel took place. More importantly, the trial court's award of the $23,450 to Haines Terminal out of Security Pacific's bond was predicated on its conclusion that "to the extent that [the money] was going to go to any unsecured creditor, it goes to [Haines Terminal]." As discussed above, we hold that Weyerhaeuser's right of setoff was in fact superior to Security Pacific's interests in the proceeds, and a fortiori, to Haines Terminal's claim to the funds. Thus, to the extent that the trial court's order required all of the money from the sale of the lumber to go to Security Pacific, as opposed to Weyerhaeuser, it was in error. CONCLUSION We conclude that the trial court erred as a matter of law in releasing $23,450 from Security Pacific's bond to Haines Terminal. We therefore reverse the trial court's order. REVERSED. BRYNER, J. Pro Tern., not participating. . Neither Beck nor Chilkoot Lumber are parties to this appeal. Beck appealed separately; the court's decision concerning his appeal is found in Beck v. Haines Terminal & Highway Co., 843 P.2d 1229 (Alaska 1992). . The UCC-1 financing statements covered '[a]ll of [Chilkoot Lumber's] inventory, all accounts, chattel paper, documents and general intangibles, whether now owned or hereafter acquired, and wherever located, and all proceeds of the foregoing." Proceeds and products of collateral were also covered. . AS 45.09.311 reads: Alienability of debtor's rights; judicial process. The debtor's rights in collateral may be voluntarily or involuntarily transferred (by way of sale, creation of a security interest, attachment, levy, garnishment, or other judicial process) notwithstanding a provision in the security agreement prohibiting a transfer or making the transfer a default. . The parties agree that the superior court erred in granting Haines Terminal $7000 for demur-rage expenses incurred by Weyerhaeuser. Haines Terminal delivered a check for that amount to Security Pacific contemporaneously with the filing of its brief, rendering the issue moot. The amount in dispute here is the $23,-450 offset for prior transactions between Chil-koot Lumber, Security Pacific, and Weyerhaeu-ser. . Haines Terminal contends that Security Pacific has waived its argument that Weyerhaeuser had a legal right to withhold the $23,450 under AS 45.09.318(a)(1). This court has adopted a liberal approach in determining whether an issue or theory was raised in a lower court proceeding. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). We have recognized that a litigant "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. While Security Pacific admittedly failed to cite AS 45.09.318(a)(1) to the trial court, it did argue that Weyerhaeuser had a right to offset its over-payments on prior transactions. We are satisfied that, under our liberal approach to this issue, Security Pacific adequately preserved this argument for appeal. See Independent Nat'l Bank v. Westmoor Elec., Inc., 164 Ariz. 567, 573, 795 P.2d 210, 216 (1990) (failure to cite Arizona's version of § 9-318 held insufficient to establish waiver where litigant argued that assignee bank was subject to claims and defenses arising from contract between account debtor and assignee).

10418361

STATE of Alaska, REAL ESTATE COMMISSION, Appellant, v. Myrna JOHNSTON and Eva Loken, Appellees

State, Real Estate Commission v. Johnston

1984-05-04

No. 7826

383

387

682 P.2d 383

682

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, REAL ESTATE COMMISSION, Appellant, v. Myrna JOHNSTON and Eva Loken, Appellees.

STATE of Alaska, REAL ESTATE COMMISSION, Appellant, v. Myrna JOHNSTON and Eva Loken, Appellees. No. 7826. Supreme Court of Alaska. May 4, 1984. Richard D. Monkman, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellant. W. Richard Fossey, Bankston & McCol-lum, Anchorage, and Peggy Alayne Ro-sten, Anchorage, for appellees. Lewis Gordon, Baily & Mason, Anchorage, for Alaska Ass’n of Realtors, amicus curiae. Before BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.

1976

12504

OPINION PER CURIAM. This appeal presents a first impression question as to the scope and applicability of Alaska's Real Estate Surety Fund. The issue raised is one of statutory construction, namely, whether the Real Estate Surety Fund provides recovery to claimants who, in the context of real estate transactions, suffer losses due to innocent misrepresentations made by real estate brokers or agents. I. FACTS Newly arrived in Alaska the Mulhollands sought to purchase a home and contacted Eva Loken, a sales person with Area Realtors. In August of 1981, Loken showed the Mulhollands Larry Gross' home located near Eagle River. The following day the Mulhollands made an offer on the house to which the owner counter-offered. On August 10, 1981, the parties entered into an earnest money agreement and the Mulhol-lands tendered one thousand dollars in earnest money to Loken. Subsequent to the initial earnest money agreement the Mulhollands contemplated rescinding on the purchase agreement and signing an earnest money agreement on another home; they were distraught over what they perceived as apparent misrepresentations made by Loken concerning midwinter sunlight and driveway accessibility. Eventually, after discussions with Loken and Myrna Johnston, an associate broker with Area Realtors, the Mulhollands decided to go through with the deal and they signed an extension to the earnest money agreement. On October 14, 1981, the Mulhollands were asked to accept an "as-built" survey of the property; however, because the survey failed to depict the driveway the Mul-hollands refused to sign or accept the survey. Johnston ordered an updated survey. The updated survey revealed that the driveway encroached upon neighboring land to the extent of ten feet by thirty feet. Having contacted the seller, Larry Gross, to discuss alternative solutions to the encroachment problem, Johnston informed Loken, who in turn contacted the Mulhol-lands. During the phone conversation between Loken and the Mulhollands a meeting was arranged for October 23, 1981— the day the earnest money agreement expired. At the October 23rd meeting between the Mulhollands and Johnston, the Mulhollands terminated the transaction and signed a recission agreement which provided that the earnest money would be returned. Johnston, however, on the advice of Area Realtors' attorney, never executed the re-cission agreement; the Area Realtors' attorney felt that the encroachment was a curable defect which did not render title to the property unmarketable. In December 1981, the Mulhollands filed a claim with the Real Estate Commission for the reimbursement of their earnest money deposit. Thereafter, a Real Estate Commission hearing examiner conducted a hearing on the Mulhollands' reimbursement claim. The hearing examiner concluded that Loken and Johnston had innocently misrepresented the boundaries of the Gross property. The misrepresentation of fact, according to the hearing officer's finding, "consisted of the implied assertion that the driveway was included in the boundaries of the Gross property." Concluding that the Real Estate Surety Fund provided recovery for innocent misrepresentations of this nature the hearing officer recommended that the Fund reimburse the Mulhollands' earnest money deposit. The Real Estate Commission adopted the recommended decision and awarded the Mulhollands the equivalent of their earnest money deposit. The Commission's decision was then appealed to the superior court. The superior court reversed the award, holding that the Surety Fund did not provide recovery for innocent misrepresentation. The State of Alaska Real Estate Commission now brings this appeal. II. THE REAL ESTATE SURETY FUND DOES NOT PROVIDE REIMBURSEMENT TO CLAIMANTS FOR INNOCENT MISREPRESENTATIONS MADE BY MEMBERS OF THE REAL ESTATE PROFESSION. As indicated at the outset, the principal issue presented in this appeal is whether the Real Estate Surety Fund is obligated to reimburse claimants for innocent misrepresentations made by members of the real estate profession. In relevant part AS 08.88.460(a) provides as follows: Claim for payment, (a) A person seeking reimbursement for a loss suffered in a transaction as a result of fraud, misrepresentation, deceit, or the conversion of trust funds on the part of a real estate broker . shall make a claim to the commission for reimbursement... . The superior court concluded that "misrepresentation" as used in AS 08.88.460(a) was intended to encompass only intentional wrongdoing, not innocent or negligent wrongdoing. More particularly the superi- or court reasoned as follows: I think the term misconduct as used in Section (b) of the statute implies inten tional-type wrongdoing, not negligent or innocent wrongdoing. And I think the statute's use of the phrase fraud, deceit, misrepresentation or conversion, particularly with the term misrepresentation coming sandwiched between fraud and deceit and coming as it does amidst a group of intentional-type wrongdoings, coupled with the presence of the word misconduct in subsection (b), all indicate that the proper construction of this statute lies in construing it as including among its terms only intentional-type wrongdoing, not innocent or negligent but nonreckless wrongdoing. And I think that that's squarely in line with the comments of the chairman of the commerce committee. Furthermore, it seems to me that with a real estate fund limited by law to only $500,000.00, if we're going to open the flood gates to innocent and negligent misrepresentation claims being made against this fund, there very likely soon wouldn't be any fund to collect for dishonest-type actions on the part of the real estate profession. So I'm going to reverse the real estate commission and award judgment in this case in favor of the appellants. In our view, the superior court correctly analyzed the question, and thus we affirm the superior court's construction of AS 08.88.460. Prior to the establishment of the Real Estate Surety Fund in 1974, real estate brokers were required to obtain a real estate bond. This corporate bond was made payable to the state and was breached if the licensee injured another by a wrongful act or default in the conduct of the business for which the license was issued. In 1974 the legislature created the Real Estate Surety Fund. AS 45.85.010. [§ 1 Ch. 143 SLA 1974] As originally enacted the Real Estate Surety Fund functioned similarly to the surety bond requirement. In relevant part the Surety Fund Act provided that a licensed real estate broker when obtaining or receiving a real estate license, in lieu of obtaining a corporate surety bond, had to pay a bond fee to the commissioner. [AS 45.85.020(a)] Recovery from the newly established surety fund was conditioned upon the claimant first obtaining "a final judgment in a court against a real estate broker . " If judgment was not satisfied within thirty days from the court order, the claimant could apply for a post-judgment order directing payment out of the Real Estate Surety Fund. In 1980 the Real Estate Surety Fund Act was amended, providing for a simpler recovery process. [AS 08.88.450-.500] The 1980 amendment obviated the requirement that the claimant first obtain a civil judgment before filing a claim for reimbursement; instead, the Real Estate Commission was remolded to function in a quasi-judicial role, adjudicating the merits of Surety Fund claims in administrative hearings. [§§ 34-36 Ch. 167 SLA 1980] Procedures governing the Real Estate Commission's administration of Surety Fund claims are provided for in 12 AAC 64.280-.330. As the superior court correctly emphasized, nothing in the historical development of the Real Estate Surety Fund directly indicates legislative intent as to the scope of the Fund's coverage. Given this background, we think a textual analysis of AS 08.88.460 is controlling. The apposition of the term "misrepresentation" to the terms "fraud," "deceit," and "conversion" persuades us that misrepresentation should be limited to only wrongful misrepresentations. A widely applied tenet of statutory interpretation is that if "the legislative intent or general meaning of a statute is not clear, the meaning of doubtful words may be determined by reference to their associa tion with other associated words and phrases." 2A C. Sands, Sutherland Statutory Construction, § 47.16 at 101 (4th ed. 1973); in accord: United States v. Raynor, 302 U.S. 540, 58 S.Ct. 353, 82 L.Ed. 413 (1938); State v. Taylor, 49 Hawaii 624, 425 P.2d 1014, 1021 (1967); Heathman v. Giles, 13 Utah 2d 368, 374 P.2d 839, 840 (1962). Similarly: Matter of Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1977) (all sections are to be construed together so that all have meaning and no section conflicts with another); City of Anchorage v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975) (each part of a statute should be construed with every other part or section so as to produce a harmonious whole). In short, we hold that innocent misrepresentations are not within the ambit of the term misrepresentation ' as that term is employed in AS 08.88.460(a). In reaching this conclusion we have carefully considered each of the state's arguments pertaining to legislative history, policy considerations, and textual analysis and have found none of them persuasive. Thus we affirm the superior court's construction of AS 08.88.460(a) and (b). AFFIRMED. MATTHEWS, J., not participating. . AS 08.88.450-500. . The full text of AS 08.88.460(a) and (b) reads as follows: (a) A person seeking reimbursement for a loss suffered in a transaction as a result of fraud, misrepresentation, deceit, or the conversion of trust funds on the part of a real estate broker, associate real estate broker, or real estate salesman licensed under this chapter shall make a claim to the commission for reimbursement on a form furnished by the commission. The form shall be executed under penalty of perjury, and information required to be supplied shall include the following: (1) the name and address of the real estate broker, associate real estate broker, or real estate salesman; (2) the amount of the alleged loss; (3) the date or period of time during which the alleged loss occurred; (4) the date upon which the alleged loss was discovered; (5) the name and address of the claimant; or [sic?] (6) the general statement of facts relative to the claimant. (b) A copy of a claim filed with the commission under (a) of this section shall be sent to the real estate broker, associate real estate broker, or real estate salesman alleged to have committed the misconduct resulting in losses, as well as a real estate broker employing an associate real estate broker or real estate salesman alleged to have committed the conduct resulting in losses, at least 20 days before any hearing held on the claim by the commission. . The applicable standard of review here is one of independent judgment. Wien Air Alaska, Inc. v. Dept, of Revenue, 647 P.2d 1087, 1090 (Alaska 1982). . In State v. Alex, 646 P.2d 203, 209 n. 4 (Alaska 1982), we held that the plainer the statute's language, the more convincing contrary legislative history must be. See also City of Homer v. Gangl, 650 P.2d 396, 400 n. 4 (Alaska 1982); see gen. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 540 (Alaska 1978) (where we first adopted this sliding scale approach). . We think it appropriate to further note that when the Surety Fund was first established in 1974 and amended in 1980, Alaska did not recognize a cause of action for innocent misrepresentation. In Bevins v. Ballard, 655 P.2d 757 (Alaska 1982), this court first recognized a cause of action against a real estate broker for innocent misrepresentation. . The amicus has attempted to raise the question of whether on this record any innocent misrepresentation was made. In the procedural context of this case this issue is not properly before us and thus will not be addressed.

10409778

Richard Michael SKREPICH, Appellant, v. STATE of Alaska, Appellee

Skrepich v. State

1987-07-31

No. A-1786

950

957

740 P.2d 950

740

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Richard Michael SKREPICH, Appellant, v. STATE of Alaska, Appellee.

Richard Michael SKREPICH, Appellant, v. STATE of Alaska, Appellee. No. A-1786. Court of Appeals of Alaska. July 31, 1987. Craig J. Tillery, Asst. Public Defender, Palmer, and Dana Fabe, Public Defender, Anchorage, for appellant. Steven H. Morrissett, Acting Dist. Atty., Palmer, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ.

4309

26989

OPINION BRYNER, Chief Judge. Richard Michael Skrepich was convicted after entering a plea of nolo contendere to one count of sexual abuse of a minor in the second degree, a class B felony. AS 11.41.-436. Superior Court Judge Peter A. Mi-chalski sentenced Skrepich to a maximum term of ten years' imprisonment. In addition, Judge Michalski ordered Skrepich to refrain from engaging in any direct or indirect contact with the victim of his offense. On appeal, Skrepich challenges the ten-year term as excessive and contends that the no-contact order is invalid. We reverse. In 1985, Skrepich operated a karate school in Wasilla. He used the name Richard Michaels as an alias. Skrepich became romantically involved with one of his female karate pupils, C.S. C.S. was fourteen years old when she first met Skrepich. Skrepich was thirty-seven years old. Skre-pich told C.S. that he was a millionaire and that he had large amounts of money invested in Florida in silver and real estate. C.S. initially regarded Skrepich as a father figure, but their relationship soon began to change. Skrepich bought flowers and gifts for C.S. and gave her spending money for school. Skrepich was aware that C.S.'s mother was having financial difficulty, and he purchased clothing for C.S. and items such as contact lenses that he knew C.S.'s mother could not afford. Skrepich declared that he wanted to marry C.S. and, at one point, deposited $100 as a downpayment on a wedding ring at a jewelry store. In approximately July 1985, after turning fifteen years of age, C.S. engaged in sexual intercourse with Skrepich for the first time. Thereafter, their sexual relationship continued through December. In September of 1985, C.S.'s friend — fifteen-year-old G.H. — attended a birthday party for Skrepich. While at the party, Skrepich, C.S. and G.H. were in a hot-tub together; C.S. and G.H. masturbated Skre-pich, and Skrepich penetrated G.H.'s vagina with his fingers. G.H. later reported the incident to a foster parent, who notified the authorities. On December 26, 1985, following an investigation, Skrepich was arrested on two charges of second-degree sexual abuse of a minor, the first charge related to his ongoing sexual activity with C.S. The second was for sexually penetrating G.H. Upon arrest, Skrepich gave his name as Richard Michaels and provided the police with a fictitious social security number. Skrepich falsely told the police that he had formerly been employed in the securities and commodities industry in California, New York, and Florida. Skrepich's true identity was eventually learned through fingerprint records. Upon discovery of Skrepich's correct identity, the police learned that there was an outstanding warrant for his arrest in Ohio on charges of rape and corruption of a minor. Investigation into Skrepich's activities also disclosed that, during the entire course of his liaison with C.S., Skrepich had been living in Willow, in the home of another woman, B.B., with whom Skrepich was involved in an ongoing relationship. Skre-pich never revealed his liaison with C.S. to B.B., who learned about it only after Skre-pich's arrest. Skrepich eventually pled no contest to the sexual abuse charge relating to C.S. In return for his plea, the prosecution dismissed the charge involving G.H. At the sentencing hearing, the state attempted to establish that Skrepich's conduct with C.S. and G.H. was part of a long-standing pattern of sexual abuse by Skrepich against minors. To this end, the state presented testimony from M.S. and C.H., sisters who had been named as the victims in the rape charges pending against Skrepich in Ohio. M.S. testified that she was ten years old when she first met Skrepich, and that C.H. was eight. Skrepich was their mother's boyfriend and lived in their home from approximately 1975 to 1981. According to M.S. and C.H., Skrepich would usually stay home while their mother was at work; the girls were required to call him daddy. Skrepich began sexually abusing M.S. when she was about thirteen years of age. He began abusing C.H. when she was about nine or ten. He forced the girls to have oral, anal and genital intercourse. In addition, he frequently engaged in physical abuse of the children. M.S. and C.H. also testified that they were aware of three other children who were sexually abused by Skrepich during this period of time. The girls' mother ultimately learned of Skrepich's conduct and reported it. Skrepich moved out of their home and left Ohio shortly before being indicted there in 1981. J.C., the mother of C.S., also testified at the sentencing hearing. J.C. believed that Skrepich had "messed up [C.S.'s] mind." According to J.C., her daughter had been especially vulnerable to Skrepich because C.S. had been without a father figure for several years. J.C. also testified that Skre-pich had assured her there was no sexual attachment between himself and her daughter. J.C. stated that even after Skre-pich had been arrested and incarcerated pending trial, he continued to send flowers and gifts to C.S., and persisted in attempting to contact her. J.C. made it clear that she wanted the court to put an end to the contact between Skrepich and her daughter. Debbie Haynes, C.S.'s therapist, further testified that it was typical for offenders who sexually abused children to engage in an initial "grooming" process by gaining the trust of the child and her parents. In a letter submitted to the court as an attachment to the presentence report, Haynes wrote: My assessment is that [C.S.] has been taken advantage of and it is going to be painful and confusing for her to lose a man who seems to have represented both a lover and a father figure. Due to the alleged promises made by Skrepich, [C.S.] formed a deep sense of commitment to him. [C.S.] appeared to be obsessed with Skrepich and the promises he made. This seems to have prevented [C.S.] from realizing that she is a victim. She has repeatedly stated that she expects to continue a relationship with Skrepich in the future on a long-term basis. These unrealistic expectations have made it difficult for [C.S.] to work in therapy. Two other witnesses were presented by the state at the sentencing hearing. The mother of two boys who had been in Skre-pich's karate class testified that Skrepich had told her that he had no intention of marrying C.S. and that what happened to C.S. after he left would be her problem. In addition, B.B., with whom Skrepich had lived during his relationship with C.S., testified that she had been unaware of Skre-pich's involvement and that she felt she had been "duped" and "used" by Skrepich. In response to the testimony of the state's witnesses, the defense called C.S. to testify in Skrepich's behalf. C.S. — sixteen years of age at the time of her testimony— said she did not believe that Skrepich's conduct toward her amounted to sexual abuse. C.S. stated that her affair with Skrepich was a voluntary one, that Skre-pich had always been good to her, and that he had never hurt her. C.S. thought her relationship with Skrepich had been beneficial for her and had improved her self-image. She said that she wanted to continue seeing Skrepich and that she still planned to marry him after she turned eighteen years of age. In his own remarks to the court, Skre-pich likewise claimed that he had genuinely fallen in love with C.S. He denied any psychologically or sexually abusive conduct toward her and characterized his relationship with her as honorable. In imposing sentence, Judge Michalski flatly rejected Skrepich's characterization of the offense. Based on the deceptiveness of Skrepich's conduct and on his prior misconduct in Ohio, Judge Michalski found that Skrepich's chances for rehabilitation were "almost nil." Noting that Skrepich had apparently preyed on young girls throughout his adult life, the judge concluded that Skrepich was a dangerous offender and that primary emphasis in sentencing him should be placed on the goal of isolation. Judge Michalski found, moreover, that Skrepich was a worst offender because he had violated the trust inherent in his status as C.S.'s teacher. Despite the fact that Skrepich was a first offender, the judge imposed the maximum sentence of ten years. In addition, at the state's request, the judge expressly ordered Skrepich to refrain from any direct or indirect contact with C.S. during his term of imprisonment. On appeal, Skrepich disputes Judge Mi-chalski's conclusion that Skrepich was incapable of rehabilitation and that he therefore deserved to be classified as a worst offender. Emphasizing that he has never previously been convicted of a crime, Skre-pich contends that imposition of the maximum sentence was error. He argues that the rule of Austin v. State, 627 P.2d 657 (Alaska App.1981), was violated. In Austin, we held: Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear that this rule should be violated only in an exceptional case. Id. at 657-58. In subsequent cases, we have indicated that, for purposes of the Austin rule, an "exceptional case" is one in which statutory aggravating factors could be proved or referral to the three-judge panel for imposition of an increased term would be justified if presumptive sentencing applied. See Maal v. State, 670 P.2d 708, 710 (Alaska App.1988); Peetook v. State, 655 P.2d 1308, 1310 (Alaska App.1982); Sears v. State, 653 P.2d 349, 350 (Alaska App.1982). In the present case, Skrepich was a first felony offender convicted of a class B felony. Because of Skrepich's status as a first offender, no presumptive term applied to his case. Had he previously been convicted of a felony, he would have been subject, under AS 12.55.125(d), to a presumptive term of four years. Absent specific statutory aggravating factors or extraordinary circumstances warranting re-ferral to the three-judge panel, the four-year presumptive term could not have been exceeded. The obvious aim of the Austin rule, in this context, is to assure that Skre-pich was not treated more harshly as a first offender than he would have been treated as a second offender. There is ample evidence of aggravated circumstances to provide such assurance in the present case. As established, by the testimony of M.S. and C.H., Skrepich had a long-standing history of sexually abusive conduct toward children. His past misconduct appears to be even more serious in nature than his current offense. At the time of his current offense, Skrepich was a fugitive from Ohio, where charges related to his past misconduct were pending. In addition, Skrepich was convicted for conduct that involved repeated acts of sexual abuse occurring over a period of several months and involving more than one victim. In committing the offense, Skre-pich appears to have abused a position of trust as C.S.'s karate instructor. He committed the offense by relying on a pattern of misrepresentation and deception that enabled him to gain the confidence of C.S. and her mother. Skrepich's false statements to the police following his arrest, his persistent efforts to maintain contact with and influence over his victim, and his steadfast insistence that his relationship with C.S. was formed in good faith and was not abusive are all factors that reflect poorly on his prospects for rehabilitation. If Skrepich had been subject to presumptive sentencing, these circumstances, considered in their totality, would have been sufficiently extraordinary to warrant a substantial increase in the applicable presumptive term. Accordingly, we have little difficulty in concluding that Skrepich's case qualifies as an exceptional one under Austin, and that the imposition of a sentence in excess of the four-year presumptive term for second offenders did not violate the Austin rule. A closer and more difficult question is whether Skrepich's background and the circumstances of the present case are so serious as to justify the imposition of a maximum sentence. We conclude that neither Skrepich's background nor his current offense can support the conclusion that he is a worst offender. The maximum sentence was therefore not justified. In deciding to impose the maximum sentence, Judge Michalski relied primarily on his conclusion that Skrepich was incapable of rehabilitation and could not personally be deterred. The judge thus gave primary emphasis to the need to protect the public by isolating Skrepich from the community. While the judge also indicated that a lengthy sentence would serve the sentencing goals of general deterrence and community condemnation, it seems clear that these goals could not, in themselves, support the imposition of a maximum, ten-year term for a first offender convicted of a class B felony. See Pears v. State, 698 P.2d 1198, 1204-05 (Alaska 1985) (holding that a term of substantially less than twenty years would serve the objectives of general deterrence and community condemnation in the case of a first offender convicted of second-degree murder, an unclassified felony). The appropriateness of the maximum term imposed thus necessarily hinges on the validity of Judge Michalski's conclusion that Skrepich cannot be personally deterred or rehabilitated. Given Skre-pich's status as a first offender, we believe that the sentencing court's decision to abandon rehabilitation and individual deterrence as realistic sentencing goals was premature. In Maal v. State, 670 P.2d 708 (Alaska App.1983), we considered a similar issue. Maal was convicted of burglary in the first degree, a class B felony. The circumstances of the specific crime were aggravated in some respects and mitigated in others. Maal had a prior felony record, but his prior convictions had been entered too long before the commission of the current offense to be considered for presumptive sentencing purposes. Thus, Maal was nominally a first offender. Id. at 709-10. Despite Maal's first-offender status, the sentencing court imposed a maximum term. The court concluded that Maal was a worst offender and that his isolation was necessary for the protection of the public. In reaching this conclusion, the court relied on Maal's record of prior convictions, as well as on a series of psychological evaluations that had been prepared in connection with Maal's past and current cases. The evaluations uniformly depicted Maal as suffering from an anti-social personality, and they unanimously concluded that Maal's prognosis for treatment was poor. Id. at 711-12. On appeal, we held that Maal's prior record, his poor prognosis for rehabilitation, and the aggravated circumstances of his current offense were all factors that the court could properly consider and rely on in deciding upon an appropriate sentence. We further held that these factors justified a sentence in excess of the four-year Austin-rxAe limit. Id. at 711. We nevertheless concluded that the sentencing court erred in disregarding the fact that Maal was a first offender for presumptive sentencing purposes and the fact that certain circumstances surrounding his offense were mitigated. We stated, in relevant part: However, we do not believe that the maximum sentence of ten years to serve . was justified. See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975). While we believe that [the sentencing court] could properly take into account the likelihood that Maal would again engage in a pattern of dangerous conduct, it is necessary to keep'in mind the concomitant need to judge the seriousness of Maal's offense as compared with other offenses of the same class. In short, the sentence must ultimately be tailored to fit the crime committed in the specific case, and inordinate emphasis must not be placed on predictions of possible future misconduct. AS 12.55.005 makes it clear that this is a central tenet of the sentencing provisions contained in the Revised Alaska Criminal Code. While Maal's background, his psychological condition at the time of sentencing, and his serious conduct in this case are sufficient to warrant a severe sentence, we believe that a maximum ten-year term gives undue prominence to speculation as to Maal's "future behavior." All of the circumstances, both favorable and unfavorable, are significant in the determination of an appropriate sentence. A number of specific factors reflect favorably upon Maal. Yet imposition of a maximum sentence in this case would require that these factors be virtually ignored. Maal, 670 P.2d at 711-12. Here, as in Maal, the specific offense at issue involved both aggravating and mitigating circumstances. Although, on the one hand, Skrepich was undeniably dishonest and abused the trust inherent in his role as C.S.'s karate instructor, it must be conceded, on the other hand, that there is no evidence of any assaultive conduct or of any physical or psychological coercion or intimidation. At the time of the offense, moreover, C.S. was fifteen years old — the upper age limit included in the definition of the offense of second-degree sexual abuse. See AS 11.41.436(a)(1). More significantly, Skrepich, like Maal, was a first offender for presumptive sentencing purposes. In Maal, we held that the defendant's first-offender status could not be disregarded entirely, because the lengthy period between Maal's current offense and his past convictions indicated at least some potential for rehabilitation. We found that, under the circumstances, reliance on the psychological prognosis of future danger gave "undue prominence to speculation as to Maal's 'future behavior.' " Maal, 670 P.2d at 712. This same rationale applies to Skrepich, albeit for slightly different reasons. Skre-pich's first-offender status stems not from a lengthy period of good conduct between his past and current offenses, but rather from the fact that he has not previously been convicted of the past misconduct. We assume, for purposes of argument, that Judge Michalski, in the limited context of a sentencing hearing, was perfectly capable of making an accurate determination of Skrepich's guilt with respect to the prior offenses. Nevertheless, the fact that Skre-pich had not been convicted for his past criminal conduct cannot be disregarded, for it is significant in two respects. First, the entry of a judgment of conviction against a person who has been accused of a crime serves to provide formal and unequivocal notice to the accused that his conduct has not conformed to the requirements of the law and is punishable as a crime. By the same token, the conviction provides assurance that the accused has been offered assistance in reforming his conduct if he is incapable of achieving rehabilitation on his own. See State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App.1983). Unless formally charged and convicted, an offender may have little motivation or ability to change. Consequently, predicting that an offender is incapable of rehabilitation and will continue to commit crimes is necessarily rendered more speculative when the offender's past misconduct has not been the subject of a prior conviction. Second — entirely apart from its role in providing an opportunity for rehabilitation — the entry of a formal judgment of conviction, when combined with a sentence of imprisonment, can serve to deter future similar misconduct by an offender, even one who might not otherwise be amenable to rehabilitation. Again, any prediction that an offender is incapable of being deterred and must be isolated for the protection of the community is necessarily rendered speculative when the offender has never previously been subjected to any substantial sentence of incarceration. See Rastopsoff, 659 P.2d at 634-35. In this regard, we have repeatedly emphasized that, in all but the most serious categories of cases, a person should not normally be characterized as a dangerous offender— that is, as an offender whose isolation for the maximum permissible term is necessary for the protection of the public — unless that person has previously been convicted of crimes for which a sentence involving at least one full year of incarceration was imposed. See Ecklund v. State, 730 P.2d 161 (Alaska App.1986); Wood v. State, 712 P.2d 420 (Alaska App.1986); State v. Andrews, 707 P.2d 900, 917 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986); Bolhouse v. State, 687 P.2d 1166, 1176 (Alaska App.1984); Viveros v. State, 633 P.2d 289, 291 (Alaska App.1981). Our decisions comport with Standard 18-4.4(c) of the ABA Standards for Criminal Justice, which defines "habitual offender" as one who has been convicted of at least two prior felonies, committed on different occasions, within five years of the present offense, and who has previously served a sentence in excess of one year. Ill Standards for Criminal Justice § 18-4.4(c) (1982). Here, despite the uncontroverted evidence of Skrepich's past misconduct, the absence of any prior conviction precludes us from predicting with any degree of confidence that he is in fact incapable of rehabilitation and cannot be deterred. Under the circumstances, the sentencing court's abandonment of rehabilitation and personal deterrence as sentencing goals was unwarranted, and its imposition of a maximum sentence was clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). In reaching this conclusion, we emphasize that, while Skrepich's past offenses could certainly be taken into account by the sentencing court, and while they justify a significant increase in his sentence, it was neither a legitimate nor a permissible goal of sentencing in the present case to punish Skrepich for his past crimes. To the extent that Skrepich's past misconduct reflected on his prospects for rehabilitation and oh the seriousness of his conduct in the present case, the court was entitled to consider any verified information or evidence relating to that misconduct. Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977), affd on rehearing, 576 P.2d 982 (Alaska 1978). Before Skrepich could be subjected to separate punishment for his prior acts, however, he was entitled to have his responsibility for those offenses decided by a jury based on proof establishing his guilt beyond a reasonable doubt. Skrepich can and presumably will be formally prosecuted on the other charges pending against him in Ohio. If and when he is convicted, he will be subject to separate punishment for those crimes. Considering the totality of the circumstances involved in the present case, we conclude that, on remand, a sentence of not more than ten years with four years suspended should be imposed. In reaching this conclusion, we once again find guidance in Maal v. State, where we stated: We hold that, on remand, the sentencing court should impose a sentence not in excess of ten years with four years suspended. This sentence, we believe, reflects an appropriate balance of applicable sentencing criteria. The sentence provides for a period of incarceration equivalent to the presumptive term for a third-time class B felony offender; we consider this a useful benchmark for cases in which nominal first offenders are convicted of crimes under circumstances that would justify referral to a three-judge sentencing panel if presumptive sentencing applied. See, e.g., Qualle v. State, 652 P.2d 481, 486 (Alaska App. 1982). A sentence of ten years with four years suspended will, we believe, be sufficient to assure that Maal remains in a structured institutional setting for a substantial length of time. The suspended portion of the sentence will provide a means of control and supervision over Maal and will also enable the court to impose a maximum term of incarceration if, after being released, Maal demonstrates a continued inability to conform his conduct to the demands of society and to the requirements of his probation. 670 P.2d at 712. The sentence imposed by the superi- or court is VACATED. This case is REMANDED to the superior court for imposition of a sentence not to exceed ten years with four years suspended. . In this appeal, it is also significant that there was no psychological evaluation supporting the sentencing court's conclusion that Skrepich is incapable of being rehabilitated or deterred. See Salud v. State, 630 P.2d 1008, 1013-14 (Alaska App.1981) (remanding a maximum sentence for second-degree murder where no psychological evaluation was ordered and the sentence was based in part on assumptions concerning the defendant's psychological make-up). See also Yu v. State, 706 P.2d 348 (Alaska App.1985). . In light of our disposition, Skrepich's challenge to the validity of the superior court's order requiring him to refrain from contact with C.S. requires only brief comment at this juncture. Although we find no merit to the constitutional argument presented by Skrepich, we believe his jurisdictional argument raises a substantial issue. Our recent decision in Benboe v. State, 738 P.2d 356 (Alaska App.1987), makes it clear that the superior court had no authority — statutory or inherent — to impose a direct no-contact order against Skrepich as part of the punishment for the offense. The state argues that the superior court's general authority to enter injunctions empowered it to enter the no-contact order as an independent equitable requirement of the judgment, and not as a component of the sentence. The state cites no authority for this proposition. We are aware of no statute expressly conferring jurisdiction on the court to issue an injunction under the circumstances of this case. Nevertheless, it could be argued that, where justified by specific evidence, the superior court has inherent equitable authority to issue an order precluding a criminal defendant from contact with his victim. Cf. Siggelkow v. State, 731 P.2d 57 (Alaska 1987) (upholding inherent equitable authority of the superior court to enter no-contact orders between parties in a divorce action, where justified by specific evidence). This possibility has not been discussed in the parties' briefs, and was not considered by the sentencing court. Because a remand for resentencing is necessary, we believe it preferable not to address the issue at this time. On remand, if the issue is not moot, the sentencing court should reconsider its no-contact order in light of Benboe and Siggle-kow. In the event the court decides to re-impose a no-contact order, it should indicate its basis for concluding that it has authority to enter such an order, and it should make any appropriate factual findings supporting the order's issuance.

10403350

Peter C. ESMAILKA, Appellant, v. STATE of Alaska, Appellee

Esmailka v. State

1987-07-10

No. A-1516

466

472

740 P.2d 466

740

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Peter C. ESMAILKA, Appellant, v. STATE of Alaska, Appellee.

Peter C. ESMAILKA, Appellant, v. STATE of Alaska, Appellee. No. A-1516. Court of Appeals of Alaska. July 10, 1987. Marc Grober, Nenana, for appellant. James V. Gould, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2931

18023

OPINION SINGLETON, Judge. Peter C. Esmailka was convicted of perjury, a class B felony, in violation of AS 11.56.200(a). The maximum sentence is ten years in prison. AS 12.55.125(d). Presumptive sentences, respectively, are four years for a second-felony offender and six years for a third-felony offender. AS 12.-55.125(d)(1), (2). Esmailka received a sentence of three years with two and one-half years suspended. He appeals, challenging his conviction and claiming that his sentence is excessive. We affirm. Esmailka's prosecution grew out of the disappearance of Anthony Semaken. Es-mailka and Semaken were close friends who had traveled in Esmailka's boat from Nulato, their home, to Galena in order to observe some boat races. It was expected that they would return together. Esmailka testified, at a coroner's inquest looking into Semaken's disappearance, that Semaken had in fact returned to Nulato with him in Esmailka's boat. Other witnesses presented by the state testified that Esmailka had returned alone to Nulato. Based upon the conflict between Esmail-ka's testimony and the testimony of the other witnesses, a grand jury indicted Es-mailka for perjury. Esmailka waived a jury trial and the case was heard by Superi- or Court Judge Jay Hodges. Judge Hodges accepted the state's evidence and found that Esmailka had knowingly given false testimony under oath to the coroner's jury. Esmailka first argues that the trial court erred in failing to dismiss the indictment against him. He contends that the prosecutor failed to present exculpatory testimony to the grand jury. He relies on Frink v. State, 597 P.2d 154, 164-66 (Alaska 1979). Esmailka refers to potential testimony from Berchman Esmailka, his father, that the elder Esmailka had seen Semaken in Nulato the day after he allegedly returned with Esmailka from Galena. Se-maken's presence in Nulato the following day, Esmailka reasons, corroborates his statement to the coroner's jury that Semaken returned with him. Although Esmailka has not made a transcript of the grand jury proceedings a part of the record on appeal, he nevertheless argues, and the state apparently concedes, that Berchman Esmailka was not called as a witness before the grand jury. The state argues, however, that Esmailka was not prejudiced by the exclusion of Berch-man Esmailka's testimony because one of its witnesses told the grand jury that Berchman Esmailka had allegedly seen Se-maken in Nulato the following day. Despite this testimony, Esmailka asserts that the state was obligated to call his father as a witness, and not present his assertion through the testimony of another witness. First, Esmailka argues that the state's actions did not comply with Alaska Rule of Criminal Procedure 6(q), which provides in part: When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses.... The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant. In Frink, the supreme court held that "when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated . to inform the grand jury of its nature and existence, so that the grand jury may exercise its power under the [rule] to order the evidence produced." 597 P.2d at 165 (Johnson v. Superior Court, 15 Cal.3d 248, 124 Cal.Rptr. 32, 36, 539 P.2d 792, 796 (1975)). 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. We are not persuaded that the prosecutor violated his duty in this case. The grand jury was apparently informed of the nature and existence of Berchman Es-mailka's testimony. It was thus able to determine for itself whether it wished to exercise its authority, under Alaska Criminal Rule 6(q), to order that Berchman Es-mailka be subpoenaed for the purpose of hearing his testimony under oath. Assuming, without having the record before us, that the grand jury did not order Berchman Esmailka's presence, it apparently did not view his testimony as particularly important. We are satisfied that the evidence in this case was sufficient to justify the indictment. 597 P.2d at 163. Esmailka next argues that the trial court erred in failing to grant his motion to suppress testimony he gave at the coroner's inquest. In Esmailka's view, the magistrate conducting the inquest failed to safeguard Esmailka's fifth amendment right to remain silent. Resolution of this issue turns on Alaska Evidence Rule 412, which provides: Evidence illegally obtained shall not be used over proper objection by the defendant in a criminal prosecution for any purpose except: (1) a statement illegally obtained in violation of the right to warnings under Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), may be used in a prosecution for perjury if the statement is relevant to the issue of guilt or innocence and if the prosecution shows that the statement was otherwise voluntary and not coerced; and (2) other evidence illegally obtained may be admitted in a prosecution for perjury if it is relevant to [sic] issue of guilty or innocence and if the prosecution shows that the evidence was not obtained in substantial violation of rights. We have had occasion to interpret this rule in Wortham v. State, 657 P.2d 856, 857 (Alaska App.1983), modified on appeal, 666 P.2d 1042 (Alaska 1983) (Wortham II) and Wortham v. State, 641 P.2d 223 (Alaska App.1982) (Wortham I). Since Esmailka was prosecuted for perjury, the exceptions to the rule are of primary importance. In Wortham II, the supreme court quoted with approval, the following language from a concurring opinion in this court: [T]he drafters of the rule did not intend to bar the introduction of evidence obtained in violation of the fourth and fifth amendments, and their Alaska counterparts, unless the violation of rights was such that it independently violated due process. In the absence of coercion, violence or brutality to the person, I would admit evidence obtained in violation of the fourth and fifth amendments in perjury prosecutions. 666 P.2d at 1043 (citations omitted), Wort-ham, 657 P.2d at 858 (Singleton, J., concurring). Assuming, without deciding, that the warnings Esmailka received at the coroner's inquest were less than adequate, it does not appear that any error committed by the magistrate conducting the inquest amounted to a flagrant or egregious invasion of Esmailka's personal rights. See, e.g., Wortham II, at 1043. Nor does it appear that Esmailka's statements to the coroner's jury were involuntary or the product of coercion. Their reliability, of course, was the issue in the perjury prosecution. Use of Esmailka's testimony at the trial did not violate A.R.E. 412. Consequently, it is not necessary for us to determine what warnings, if any, Esmailka was entitled to receive prior to being called as a witness at a coroner's inquest. See, e.g., Nicholi v. State, 451 P.2d 351 (Alaska 1969). Esmailka next argues that the trial court erred in failing to acquit him. According to a recognized authority on the federal rules of criminal procedure: [O]n the ultimate finding of guilt [by a trial court sitting without a jury in a criminal case], the usual rule is that it must stand if it is supported by substantial evidence. On findings by the court on issues other than the ultimate issue of guilt, there is general agreement that the "clearly erroneous" test should be applied and that it has the same meaning in criminal cases as it has in civil cases. 2 C. Wright, Federal Practice and Procedure § 374 at 315-16 (2d ed. 1982) (footnotes omitted). Alaska law is in accord with these rules. See Martin v. Fairbanks, 456 P.2d 462, 463-65 (Alaska 1969); Beck v. State, 408 P.2d 996, 997 (Alaska 1965). In Alaska, "[t]he question, then, [whether a defendant is entitled to a judgment of acquittal] 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." Beck, 408 P.2d at 997 (footnotes omitted). A challenge to the sufficiency of the evidence at the close of the prosecution's case in a case tried to the court should be considered by the same standard as in a jury case. 2 C. Wright, Federal Practice and Procedure § 467 at 666 & n. 37. The Alaska rule regarding sufficiency of the evidence is also consistent with the United States Constitution as interpreted in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Esmailka recognizes that the testimony of Pat and Mary Madros presented at his trial permits reasonable inferences which conflict with his testimony presented to the coroner's jury and, if believed, would support his conviction for perjury. He argues, however, that the Madroses' testimony was insufficient as a matter of law. Esmailka's argument, while somewhat unclear, seems to intertwine three related doctrines. First, where a party relies on negative evidence, i.e., testimony that a witness did not see an event in order to support an inference that the event did not occur, the rule is that the person allegedly witnessing the event must have been in a position to see it. See, e.g., 2 J. Wigmore, Evidence § 664 at 907 (Chadbourn rev. ed. 1979). Thus, while the Madroses' statement, that they did not see Semaken in Esmailka's boat, is direct evidence, the jury must infer from that evidence that Semaken was not in the boat, i.e., that if he had been in the boat the Madroses would have seen him. In part, therefore, the state's case rests on circumstantial evidence. Second, Esmailka seems to be arguing the rule that where the state relies on circumstantial evidence to prove guilt, the evidence must exclude every reasonable hypothesis except guilt, i.e., exclude every reasonable theory consistent with innocence. See Davis v. State, 369 P.2d 879, 882-83 (Alaska 1962). While Esmailka did not testify at his perjury trial, his theory of the case was that Semaken was sleeping on the bottom of his boat underneath a tarp. In order to convict him, Esmailka seems to be arguing, the state must present evidence inconsistent with his theory. Finally, Esmailka seems to be relying on the physical facts doctrine, i.e., the proposition that testimony of a witness, which is opposed to the unquestionable laws of nature, or which is clearly in conflict with scientific principles as established by the laws of physics or mechanics, is of no probative value. See, e.g., Granat v. Schoepski, 272 F.2d 814, 815 (9th Cir.1959); State v. Puckett, 691 S.W.2d 491, 493 (Mo.App. 1985). Esmailka argues that Pat Madros admitted that he could not see into the bottom of the boat, thus his testimony was not inconsistent with the hypothesis or theory that Semaken was asleep in the bottom of the boat under a tarp. Mary Madros testified that she could see into the bottom of the boat. Esmailka contends, however, that her testimony was incredible. He relies, in part, on pictures of the boat showing its configuration, but primarily upon the testimony of Pat Madros as to Mary's position at the time she made the alleged observations of Esmailka. Esmailka interprets Madros as testifying that Esmailka's boat was approximately a hundred feet from the bank of the river, that Madros was at river level, and that his wife was approximately thirty-five feet above him on the bank. Based upon this testimony, Es-mailka constructed his exhibit J which purports to show that Mary Madros could not have seen into the bottom of his boat. Esmailka's argument is subject to a number of flaws. First, the supreme court has repudiated the rule that circumstantial evidence must be consistent with guilt and inconsistent with any theory of innocence before it can withstand a motion for judgment of acquittal. See Des Jardins v. State, 551 P.2d 181, 184-85 (Alaska 1976). More significantly, the physical facts doctrine has no application where the testimony regarding the position, speed, etc., of movable objects is based on estimates by a witness giving oral testimony. See Hopfer v. Staudt, 207 Or. 487, 298 P.2d 186, 189 (1956). It only applies to testimony established as being physically impossible as a matter of law and has no application where the credibility of witnesses is involved. Puckett, 691 S.W.2d at 493-94. Here, Esmailka's calculations are all based on estimates by Pat Madros, consequently, the credibility of Madros' testimony was in issue. Under these circumstances, whether Pat and Mary Madros would have seen Semaken had he been in the boat was a question for the trier of fact. See Anthony v. State, 521 P.2d 486, 492 (Alaska 1974) (the assessment of witness credibility is exclusively within the province of the jury). The trial court did not err in denying a motion for judgment of acquittal and in finding that the evidence was sufficient to sustain Esmailka's conviction. Esmailka next argues that the trial court erred in imposing a three-year sentence with two and one-half years suspended. Our review of this issue is complicated by Esmailka's failure to include in the record on appeal a transcript of the sentencing hearing. In essence, Esmailka argues that he has already been rehabilitated, that he has a spotless record and that a sentence of imprisonment is not necessary for his rehabilitation, or deterrence, for the deterrence of others, community condemnation, or for the reaffirmation of societal norms. See, State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). Esmailka was convicted of a class B felony. As a first offender, in the absence of aggravating factors, he should have received a sentence substantially more favorable than the four-year presumptive sentence for a second-felony offender. Austin v. State, 627 P.2d 657 (Alaska App. 1981). A sentence of three years with two and one-half years suspended clearly satisfies this requirement. Perjury is a serious offense: The sentence in this case was not more severe than sentences previously approved by Alaska appellate courts for comparable offenders committing similar offenses. See, e.g., DeMan v. State, 677 P.2d 903, 910-12 (Alaska App.1984) (concurrent four-year sentences for perjury affirmed for first offender); Boyles v. State, 647 P.2d 1113, 1119 (Alaska App.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1437, 75 L.Ed.2d 795 (1983) (three-year sentence affirmed for first offender with otherwise spotless record who in addition to perjuring himself suborned perjury by another witness). See also Huff v. State, 598 P.2d 928, 936 (Alaska 1979) (affirming three-year sentence for perjury for first offender). The sentence of the superi- or court was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The judgment and sentence of the superi- or court are AFFIRMED. . Esmailka's failure to specify the record before the grand jury as part of the record on appeal provides an independent basis for rejecting his arguments on appeal. . During his testimony, Officer Lohmer told the grand jury that he did not believe Berchman Esmailka's statement. This was improper and should not have been permitted. Officer Loh-mer's testimony disparaging the credibility of Esmailka violated the spirit of Alaska Criminal Rule 6(q); we believe it would have been a better practice for the prosecutor to have avoided such editorial comment by the witnesses. Cf. Frink, 597 P.2d at 162-63 (criticizing police officers testifying to and interpreting scientific reports). However, in light of the trial record, we find that any error was harmless. . Esmailka argues that testimony regarding Berchman Esmailka's assertion was "hearsay" that could only be presented to the grand jury if it satisfied an exception to the hearsay rule or was otherwise necessary. State v. Gieffels, 554 P.2d 460, 464-65 (Alaska 1976). This rule, however, only applies to testimony upon which the state relies for the return of an indictment. See State v. Taylor, 566 P.2d 1016, 1019 (Alaska 1977). It has no application to allegedly exculpatory evidence which the state is under a duty to present in order to enable the grand jury to fulfill its obligations under Alaska Criminal Rule 6(q). .Apparently the magistrate conducting the inquest was unsuccessful in attempting to subpoena Esmailka. On appeal, Esmailka argues that the magistrate had him arrested and brought to the inquest in custody. The record does not indicate that Esmailka argued to the trial court that he was in custody when he appeared before the magistrate. Nor did Esmailka argue that the totality of the circumstances constituted entrapment though he appears to be implicitly arguing this on appeal. We will not consider these arguments for the first time on appeal. Esmailka concedes that warnings similar to those required by Miranda were given, but complains that he was not told that he had a right to a lawyer appointed at public expense to advise him about testifying at the inquest. Esmailka also complains that the magistrate encouraged him to testify. Assuming that Esmailka properly characterizes what occurred at the inquest, he has failed to establish a right to suppression under Alaska Evidence Rule 412.

10403372

Gene F. MOORE, Appellant, v. STATE of Alaska, Appellee

Moore v. State

1987-07-17

No. A-1343

472

476

740 P.2d 472

740

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Gene F. MOORE, Appellant, v. STATE of Alaska, Appellee.

Gene F. MOORE, Appellant, v. STATE of Alaska, Appellee. No. A-1343. Court of Appeals of Alaska. July 17, 1987. Teresa A. Hogan, Anchorage, for appellant. James V. Gould, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Ronald W. Lorensen, Acting Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2762

17189

OPINION BRYNER, Chief Judge. Gene F. Moore was tried by jury on charges of receiving a bribe (AS 11.56.-110(a)(2), first-degree theft (AS 11.46.-120(a), perjury (AS 11.56.200), and scheme to defraud (AS 11.46.600(a)(2). Superior Court Judge Charles R. Tunley instructed the jury, over Moore's objection, that it could consider the crime of misapplication of property (AS 11.46.620) as a lesser-included offense of scheme to defraud. The jury acquitted Moore of all charges contained in the indictment, but convicted him of misapplication of property. Judge Tun-ley sentenced Moore to a term of two years' imprisonment with one year suspended, and ordered restitution in the amount of $205,000. Moore appeals, contending that misapplication of property is not a lesser-included offense of scheme to defraud, that the jury instructions were inadequate, and that the sentence imposed is excessive. The charges filed against Moore stemmed from events that occurred while he was employed as city manager for the city of Kotzebue. In 1981, the city began planning extensions of water and sewer lines. In April of 1982, the city council authorized the purchase of materials necessary to complete the project. The city put the project out to bid, but after receiving insufficient funding from the state, the city rejected all bids. The city council subsequently authorized a "forced contract," which enabled the city to avoid the bidding process and undertake the project with available funds. As city manager, Moore contracted with Larry Thomas to have the extensions installed. Thomas had completed similar projects to the satisfaction of the city in the past. Neither Thomas nor the city had the heavy equipment necessary to complete the project. Thomas proposed that the city purchase equipment for him and that he reimburse the city as work on the project was performed. Moore authorized the purchase, with city funds, of two pieces of heavy equipment at a total cost of $207,-000. The equipment was delivered to Thomas. Thomas made only one payment to the city, in the amount of $50,000. After that payment was made, Thomas was given a bill of sale for the equipment from the city; the bill of sale was signed by Moore, as city manager, and by the city clerk. Conflicting testimony was presented at trial concerning Thomas' failure to make any further payments. Thomas testified that he had intended to finish repaying by offsetting his cost overruns on the project against the balance of the purchase price for the equipment. However, no offsets were made, and Thomas made no additional payments after receiving the bill of sale. At the same time that Thomas made the $50,000 payment to the city, he also gave Moore a $50,000 check made out to an account at the United Bank of Alaska that was held in Moore's name. According to Thomas, the entire $100,000 amount had been intended as payment to the city for the equipment used on the project. Thomas testified that Moore had requested him to make his payment in the form of two separate checks, one to the city of Kotze-bue and one to the United Bank of Alaska account number. In contrast, Moore maintained that the second $50,000 payment related to a land transaction between Moore and Thomas that was never consummated. In charging Moore with engaging in a scheme to defraud, the state's general theory was that Moore had used city funds without authorization to obtain heavy equipment for Thomas, and that he had planned to divert to his own use Thomas' partial payment for the equipment. In keeping with this general theory, Judge Tunley found that the crime of misapplication of funds was a lesser-included offense of scheme to defraud, because, the jury could not find that Moore had acquired the equipment for Thomas with the intent to defraud the city, without also finding that he was guilty of misapplying the city's money by violating his fiduciary duties as city manager. In arguing that Judge Tunley erred in allowing the jury to consider misapplication of property as a lesser-included offense of scheme to defraud, Moore advances several distinct theories. He claims that there is no inherent relationship between the two offenses, that conviction of the greater offense would not have been inconsistent with acquittal on the lesser, and that there was insufficient evidence to support a conviction for misapplication of property. We need only address Moore's claim that the offenses are not inherently related. It is undisputed that the offense of misapplication of property requires proof of elements different from the elements involved in the proof of a scheme to defraud. Accordingly, misapplication of property is not a lesser-included offense of scheme to defraud under the traditional statutory elements theory of lesser-included offenses. Alaska, however, has adopted the cognate approach, which focuses closely on the facts charged in the indictment and the evidence presented at trial to determine whether the defendant had actual notice of possible lesser-included offenses. State v. Minano, 710 P.2d 1013 (Alaska 1985); Elisovsky v. State, 592 P.2d 1221 (Alaska 1979). When, under the evidence at trial, a conviction of the offense charged would be inconsistent with acquittal of a lesser offense, and when there is a disputed fact that distinguishes the lesser offense from the offense charged, then a lesser-included offense instruction is appropriate under the cognate approach, even if the lesser offense requires proof of statutory elements different from those included in the charged offense. Id. See also Marker v. State, 692 P.2d 977, 982-83 (Alaska App.1984). The cognate approach to lesser-included offenses is nevertheless subject to an important qualification: where the statutory elements approach does not apply and reliance on the cognate approach is necessary, it has ordinarily been held that there must be an inherent relationship between two offenses before one may be deemed a lesser-included offense of the other. See, e.g., Marker v. State, 692 P.2d 977 (Alaska App.1984). In Reynolds v. State, 706 P.2d 708 (Alaska App.1985), we clarified the "inherent relationship" requirement of the cognate approach: [W]e think it self-evident that the boundaries of the requirement must be circumscribed by the constitutional rule of merger and can extend no farther. For if two offenses are so fundamentally disparate — so different in their basic social purposes — that merger between them is not compelled and separate sentences would be permissible upon conviction of both, then no greater/lesser-included offense relationship can arise, no matter how clearly intertwined these offenses may be in the factual and evidentiary setting of a given case. Without merger, the prosecution is free to charge, convict on and punish two offenses separately; the accused is in no position to insist that one offense be treated as a lesser-included offense and considered only as an alternative to the other. Id. at 711 (footnote omitted). The initial question to be addressed here is whether the two statutory provisions at issue are inherently related under Reynolds. As defined in AS 11.46.600, the crime of scheme to defraud is aimed at those who engage in plans to obtain money or property from others by false pretenses or representations. The prohibited conduct includes any act of "engaging" in a fraudulent scheme when that act is coupled with the obtaining of at least some property in furtherance of the scheme. Thus, AS 11.-46.600 provides, in relevant part: Scheme to defraud, (a) A person commits the crime of scheme to defraud if the person engages in conduct constituting a scheme (2) to defraud one or more persons of $10,000 or to obtain $10,000 or more from one or more persons by false or fraudulent pretense, representation, or promise and obtains property or services in accordance with the scheme. The statute derives from the federal mail fraud statute, 18 U.S.C. § 1341 (1970), and the New York scheme to defraud statutes, N.Y. Penal Law § 190.60(1) and 190.65(1). The commentary to the New York statutes indicates that they, too, were drawn from the federal mail fraud statute and that both the New York and federal statutes were designed to overcome various obstacles posed by conventional larceny statutes in the prosecution of hard core consumer fraud. See Additional Commentary to N.Y. Penal Law § 190.60 and 190.65. In contrast, Alaska's misapplication of property statute derives from Hawaii Revised Statute § 708-874, Model Penal Code § 224.13, and Oregon Revised Statutes § 165.095. The gravamen of this offense is the breach of a fiduciary or quasi-fiduciary duty. The prohibited conduct includes any act of dealing with or disposing of property in violation of the obligations of a fiduciary relationship. Thus, AS 11.46.620 provides, in relevant part: Misapplication of property, (a) A person commits the crime of misapplication of property if the person knowingly misapplies property that has been entrusted to that person as a fiduciary or that is property of the government or a financial institution. (c) For purposes of this section, "misapply" means to deal with or dispose of property contrary to (1) law; (2) a judicial rule or order; or (3) the obligations of a fiduciary relationship. Commentary to the Hawaii statute states the intent of the law as discouraging both "the knowing violation of fiduciary obligations and the knowing misapplication of property belonging either to the government or to a financial institution." Commentary on Haw.Rev.Stat. § 708-874. The commentary states further that: Misapplication in this context is not theft; there is no intent permanently to deprive the owner of his property.... The danger envisioned is the risk "that one who administers or controls the property may deliberately depart from the legal rules applicable to his control of the property in question and may gamble with the property at considerable known risk to the safety of the property in question." Id. (footnote omitted). Commentary to § 224.13 of the Model Penal Code (misapplication of entrusted property and property of a government or financial institution) similarly distinguishes acts of misapplication from acts of embezzlement and larceny: This section covers the mishandling of property restricted by law to particular uses, such as property held in trust or public funds appropriated for designated purposes. The essence of the offense is a knowing violation of the restrictions or regulations governing the handling of property. No purpose to appropriate the property for the benefit of the actor or another nor any purpose to deprive the owners or lawful beneficiaries of their property need be proved. Commentary to Model Penal Code § 224.13 (1980). The commentary to the Hawaii statute and to the Model Penal Code finds further support in the commentary to Alaska's misapplication of property statute, which emphasizes that "[t]he statute does not require that the misapplication involve a risk of loss or detriment to the owner. Any knowing misapplication will result in the imposition of criminal penalties." Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement No. 47 at 59 (June 12, 1978). In our view, these commentaries establish that Alaska's scheme to defraud and misapplication of property statutes are not inherently related. The two statutes prohibit different acts and were designed to protect separate and distinct societal interests. Accordingly, even when a single course of conduct results in the violation of both provisions, there is nothing to preclude the defendant from being convicted of both offenses. See Whitton v. State, 479 P.2d 302 (Alaska 1970). Notably, in analogous situations involving comparable statutes, courts in other jurisdictions have held that the entry of separate convictions is not barred when a single act has resulted in two statutory violations. See, e.g., United States v. Harenberg, 732 F.2d 1507 (10th Cir.1984); United States v. Barket, 530 F.2d 181, 186 (8th Cir.1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); State v. Heinz, 119 N.H. 717, 407 A.2d 814 (1979). See also United States v. Scotto, 641 F.2d 47 (2nd Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981); United States v. Raborn, 575 F.2d 688 (9th Cir.1978); United States v. Brighton Building and Maintenance Company, 435 F.Supp. 222 (N.D. 111.1977), aff'd, 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979). It remains to be considered whether the inherent relationship requirement should be held to apply in the circumstances of this case. In Reynolds, citing the lack of an inherent relationship, we affirmed the trial court's denial of a request for a lesser-included offense instruction when that request had been made by the defendant. Reynolds v. State, 706 P.2d 708, 711 (Alaska App.1985). In the present case, the situation is reversed: the lesser-included offense instruction was given at the request of the state, and over Moore's objection. We nevertheless conclude that the policies we considered in Reynolds equally preclude the giving of a lesser-included offense instruction in cases such as Moore's, where the tables are turned. Indeed, additional considerations provide even stronger grounds for applying the inherent relationship requirement in cases such as Moore's. When a request for a lesser-included offense instruction comes from the state, over defense objection, that request should, if anything, be more closely scrutinized due to the potential for prejudice arising from lack of notice to the defense. See United States v. Stolarz, 550 F.2d 488, 492 (9th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977); United States v. Whitaker, 447 F.2d 314, 319-21 (D.C.Cir.1971). Of additional significance is the constitutional right of a criminal defendant to be charged by indictment in any prosecution for a felony. Alaska Constitution, art. 1, § 8. This right is not infringed when an uncharged crime is clearly a lesser-included offense of a charged crime and when the two offenses are integrally related. Thus, we have found that a jury may be instructed on an uncharged lesser-included offense, even when the instruction is given over the defendant's objection. See Blackhurst v. State, 721 P.2d 645, 649-50 (Alaska App. 1986). Problems begin to arise, however, when offenses are so separate that they are not subject to merger; in such cases, it can persuasively be argued that, if a decision to prosecute on the lesser offense is to be made, it is the grand jury that must make it. Moreover, Reynolds makes it clear that, by refraining from presenting an unrelated lesser offense to the grand jury, the state has the option of precluding the defendant from seeking to benefit from conviction on the lesser offense. Reynolds v. State, 706 P.2d 708, 711 (Alaska App.1985). Because the state has that option, its election not to indict for a lesser offense that is not inherently related to the offense charged can reasonably be taken to indicate that the lesser offense will not be at issue. In reliance on the state's decision not to charge the lesser offense, the defendant may choose to adopt a strategy that emphasizes weaknesses in the state's proof on the charged offense, while conceding elements of the uncharged lesser offense that might otherwise have been more vigorously contested. In the present case, for example, had misapplication of property been charged in the indictment, Moore may well have elected to place greater emphasis at trial on developing evidence concerning the nature and scope of his fiduciary duties as city manager, and the extent of his authority to purchase equipment for use by Thomas. Because of the lack of an inherent relationship between the greater and lesser offenses in this case, it would not have been unreasonable for Moore, in formulating his defense strategy, to rely on the state's decision not to charge the lesser offense. We conclude that, under the circumstances, the superior court erred in instructing the jury on misapplication of property as a lesser-included offense of scheme to defraud. Misapplication of property is not a lesser-included offense of scheme to defraud under the statutory elements approach; application of the cognate approach is precluded by the lack of an inherent relationship between the two statutes. The conviction is REVERSED. . The trial court's instructions permitted the jury to consider only that portion of the statute relating to "property that has been entrusted to [a] person as a fiduciary." The jury was not* instructed on the portion of the statute relating to "property of the government or a financial institution."

10359352

John SAUER, as personal representative of the estate of Delores Gross, and Max Rush, as Court Appointed Trustee of the Bankruptcy Estate of Delores Gross, Appellants, v. The HOME INDEMNITY COMPANY, d/b/a the Home Insurance Company; Northern Adjusters; Larry Larson, Leroy Darling, Edward Helmic, Phillip Park, Ursula Park, Jane Martin, Carol Guillory, Charles Guillory, and Frances Scott, Appellees

Sauer v. Home Indemnity Co.

1992-11-13

No. S-4522

176

184

841 P.2d 176

841

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

John SAUER, as personal representative of the estate of Delores Gross, and Max Rush, as Court Appointed Trustee of the Bankruptcy Estate of Delores Gross, Appellants, v. The HOME INDEMNITY COMPANY, d/b/a the Home Insurance Company; Northern Adjusters; Larry Larson, Leroy Darling, Edward Helmic, Phillip Park, Ursula Park, Jane Martin, Carol Guillory, Charles Guillory, and Frances Scott, Appellees.

John SAUER, as personal representative of the estate of Delores Gross, and Max Rush, as Court Appointed Trustee of the Bankruptcy Estate of Delores Gross, Appellants, v. The HOME INDEMNITY COMPANY, d/b/a the Home Insurance Company; Northern Adjusters; Larry Larson, Leroy Darling, Edward Helmic, Phillip Park, Ursula Park, Jane Martin, Carol Guillory, Charles Guillory, and Frances Scott, Appellees. No. S-4522. Supreme Court of Alaska. Nov. 13, 1992. Rehearing Denied Dec. 7, 1992. Michael W. Flanigan, Clark, Walther & Flanigan, Anchorage, for appellants. Laurence Keyes, Crosby & Sisson,' Anchorage, for appellees Home Indem. Co., Northern Adjusters and Larry Larson. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4600

28214

OPINION MOORE, Justice. I. INTRODUCTION Delores Gross and Max Rush, the trustee of Gross' bankruptcy estate, sued Gross' insurer, the Home Indemnity Company. The bases of the suit were Home Indemnity Company's refusal to defend or indemnify Gross against claims of residents of her trailer park arising from a sewage leak and Home Indemnity Company's failure to communicate to Gross its denial of a defense or coverage. The trial court denied Gross' motions for summary judgment and granted summary judgment in favor of Home Indemnity Company and the insurance adjusters. John Sauer, the personal representative of the estate of Delores Gross, and Rush appeal. II. FACTS AND PROCEEDINGS In January 1983, sewage backed up at a trailer park owned by Delores Gross. The sewage accumulated and froze to a depth of several inches over a portion of the park. Some residents of the park suffered significant hardship and property damage as a result of the spill. After a complaint from a resident of the park on January 17, 1983, a health official for the Municipality of Anchorage (MOA) investigated the matter and found sewage pouring from pipes in the ground. On January 25, the MOA brought a public nuisance action to enjoin violations of local health ordinances and seeking civil penalties. Residents Carol Guillory, Charles Guillory, and Frances Scott intervened in the action six days later. Residents Leroy Darling, Edward Helmic, Phillip Park, Ursula Park, Kevin Scott and Jane Martin intervened on December 14, 1983. The MOA eventually dismissed its complaint, leaving the residents as plaintiffs. At the time of the incident, the trailer park was insured under a comprehensive general liability policy issued by the Home Indemnity Company. After the spill, Gross notified her insurance agent of the sewage problem at the trailer park. The agent in turn notified Home Indemnity of the claim on February 4. On the same day, Home Indemnity contacted Larry Larson, an adjuster with Northern Adjusters, and asked him to investigate the cause and extent of the loss and to obtain a non-waiver agreement from Gross. Home Indemnity did not ask Larson to provide an opinion as to coverage. During his investigation Larson spoke with Gross and her attorney and took photographs of the scene. He did not speak with any of the residents or with MOA officials who inspected the scene, nor did he seek Home Indemnity's approval to enlist outside help to determine the cause of the spill. From his investigation, Larson was unable to determine the cause of the sewage spill, but was also unable to rule out frozen pipes as a possible cause. On February 25, Larson prepared and sent a report to Home Indemnity. The report included copies of MOA's complaint, the temporary restraining order, and the first complaint in intervention (hereinafter, the Guil-lory complaint). On March 22, Home Indemnity ordered Larson to close the file on Gross' case. Larson did so two weeks later and had no further involvement with Gross' claim. Before concluding his investigation, Larson proffered a non-waiver agreement to Gross through her attorney, but it was never signed. The non-waiver agreement did not indicate any possible basis for the denial of coverage. Home Indemnity did not assume the defense of Gross in the residents' suit. Although a routine audit of the file by Home Indemnity in August 1983 indicated that a reservation of rights letter should be sent to Gross, no such letter was ever sent. Home Indemnity did not communicate to Gross a decision to deny coverage until nearly five years later, when it filed its counterclaim for declaratory relief in the present action. The residents' suit was tried on April 10, 1986. Neither Gross nor her attorney were present for the trial. A jury awarded the residents compensatory and punitive damages, and judgment was entered against Gross. The amount of the judgment, including costs, fees and prejudgment interest, exceeded $600,000. In May 1987, letters of inquiry from Gross' attorney to Home Indemnity prompted Home to review the Gross file. Home Indemnity's review indicated that Gross "submitted property damage claim and liability claim to Home Indemnity under policy" and that Home Indemnity "had no contact since March 83.... File was closed due to inactivity." The review also stated "there is no coverage for this loss. Analysis to follow.... Refer for coverage opinion." Still no denial of coverage or any other information was communicated to Gross or her attorney. On April 29, 1988, after filing for bankruptcy, Gross and her bankruptcy trustee brought the instant action against Home Indemnity, Northern Adjusters and Larry Larson. The complaint alleged negligent failure to investigate, adjust, resolve or defend against the claims of the affected residents, and breach of contractual obligations owed to Gross either directly or as an intended third-party beneficiary. Home Indemnity answered and counterclaimed for declaratory relief on the issues of its duties to defend and indemnify Gross. Gross moved for summary judgment seeking a determination that Home Indemnity was estopped from denying coverage because it failed to defend Gross or notify her of a coverage dispute. Home Indemnity countered with a cross-motion on the estoppel issue. Gross and Home Indemnity also filed cross-motions for summary judgment on the issue of whether the policy afforded coverage for the residents' claims. The trial court denied Gross' motions and granted summary judgment for Home Indemnity, concluding that Home Indemnity was not estopped from denying coverage and that coverage did not lie. Final judgment was entered in favor of Home Indemnity, Larson and Northern Adjusters. Gross appeals, challenging the denial of her motion for summary judgment and the grant of summary judgment for the defendants. III. DISCUSSION Gross argues that Home Indemnity breached its duty to defend against the residents' claims and that Home Indemnity's failure to timely advise Gross of coverage questions should estop Home Indemnity from denying coverage in the present action. Thus, Gross argues, the superior court erred in denying her summary judgment motion and in granting Home's motion. A party is entitled to summary judgment when there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. Alaska R.Civ.Pro. 56(c). Here, the record developed on the parties' cross-motions for summary judgment reveals that no genuine issues of material fact exist as to Home Indemnity's liability. Thus we need only review the trial court's decision that Home Indemnity, Larson and Northern Adjusters, rather than Gross, were entitled to judgment as a matter of law. In reviewing the lower court's resolution of a question of law, we must adopt the rule of law which is most persuasive in light of precedent, reason and policy. CTA v. Active Erectors, 781 P.2d 1364 (Alaska 1989). A. Duty to Defend An insurer's duty to defend and its obligation to indemnify are separate and distinct contractual elements. Afcan v. Mutual Fire, Marine and Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979). As we stated in Afcan, Depending upon the nature of the claim against the insured, the insurer may have an obligation to defend although it has no ultimate liability under the policy. We believe that the language of the standard duty to defend clause creates a reasonable expectation on the part of the insured whenever a complaint states a cause of action within, or potentially within, the policy coverage.... Thus, even though facts extrinsic to the pleadings may show that there will be no ultimate liability under the policy, 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 contractual right to a proper defense at the expense of the insurer. Id. There can be little doubt that Home Indemnity breached its duty to defend Gross in the residents' action. The allegations contained in the Guillory complaint, filed before Home Indemnity began its investigation, clearly alleged facts potentially within the policy coverage. The policy obligated Home Indemnity to pay "all sums which [Gross] shall become legally obligated to pay as damages . caused by an occurrence." The policy defines an occurrence as "an accident . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." The Guillory complaint alleged "gross negligence" and that the sewage leak was caused by "clogged or frozen pipes." Such allegations, if proven, would have supported recovery under a negligence theory, which clearly falls within the coverage afforded by the policy. The presence of other allegations in the complaint which are not within policy coverage does not relieve Home Indemnity of its duty to defend. See Ferguson v. Birmingham Fire Ins. Co., 254 Or. 496, 460 P.2d 342, 347 (1969) (where complaint contains counts based upon both covered and uncovered conduct, the insurer has a duty to defend because of allegations falling within policy coverage). Home Indemnity argues that the policy's pollution exclusion, which excludes coverage for damages arising from a release of pollutants unless such release is "sudden and accidental," absolved Home Indemnity of any duty to defend. We disagree. Without deciding whether the pollution exclusion is applicable to the facts of this case, the discharge of the sewage was at least potentially "sudden and accidental," as that phrase has been interpreted by other courts. The damages suffered by the residents were at least potentially out side the scope of the pollution exclusion and thus potentially within policy coverage, necessitating a duty to defend. Home Indemnity cannot escape its contractual duty to defend its insured merely by choosing to accept a version of the facts or an interpretation of the policy which it finds most favorable. Because the Guillo-ry complaint alleges a claim potentially within the policy coverage, Home Indemnity was precluded as a matter of law from looking to extrinsic facts to escape its duty to defend Gross against the residents' claims. See Afean, 595 P.2d at 645. B. Estoppel Gross contends that the trial court erroneously denied her motion for summary judgment on the estoppel issue. Gross argues that, because Home Indemnity breached its duty to defend and failed to timely notify her that it was denying a defense and coverage, Home Indemnity is estopped from contesting coverage in this action. We agree. An insurer is required to give the insured "such notice of its intention to deny liability and of its refusal to defend as will give the insured a reasonable time to protect himself." 7C John A. Appleman, Insurance Law and Practice § 4686 (1979). Such notice must not only be prompt, but it must "provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim." AS 21.36.125. Prompt notice of the basis for the denial of coverage or a defense is necessary to avoid prejudice to the insured which may result from delays in the insured undertaking its own defense or from delays in gathering evidence essential to successfully challenge the denial of coverage or a defense. Home Indemnity points to investigator Larson's tender of the non-waiver agreement to Gross as the only evidence of its communication to Gross of a coverage question. It concedes that "[otherwise, the Home's decision that the claims were not covered was not communicated to Gross, nor did the Home undertake her defense in [the residents' action]." The form non-waiver agreement tendered by Home Indemnity through Larson did not state that Home Indemnity was denying coverage or a defense, nor did it specify any basis for a denial of a defense or coverage. The mere tender of such a non-waiver agreement is insufficient to meet an insurer's obligation to the insured when the insurer decides to deny coverage or a defense. The trial court correctly stated that the first time Home Indemnity informed Gross in writing that it was asserting a coverage defense was in its July 1988 counterclaim for declaratory judgment on the issue of coverage, over five years after Gross filed her claim with Home Indemnity! Home Indemnity not only breached its duty to defend, but it failed to promptly communicate its denial of a defense and coverage or any basis for such denial. Where an insurer is in doubt as to either its duty to defend or as to the scope of coverage, its legal options and obligations are, for the most part, clear. First, it may provide a defense unconditionally. In such case, the doctrines of waiver and estoppel ordinarily preclude the insurance company from later contesting coverage. 7C John A. Appleman, Insurance Law and Practice § 4692 (1979). Second, with the consent of the insured, the insurance company may conduct the defense conditionally under either a non-waiver agreement with its insured or pursuant to a reservation of rights letter. See, e.g., Afcan, 595 P.2d at 642; Aetna Casualty & Sur. Co. v. Prestige Casualty Co., 195 Ill.App.3d 660, 142 Ill.Dec. 689, 691-92, 553 N.E.2d 39, 41-42 (Ill.App.1990). Under either a non-waiver agreement or a reservation of rights letter the insurance company can preserve its option to later disclaim coverage after conducting the defense. See Afcan at 642, 644-47. However, if the insured does not consent to a non-waiver agreement, or to a defense under a reservation of rights, then the insurance company must choose whether it wishes to defend unconditionally or pursue other options. One such option is to permit the insured to exercise its right to reject the defense offered by the insurer and to obtain substitute counsel at the insurer's expense. In the event the defense is conducted by substitute counsel, the insurance company retains the right to later contest policy coverage. See Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 291 n. 17 (Alaska 1980). A second option available to the insurance company is to refuse to defend or to withdraw from the defense. If the case involves a so-called policy defense— such as failure of the insured to give notice or to cooperate — the insurance company preserves its right to litigate such defenses when this option is exercised. Continental, 608 P.2d at 291. When the case involves a so-called coverage question — typically where one or more of the claims is excluded from coverage under the policy— the consequences of withdrawal on the part of the insurer are more complex. This is because the insurer has a separate contractual duty to defend which may apply even though the insurance company has no ultimate liability under the policy. Afcan, 595 P.2d at 645. We indicated in Afean that, in a case where the allegations in the complaint include grounds for relief both within and beyond policy coverage, an insurance company which withdraws its defense in breach of its obligation to defend is liable for the reasonable costs and attorney's fees incurred by the insured in the defense of the claim, but it is not barred from attempting to show in a subsequent action the loss is not within policy coverage. In Afean, the insurance company clearly communicated its decision to withdraw from the defense of the case and explained to the insured the basis of its decision. Further, the loss in Afean was determined by settlement, not after a trial. Although one may legitimately question whether this limitation is warranted, there is no occasion to do so in this case as the liability of Gross was not established by settlement, but by a jury verdict. Where, as here, the insurer does not communicate its decision to withdraw or explain the basis for its decision but simply denies coverage, it should be precluded from later arguing that coverage under the policy did not exist. See Bellefonte Ins. Co. v. Wayson, 489 F.Supp. 58 (D.Alaska 1980) (interpreting Alaska law, court held insurer who breached duty to defend without responding to claim of insured was precluded from contesting coverage in subsequent action on policy and was liable for entire amount of jury verdict against insured, including punitive damages. "It is not for [the insurer] to contest coverage at this late date when its breach forced the [insured] to take up its own defense and incur liability in the process."). As noted above, an insurance company is under a duty to notify its insured of its intention to deny liability and to state the grounds therefore. Supra, p. 182. Such notice is essential so that the insured may promptly undertake its own defense and evaluate whether to contest the insurance company's decision to deny coverage. The thrust of Home Indemnity's argument is that it should be permitted to abandon its insured in the face of a lawsuit over potentially covered claims and later, in the insured's action on the policy, to benefit from any factual or legal issues determined in the earlier litigation. This argument borders on audacity. See Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987) (non-mutual collateral estoppel not allowed where unusual or exceptional circumstances of 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). We hold, as a matter of law, that Home Indemnity may not contest coverage in Gross' action on the policy, and that it is liable for the entire amount of the judgment entered against Gross, as well as costs and attor ney's fees incurred in the defense of the residents' action. This holding is mandated on the authority of Theodore v. Zurich Gen. Accident & Liab. Ins. Co., 364 P.2d 51 (Alaska 1961). In Theodore we stated in part: Since Zurich had the obligation to defend and refused to do so, the judgment became binding against it both as to the extent and existence of liability. Therefore, it did not have the right, when appellants brought this suit on the judgment, to show that the death of Arthur Theodore was not caused by the employee's liability section of the policy. Id. at 56. Thus, an insurance company which wrongfully refuses to defend is liable for the judgment which ensues even though the facts may ultimately demonstrate that no indemnity is due. E.g., St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 240 (4th Cir.1990); Schurgast v. Schumann, 156 Conn. 471, 242 A.2d 695 (1968); Sims v. Illinois Nat'l Casualty Co., 43 Ill.App.2d 184, 193 N.E.2d 123, 127-30 (1963). The trial court erred in denying Gross' motion for summary judgment against Home Indemnity and in granting summary judgment for Home Indemnity. C. Summary Judgment for Adjusters Gross argues that the superior court erred in granting summary judgment for Northern Adjusters and Larson. We agree. Gross' complaint alleges that Home Indemnity and the adjusters negligently failed to "investigate, adjust, resolve or defend" the residents' claims. In Continental Ins., 608 P.2d at 287-88, we recognized that an insurance adjuster owes a duty of care to the insured which is independent of any contractual obligation arising out of the insurance policy, and that a breach of this duty is actionable. Since there was no motion before the court concerning the adjusters' liability, separate from that of Home Indemnity, and the record does not otherwise demonstrate the adjusters' right to summary judgment, the grant of summary judgment for the adjusters was improper. REVERSED and REMANDED for entry of judgment against Home Indemnity and for further proceedings in accordance with this opinion. . The cause of the spill has never been determined, but several theories exist. Home Indemnity's case is predicated on the theory that the spill was caused by a general deterioration of the sewage system which Gross knew about but ignored. At the time of the spill, Gross informed Home Indemnity's adjuster that the lines were sabotaged by tenants putting rocks or mop heads in the sewer lines. In her briefs on appeal, Gross relies on the theory that the pipes froze unexpectedly during a cold snap. Official records of the National Oceanic and Atmospheric Administration (NOAA) show that, in the four days prior to January 11, 1983, the average daily temperature ranged from —3 to —10 degrees Fahrenheit, which was from 14 to 21 degrees below normal. At her deposition, Gross theorized that the problem arose from freezing in the sewer lines connecting the trailers to the park sewage system and for which the tenants themselves had responsibility. A resolution of this factual issue is not necessary to our decision. . On January 26, 1983, the MOA and Gross stipulated to the entry of a temporary restraining order requiring a cut-off of water supply to the affected area, relocation of the affected trailers, cleanup of the sewage, and disinfecting of contaminated areas. MOA dismissed its complaint in June 1985, after a plan was developed which required Gross to pay for the cleanup and disposal of the sewage. . The policy, issued by Home Indemnity to Gross on June 21, 1982, provided that [t]he company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any such suit against the Insured seeking damages on account of such bodily injury or property damage.... An "occurrence" is defined as an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.... Under exclusion (f) of the policy, no coverage is provided for bodily injury or property damage arising out of the discharge, dispersal, release, or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release, or escape is sudden and accidental.... . Gross claimed Larson told her that "he would take care of and resolve the claims" and that Home Indemnity "would take care of everything." . Gross claims that the trial of the residents' action was rescheduled from April 14 to April 10, 1986 without her knowledge. Gross' briefs on appeal raise several questions regarding the validity of the verdict in the residents' action. However, because there was no appeal from that action, we need not address these issues. . After Gross' death, John Sauer, as representative of the estate of Delores Gross, was substituted as plaintiff. However, we will refer to the plaintiff as "Gross." . The second residents' complaint, filed nearly a year later, contained similar allegations and may have given rise to a duty to defend. The MOA's complaint may also have given rise to a duty to defend. It alleged violations of various provisions of the Anchorage Municipal Code and the Alaska Administrative Code. Such violations could potentially result from unexpected or unintended activity, thus requiring Home Indemnity to defend Gross in the action. However, because we conclude that the Guillory complaint gave rise to a duty to defend, we need not decide whether the other complaints gave rise to such a duty. . We have never had occasion to interpret the standard language of the pollution exclusion, nor do we deem it necessary to do so now. However, many other courts have done so. See generally William B. Johnson, Construction and Application of Pollution Exclusion Clause in Liability Insurance Policy, 39 A.L.R.4A 1047 (1985); 12 George B. Couch, Couch on Insurance § 44A:122 (Mark S. Rhodes ed., 2d rev. ed. 1982); 7A John A. Appleman and Jean Apple-man, Insurance Law and Practice § 4499.05 (Stephen L. Liebo ed., Supp.1991). Most courts which have interpreted the pollution exclusion consider the phrase "sudden and accidental" to be ambiguous and thus construe it against the insurer to mean "unexpected or unintended." Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090-92 (Colo.1991); Jackson Township Mun. Utils. Auth. v. Hartford Accident & Indem. Co., 186 N.J.Super. 156, 451 A.2d 990, 994 (1982). But see United States Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31, 34 (6th Cir.1988) ("sudden and accidental" is clear and plain language which "only a lawyer's ingenuity could make ambiguous"). As the Supreme Court of Georgia noted it is, indeed, difficult, to think of "sudden" without a temporal connotation: a sudden flash, a sudden burst of speed, a sudden bang. But, on reflection one realizes that, even in its popular usage, "sudden" does not usually describe the duration of the event, but rather its unexpectedness; a sudden storm, a sudden turn in the road, sudden death. Even when used to describe the onset of an event, the word has an elastic temporal connotation that varies with expectations: Suddenly, its spring. Claussen v. Aetna Casualty & Surety Co., 259 Ga. 333, 380 S.E.2d 686, 688 (1989). A discharge of sewage over several days or a few weeks, as occurred in the present case, can easily be seen as "sudden" when compared to the seven or eight years of coal dust discharge that occurred in Star Fire Coals, 856 F.2d at 35, but may not be considered sudden when compared to an instantaneous spill. Some cases say that the pollution exclusion "was solely meant to deprive active polluters of coverage." See, e.g., United Pacific Ins. v. Van's Westlake Union, 34 Wash.App. 708, 664 P.2d 1262, 1266 (App.1983) (quoting Niagra Cy. v. Utica Mut. Ins. Co., 103 Misc.2d 814, 427 N.Y.S.2d 171 (N.Y.Sup.Ct.1980)). See also Star Fire Coals, 856 F.2d at 35 ("such pollution exclusion clauses apply to the release of wastes and pollutants taking place on a regular basis or in the ordinary course of business"). This interpretation is lent further support by the fact that new pollution exclusion language was drafted in 1985 which eliminated the "sudden and accidental" language and "shifts the emphasis to industrial sites." 1 W. Freedman, Richards on the Law of Insurance § 5:2[d] (6th ed. Supp.1991). Though we do not decide this issue, this interpretation would preclude application of the pollution exclusion to Gross as a matter of law. . The record does not support the trial court's finding that Home Indemnity informed Gross' attorney that it was denying coverage and a defense. . The duty to defend arises "whenever a complaint states a cause of action within, or potentially within, the policy coverage." Afcan, 595 P.2d at 645. See also National Indemnity Co. v. Flesher, 469 P.2d 360, 366 (Alaska 1970). . Because Gross' summary judgment motion on the estoppel issue was directed only against Home and not against Northern Adjusters and Larson, and because the adjusters were not parties to the insurance contract, see Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809, 157 Cal.Rptr. 482, 490, 598 P.2d 452, 460 (1979), this portion of our opinion does not apply to the adjusters. . Because we conclude that Home is barred from contesting coverage, we need not address the issue of whether the policy provided coverage for the claims of the residents.

10397540

PROVIDENCE WASHINGTON INSURANCE COMPANY OF ALASKA, Appellant, v. Robert W. McGEE and Power Communications, Inc., Appellees

Providence Washington Insurance Co. of Alaska v. McGee

1988-11-10

No. S-2214

712

716

764 P.2d 712

764

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

PROVIDENCE WASHINGTON INSURANCE COMPANY OF ALASKA, Appellant, v. Robert W. McGEE and Power Communications, Inc., Appellees.

PROVIDENCE WASHINGTON INSURANCE COMPANY OF ALASKA, Appellant, v. Robert W. McGEE and Power Communications, Inc., Appellees. No. S-2214. Supreme Court of Alaska. Nov. 10, 1988. Constance Cates Ringstad and Michael P. McConahy, Call, Barrett & Burbank, Fairbanks, for appellant. Joseph S. Slusser and Kenneth D. Loug-ee, Hughes, Thorness, Gantz, Powell & Brundin, Fairbanks, for appellees. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2891

18378

OPINION COMPTON, Justice. This case raises questions concerning contribution among joint tortfeasors. The specific issue is when a claim for contribution arises. I. FACTUAL AND PROCEDURAL BACKGROUND An accident occurred involving vehicles driven by Robert McGee and Wayne Var-ney. McGee was driving a truck owned by his employer, Power Communications. He was returning home after picking up material for work the next day. Varney was driving a car also owned by his employer, James Turner, d/b/a J & O Drilling. Var-ney and four passengers were returning from an outing at the Fairbanks Fair. The car was insured under Turner's policy with Providence Washington Insurance Company of Alaska (Providence Washington). Varney was an insured driver under the policy. Providence Washington paid $36,894.76 to Lynn Ice, a passenger in the Turner car, for damages she sustained in the accident. In exchange, Providence Washington ob tained from Ice the release of Varney, Turner, McGee and Power Communications from further liability. Providence Washington paid $6,269.00 to Turner for damages to his car. Also as a result of the accident, McGee filed suit against Varney. That action was dismissed when Providence Washington agreed to pay McGee $275,000 on Varney's behalf. In exchange, McGee released Var-ney, Turner, J & O Drilling and Providence Washington from future liability. Following its settlement of these claims, Providence Washington, as subrogee of Turner, filed suit against McGee and Power Communications (collectively McGee, unless otherwise noted) for contribution on the amounts paid to Ice and Turner. Providence Washington alleged that McGee was a joint tortfeasor on a theory of negligence, and Power Communications a joint tortfeasor on the theories of vicarious liability and negligent entrustment of its vehicle to McGee. McGee answered that Providence Washington was required under Alaska R.Civ.P. 13(a) to bring these claims in McGee's previous action against Varney. Because the claims were not brought at that time, McGee claimed that they were barred. This case was originally assigned to Judge Gerald J. Van Hoomissen. Judge Van Hoomissen denied McGee's motion for judgment on the pleadings, but granted partial summary judgment to Power Communications on the claim of negligent en- trustment. The case was reassigned to Judge James R. Blair. At a pretrial conference, McGee renewed his motion for judgment on the pleadings. The following day Judge Blair granted the motion, holding that the claims were barred under Civil Rule 13(a). Providence Washington appeals the rulings on the judgment on the pleadings, the summary judgment and attorney's fees. II. DISCUSSION We have recognized that a complaint is subject to dismissal under Alaska R.Civ.P. 12(b)(6) when an affirmative defense appears clearly on the face of the pleading. Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 152 (Alaska 1987). We have also recognized that when a pleading is dismissed on the basis of an affirmative defense, "resolution of [the] case is not found within the confines of Rule 12(b)(6) but rather in an analysis of [the defense]." Id. The defense asserted by McGee is the compulsory counterclaim rule contained in Civil Rule 13(a). Analysis of Civil Rule 13(a) is a matter of law over which this court may exercise its independent judgment. Miller v. LHKM, 751 P.2d 1356, 1359 n. 5 (Alaska 1988). A. THE TRIAL COURT ERRED IN DISMISSING PROVIDENCE WASHINGTON'S CLAIM ON THE BASIS OF CIVIL RULE 13(a). Contribution is governed by the Alaska Uniform Contribution Among Tort-feasors Act (the Act), AS 09.16.010-.060. The Act creates a right to pro rata contribution between joint tortfeasors. AS 09.-16.010(a), (b). Insurers who pay to discharge the liability of a tortfeasor are sub-rogated to the tortfeasor's right of contribution. AS 09.16.010(e). The Act also establishes a right to pro rata contribution among all parties released in a settlement agreement if an agreement is construed as a satisfaction of judgment which extinguishes the liability of other tortfeasors. Criterion Ins. Co. v. Laitala, 658 P.2d 112, 115-17 (Alaska 1983). Finally, the Act grants a procedural right to sue in a separate action before liability has been determined. AS 09.16.030(a). McGee argues that Providence Washington may not bring the instant suit because any claim for contribution should have been brought in the previous action of McGee v. Varney, 4FA-83-298 Civil. He bases this claim on Civil Rule 13(a). This argument fails because Civil Rule 13(a) only applies to claims which are mature at the time pleadings are served. See 3 J. Moore, Moore's Federal Practice 1113.14[1], at 13-82-84 (2d ed. 1985). In the case at bar, the claim for contribution did not accrue until after the last pleading was filed in McGee v. Varney. On January 13, 1984, McGee filed an amended complaint which was answered on January 16. Ice did not settle her claim until June 20,1984. At that time Providence Washington paid the total claim. We agree with those courts that hold that a claim for contribution is substantively separate from the underlying tort and does not arise until the contribution claimant has paid more than his or her proportionate share of the total claim. See A Patient Care Center v. Ted Hoyer & Co., 498 So.2d 1381, 1382 (Fla.App.1986); State ex rel. General Elec. Co. v. Gaertner, 666 S.W.2d 764, 767 (Mo.1984); Markey v. Skog, 129 N.J.Super. 192, 322 A.2d 513, 517 (1974). The total amount of the liability to Ice first had to be established to determine proportions. That amount was not known until the June 20 settlement was reached. No cause of action for contribution accrued until it was determined that Providence Washington had paid one hundred percent of the settlement. Only at that time, assuming Providence Washington's allegations of McGee's negligence to be true, would Providence Washington have paid more than its proportionate share. See Criterion Ins. Co., 658 P.2d at 115-17; AS 09.16.010(b). Therefore, the claim for contribution could not have been a compulsory counterclaim until after June 20, which was well past the date that responsive pleadings were required, see Alaska R.Civ.P. 12(a), and as a result, the action is not now barred by Civil Rule 13(a). B. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO POWER COMMUNICATIONS ON THE ISSUE OF NEGLIGENT ENTRUSTMENT. In reviewing motions for summary judgment, this court may make an independent review to determine whether any issue of material fact remains to be litigated and whether any party is entitled to judgment on the relevant law. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985); Alaska Rent-A-Car v. Ford Motor Co., 526 P.2d 1136 (Alaska 1974). Providence Washington based its claim of negligent entrustment on the following chain of allegations: "that McGee regularly drank alcoholic beverages, returned to work and drove the vehicle owned by Power Communications. Members of McGee's crew were aware of these practices." But these are merely allegations. Providence Washington did introduce evidence that McGee drank the night before the accident and twice on the date of the accident, but did not introduce evidence that McGee regularly drank. Nor, more importantly, did Providence Washington introduce evidence that McGee's supervisors at Power Communications had any reason to suspect that McGee drove while intoxicated. Power Communications introduced evidence refuting Providence Washington's unsubstantiated allegations. John Teeter, a supervisor of McGee's, stated: "Mr. McGee never appeared to me to have been drinking alcohol on any occasion, either before or during working hours or while operating company vehicles." Teeter's affidavit is the only admissible evidence on this issue. Providence Washington attacked Teeter's. affidavit, arguing that it "does not establish that other employees, co-workers and/or supervisors at Power Communications were not aware of McGee s negligent driving and drinking habits." But Providence Washington's allegations were unsupported by admissible evidence and as a result are inadequate to rebutt Power Communications' evidence. Thus, Power Communications met its burden of showing that no material fact remained in dispute and was correctly granted summary judgment. III. CONCLUSION For the reasons stated above the trial court's decision is AFFIRMED in part, REVERSED in part, and REMANDED. . Neither the pleadings in the previous litigation nor the releases were included in the record on appeal. However, the uncontested facts disclose that neither Turner nor Providence Washington was named as a party in McGee's suit, and that neither released McGee from any potential liability. . In memoranda filed in the trial court subsequent to its initial pleadings, Providence Washington claimed status as subrogee of both Turner and Varney. McGee argues before this court that Providence Washington used a " 'shell game' approach to the pleadings; Providence Washington's theory of recovery vacillated between contribution rights which derived from Varney and contribution rights which derived from Turner." In addition, McGee argues that Turner's negligence was not pled by Providence Washington in its complaint and thus Turner cannot have been a joint tortfeasor who could seek recovery under the Alaska Uniform Contribution Among Joint Tortfeasors Act, AS 09.16.-010-.060. The trial court never addressed these issues. We therefore need not determine any issue arising out of the alleged "shell game." Regarding the alleged defect in Providence Washington's pleading of Turner's negligence, we do observe that Alaska R.Civ.P. 8(a) requires only that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." In this regard, implicit in any claim for contribution is the notion that the contribution claimant is a joint tortfeasor. See DeVore Brokerage Co. v. Goodyear Tire & Rubber Co., 308 F.Supp. 279 (M.D.Tenn.1969). Such an implicit allegation should be sufficient to put the opposing parties on notice as to one of the issues to be litigated, namely, the negligence of the contribution claimant. In addition, it is within the trial court's discretion to allow amendments to the pleadings or to treat issues tried by the parties by express or implied consent as if they had been raised in the pleadings. Alaska R.Civ.P. 15(a), (b). It is in the latter manner that McGee is treating Providence Washington's rights as derivative through Varney. Providence Washington could have explicitly articulated a basis for Turner's negligence, rather than rely on an implicit allegation. See Robert L. Turchin, Inc. v. Gelfand Roofing, 450 So.2d 554, 556 (Fla.App.1984); Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165, 169 (Fla.App.1983) ("A prima facie case is made if claimant establishes common liability and introduces proof of the fact of and the amount of the settlement reached.''). McGee may choose to move for a more definite statement regarding Turner's negligence, Alaska R.Civ.P. 12(e), or waive any defect in the pleading and proceed to argue Turner's negligence on the merits. See Ogle v. Craig Taylor Equipment Co., 761 P.2d 722, 725 & n. 4 (Alaska 1988); W.D. Rubright Co. v. International Harvester Co., 358 F.Supp. 1388, 1397 & n. 4. (W.D.Pa.1973). Alternatively, should McGee direct the trial court's attention to matters outside the pleadings, he may choose to move for summary judgment on the issue. Alaska R.Civ.P. 12(c), 56. . The f275,000 paid to McGee is not at issue in this contribution action. . Civil Rule 13(a) provides in part; A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . Specifically, Judge Blair ruled: This court agrees that the contribution claim in this case should have been brought as a counterclaim in Case No. 4FA-83-198. Rule 13 is designed to encourage and require the resolution of all disputes arising from the transaction or occurrence that is the subject of the opposing parties' claim. The purpose is to avoid duplicitous (sic) litigation for the benefit of litigants and the court system. There is also a question of basic fairness. McGee had every reason to believe he was resolving all disputes arising from the accident of August 11, 1982 when he settled with Providence Washington Insurance Company. Allowing this case to proceed when it could and should have been resolved at the time of the initial settlement is simply unfair to McGee. Rule 13 is designed to prevent situations exactly like this one. . We here address only the Ice claim. Providence Washington's claim for property damage must be treated separately. It is not clear whether Providence Washington paid Turner under a collision policy or as a liability insurer of Varney. If Providence Washington paid as a liability insurer of Varney, dismissal would be appropriate if the liability of McGee to Turner for property damage was not extinguished by the settlement between Varney and Turner. See AS 09.16.010(d). If, however, Providence Washington paid Turner under a collision policy, the action can be maintained by Providence Washington as a direct action for negligence. Since this case must be remanded, the basis for Providence Washington's claim for property damage must be ascertained. .We observe that our holding here is not contrary to AS 09.16.030(a) which grants a procedural right to sue before liability has been determined. See State ex rel. General Elec. Co., 666 S.W.2d at 767-68 (quoting 3 J. Moore, Moore's Federal Practice ¶ 14.08, at 14-52 (2d ed. 1985)) (analogizing a similar provision in the Uniform Comparative Fault Act to Federal Rule of Civil Procedure 14, which "may . accelerate the right of contribution among joint tortfeasors even though such right is 'inchoate, unascertainable and contingent until [the joint tortfeasor] pays more than his proportionate share of the common liability.'"). . We decline to answer the question of whether the contribution claim would be compulsory after June 20. We merely hold that it could not possibly have been compulsory prior to that date. . We recognize that under Alaska R.Civ.P. 13(e) Providence Washington could have moved the court for leave to present the counterclaim by amendment. However, Rule 13(e) is permissive, not mandatory, and thus cannot be construed to have required Providence Washington to seek an amendment. . As a result of this disposition we need not address Providence Washington's arguments regarding attorney's fees. Attorney's fees must be recalculated by the trial court at the conclusion of the proceedings on remand.

10385336

William C. WHITE, Appellant, v. STATE of Alaska, Appellee

White v. State

1989-04-21

No. A-1592

211

218

773 P.2d 211

773

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

William C. WHITE, Appellant, v. STATE of Alaska, Appellee.

William C. WHITE, Appellant, v. STATE of Alaska, Appellee. No. A-1592. Court of Appeals of Alaska. April 21, 1989. Blair McCune and Linda K. Wilson, Asst. Public Defenders, and John B. Salemi, Acting Public Defender, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3466

21450

OPINION SINGLETON, Judge. William C. White was convicted by a jury of one count of burglary in the first degree, AS 11.46.300(a)(1); two counts of robbery in the first degree, AS 11.41.500(a)(1); two counts of assault in the third degree, AS 11.41.220; one count of kidnapping, AS 11.41.300(a)(1)(C); and one count of sexual assault in the first degree, AS 11.41.-410(a)(1). Judge John Bosshard, III, sentenced White to an aggregate term of nineteen years with four years suspended and ordered White to pay the victims $5,000 in restitution. White appeals the judgment and sentence. Pursuant to Alaska Rule of Criminal Procedure 35.1, White also applied for post-conviction relief. Judge Bosshard denied White's application for post-conviction relief. White raises three issues on appeal: (1) that a pretrial voice identification lineup was unduly suggestive; (2) that Judge Bos-shard erred in denying his application for post-conviction relief because his attorney at the voice lineup had a conflict of interest and provided him with ineffective assistance of counsel; and (3) that his sentence is excessive. We affirm White's conviction and deny his application for post-conviction relief, but remand to the trial court for resentencing. On April 1,1982, seventeen-year-old D.M. was living with her mother, P.M., in a trailer complex in Valdez. At approximately 10:15 p.m., D.M. heard a knock at the door. When she opened the door, a man wearing a ski mask and carrying a gun forced his way into the trailer. The man asked to see D.M.'s "old man." The intruder then pushed D.M. and P.M. into the back bedroom and made them lie face down, continually demanding that they "give him the dope." Apparently, the intruder was under the mistaken impression that a male drug dealer lived in the trailer. The intruder taped P.M. with duct tape, and then took D.M. to her bedroom where he bound her with duct tape. According to D.M., the intruder "kept talking all the time," repeatedly asking, "where's your old man" and "where's the dope." P.M. agreed with her daughter that the intruder "kept talking all the time." After taping D.M., the intruder alternately searched the trailer and then returned to D.M.'s room. During this time, the intruder committed a series of offenses leading to the convictions in this case. Significantly, the intruder spoke with D.M. each time he entered her room. After the intruder left, D.M. freed herself and notified the police. When the police arrived, D.M. described the intruder and told the police, "I could identify his voice if I ever heard it again." The police obtained further information, and on April 2, White was detained in connection with the case. White was interviewed by Patrick Mi Shely, Chief of Police for the City of Valdez. Eventually, White requested an attorney. Shely contacted the only attorney available in Valdez. The attorney was also the mayor of Valdez. White was placed under arrest. See State v. White, 707 P.2d 271 (Alaska App. 1985). Shely requested that White participate in a voice lineup. After consultation with his attorney, White decided to participate in the voice lineup. The voice lineup was arranged through the joint efforts of the police and White's attorney. Officer Rayme L. Vinson prepared a list of nine statements which D.M. and P.M. had said the intruder had repeated the previous night. A dispatch room was arranged for the voice lineup and a partition was placed down the middle of the room, separating the two women from the participants. Six participants, including White and Shely, were brought in and placed behind the partition. Each participant received a copy of the nine statements; Vinson instructed them on the procedure to be followed during the lineup. D.M. and P.M. were then brought into the room. Officer David Mowry instructed the women to give a nonverbal signal if either recognized a voice as the intruder's. Shely selected the reading order randomly. Each participant read all nine statements. The procedure was then repeated, although the order of the participants was scrambled from the first reading. Thus, each participant read all nine statements twice. Vinson positioned himself so that he could record the speaker and the reaction of the victims. D.M. and P.M. were positioned next to each other, facing away from the partition. The first time White read the statements, both women nodded their heads affirmatively, although the women looked at each other as they made the identification. D.M. testified that she recognized the voice after "one or two words at the most. I recognized the voice right off_" P.M. testified that "ás soon as we heard his voice, we both looked at each other and nodded our heads because . we could tell that was the one then." The second time White read the statements, both women nodded again, and this time looked directly to Vinson. After the lineup, both women spoke with Mowry; both indicated they were positive that the voice they identified was the voice of the intruder from the previous night. DISCUSSION Prior to trial, White moved to suppress the use of the voice identification lineup. White renews his argument on appeal, arguing that the lineup procedure was unnecessarily suggestive, thus violating his due process rights. In evaluating whether a pretrial identification procedure violates a defendant's due process rights, we follow a two-step analysis. We first ask if the identification procedure is unnecessarily suggestive. If the procedure is unnecessarily suggestive, we then ask if the identification is nevertheless reliable based on the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 108-09, 97 S.Ct. 2243, 2250, 53 L.Ed.2d 140 (1977); Viveros v. State, 606 P.2d 790, 792 & n. 1 (Alaska 1980). White alleges that four factors destroyed the validity of the lineup. The first is that Chief Shely was among the participants in the lineup. Although D.M. admitted she had spoken with Chief Shely in. the past, D.M. did not recognize any voice in the lineup other than that of her assailant. Furthermore, P.M. had never spoken with Chief Shely prior to the lineup. Therefore, the fact that Shely participated in the lineup did not render the lineup unduly suggestive. Second, White argues that the lineup was prejudicial because it occurred more than twenty-four hours after the crime. In fact, the lineup occurred approximately twenty-five hours after the crime. This amount of time falls short of the weeks or months which might make a lineup prejudicial. See Manson, 432 U.S. at 116, 97 S.Ct. at 2254. We do not believe that this minor delay rendered the lineup unduly prejudicial. Third, White argues that the victims were allowed to collaborate in their identification of his voice. Although it appears that D.M. and P.M. glanced at each , other as they made their initial identification of White, neither victim verbalized her thoughts. Furthermore, it appears that both women recognized the voice immediately and independently of each other. Although placing witnesses together during a lineup is not recommended, in this case it was not unduly prejudicial. Finally, White argues that the other lineup participants were white and had white accents, while he is black and has a different accent. The focus of a voice identification should be on the similarity in vocal quality such as tone and accent. See United States v. Schultz, 698 F.2d 365, 867-68 (8th Cir.1983); People v. Vallez, 80 Cal.App.3d 46, 143 Cal.Rptr. 914, 919 (1978). The trial court was not clearly erroneous in concluding that White's vocal style or accent was not particularly distinctive. Although White's tone was slightly softer than the other participants, White possessed no peculiar vocal quality which would render the lineup impermissibly suggestive. Even if any part of the lineup was impermissibly suggestive, the identification was reliable based upon the totality of the circumstances. The Alaska Supreme Court has noted that "the test is whether such identification is reliable, as weighed against the corrupting effect of the suggestive identification itself." Holden v. State, 602 P.2d 452, 456 (Alaska 1979). In determining the reliability of a visual identification, the Alaska Supreme Court has followed the United States Supreme Court in setting forth five factors. These factors, which are equally applicable to an auditory lineup, include: (1) the opportunity of the witness to hear the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Walker v. State, 652 P.2d 88, 95 (Alaska 1982); Holden, 602 P.2d at 456. In this case, both victims had ample opportunity to hear the intruder at the time of the crime. Second, both witnesses had time and opportunity to focus their attention on the intruder's voice. Third, prior to the lineup, both D.M. and P.M. had told the police that they could identify the voice. Fourth, both D.M. and P.M. expressed certainty that White's voice was the voice of the intruder. D.M. stated, "I was sure that was the voice." P.M. said that there was no doubt in her mind that the voice she identified was the voice she had heard in the trailer. Finally, as already noted, the time between the crime and the confrontation was only twenty-five hours. Thus, the reliability of this identification outweighs any possible suggestiveness. White's second argument is that the lower court erred in failing to grant his application for post-conviction relief. First, White contends he was denied the effective assistance of counsel. Specifically, White argues that his attorney at the voice lineup had a conflict of interest because he was the mayor of Valdez. A conflict of interest may result from a variety of situations. As in this case, a "professional" conflict of interest may result when an attorney's second profession or outside activities interfere with the attorney's undivided assistance in a case. In contrast, the more typical conflict of interest, multiple representation, may result from the joint representation of co-defendants by a single attorney. The law is unsettled as to a defendant's burden when the defendant alleges that his attorney has a professional conflict of interest. However, the United States Supreme Court has established guidelines for multiple representation conflict of interest cases. In Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), the Supreme Court held, "[T]he possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his sixth amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." We have already adopted the Cuyler standard in conflict cases resulting from multiple representations. See LaPierre v. State, 734 P.2d 997, 1003-04 (Alaska App.1987); Wilson v. State, 711 P.2d 547, 549 (Alaska App.1985). White now urges that we follow the Illinois courts and distinguish between a professional conflict of interest and a conflict based upon multiple representation. In People v. Washington, 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.E.2d 393, 394-95 cert. denied, 469 U.S. 1022, 105 S.Ct. 442, 83 L.Ed.2d 367 (1984), the Illinois Supreme Court restricted the Cuyler standard to multiple representation cases and adopted a per se standard of reversal in professional conflict of interest cases. We decline White's invitation and will follow the Cuyler standard in professional conflict of interest cases. This position is within the weight of prior federal authority. See United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1312-13 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). See also Illinois v. Washington, 469 U.S. 1022, 105 S.Ct. 442, 83 L.Ed.2d 367 (1984) (three justices dissenting from denial of certiorari discuss the Illinois split and note that "numerous" federal courts have not limited Cuyler to cases of joint representation). We agree with these federal authorities. We do not find that White's attorney was laboring under an actual conflict of interest. Even if we were to find a "symbolic conflict," we would follow Cuyler and would conclude that White has not persuaded us that he suffered any detriment because of his attorney's relationship with the City of Valdez. The City of Valdez operates under a city manager form of government. The mayor of Valdez is simply elected to preside over the city counsel. Furthermore, the Valdez City Charter prohibits city counsel members from interfering with the hiring or firing of city personnel. See Valdez City Charter § 5.3a(j). It appears that the city counsel could become involved with the police on a budgetary matter or in matters involving complaints that the police had established a pattern of acting unprofessionally. However, this case involved neither of these matters. As Cuyler held, "the possibility of conflict is insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. Second, White's attorney had no professional employment with the state as an attorney. Third, White's attorney had handled "hundreds" of prior criminal cases and had maintained a "very competitive" relationship with the police. Finally, we note that there are only a limited number of practicing attorneys in rural Alaska communities. To disqualify those attorneys with only symbolic connections to the state from providing a legal defense to those who need their services would hamper the administration of justice and may infringe on the accused's right to an attorney. In his application for post-conviction relief, White alleges an additional reason to support his claim of ineffective assistance of counsel at the voice lineup. Specifically, White argues that his attorney was ineffective in leaving the decision of whether or not to participate in the voice lineup solely to the discretion of White. White notes that his attorney was aware that White had made a statement indicating that he could not recall the events of the prior evening. In determining ineffective assistance of counsel claims, we follow a two-pronged analysis. Risher v. State, 523 P.2d 421, 424 (Alaska 1974); State v. Jones, 759 P.2d 558, 567-68 (Alaska App.1988). The first prong is an objective standard, requiring the defendant to prove that defense counsel's conduct fell below that of a lawyer with ordinary training and skill in the criminal law. Risher, 523 P.2d at 424; Jones, 759 P.2d at 567. The second prong requires a showing of prejudice, or "a showing that the lack of competency contributed to the conviction." Risher, 523 P.2d at 425. While this test closely mirrors the Supreme Court test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there is one distinguishing factor. In the prejudice prong, "Risher requires only that the accused create a reasonable doubt that counsel's incompetence contributed to the conviction, [while] Strickland requires that a reasonable probability of a different outcome be established." Jones, 759 P.2d at 572 (citation omitted). In the instant case, we do not find that the actions of White's attorney were ineffective. White's attorney fully informed him of the pros and cons and the legal consequences of the decision. Counsel explained that if White's voice was identified, it would be additional evidence against him; if his voice was not identified, it would be favorable evidence for him. Furthermore, when White suggested he would like to prove his innocence, counsel stopped White and fully informed him on the presumption of innocence and the burdens of proof. After counsel believed he had explained every aspect of the decision, White still felt it was best to go forward with the lineup. Finally, White has not demonstrated prejudice because even if he had refused the voice lineup, it appears likely that the police could have obtained a court order requiring his participation. See Alaska R.Crim.P. 16(c). Under these circumstances, counsel's assistance cannot be found ineffective. White's final argument is that his sentence is excessive. White received an aggregate sentence of nineteen years with four years suspended. The sentence included: Count I (first-degree burglary), three years; Counts II and III (first-degree robbery), six years on each count, concurrent to each other but consecutive to Count I; Counts IV and V (third-degree assault), two years on each count, all suspended, consecutive to the above counts; Count VI (kidnapping), five years concurrent to the above counts; and Count VII (first-degree sexual assault), six years, consecutive to the above counts. In 1982, the robberies and the sexual assault were class A felonies and, because a firearm was used, were subject to six-year presumptive terms. See former AS 12.55.125(c)(1). White was also ordered to pay $5,000 in restitution. White first argues, and the state agrees, that the restitution order must be set aside because the trial court made no findings regarding White's earning capacity or ability to pay and made no findings regarding the victim's actual amount of damages. See Karr v. State, 686 P.2d 1192, 1196-97 (Alaska 1984); AS 12.55.-045(a); AS 12.55.100(a)(2). We agree that the record does not reflect any such findings by the trial court. Thus, the restitution order must be vacated. White's second argument is that the trial court failed to make a finding that imposition of consecutive sentences was necessary to protect the public. See Lacquement v. State, 644 P.2d 856, 860-62 (Alaska App.1982). The state argues that this finding is no longer required after our decision in Jones v. State, 744 P.2d 410 (Alaska App.1987). We have recently reviewed this line of cases and the question of consecutive sentences in DeGross v. State, 768 P.2d 134 (Alaska App.1989). In that case, we noted that it is important for the sentencing court to consider similarly situated offenders, particularly in the case of a first felony offender. Id. at 139. In cases involving first felony offenders, we noted a benchmark sentencing range of ten to fifteen years for crimes involving multiple sexual assaults. In cases involving various types of class A and class B felonies, we expressed reluctance to approve any sentence involving a total of more than ten years' unsuspended incarceration. We pointed out that only in the most unusual cases have we approved sentences beyond the benchmark. Id. at 139-140. We find that White's case is similar in its facts to Smothers v. State, 579 P.2d 1062 (Alaska 1978). In that case, Smothers and two companions broke into a residence and tied up the three female occupants. Two of the occupants were struck with a gun, and the burglars remained at the residence for approximately two hours. Id. at 1063. At the time of the offense, Smothers was twenty years old. He was on probation and had an extensive prior record. Although the court noted that his twelve-year sentence was severe, it affirmed the sentence. In this case, we note that White was a twenty-four-year-old first felony offender at the time of the crime. White's only prior offenses were nine minor traffic citations. Since the charges in this case, White has maintained a good record. Prior to the offense, White was steadily employed. White has maintained the support of friends and family. In its sentencing remarks, the court did not find that White needed a sentence of more than ten years for purposes of community protection or isolation. Instead, the trial court ruled, "The court imposes this sentence for the purpose of deterring others from committing similar crimes." In our view, a sentence in excess of ten years could only be justified by the need for isolation. We have concluded that White's sentence must be vacated and the case must be remanded for resentencing. The sentencing court should enter findings consistent with our opinion in DeGross. The total of consecutive sentences should not exceed ten years, absent a finding of a need for isolation. The conviction is AFFIRMED. The sentence is VACATED and the case is REMANDED for resentencing. . We recognize that White was convicted of kidnapping, an unclassified felony, AS 11.41.-300(a)(1)(C). It does not appear that the trial judge considered the kidnapping particularly aggravated. This case is therefore distinguishable from Garrison v. State, 762 P.2d 465 (Alaska App.1988). Rather, he seems to have viewed the kidnapping as aggravating White's other offenses. We have therefore treated this case as primarily a serious sexual assault and robbery aggravated by the burglary of the victims' home and the prolonged restraint of the victims.

9095820

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

Riddell v. Edwards

2003-09-05

No. S-10025

847

860-862

76 P.3d 847

76

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

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

Robert J. RIDDELL, Appellant, v. Irvin H. EDWARDS, Appellee. No. S-10025. Supreme Court of Alaska. Sept. 5, 2003. Robert J. Riddell, pro se, Ward Cove. Bryan T. Schulz, Holman & Schulz, Ket-chikan, for Appellee (no brief filed). Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

7998

51380

OPINION BRYNER, Justice. I. INTRODUCTION In a probate proceeding involving the estate of his deceased wife, Robert J. Riddell petitioned as a surviving spouse to receive his statutory homestead allowance, family allowance, and elective share. Despite finding that Riddell had "ingratiated himself" to his wife before their marriage "for the purposel ] of obtaining her assets" and that his wife had suffered from dementia for the majority of their relationship, the superior court ruled that Riddell and his wife had been validly married and that the estate had no standing to argue that the marriage was voidable. The court nonetheless concluded that Rid-dell's unconscionable conduct warranted establishing a constructive trust to give the estate Riddell's statutory benefits. Because the superior court's finding that the marriage was valid is not disputed and because Alaska law unconditionally gives the surviving spouse of a valid marriage the right to marital allowances and a share of the estate based solely on the existence of a valid marriage, we hold that the necessary elements for a constructive trust are lacking and that establishing the trust exceeded the court's equitable powers. We thus vacate the trust and remand with directions to fix the amount of Riddell's statutory benefits. II. FACTS AND PROCEEDINGS In December 1993 Lillie Rahm-Riddell, who was in her early nineties, met Robert J. Riddell, who was in his mid-sixties. Riddell ingratiated himself to Lillie and became her handyman. He soon moved in with her and started to isolate her from her family and friends. Riddell married Lillie in Ketchikan in May 1995, while guardianship proceedings were pending to determine Lillie's competency to manage her personal and financial affairs. Those proceedings resulted in the appointment of the Public Guardian as Lillie's primary conservator; several months later, prompted by reports of domestic violence, the superior court entered an order restraining Riddell from contacting Lillie. Lillie moved to an assisted-living home in Washington state. Riddell spirited her away from the home and took her to Oregon, where they lived together until Lillie died in September 1997. The entire time that Lillie knew Riddell, she suffered from Alzheimer's disease and/or senile dementia. Lillie's brother, Irvin H. Edwards, accepted the superior court's appointment as personal representative of her estate. Ensuing litigation between the estate and Riddell generated three appeals. In the first appeal, we affirmed the superior court's order invalidating for lack of testamentary capacity a will that Lillie executed shortly before her death leaving her entire estate to Riddell. In the second, we affirmed the superior court's order denying creditor claims that Riddell filed against the estate seeking compensation for alleged premarital and marital services to Lillie. The third appeal, which we now consider, arises from two related superior court orders: (1) an order declaring Lillie's marriage to Riddell valid and finding Riddell eligible as Lillie's surviving spouse to claim his statutory rights to allowances and share; and (2) a subsequent order, based on a finding of fraudulent conduct by Riddell toward Lillie, establishing a constructive trust in the estate's favor to receive Riddell's payments of allowances and share. Our decision requires us to describe these orders in considerable detail. In the course of the probate proceedings, after Riddell petitioned for his statutory al-lowancees and share, the superior court ordered briefing and conducted a hearing to determine the validity of the marriage. The estate sought to invalidate the marriage, arguing that it was voidable because Lillie had been incompetent and Riddell had fraudulently induced her to enter into the marriage. Following the hearing, the court issued a thoughtful and carefully reasoned decision that found clear and convincing evidence of Riddell's fraudulent conduct toward Lillie but nevertheless rejected the estate's challenge to the marriage and declared Riddell eligible to claim allowances and share. The superior court began its decision by unequivocally recognizing the compelling evidence of Riddell's misconduct toward Lillie: A review of the prior evidence and the new evidence leaves no question to any objective observer by clear and convincing evidence Mr. Riddell ingratiated himself to [Lillie] for the purposes of obtaining her assets. She was suffering from dementia, was alone and lonely and he did small things for her in a way that kept her from making decisions that she would have made when she was fully competent. He isolated her by changing her phone, bullying family and friends that were old and frail themselves in such a way that they were not able to be supportive of her. Three separate court actions involving injunctions under the Domestic Violence law, a conservatorship and a guardianship were filed. Lawyers, a conservator, a temporary guardian and a guardian ad litem were appointed for [Lillie]. Mr. Riddell defeated them all. In his own words, he and [Lillie] sneaked to Juneau to get a marriage license and got married secretly in Ketchikan while conservator proceedings were pending. Mr. Riddell physically intimidated friends, family, lawyers and caregivers. He spirited [Lillie] away from the nursing home in Washington and kept her from authorities despite attempts to locate her by lawyers, a private investigator and court orders that he disclose her whereabouts. Mr. Riddell provided [Lillie] with the attention she craved and did small things for her that made her life better. He also abused her physically and cut her off from her friends and family so that she was utterly dependent upon him for all her needs. But the court also recognized that this evidence did not necessarily render Lillie's marriage invalid. Noting that "[plersons suffering from dementia have fluctuating periods of more contact with reality and ability to cope," the court reviewed the evidence and found eredible testimony indicating that Lillie was competent and understood the consequences of her actions at the time that she married Riddell. In the court's view, then, the evidence did not convincingly prove Lillie's incompetence when she entered into the marriage: "this court cannot say that at the time she applied for the marriage license or when she actually participated in the ceremony she did not understand that she was getting married." The superior court then proceeded to consider the legal significance of this finding; in so doing, it drew an important distinction between marriages that are void and those that are merely voidable. The court noted that, in AS 25.24.020, the Alaska Legislature defined a narrow class of marriages as legally void. That statute provides: A marriage which is prohibited by law on account of consanguinity between the persons, or a subsequent marriage contracted by a person during the life of a former husband or wife which marriage has not been annulled or dissolved is void. In contrast, the court pointed out, AS 25.24.0830 defines a broader class of marriages as voidable. Alaska Statute 25.24.030 provides: A marriage may be declared void for any of the following causes existing at the time of the marriage: (1) [under the age of legal consent]; (2) that either party was of unsound mind, unless that party, after coming to reason, freely cohabited with the other as husband and wife; (3) that the consent of either party was obtained by fraud, unless that party after-wards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) that the consent of either party was obtained by force, unless that party after-wards freely cohabited with the other as husband and wife; (5) [failure to consummate]. The court further noted an early Oregon Supreme Court decision construing statutory provisions similar to Alaska's to allow a marriage to be declared void on the ground of incapacity only when the party lacked capacity to understand the transaction and its quality and consequences. And the court also emphasized the legislature's intent to allow a challenge under this broader class of voidable marriages to be brought only by a party to the marriage; AS 25.05.0831 unequivocally states the limitation: If either party to a marriage is incapable of consenting to it at the time of the marriage for want of marriageable age of consent or sufficient understanding, or if the consent of either party is obtained by force or fraud, or if either party fails to consummate the marriage, the marriage is voidable but only at the suit of the party under the disability or upon whom the force or fraud is imposed. Given this statute, the court concluded that "[the personal representative of the estate may not bring a suit regarding the voidability of a marriage on . behalf of a party under a disability after that party has died." After surveying cases from other jurisdictions, the superior court further determined that Alaska's statutory scheme reflects the majority view, which the court characterized as precluding the personal representative of a deceased spouse from challenging the validity of the spouse's marriage in the absence of either an express statutory provision allowing post-mortem challenges or gross fraud coupled with mental disability. Applying this analysis, then, the superior court examined the circumstances of the case at issue here to determine whether they established that Lillie's marriage was either void under AS 25.24.020 (as opposed to being merely voidable under AS 25.24.0830) or involved the kind of gross fraud that led other jurisdictions to entertain post-mortem claims of invalidity by personal representatives. Because the court found the evidence as a whole to show that Lillie "understood the nature of her decision to marry Mr. Riddell," it declined to find the marriage void. The court went on to consider whether the case fell within the gross-fraud exception, which allows postmortem challenges to a valid marriage upon proof of gross fraud arising from "a combination of incompetence and egregious behavior." Though it noted that "Mr. Riddell did isolate [Lillie] from her family and friends and he may have married her to obtain her property," the court found that "his conduct did not rise to the level of gross fraud." Accordingly, the superior court's order declared the marriage valid under AS 25.24.020's voidness criteria and precluded the estate from challenging it under AS 25.24.030's provisions describing voidable marriages; on this basis the court ruled that Riddell was Lillie's surviving spouse and was therefore eligible to claim a surviving spouse's statutory allowances and share. But the court's first order merely declared that Riddell was eligible to claim his statutory allowances and share; it did not actually direct the estate to pay. Moreover, in declining to allow the estate to pursue its challenge to Lillie's marriage, the court cited and discussed Patey v. Peaslee, a case involving analogous facts in which the New Hampshire Supreme Court construed New Hampshire laws to preclude a personal representative's action to invalidate the deceased spouse's marriage but nonetheless allowed the personal representative to pursue an equitable claim seeking to establish a constructive trust in favor of the estate. This discussion of Patey in the superior court's first order planted the seeds for the order that followed. After receiving the order declaring him eligible to receive the statutory marital allowances and share, Riddell filed a motion seeking to enforce that order. In response, the estate cross-moved to establish a constructive trust requiring Riddell's allowances and share to be paid to the estate. The superior court's second order granted the estate's cross-motion for a constructive trust. The court preliminarily observed that "[al constructive trust can be imposed in any case where a wrongful acquisition or detention of property to which another is entitled has occurred." Relying on its earlier order, the court reiterated its view that the record "leaves no question to any objective observer by clear and convincing evidence [that] Mr. Riddell ingratiated himself to [Lillie] for the purposes of obtaining her assets." And quoting Patey v. Peaslee, the court emphasized that its earlier order validating the marriage did not bar the estate's request for a constructive trust: Although this court was unable to find the type of gross fraud needed to invalidate the marriage in its previous findings, that does not mean the "exercise of equity jurisdiction to impose a constructive trust with respect to property acquired from the decedent" is not warranted here.[ ] After reviewing Patey's list of relevant criteria to consider in establishing a constructive trust, the court ruled that, "[ble-cause of the previous factual findings by the court, this court finds clear and convincing evidence that a constructive trust is warranted." Riddell appeals. III. DISCUSSION A. Standard of Review Although we generally defer to the trial court's broad discretion in balancing equitable principles, we use our independent judgment for legal issues and review de novo the court's interpretation of the law and its application of law to facts. B. The Elements of a Constructive Trust A constructive trust is an equitable remedy that becomes available upon clear and convincing proof that the party against whom the trust will be imposed has been unjustly enriched by receiving assets that rightly belong to the party in whose favor the trust will be created. We have said that a "constructive trust may be defined as a [device] used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs"; the trust arises to prevent the property holder from retaining property obtained "by reason of unjust, unconscionable, or unlawfal means." At a minimum, then, a constructive trust presupposes a transfer or holding of property in which the equitable beneficiary has a legal interest and unconscionable conduct by the property's holder in connection with its acquisition. * In its order imposing a constructive trust, the superior court did not expressly consider whether Riddell's claim of allowances and share would result in a transfer of property belonging to the estate, or in which the estate had some legal interest. But the court's earlier order, which recognized the validity of Riddell's marriage to Lillie, weighs heavily against the presence of this necessary element. The estate has not challenged the superior court's decision upholding the validity of the marriage despite Lillie's vulnerable mental condition and Riddell's fraudulent conduct, Because that decision turned on the trial court's evaluation of competing evidence and has not been disputed, we have no oecasion to question it here. A prospective heir generally has no recognized right to a living relative's property: we have held that a decedent's property interests devolve to heirs and devisees only upon death; and even then the heirs and devisees receive their interests only "subject to" the surviving spouse's statutory allowances and share, which similarly vest upon death and depend solely on the surviving spouse's marital status-that is, on the existence of a valid marriage. By ruling that Riddell's marriage was valid and could not be set aside by the estate, the superior court effectively determined that Riddell's statutory entitlements to allowances and share had vested upon Lillie's death-before Lillie's estate ever received any cognizable interest or right to the portion of Lillie's estate that vested in Riddell. As a matter of law, then, the court's order validating the marriage ruled out the existence of an element necessary to support the court's subsequent decision to impose a constructive trust: a finding that the portion of Lillie's estate passing to Riddell "justly belong{ed]" to the estate. Moreover, even if we assume that the estate had a cognizable interest in these funds, the superior court's declaration of a valid marriage would still rule out the second prerequisite for a constructive trust: a finding that Riddell obtained his statutory rights "by reason of unjust, unconscionable, or unlawful means." As already explained, Riddell acquired his statutory right to allotments and share solely because he married Lillie and survived her with their marriage intact. For reasons we address below in Part IIIC. of this opinion, we conclude that the superior court's order declaring the marriage to be valid despite Riddell's unconscionable premarital conduct precludes a finding that he acquired his statutory rights because of that conduct. To be sure, as the superior court noted in its order validating the marriage, Riddell's fraudulent conduct persisted after he married Lillie; and as this court made clear in Riddell I, Riddell's continuing misconduct ultimately caused Lillie to execute a new will shortly before her death, naming Riddell as her sole beneficiary." But the superior court's earlier decision invalidating that will for lack of testamentary capacity-the decision we affirmed in Riddell I -directly addressed the harm caused by that ongoing misconduct. And neither the new will nor the unconscionable postmarital conduct that led to its execution had any effect on Riddell's right to the statutory benefits, since his right to those benefits depended solely on the validity of the marriage at its inception and on his survival of Lillie while still her spouse. Moreover, the estate did not assert, nor did the superior court find, that Riddell's misconduct during the marriage brought about or hastened Lillie's death, thereby causing his statutory benefits to vest sooner, or that it had any other causal connection to the timing or ultimate vesting of his right to the benefits. The absence of a causal link between Rid-dell's unconscionable postmarital conduct and his right to receive the statutory benefits of marriage thus readily distinguishes his case from cases involving constructive trusts imposed against murderers--a category that the dissent mistakenly describes as being similar to the one before us. For as the dissent itself acknowledges, the constructive trust principle applies in those cases because "the title to property is acquired by murder as it is where the title is acquired by fraud, duress, or undue influence." Thus, in the present case, the causal link that justifies imposing a constructive trust in cases of spousal murder -and that certainly would have justified a constructive trust had it been found to exist here-is missing. C. General Principles Governing Equitable Relief A consideration of generally recognized principles governing equitable relief confirms the conclusion that a constructive trust was improper under these cireumstances. Two equitable principles are relevant here. First, a court acting in equity ordinarily " 'cannot [intrude] in matters that are plain and fully covered by [al statute.'" Here, the Alaska Legislature has explicitly set out the property interests that vest upon death in a surviving spouse: homestead allowance, family allowance, and elective share; the legislature has specified the cireumstance that makes them vest: the existence of a "surviving spouse"-that is, a spouse who remained legally married at the time of death; and the legislature has attached no other prerequisite to the surviving spouse's statutory right. Similarly, by specifying the requirements for a valid marriage and limiting the ways in which a marriage may be invalidated, the legislature has fully covered the manner in which courts may determine whether a person qualifies as a "surviving spouse" for purposes of acquiring a vested statutory right to allowances and share. As the superior court recognized in upholding the validity of Riddell's marriage, the legislature deliberately limited the right to challenge the validity of a marriage that is voidable on grounds of disability, force, or fraud, extending that right exclusively to "the party under the disability or upon whom the force or fraud is imposed." Given the superior court's findings that Riddell's marriage was neither void ab initio because of Lillie's incapacity nor voidable after her death for gross fraud arising from "a combination of [Lillie's] incompetence and [Rid-dell's] egregious behavior," it follows that the statutory provisions governing a surviving spouse's automatic entitlements to allotments and share "fully covered" Riddell's situation. A second, closely related equitable principle that controls these circumstances is that a court must not apply equity to do indirectly " 'what the law or its clearly defined policy forbids to be done directly. " Here, the superior court recognized that Lillie, despite her incapacity, understood the consequences of her actions when she accepted Riddell in marriage; the court further held that, even when combined with Lillie's incapacity, Riddell's fraudulent actions were not sufficiently gross to allow a post-mortem claim that the marriage was voidable. In consequence, as we have seen, the law required the court to declare Riddell eligible to receive the statutory benefits of a surviving spouse; indeed, the court's first order recognized that requirement. Yet by subsequently invoking the same factual findings of fraud and incompetence to trigger the equitable mechanism of a constructive trust, the court did indirectly what the law specifically forbade it to do directly: in nullifying Riddell's already vested right to allotments and share and awarding the money to the estate, the court effectively allowed the estate to avoid on equitable grounds the direct legal consequences of the court's earlier legal conclusion that Lillie had made "a competent decision about her marriage" and had "understood the nature of her decision to marry Mr. Riddell." D. Other Considerations We recognize that the superior court rested its decision in part on the New Hampshire Supreme Court's decision in Patey #. Peaslee and that Patey approved pursuit of an action for a constructive trust under closely similar cireamstances. Yet the majority's decision in Patey cites no useful authority for its unconventional application of the constructive trust remedy; as far as we can determine, the decision has never been followed under similar cireumstances since it was issued in 1957. And in our view, the dissent in Patey persuasively argues essentially the same point we make here: that the status and benefits of marriage are within the province of the legislature and that a court must avoid using its equitable powers to invalidate rights that flow from surviving a legally valid marriage when the legislature so clearly directs those rights. We thus decline to follow Patey. We further recognize that Alaska's Uniform Probate Code generally gives trial courts broad latitude to supplement statutory provisions with equitable principles: AS 13.06.015 specifies that "[ulnless displaced by the particular provisions of [the code], the principles of law and equity supplement those provisions." Yet nothing in this opinion discourages the use of these broad supplemental powers; we merely hold that the factual cireumstances the trial court found here did not leave room for equitable supplementation: the "particular provisions" of statutory law governing void and voidable marriages and accrual of allowances and share fully covered this situation and affirmatively "displaced" the equitable remedy of constructive trust. We apply no broad limitations on the use of equitable measures in probate cases; instead, we merely hold that the selected measure of a constructive trust did not apply here. The facts in this case obviously make it tempting to deny Riddell any benefit from his fraudulent conduct; this makes the recourse of a constructive trust seem alluringly sensible. But allowing offensive factual circumstances to dictate an unauthorized legal remedy can have a pernicious effect in the long-run by upsetting the complex and delicate balance that our system of government strives to maintain between the legislature's lawmaking powers and the courts' traditional equitable powers. The superior court here carefully examined all relevant evidence and declared Riddell to be the surviving spouse of a valid marriage. The legislature has spelled out the rights that Riddell acquires by virtue of his status. To dilute these plain and complete legislative directives with a legally inappropriate equitable remedy would impermissibly expand the court's equitable powers at the expense of established positive law. We must therefore vacate the order imposing a constructive trust and remand this case to allow the superior court to determine the amount of Riddell's allowances and share. In remanding the case, however, we note that the applicable statutes specify the amount of both the homestead allowance and elective share but leave the amount of the family allowance in the court's discretion. To this extent, the statutes allow the superior court to factor equitable considerations into its decision on remand. IV. CONCLUSION We REVERSE the order imposing a constructive trust and REMAND for further proceedings to establish the amount of the statutory allowances and share. . For additional background concerning Riddell and Lillie and the administration of this estate, refer to Riddell v. Edwards, 32 P.3d 4 (Alaska 2001) ("Riddell I") and Riddell v. Edwards, Mem. Op. & J. No. 1050 (Alaska, October 10, 2001) ("Riddell II"). . Riddell I, 32 P.3d at 5, 10. . Riddell II, Mem. Op. & J. No. 1050 at 1. . The superior court cited Coleman v. Coleman, 85 Or. 99, 166 P. 47 (1917). . Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 198 (1955) (barring heirs from annulling marriage); Patey v. Peaslee, 101 N.H. 26, 131 A.2d 433, 435 (1957) (recognizing constructive trust as appropriate equitable remedy). . Internal footnote omitted citing Patey, 111 A.2d at 198. . See, e.g., Leis v. Hustad, 22 P.3d 885, 887 (Alaska 2001); Hamilton v. Blackman, 915 P.2d 1210, 1213 (Alaska 1996); Leisnoi, Inc. v. Stratman, 835 P.2d 1202, 1207 (Alaska 1992); Wood v. Collins, 812 P.2d 951, 955 n. 4 (Alaska 1991). . See, e.g., McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1334-35 (Alaska 1984) (elements); City of Lakewood v. Pierce County, 144 Wash.2d 118, 30 P.3d 446, 450 (2001) (elements and standard of proof). . McKnight, 678 P.2d at 1335 (quoting Groror Grrason Bocert & Grorer Tayror Boorrt, THs Law or Trusts anp Trustees § 471, at 3 (rev.2d ed.1978)). . See Sheehan v. Estate of Gamberg, 677 P.2d 254, 256-57 (Alaska 1984). . In this regard, AS 13.16.005 expressly provides: The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the property are subject to the restrictions and limitations contained in AS 13.06-AS 13.36 to facilitate the prompt settlement of estates. Upon the death of a person, that person's real and personal property devolves to the persons to whom it is devised by the last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration. (Emphasis added.) . Alaska's statutory rights to allowances and share are set forth in AS 13.12.402, AS 13.12.404, and AS 13.12.202. AS 13.12. 402 states: "A decedent's surviving spouse is entitled to a homestead allowance of $27,000.... The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to a share passing to the surviving spouse . by way of elective share." AS 13.12.404(a) provides: In addition to the right to homestead allowance ., the decedent's surviving spouse and minor children . are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration.... The family allowance is exempt from and has priority over all claims except the homestead allowance. AS 13.12.202(a) provides: "The surviving spouse of a decedent who dies domiciled in this state has a right of election . to take an elective share amount equal to one-third of the augmented estate." . McKnight, 678 P.2d at 1335 (quoting Bogert, supra note 9, § 471, at 3). . Id. (quoting Bogert, supra note 9, § 471, at 3). . Riddell I, 32 P.3d 4, 6 (Alaska 2001). . Id. at 9-10. . Dissent at 856, 859-860. . Dissent at $59 (quoting 5 Austin Wakeman Scor & Wiuiam Franxum Fratcuer THs Law or Trusts § 492, at 440 (4th ed.1989)) (emphasis in dissent altered). . See 5 Scott & FratcuEr, supra note 18, § 492, at 440 ("[A] constructive trust is imposed upon one who acquires property through his own wrong.") (emphasis added). . Pacific Scene, Inc. v. Penasquitos, Inc., 46 Cal.3d 407, 250 Cal.Rptr. 651, 758 P2d 1182, 1186 (1988) (quoting Marsh v. Edelstein, 9 Cal.App.3d 132, 88 Cal.Rptr. 26, 31 (1970)); accord I.N.S. v. Pangilinan, 486 U.S. 875, 883, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ("[I]t is well established that '[clourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.' ") (quoting Hedges v. Dixon County, 150 U.S. 182, 192, 14 S.Ct. 71, 37 L.Ed. 1044 (1893)). . See supra note 12. As already indicated, these property interests vest upon death; the property interests of other heirs and devisees are necessarily subordinate because they devolve "subject to" the surviving spouse's statutory interest. . See AS 25.24.010 (only spouse may maintain action to have marriage declared void); AS 25.24.020 (definition of void marriages); AS 25.24.030 (definition of voidable marriages); AS 25.05.031 (marriage is voidable only by spouse). . AS 25.05.031. . Pacific Scene, Inc., 250 Cal.Rptr. 651, 758 P.2d at 1186. . Id. (quoting Marsh, 88 Cal.Rptr. at 31). . 101 N.H. 26, 131 A.2d 433, 435 (1957). . See id. at 437-38 (Blandin, J., dissenting); see also Ch. 58, pmbl., SLA 1963 (stating that the legislature's purpose was "[t]o provide a comprehensive marriage code"); Batey v. Batey, 933 P.2d 551, 554 (Alaska 1997) (declining to use common law definition that countered express legislative intent). . Citing AS 13.06.015, the dissent questions whether the statutory provisions governing void and voidable marriages can displace the court's equitable power in a probate case: because those definitions are located outside the probate code and therefore do not qualify as "particular provisions" of the probate code, the dissent reasons, AS 13.06.015 does not allow them to displace the supplemental powers granted in that provision. Dissent at 23-25. But by providing that the right to marital allowances and share turn on the existence of a "surviving spouse," see supra note 12, the probate code necessarily incorporates the marriage code's definitional provisions that give the term meaning-if not as "particular provisions" of the probate code that can displace the court's supplemental equity powers, then at least as "principles of law'" directly applicable under AS 13.06.015's express terms. . The dissent attempts to portray this conclusion as "holding that a finding of a valid marriage is inconsistent with the equitable doctrine of constructive trust." - Dissent at 24. But our decision is considerably narrower, holding that the imposition of a constructive trust on a surviving spouse's statutory benefits is impermissible only when, as here, the surviving spouse's unconscionable conduct neither caused an invalid marriage nor otherwise caused or helped to cause the statutory benefits arising from that marriage to vest. . Our decision renders Riddell's remaining arguments moot, making it unnecessary to consider them. . AS 13.12.402 ($27,000); AS 13.12.202(a)-(b) (one-third of the augmented estate; supplemental share under certain circumstances). . AS 13.12.404(a) ("a reasonable allowance").

9094124

In re LIFE INSURANCE COMPANY OF ALASKA, in receivership

In re Life Insurance Co. of Alaska

2003-08-22

No. S-10503

366

371

76 P.3d 366

76

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

In re LIFE INSURANCE COMPANY OF ALASKA, in receivership.

In re LIFE INSURANCE COMPANY OF ALASKA, in receivership. No. S-10503. Supreme Court of Alaska. Aug. 22, 2003. Timothy A. McKeever and Colby J. Smith, Holmes, Weddle & Barcott, Anchorage, for Appellant Carpenter Financial Group, Inc. Mark A. Sandberg, Sandberg, Wuestenfeld & Corey, Anchorage, for Receiver Robert A. Lohr, Director, State of Alaska, Division of Insurance. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3086

19477

OPINION EASTAUGH, Justice. I. INTRODUCTION During liquidation of a life insurance company, a claimant sought recovery of $500,000 which the claimant contended it had paid to the insurer in exchange for a surplus note. The receiver denied the claim. When the claimant objected to the denial, the superior court conducted an evidentiary hearing; finding that the claimant had been repaid, it denied the claim. The claimant raises two arguments - on - appeal. Because - AS 21.78.170(d) applied to the superior court's review of the denied claim, we first reject the claimant's argument that the superior court's failure to rule on the claim within 120 days after the receiver denied it had the effect under AS 21.78.298(b) of automatically approving the claim. And because the superior court conducted a de novo evidentiary hearing and entered findings of fact when it ruled against the claimant, we also reject its argument that the superior court erred by applying a deferential standard of review to the receiver's denial. We therefore affirm. II. FACTS AND PROCEEDINGS The Life Insurance Company of Alaska (LICA) was an Alaska corporation authorized to transact the business of life insurance in Alaska. In 1992 the Alaska Pacific Acquisition Group purchased a controlling interest in LICA. In June 1994 Daniel Carpenter, one of the two founding partners of Alaska Pacific, acquired Alaska Pacific, giving Carpenter a controlling interest in LICA. LICA was experiencing serious financial difficulty by June 1994 and was in danger of being shut down by the Alaska Division of Insurance. In an attempt to resolve LICA's problems Carpenter Financial Group, Inc. (another entity controlled by Daniel Carpenter) wrote two checks to LICA, one for $500,000 and one for $600,000, in exchange for two surplus notes from LICA for the same amounts. The surplus notes were dated June 80, 1994. But LICA's problems continued, and in September 1994 the corporation was involuntarily dissolved by the state. LICA sold most of its existing policies to another insurer, and in January 1996 the state suspended LICA's authority as an insurance company in Alaska. The superior court appointed the Director of the Alaska Division of Insurance as the receiver of LICA. The receiver is overseeing the liquidation of LICA, and must periodically report to the superior court. Parties with claims against an insurer being liquidated file proof of their claims with the receiver, who approves or denies the claims and recommends distribution of the liquidated company's assets. LICA's only remaining asset is its state-required statutory deposit of $300,000. Carpenter Financial asserted a claim against LICA for $500,000 for repayment of one of the surplus notes. (Carpenter Financial explained that it decided not to file a claim for repayment of the other surplus note because LICA's assets are only $360,000.) The receiver denied the claim in February 2001 after determining that it was not supported by substantial evidence. The two checks from Carpenter Financial to LICA were both dated June 80, 1994. LICA's quarterly report for the quarter ending June 30, 1994 showed $1,100,000 in proceeds from the sale of surplus notes. But neither check had been deposited into LICA's accounts by June 30, 1994. The $500,000 check was not deposited into LICA's account until September 19, 1994. On September 22 $500,000 was transferred from LICA's account into an unknown account at the same bank via a customer transfer debit. The next day, $600,000 was deposited into LICA's account. In April 2001 Carpenter Financial request, ed reconsideration of the receiver's February 2001 decision. Alaska Statute 21.78.170(d) provides that "lilf an objection is filed with the receiver and the receiver does not alter the denial of the claim as a result of the objection, the receiver shall ask the court for a hearing as soon as practicable." The receiver did not alter his denial of Carpenter Financial's claim after Carpenter Financial filed its objection. On July 18, 2001 the receiver filed with the superior court a report entitled "Second Report on Claims Recommending Approval of Accepted Claims and A Request for Partial Distribution." The receiver's report noted that "[flour claimants whose claims were denied have filed an objection to the denial, The Receiver will request that the court set hearings on these claims in a separate motion." On August 24, 2001 the receiver asked the court to set hearings. The superior court scheduled a hearing on Carpenter Financial's claim for January 2002. On November 21, 2001 Carpenter Financial filed a motion for summary judgment asking the superior court to treat Carpenter Financial's claim as approved. Carpenter Financial's motion argued that because the court had not ruled on Carpenter Financial's claim within 120 days after the receiver filed its July 18 report, AS 21.78.298(b) required the court to order the receiver to approve Carpenter Financial's claim. The superior court denied Carpenter Financial's motion. The superior court then conducted the scheduled hearing on the merits of Carpenter Financial's claim. The state and Carpenter Financial both participated. At the conclusion of the hearing, the court denied Carpenter Financial's claim. In the course of doing so, the court stated from the bench that "The question is whether there's substantial evidence that the receiver's decision to disallow the $500,000 claim .-whether there was substantial evidence to support that conclusion to deny it." (Emphasis added.) Carpenter Financial appeals the denial of its motion for summary judgment. Carpenter Financial also argues that the superior court applied the wrong standard of review at the evidentiary hearing, and that this error denied Carpenter Financial due process because the court was required to conduct a de novo hearing. Alternatively, Carpenter Financial asks us to remand to the superior court with instructions to conduct a new hearing applying the proper standard of proof. II. DISCUSSION A. - Standard of Review We review a grant or denial of summary judgment de novo - Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Carpenter Financial's argument that the superior court should have granted its summary judgment motion turns on a question of statutory interpretation. "We apply our independent judgment to questions of statutory interpretation." We will "adopt the rule of law that is most persuasive in light of: precedent, reason, and policy." The question whether the superior court applied the proper standard of review in denying Carpenter Financial's claim is a question of law to which we apply our independent judgment. B. Applicability of AS 21.78.293(b) to a Superior Court Appeal of a Receiver's Denial of Claim Carpenter Financial first argues that because the superior court did not disapprove the claim within 120 days after the receiver submitted the claim report to the court, AS 21.78.298(b) requires that the claim must be treated as allowed. Subsection .293(b) provides for the automatic approval of "[ecllaims in a report that are not disapproved by the court" within 120 days after the receiver submits its report. Carpenter Financial relies on the principle of statutory construction that the initial inquiry must focus on the plain meaning of the statute, and argues that we must apply the plain meaning "so long as construction in accordance with the literal language of the statute does not prove absurd or meaningless." On its face and read in isolation, the see-ond sentence of AS 21.78.298(b) might seem to apply to denied claims. If so, because the superior court did not disapprove Carpenter Financial's denied claim within 120 days after the receiver submitted its report to the court, subsection .298(b) would seem to require that Carpenter Financial's claim should be treated as allowed. In support of its statutory argument, Carpenter Financial asserts that because the first sentence of AS 21.78.298(b) speaks of "allowed claims," the unqualified reference to "claims" in the second sentence must refer to all claims, whether the receiver allowed them or denied them. It consequently reasons that even denied claims must be treated as allowed under AS 21.78.293(b) if the court fails to reject them within 120 days after the receiver submits them. We are not persuaded by this construction. Per the second sentence of AS 21.78.298(b), "[ellaims in a report that are not disapproved by the court" within 120 days are treated as allowed. Per the first sentence, however, the superior court must disapprove unsubstantiated claims when they are "allowed claims" but has no comparable duty to disapprove unsubstantiated disallowed claims. Thus, claims which the receiver has disallowed are not subject to the approval-by-inaction - provision - of - AS 21.78.298(b). - Or, as the superior court ruled, "the second sentence describes the automatic approval of claims already approved by the [rleceiver." Therefore, the plain meaning Carpenter Financial would attribute to subsection .298(b) is far from plain, and is contrary to a careful reading of the entire subsection. We conclude that the automatic approval rule of AS 21.78.298(b) only applies to allowed claims. Alaska Statute 21.78.170(d) concerns judicial review of denied claims. That subsection confirms the implausibility of Carpenter Financial's statutory argument and confirms our conclusion that AS 21.78.2083(b) only applies to judicial review of allowed claims. We agree with the receiver's contention that AS 21.78.170(d), rather than AS 21.78.298(b), controls challenges to denials of claims. Carpenter Financial's argument-that all claims not rejected by the superior court within 120 days after the receiver submits them are automatically approved-would strip all meaning from subsection .170(d). Carpenter Financial asserts that subsection .298(b) merely provides some specifics for the procedure set forth in subsection .170(d). It argues that subsection .298(b) simply defines the "as soon as practicable" language from subsection .170(d). Carpenter Financial is mistaken. It is correct that both subsections involve superior court oversight of claims decided by a receiver in an insurance liquidation. But even though subsection .298(b) specifies a particular number of days for superior court action, subsection .170(d) does not. Subsection .170(d) specifically refers to the appeal of claims the receiver has denied. Subsection .293(b) concerns the mandatory superior court review of claims already approved by the receiver. Subsection .170(d) does not specifically state exactly when the superior court must rule on a claim, but it does specifically apply to denied claims. The legislature enacted different review schemes for different categories of claims, distinguishing between those the receiver has approved and those the receiver has denied. The automatic approval-by-inaction rule only applies to claims that the receiver has already approved. Alaska Statute 21,78.170(d), not AS 21.78.298(b), controls appeals of claims the receiver has denied. C. The Standard of Review the Superi- or Court Applied Carpenter Financial argues that the superior court was required to conduct an independent review of the merits of the claim but failed to do so, and instead merely determined whether substantial evidence supported the receiver's decision denying the claim. Carpenter Financial asserts that this error denied it due process. In Williams v. Wainscott we ruled that the superior court was required to conduct a de novo evidentiary hearing for claims denied by a receiver in an insurance liquidation. In support of its argument that the superior court applied the wrong standard, Carpenter Financial relies on a statement the superior court made at the conclusion of the three-day evidentiary hearing. The superior court stated: "The question is whether there's substantial evidence that the receiver's decision to disallow the $500,000 claim .-whether there was substantial evidence to support that conclusion to deny it." (Emphasis added.) Carpenter Financial asserts that these references to "substantial evidence" establish that the superior court did not conduct the required independent review of Carpenter Financial's claims. The receiver responds that despite the superior court's "unfortunate" statement, the entire course of the three-day hearing and the superior court's ultimate ruling demonstrate that the court conducted a de novo hearing on the merits of Carpenter Financial's claims. At the beginning of the hearing, before the parties made their opening statements, the superior court asked "What do the parties think of the burden of proof?" Counsel for Carpenter Financial replied that Carpenter Financial had "the burden of showing that the funds that were in question . were incurred on behalf of LICA and the funds were deposited-were made available to LICA, and I believe that the receiver bears the burden of proof as to the defenses that they allege." Counsel for the receiver agreed. In his opening statement, Carpenter Financial's lawyer again discussed the standard of review for the superior court to apply: Just to make it clear, the parties agree that this is a trial de novo. . [The decisions of the receiver are entitled to no deference by this Court. It's very clear from . Williams v. Wainscott that that's the law in this state, and we believe the standard of proof and the receiver agrees that the standard of proof is whether our claims are supported by substantial evidence, and we believe that we will be able to establish that this . the money went to LICA and that the attorney's fees were incurred on behalf of LICA. (Emphasis added.) Carpenter Financial spent three days trying to prove that substantial evidence supported its claims. After closing arguments, the superior court issued an oral ruling from the bench. As we noted above, the court prefaced its ruling with its reference to "substantial evidence." But the court then proceeded to summarize the evidence it had heard over the prior three days, and conelud-ed: I find the [$500,000 surplus note] was repaid. Mr. Carpenter took the money. I don't know where he put it, but he took it. Therefore, it's in his pocket. It's been repaid as a matter of law in this case, and . it is not a valid claim against the LICA estate. The court's oral findings never mention the receiver's decision. The transcript establishes that the court gave no deference to the receiver's decision and instead made its own findings based on the evidence produced during the superior court hearing. Carpenter Financial points to nothing other than the court's brief reference to "substantial evidence" to support its argument that the court applied an improper standard of review. But the court's findings and the course of proceedings at the three-day hearing indicate that the court actually made its own findings and did not merely determine that substantial evidence supported the receiver's decision. The superior court did not apply the wrong standard of review and therefore committed no legal error. It conducted a de novo trial at which evidence was presented; it then made its own independent findings. The court consequently did not deprive Carpenter Financial of procedural due process. Because we conclude that the superior court did not err, we do not reach the receiver's alternative argument that the surplus note can only be repaid from surplus funds above the minimum statutory deposit of $300,000-a surplus that LICA does not have. IV. CONCLUSION We therefore AFFIRM the decision of the superior court. . - A surplus note is somewhat similar to a corporate bond; surplus notes are issued by insurance companies to obtain capital. An insurance company can only repay a surplus note from funds in its surplus, ie., the amount by which its assets exceed its liabilities. By their terms, the two LICA surplus notes could only be repaid from "excess surplus," which the notes defined as "surplus in excess of $300,000 capital and surplus." . AS 21.78.293(a) provides in part: "As soon as practicable, the receiver shall present to the court a report of the claims against the insurer, along with the receiver's recommendations." . AS 21.78.010-330. . Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002). . United Airlines, Inc. v. State Farm Fire & Cas. Co., 51 P.3d 928, 932 (Alaska 2002). . Jerue v. Millett, 66 P.3d 736, 740 (Alaska 2003). . Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Williams v. Wainscott, 974 P.2d 975, 978 n. 6 (Alaska 1999). . - The full text of AS 21.78.293(b) provides: The court shall review and adopt the receiver's report on claims by approving those claims that are supported by substantial evidence and disapproving allowed claims that are not supported by substantial evidence. Claims in a report that are not disapproved by the court within a period of 120 days following submission by the receiver shall be treated by' the receiver as allowed claims. (Emphasis added.) . We have rejected a strict application of the plain meaning rule when interpreting statutes. Wold v. Progressive Preferred Ins. Co., 52 P.3d 155, 161 (Alaska 2002). We have observed that "even when a statute's language meaning seems plain on its face, ambiguity may arise if applying that meaning would yield anomalous consequences," Federal Deposit Ins. Corp. v. Laidlaw Transit, Inc., 21 P.3d4 344, 351 (Alaska 2001), and consequently have adopted a sliding scale of interpretation under which "the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be." Lakosh v. Alaska Dep't of Envtl. Conservation, 49 P.3d 1111, 1117 (Alaska 2002). . AS 21.78.170(d) provides: If an objection is filed with the receiver and the receiver does not alter the denial of the claim as a result of the objection, the receiver shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or the claimant's attorney and to any other person directly affected, not less than 10 nor more than 30 days before the date of the hearing. . Williams v. Wainscott, 974 P.2d 975, 978 (Alaska 1999). . Carpenter Financial does not argue to this court that the superior court committed clear error in holding that the note was repaid and that Carpenter Financial's claim was invalid. We therefore do not consider whether the evidence supported the superior court's findings of fact. . Because we have concluded based on our independent judgment that the superior court did not apply the wrong standard of review, it is also unnecessary for us to consider the receiver's argument that Carpenter Financial waived the standard-of-review issue in the superior court, and that consequently we can review only for plain error.

10446399

APPLICATION of Anthony M. URIE, Laura Lyn Pond, Mary Jane Craviotto For admission to the Alaska Bar Association

In re Urie

1980-09-26

Nos. 4392, 4526, 4608

505

510

617 P.2d 505

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

APPLICATION of Anthony M. URIE, Laura Lyn Pond, Mary Jane Craviotto For admission to the Alaska Bar Association.

APPLICATION of Anthony M. URIE, Laura Lyn Pond, Mary Jane Craviotto For admission to the Alaska Bar Association. Nos. 4392, 4526, 4608. Supreme Court of Alaska. Sept. 26, 1980. Robert C. Erwin, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellant Urie. Laura Lyn Pond and Mary Jane Craviot-tó, in pro. per. William W. Garrison, Anchorage, for Alaska Bar Ass’n. S. Shepherd Tate and Frederick R. Franklin, Chicago, Ill., for amicus curiae American Bar Ass’n. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

2938

17738

OPINION Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. CONNOR, Justice. Alaska Bar Rule 1-2, Sec. 1(b) makes graduation from a law school accredited by the American Bar Association a prerequisite for admission to the practice of law in Alaska. The question presented in this consolidated appeals is whether Alaska Bar Rule 1-2, Sec. 1(b), is a constitutionally valid and reasonable means for determining the fitness of those who seek to practice law in Alaska. Anthony M. Urie is a graduate of Ventu-ra College of Law, which is accredited by the State Bar of California, but is not accredited by the Council of Legal Education of the American Bar Association (hereinafter ABA), or the Association of American Law Schools (hereinafter AALS). Although Ventura College of Law was invited to apply for ABA approval, it has not done so. Urie petitioned the Alaska Bar Association, asking that the requirement of graduation from an accredited law school be waived. This petition was denied, and this appeal followed. Laura Lyn Pond has been admitted to the practice of law in California, having passed that state's bar examination. She graduated from San Fernando Valley College of Law, which is accredited by the State Bar of California but is not accredited by the ABA or AALS. The school applied for ABA accreditation, but its application was denied because the school was found not to be in substantial compliance with ABA standards. Pond filed a request with the Alaska Bar Association that the accreditation requirement be waived. The request was denied. Pond then filed a petition in' this court, which we have treated as an appeal. Mary Jane Craviotto attended the University of Pacific McGeorge School of Law, an ABA accredited school, for one year but was excluded from further attendance due to academic disqualification. She graduated from Lincoln Law School of Sacramento, which is not accredited by the ABA, AALS, or the State Bar of California and she has been admitted to the practice of law in California. A year after Craviotto graduated, the school was given provisional accreditation by the State Bar of California, but it has not applied for accreditation by the ABA or AALS. Craviotto requested a waiver of the accreditation requirement, but this request was denied by the Alaska Bar Association, and this appeal followed. Appellant Urie contends (1) that Alaska Bar Rule 1-2, Sec. 1(b), creates an irrebuttable presumption which denies to him the equal protection of the laws; (2) that this bar rule violates his right to travel and his right to practice his chosen profession, and does not promote a compelling state interest; (3) that the refusal of the ABA to grant accreditation to profit making law schools has no rational basis, and thus his fitness to practice law is determined by a requirement which is constitutionally invalid; (4) that a comparison of the ABA and California standards of accreditation reveals that the California standards are higher, and thus he should be considered qualified to take the Alaska bar examination. Appellants Pond and Craviotto set forth contentions which parallel those of appellant Urie. It should be observed at the outset that a state has a substantial interest in regulating the practice of law within its boundaries, and that a state has broad power to establish standards for the licensing of legal practitioners. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572, 588 (1975). See also In re Griffiths, 413 U.S. 717, 722-23, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910, 916 (1973); Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801-02 (1957); In re Hansen, 275 N.W.2d 790, 792-93 (Minn.1978), appeal dismissed, 441 U.S. 938, 99 S.Ct. 2154, 60 L.Ed.2d 1040 (1979). We have previously held that the requirement of graduation from an accredited law school does have a rational connection with an applicant's fitness to practice law. In re Stephenson, 511 P.2d 136, 139 (Alaska 1973). The requirement of graduation from an ABA approved law school has repeatedly been upheld by state and federal courts against the contention that it violates the due process clause of the Fourteenth Amendment of the United States Constitution. Kadans v. Collins, 441 F.2d 657 (9th Cir. 1971), appeal dismissed and cert. denied, 404 U.S. 1007, 92 S.Ct. 672, 30 L.Ed.2d 656 (1972); Hackin v. Lockwood, 361 F.2d 499 (9th Cir.) cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305 (1966); Henington v. State Board of Bar Examiners, 60 N.M. 393, 291 P.2d 1108 (1956); Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 165 A. 211 (1933); and In re Hansen, 275 N.W.2d 790 (Minn.1978). The ABA for many years has operated a comprehensive system of law school accreditation. It has established standards of accreditation and definite procedures for securing approval and for assuring continued compliance with the standards. It is obviously advantageous and reasonable that law school accreditation should be handled by this experienced, centralized body, as it is singularly equipped to perform a task which is beyond the capabilities of most state judiciaries. See LaBossiere v. Florida Board of Bar Examiners, 279 So.2d 288, 289 (Fla.1973). It is argued that the Alaska bar rule in question creates an "irrebuttable presumption" that an applicant from an unaccredited law school is not fitted to practice law, when in fact he may be more fitted than some applicants from accredited law schools. It is also argued that graduates of foreign law schools are permitted to show that the foreign law school meets the ABA standards for approval, and this results in discriminatory treatment of those who have attended an unaccredited law school in the United States. In addition, it is contended that a recently enacted clerkship program authorizes taking the Alaska bar examination without graduation from an ABA-accredited law school, resulting in discrimination. Since the clerkship program has not yet been implemented, we do not reach the question of whether the right to take the examination by those completing that program results in impermissible discrimination. In our view, to attack the bar rule requirement as creating an "irrebuttable presumption" adds nothing to an understanding of the problem. As we noted recently in Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska May 9, 1980), the irrebuttable presumption doctrine is of questionable vitality. Any matters to which the doctrine can be applied can be analyzed just as readily by using the flexible equal protection analysis which we have employed in Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976), and State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978). In our view, the bar rule merely sets forth a general requirement which must be met by those seeking admission to the bar. We will, therefore, merely subject this bar rule to the scrutiny which it would normally be given under a conventional due process and equal protection analysis. Under due process we will review the bar rule provision by considering three main factors: (1) the nature of the private interest affected, (2) the risk of erroneous deprivation of that interest by the procedures used, and the probable value, if any, of any additional or substitute procedural safeguards, and (3) the state's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail. The private interest affected is obviously that of one who seeks admission to the practice of law. While there is some risk that a person could be deprived of the opportunity to practice law by reason of the bar rule, even though he is competent to practice law, we believe that such a risk is outweighed by the difficulty which would be presented by making a case-by-case determination of whether the education afforded by an unaccredited law school was comparable to that given by an accredited school. We have already noted the difficulty of employing such an alternative procedure. The ABA system of accreditation is sophisticated and time-consuming. We can think of no effective substitute which could be developed at the state level without diverting impractical amounts of manpower and money into such an inquiry. Given the strong state interest in assuring that those entering the practice of law have had suitable training in adequate institutions, and considering the precedent from other jurisdictions, we are of the opinion that the Alaska bar rule requirement is valid and does not violate the due process clause of either the Alaska Constitution or the United States Constitution. In this connection, we note that requiring attendance at an ABA accredited law school is not a severe impediment to entry into the legal profession. According to the brief of the ABA as amicus curiae, in the last decade the number of approved schools increased from 137 to 168. The number of students therein increased from 63,000 to 121,600, which included 36,808 women. There are 16 ABA approved schools in California, with a total enrollment of over 14,-600 students. Similarly, we do not find that the Alaska bar rule denies equal protection of the laws. The setting of minimum standards for the practice of law is the overall purpose of the rule. The requirement of graduation from an ABA approved law school does, for the reasons given earlier in this opinion, bear a fair and substantial relation to that purpose. In this respect we hold that the rule is valid. It is claimed that the education received at law schools accredited by California, but not the ABA, is the equivalent of that received at ABA accredited schools. We will not engage in an exhaustive comparison. Some of the differences are significant. The ABA requires that there be at least six full-time faculty members, plus a dean and law librarian. The California rules permit a law school to be operated entirely with a part-time faculty. The ABA requirements as to the faculty-student ratio, library holdings, and teaching load are significantly higher than those of California. We need not consider this contention further. We find no merit in the contention that the ABA uniformly refuses to accredit profit-making law schools. It is true that the relevant standard, Standard 202, did require at one time that a law school not be operated for private profit. But it appears that in 1977 the ABA granted a variance from its standards whereby any proprietary school, which could comply with the other standards, could receive accreditation. Lastly, we find no merit in the contention that the Alaska bar rule unconstitutionally infringes upon the right to travel. The rule does not distinguish between residents and nonresidents, and it does not set up a durational residency requirement. In our opinion the right to travel is simply not affected by the rule. See Moore v. Supreme Court of South Carolina, 447 F.Supp. 527, 530-31 (D.S.C.1977), affirmed 577 F.2d 735 (4th Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 574, 58 L.Ed.2d 655 (1978). We conclude that appellants' applications were properly denied. The denials are affirmed. Fearing that we would uphold Alaska Bar Rule 1-2, Sec. 1(b), petitioners have asked us to waive the requirements of that rule in their respective cases. While the power to waive rules governing admission to the bar can be implied from our authority to promulgate such rules, we decline to exercise that power here. Individualized waiver determinations would be extremely time consuming, financially burdensome, and would result in a heavy administrative burden being placed on the Alaska Bar Association and this court. AFFIRMED. . Alaska Bar Rule I -2, Sec. 1 provides: "Every applicant for examination shall (b) Be a graduate of a law school which was accredited or approved by the Council of Legal Education of the American Bar Association or the Association of American Law Schools when the applicant entered or graduated or submit proof that the law course required for graduation from such a law school will be completed and that a degree will be received as a matter of course before the date of examination. Graduates of law schools in which the principles of English Common Law are taught but which are located outside of the United States and beyond the jurisdiction of the American Bar Association and the Association of American Law Schools, may qualify for admission upon proof that the foreign law school from which they graduated meets the American Bar Association Council of Legal Education Standards for approval;" . See also the cases cited in In re Hansen, 275 N.W.2d at 793 94. . AS 08.08.207 provides in relevant part: "Law clerks, (a) Every person who desires subsequently to qualify as a general applicant for admission to the Alaska Bar without having graduated from an approved law school shall register as a law clerk as provided by this section. He must be a bona fide resident of the state and shall present satisfactory proof that he has been granted a bachelor's degree (other than bachelor of laws) by a college or university offering the degree on the basis of a four-year course of study and has successfully completed his first year of studies at a law school. (b) The applicant shall obtain regular and full-time employment as a law clerk in the office of a judge of a court of record or an attorney or firm of attorneys licensed to practice law in Alaska and engaged in the general practice of law. The person by whom he is employed, or, if he is employed by a firm, the person under whose direction he is to study, must have been admitted to practice law in this state for at least five years at the time the application for registration is filed, and be otherwise eligible to act as tutor." . As we observed in Hilbers, slip opinion, 13, n. 13, "any legislative classification creates a conclusive presumption of some sort with respect to excluded classes . . " . This is a paraphrase of the test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 47 L.Ed.2d 18, 33 (1976), which we cited with approval in City of Homer v. State Dept. of Natural Res., 566 P.2d 1314, 1319 (Alaska 1977), and Hilbers v. Municipality of Anchorage, at 36. .The scope of the system can be gleaned from the ABA publication, Approval of Law Schools, American Bar Association Standards and Rules of Procedure (1977). Not only must a school meet certain standards as to curriculum, faculty, admissions, library facilities, and physical plant, it must apply for accreditation and submit itself to physical inspection and evaluation by an accreditation committee. .See State v. Erickson, 574 P.2d 1, 12 (Alaska 1978) and Isakson v. Rickey, 550 P.2d 359, 363 (Alaska 1976). Since Alaska's equal protection analysis is more demanding than the federal "rational basis" test, there is, a fortiori, no violation of federal equal protection guarantees. We need not consider whether the Alaska bar rule meets the more demanding federal requirement of a "compelling state interest" because that standard is only applicable if the complainant is a member of a suspect class or the procedure at issue violates a fundamental right. Neither is the case here. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796, 801-02 (1957); Santos v. Alaska Bar Ass'n, 618 F.2d. 575 (9th Cir. 1980); Lombardi v. Tauro, 470 F.2d 798, 800 n.4 (1st Cir. 1972), cert. denied, 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973); Moore v. Supreme Court of South Carolina, 447 F.Supp. 527, 529-30 (D.S.C.1977), aff'd, 577 F.2d 735 (4th Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 574, 58 L.Ed.2d 655 (1978); Murphy v. State Bd. of Law Examiners, 429 F.Supp. 16, 18 (D.Pa.1977); Ostroff v. New Jersey Supreme Court, 415 F.Supp. 326, 328. (D.N.J.1975), Potter v. New Jersey Supreme Court, 403 F.Supp. 1036, 1038 (D.C.) aff'd, 546 F.2d 418 (3d Cir. 1976); Huffman v. Montana Supreme Court, 372 F.Supp. 1175, 1177 (D.Mont.1974), aff'd, 419 U.S. 995, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974); Lipman v. Van Zant, 329 F.Supp. 391 (D.Miss.1971); In re Hansen, 275 N.W.2d 790, 793 (Minn.1978). See also Younger v. Colorado State Board of Bar Examiners, 625 F.2d 372 (10th Cir. 1980), reported in 49 U.S.L.W. 2081 (August 5, 1980). . If a school has not sought ABA approval, it is not readily ascertainable whether the school meets ABA minimum standards. A school which has applied for ABA accreditation and been rejected could hardly be said to meet an equivalency standard. . The Council of the ABA Section of Legal Education and Admissions to the Bar on February 12, 1977, adopted a resolution to that effect. . Appellant Urie argues that because he was a resident of Alaska before attending law school, Alaska Bar Rule 1-2, Sec. 1(b), required that his travel outside of Alaska was limited to the location of a law school accredited by the ABA. But nothing restricted Urie's travel to any place for any purpose. Certainly the rule did not require the selection of an unaccredited law school as a condition of travel.

10394352

Jeffrey R. JANSEN, Appellant, v. STATE of Alaska, Appellee

Jansen v. State

1988-11-04

No. A-1682

308

313

764 P.2d 308

764