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10394410

John P. LAWRENCE, Appellant, v. STATE of Alaska, Appellee

Lawrence v. State

1988-11-25

No. A-2271

318

322

764 P.2d 318

764

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

John P. LAWRENCE, Appellant, v. STATE of Alaska, Appellee.

John P. LAWRENCE, Appellant, v. STATE of Alaska, Appellee. No. A-2271. Court of Appeals of Alaska. Nov. 25, 1988. William D. Cook, Anchorage, for appellant. Cynthia D. Ducey, 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.

2114

13123

OPINION COATS, Judge. John P. Lawrence was convicted, based upon his plea of no contest, of attempted sexual abuse of a minor in the first degree, a class A felony, AS 11.41.434(a)(1) and AS 11.31.100(a), (d)(1), and unlawful exploitation of a minor, a class B felony, AS 11.41.-455(a), (b). Lawrence had originally been charged with sexual abuse of a minor in the first degree, an unclassified felony, but entered a no contest plea when that charge was reduced. Superior Court Judge Victor D. Carlson sentenced Lawrence to ten years on the attempted sexual abuse of a minor conviction. Judge Carlson provided that Lawrence would not be eligible for parole during this ten-year period. Judge Carlson sentenced Lawrence to a consecutive five-year sentence, all suspended, on the unlawful exploitation of a minor charge. Judge Carlson also ordered Lawrence to pay $38,787 in restitution. He ordered Lawrence to pay $500 per month toward this restitution while he was incarcerated and $750 per month following his release from imprisonment. Lawrence now appeals to this court. Lawrence was fifty-nine years old at the time of these offenses. He had no prior criminal record and had an excellent work history. On November 28, 1986, nude photographs of A.M., age three and one-half, were found in Lawrence's condominium. These photographs were sexually suggestive. These photographs formed the basis for the unlawful exploitation of a minor charge. When A.M. was interviewed by the police, she stated that Lawrence had taken her clothes off, had photographed her in the nude, and had touched her vagina with his hand and had put his finger inside her vagina. A.M. also stated that the defendant touched her buttocks and put his penis against her vagina. Medical testimony presented at the sentencing hearing established that A.M.'s hymen was abnormal and that the opening had been enlarged by a foreign object. The physician who testified at the sentencing concluded that A.M.'s hymen had been stretched by gradual and repetitive penetration. According to the physician, A.M. appeared to be free of emotional scarring from the sexual abuse. However, according to A.M.'s mother, A.M. had exhibited numerous emotional problems following the sexual assault and was undergoing counseling. Before this incident came to light, Lawrence had been a close friend of A.M.'s parents, and A.M.'s parents had allowed A.M. to regularly visit with Lawrence. Lawrence admitted that he took sexually explicit photographs of A.M., but denied any. sexual contact. Attempted sexual abuse of a minor in the first degree is a class A felony. The maximum sentence for a class A felony is twenty years. AS 12.55.125(c). There is a presumptive sentence of five years for a first felony offender, ten years for a second felony offender, and fifteen years for a third felony offender. Therefore, as a first felony offender, Lawrence faced a presumptive sentence of five years. Judge Carlson found that two aggravating factors applied to this offense: that the defendant knew that the victim of the offense was particularly vulnerable due to extreme youth, and that the conduct constituting the offense was among the most serious conduct included in the definition of the offense. AS 12.55.155(c)(5); AS 12.55.155(c)(10). Both of these aggravating factors are supported by the record. A.M. was clearly vulnerable because of her age; she was only three and one-half years old at the time of these offenses. This was also clearly a particularly serious offense. Although Lawrence pled no contest to a charge of attempted sexual abuse of a minor in the first degree, the record supports Judge Carlson's finding that Lawrence's conduct was among the most serious within the definition of the offense because Lawrence had digitally penetrated A.M. on numerous occasions, conduct which would have constituted the greater offense of sexual abuse of a minor in the first degree. Sexual abuse of a minor in the first degree is an unclassified felony with a maximum sentence of thirty years. The presumptive sentence for a first felony offender is eight years. The presumptive sentence is fifteen years for a second felony offender. AS 12.55.125. In considering this to be a particularly serious offense, Judge Carlson also emphasized the close relationship that Lawrence had formed with A.M. and her family. He considered Lawrence's actions to be an abuse of this trust. Judge Carlson noted that Lawrence had not admitted that he had sexual contact with A.M., and found that Lawrence was likely to be a repeat offender and had dim prospects for rehabilitation. Although Judge Carlson could properly consider this offense to be aggravated because of his finding that Lawrence had actually committed a more serious offense than the offense to which he entered his plea, Lawrence was entitled to be sentenced based upon the charge to which he pled: attempted sexual abuse of a minor. See Benboe v. State, 698 P.2d 1230 (Alaska App.1985). In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated, "Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." Thus, as a first felony offender, Lawrence's sentence should have been more favorable than the ten-year presumptive sentence for a second felony offender, unless his case was exceptional. In Langton v. State, 662 P.2d 954 (Alaska App.1983), we consolidated for discussion three cases where defendants had been convicted of sexual assault in the first degree for completed sexual assaults on minor children. At the time of these defendants' offenses, sexual assault in the first degree was a class A felony. At the time of the Langton opinion, the legislature had made sexual assault in the first degree an unclassified felony, but the greater penalties had not yet become effective. Id. at 956 n. 3. In the trial court, Richard Langton received a sentence of ten years with four suspended; John Doe received a sentence of five years, all suspended; and Melvin Joe received a sentence of twenty years. Id. at 955. On appeal, we affirmed Langton's sentence, found that Doe's sentence was too lenient, and ordered Joe's sentence reduced to ten years. Id. at 956, 960, 962. In ordering Joe's sentence reduced to ten years, we pointed out that ten years was the presumptive sentence for a second felony offender convicted of a class A felony. Although Lang-ton's, Doe's, and Joe's crimes would now be punishable as unclassified felonies, these offenses were class A felonies at the time the defendants were sentenced. These cases provide a useful benchmark for evaluating the proper sentence for Lawrence. In justifying the sentence in this case, Judge Carlson placed considerable weight on his conclusion that Lawrence was a dangerous offender with poor prospects for rehabilitation. However, Lawrence is a first offender with an otherwise excellent record. There is nothing in the psychological reports which would indicate that Lawrence's prospects for rehabilitation are less favorable than other offenders in his class. In Maal v. State, 670 P.2d 708, 711 (Alaska App.1983) and Skrepich v. State, 740 P.2d 950, 954 (Alaska App.1987), we indicated that a sentencing court should not place "inordinate emphasis . on predictions of possible future misconduct." The primary emphasis in the revised criminal code is to punish the offender based upon his record of prior convictions and the actual crime for which he was convicted. We see no reason to classify Lawrence's case as an exceptional case warranting a sentence in excess of the ten-year presumptive sentence for a second felony offender. We conclude that the total sentence of fifteen years with five years suspended was clearly mistaken. We remand to the trial court with directions to impose a total sentence, including any suspended time, of not more than ten years. We believe that this sentence will adequately address Judge Carlson's finding that this was a particularly aggravated class A felony. Yet the sentence also recognizes that Lawrence was convicted of a class A felony, not an unclassified felony, and is a first felony offender with an otherwise good record. Lawrence next contends that Judge Carlson erred in restricting his parole eligibility.- In Spencer v. State, 642 P.2d 1371, 1377 (Alaska App.1982) (footnote omitted), we stated: Where an extended parole eligibility term is imposed, the court must specifically address the issue and set out with particularity its reasons for concluding that the parole eligibility term prescribed by statute would be insufficient to protect the public and insure the defendant's reformation. Where a defendant has a lengthy criminal history and has demonstrated that he will not benefit from parole or probation supervision, the court may well have a reasonable basis to conclude that it should restrict future parole eligibility. However, Lawrence is a first offender. He will undergo sexual offender treatment while he is incarcerated. There is little objective basis to conclude that he will fail to be rehabilitated. Parole authorities should be better situated to judge Lawrence's prospects for parole because they will have the opportunity to evaluate Lawrence at a future time, after he has had an opportunity to respond to the effects of rehabilitation programs. Although parole is never guaranteed, there is nothing in this record to justify denying parole authorities the option of releasing Lawrence on parole if they are satisfied that he can be permitted in the community without endangering others. We conclude that Judge Carlson was clearly mistaken in restricting Lawrence's parole eligibility. Lawrence next argues that Judge Carlson erred in making the restitution award in his case. Judge Carlson ordered Lawrence to pay a total of $38,787 in restitution to A.M. and her family. This amount was to cover counseling expenses for A.M. and her family and attorney's fees which A.M. paid to consult a civil attorney in connection with the case. In setting restitution, Judge Carlson relied on the state's representation that the state believed that Lawrence was eligible for a federal pension. Judge Carlson ordered Lawrence to pay $500 per month while he was in custody and $750 per month following his release from incarceration. Alaska Statute 12.55.045(a) provides in pertinent part: In determining the amount and method of payment of restitution, the court shall take into account the financial resources of the defendant and the nature of the burden its payment will impose. This statute has been strictly construed to require the trial courts to make thorough inquiries into the defendant's ability to pay restitution. Karr v. State, 686 P.2d 1192, 1196-97 (Alaska 1984). The state's speculation as to the existence of Lawrence's federal pension is not sufficient to comply with the requirements of AS 12.55.045(a). On appeal, Lawrence agrees that he must pay all of A.M.'s counseling expenses. However, he indicates that Judge Carlson erred in requiring him to pay for counseling for the entire family. At the restitution hearing, A.M.'s mother presented testimony concerning past expenses which the family had incurred because of the events and estimated future expenses for counseling. These expenses were projected as much as five years into the future. We are concerned about an award of restitution based upon an estimate of expenses which are projected to occur in the future. Neither party to this appeal has directly addressed the problem of awarding restitution for unliquidated damages which arose from the offense. However, where the court determines that an award of restitution should be made for anticipated future expenses, we believe that the court must at least require that these expenses be firmly established. The information which the court had and the findings which the court made in this case appear to us to be insufficient to support the award of these future expenses. We accordingly remand to the trial court on this issue. The sentence is VACATED and the case REMANDED for resentencing consistent with this opinion. . Unlawful exploitation of a minor is a class B felony. The maximum sentence is ten years. AS 12.55.125(d). There is no presumptive sentence for a first felony offender. The presumptive sentence for a second felony offender is four years; for a third felony offender it is six years. In determining the appropriate sentence for Lawrence, we consider the major offense to be the attempted sexual abuse of a minor charge. We see the unlawful exploitation charge as a matter which aggravates the attempted sexual abuse of a minor charge.

9094261

Alf R. SKAFLESTAD and Karlene Greenewald, for themselves and for all others who are similarly situated, Appellants, v. HUNA TOTEM CORPORATION, and Huna Totem Corporation Shareholder Settlement Trust, Appellees

Skaflestad v. Huna Totem Corp.

2003-08-29

No. S-10353

391

398

76 P.3d 391

76

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Alf R. SKAFLESTAD and Karlene Greenewald, for themselves and for all others who are similarly situated, Appellants, v. HUNA TOTEM CORPORATION, and Huna Totem Corporation Shareholder Settlement Trust, Appellees.

Alf R. SKAFLESTAD and Karlene Greenewald, for themselves and for all others who are similarly situated, Appellants, v. HUNA TOTEM CORPORATION, and Huna Totem Corporation Shareholder Settlement Trust, Appellees. No. S-10353. Supreme Court of Alaska. Aug. 29, 2003. Rehearing Denied Oct. 16, 2003. Fred W. Triem, Petersburg, for Appellants. Bruce E. Gagnon, Atkinson, Conway & Gagnon, for Appellee Huna Totem Corporation Shareholder Settlement Trust. Daniel G. Bruce, Baxter Bruce & Sullivan, P.C., Juneau, and Barbra Zan Nault, Bank-ston, Gronning, O'Hara, Sedor, Mills, Givens & Heaphey, P.C., Anchorage, for Appellee Huna Totem Corporation. Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.

3837

25289

OPINION BRYNER, Justice. I. INTRODUCTION In keeping with a recommendation by Huna Totem Corporation's board of directors, the company's shareholders voted to put a large sum of available funds into a settlement trust. Certain shareholders later filed a class action, alleging that proxy information Hunga Totem sent them in creating the trust was materially misleading because it failed to disclose that, onee established, the trust could not be modified or terminated by shareholders unless two-thirds of its trustees recommended the action. After a bench trial, the superior court entered judgment for Huna Totem, finding that, although some of its proxy information was incomplete and ambiguous, the totality of the information was not materially misleading. Because the superior court applied the correct test of materiality and the evidence supports its ruling, we affirm the judgment in Huna Totem's favor. I. FACTS AND PROCEEDINGS Huna Totem Corporation is an Alaska Native village corporation organized under the Alaska Native Claims Settlement Act (ANC-SA). In 1998 Hunga Totem entered into a tax settlement with the IRS that left the corporation with more than $85 million in unrestricted cash in 1994. In debating what to do with these funds, Huna Totem's board of directors grew interested in the idea of establishing a settlement trust, and eventually the board proposed that its shareholders dedicate the settlement funds to a settlement trust. In May 1994 the board sent shareholders an introductory "Shareholder Information Packet" describing the recent IRS settlement and introducing the idea of a settlement trust. This packet described the proposed trust in general terms, emphasizing that the information it contained was "not by any means a complete discussion of all of the important aspects of the Trust." In addressing how the trust could be modified or changed once adopted, the packet said only that "[alt periodic intervals-initially five years after the Trust is established, and then once every ten years thereafter-the beneficiaries could, by vote of a two thirds of all units, choose to distribute some or all of the accumulated income and principal, or to terminate the Trust entirely." The preliminary packet promised that "[slhareholders will be hearing and learning more about the Trust in the upcoming months, and will receive additional, detailed information." In keeping with this promise, two months later, in July 1994, Huna Totem sent its shareholders a formal proxy solicitation that covered the proposed trust's review and termination provisions in far greater detail. The solicitation explained that, onee established, the trust could be amended or ended by shareholders only if the action was recommended by the trust's board of trustees: The accumulated income and Settlement Trust principal generally would not be available to be distributed, except that five years after the Settlement Trust is established, and then once every ten years thereafter-upon a recommendation of two-thirds of the trustees, ratified by a two-thirds vote of the unit holders, some or all of the accumulated income and principal could be distributed or the Settlement Trust could be terminated entirely. This explanation mirrored the provisions of the proposed settlement trust itself, the full text of which accompanied the July 1994 proxy solicitation as an appendix. After the corporation mailed the proxy solicitation in late July 1994, members of its board conducted a series of shareholder workshops to discuss the proposed trust. Shareholders then overwhelmingly approved the trust proposal at a special meeting in September 1994, and the trust was established. The five-year review began in January 2000. . Huna Totem solicited shareholder comments and held public meetings in several cities. The corporation also hired a research company to survey shareholders' opinions on the trust; this "survey showed that a substantial majority of unit holders favored continuation of the Trust, although many wanted some distribution of the trust corpus." In March 2000 the trustees voted to recommend a "relatively small" partial liquidation of the trust. Shareholders were then sent an information packet and a ballot to vote on this recommendation. They voted to ratify the trustees' recommendation by a six-to-one ratio. The settlement trust subsequently paid shareholders distributions of $50 per share, totaling roughly $4.4 million; the rest of the trust assets, about $40 million by then, remained in the settlement trust, subject to further review in ten years. Soon after the board of trustees issued its five-year recommendation, several dissatisfied shareholders filed the class action at issue here, seeking to terminate and invalidate the settlement trust in its entirety because, they alleged, the information provided to shareholders by Huna Totem before the trust was adopted materially misled them concerning their right to vote on the issue of termination. -In particular, these shareholders argued that the proxy materials led them to believe that shareholders would have the unqualified right to vote on the trust's continued existence without regard to any recommendation by the trust's board of trustees. The shareholders based their claims in large part on the preliminary packet of information provided to shareholders in May 1994, which stated that shareholders "could" vote to review the trust in five years but did not explain that the shareholder vote would be contingent on the trustees' recommendation. According to the class action shareholders, the confusion generated by these preliminary communications was perpetuated by oral representations made by directors who met with shareholders to answer questions after Huna Totem mailed its formal proxy solicitation in July 1994. Huna Totem denied these allegations, claiming that its proxy materials accurately explained the five-year review process. After a four-day bench trial, Superior Court Judge Patricia A. Collins ruled in favor of Huna Totem. Although Judge Collins believed that "the actual Proxy Statement is clear and unambiguous," she found that the "oral statements by directors and the "brief review of the proposed trust included in shareholder materials distributed prior to the vote were ambiguous in that they omitted information about the role of the trustees in the review process and procedure regarding future shareholder votes to modify or terminate the trust." But noting that, under Brown v. Ward, Alaska law deems proxy materials to be materially misleading or false only " 'if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote," the judge found that any information omitted from Huna Totem's preliminary materials or the directors' post-solicitation oral communications was not materially misleading in light of "the total mix of information available about the review process." Furthermore, though emphasizing that she was "not at all convinced that the alleged omissions had any impact on the initial vote to create the trust," Judge Collins alternatively found that the plaintiffs' proposed remedies-setting aside the trust, an award of nominal damages, and/or a revote on establishing the trust-would be barred as inequitable "[blecause of the long delay in seeking court intervention" and the significant harm that would inevitably result from " 'unserambling' the trust at this late date." The plaintiffs/shareholders appeal. III. DISCUSSION A. - Standard of Review The two central issues in this case-whether the superior court applied the wrong legal test in determining materiality and whether the court erred in failing to find material misstatements under the correct legal standard-primarily present questions of law; but the issue of materiality also implicates issues of fact We review the trial court's legal determinations using our independent judgment and review its factual determinations for clear error. B. - Alaska Securities Law Alaska corporations created under ANCSA are exempt from the federal Securities Act of 1933 and Securities Exchange Act of 1934. To the extent that the shareholders' claims are not directly governed by ANCSA, then, they are controlled by Alaska law rather than federal securities law. Nevertheless, as we held in Brown v. Ward, interpretations of relevant SEC and federal common law prohibitions against material falsehoods in proxy statements provide a "useful guide" in interpreting similar securities issues arising under state law in ANCSA cases. The Alaska Securities Act prohibits misrepresentations of material fact in proxy solicitations: A person may not, in a document filed with the administrator or in a proceeding under this chapter, make or cause to be made an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the cireumstances under which they are made, not misleading. Under this provision, a two-fold analysis applies to misrepresentation issues in proxy solicitation cases, requiring courts to ask, first, whether any statements amounted to misrepresentations and, if so, whether those misrepresentations are material when considered "in the light of the cireumstances under which they are made." The relevant definition of "misrepresentation," as set forth in 3 AAC 08.315(a), includes both positive statements and omissions: [ A] statement that, at the time and under the cireumstances in which it is made (1) is false or misleading with respect to a material fact; (2) omits a material fact necessary in order to make a statement made in the solicitation not false or misleading; or (3) omits a material fact necessary to correct a statement, in an earlier communication regarding the solicitation of a proxy for the same meeting or subject matter, which has become false or misleading. Under these provisions, then, statements or omissions qualify as misrepresentations when they are "misleading or false," and "a misleading or false statement 'is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.' C. - Shareholders' Claims 1. Alleged misapplication of a scien-ter requirement The shareholders first assert that the trial court erred by applying the wrong legal standard to their proxy solicitation claims. Specifically, they claim, Judge Collins imposed a scienter requirement and refused to impose liability because she found that management did not intend to deceive the shareholders. Huna Totem does not dispute that it would be improper to require scienter in determining materiality but insists that Judge Collins applied the correct materiality standard and did not require scienter. The record supports Huna Totem's position. The shareholders base their scienter argument on several comments in the court's oral and written rulings in which Judge Collins expressed her view that the legal dispute in the present case was not the result of "bad people or bad motives." In her oral decision, for example, Judge Collins prefaced a remark about the shareholders' request for declaratory and injunctive relief with the observation that there was an "absence of fraud and intent to deceive." When discussing the evidence concerning false and misleading proxy materials in her subsequent written findings, Judge Collins made the same point, stressing that, "(als stated in [the] oral findings, the court is convinced that there was no intent by the directors of Huna Totem Corporation to mislead shareholders about the Settlement Trust." But as Huna Totem correctly points out, the challenged comments concerning the corporation's lack of intent or bad faith did not address Judge Collins's application of the Brown v. Ward materiality test. Rather, when read against the background of the decision as a whole, these comments reflect little more than the court's desire to mend the relationship between Huna Totem and its shareholders, which the court described as having degenerated into "finger pointing" and "name calling" during the trial. Indeed, in her oral findings, Judge Collins expressly described her remarks on scienter as comments preliminary to her decision: Before I enter my oral findings, . I think it's important that I make some preliminary observations about the case and about the persons involved in the case. Many disputes come before the court where the parties . attempt to portray the opposing party as bad people with bad motives. This case is no different. Those kinds of allegations have been made. I am convinced that this case does not involve bad people or bad motives[.] And although the court returned to this theme at several points in its oral and written findings, it directed its comments not to the issue of materiality, but to the "tenor of argument and discussion between the [parties]." In contrast, when addressing the issue of materiality, Judge Collins described and applied Brown v. Ward's objective "reasonable shareholder" test with pinpoint accuracy, never mentioning or hinting at any consideration of motives or scienter. The shareholders nonetheless insist that "the court directly link[ed]" its decision against them to their failure to prove scien-ter. In support of this claim, they point to "one particular sentence" toward the end of the oral findings, in which Judge Collins observed: "Given the absence of fraud and intent to deceive and the other factors I've mentioned here today, I believe it would be unfair and unjust to grant the declaratory and injunctive relief sought by the plaintiffs." But the shareholders overstate the significance of this reference to scienter. For it had nothing to do with the superior court's application of Brown v. Ward's objective materiality test; instead, by its own terms, the comment focused exclusively on Judge Col-ling's alternative basis for ruling: as we have described above, the judge's alternative ruling addressed the remedies requested in the lawsuit, concluding that they would be inappropriate even if the plaintiffs had proved a material misrepresentation. As Judge Collins correctly recognized, the plaintiffs' request for equitable remedies necessarily raised equitable issues on which seienter had direct bearing. In context, then, Judge Col-ling's comment simply confirms her understanding and correct application of Brown v. Ward's objective test of materiality. We thus find no merit in the shareholders' claims that Judge Collins wrongly imposed a scien-ter requirement in deciding the issue of materiality. 2. Materiality of Huna Totem's omissions In addition to claiming that the trial court applied the wrong legal test of materiality, the shareholders maintain that the proxy materials are materially false and misleading under the right standard. As previously noted, after hearing the testimony at trial and reviewing the various documents shareholders had received regarding the trust, Judge Collins determined that, while some of the documents were ambiguous, their ambiguities were not material. Specifically, Judge Collins found that Huna Totem's July 1994 proxy solicitation gave shareholders a complete and accurate picture of the periodic review process: "[The proxy statement and the full text of the settlement trust that was submitted to the shareholders is neither overly simplified [nlor unclear." Given the broad distribution and ready availability of this information, the court conelud-ed, "[the total mix of materials submitted to the Huna Totem shareholders was essentially accurate if to some degree overly simplified"; and in the court's view, any ambiguities or omissions in the May 1994 preliminary information packet or in the directors' post-solicitation oral presentations were immaterial under Brown v. Ward's objective test, which defines a misleading or false statement as " 'material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote'" In propounding a contrary view on appeal, the shareholders concentrate primarily on the incompleteness of the preliminary information distributed in May 1994, insisting that the confusion generated by this information sowed a lasting seed of ambiguity that violated the "clear statement rule" and Huna Totem's duties of disclosure, completeness and candor; omitted facts "so obviously important" to individual shareholders as to be material as a matter of law; and should therefore be resolved in favor of the shareholders under ordinary rules of contract interpretation. But the shareholders' narrow focus on the trial court's finding of an ambiguity in Huna Totem's preliminary information im-permissibly views that information in isolation, mistakenly disregarding the need to decide the materiality of a particular omission in light of the totality of available information. For as we have already observed, the Alaska Securities Act expressly requires us to determine the materiality of a statement's omissions contextually, rather than in isolation, by considering whether the statement "omitf{s] to state a material fact necessary in order to make the statement[ ] made, in the light of the cireumstances under which [it is] made, not misleading." Or as Judge Collins more simply phrased it, the pertinent inquiry here was whether "/t/hke total mix of materials submitted to the Huna Totem shareholders was essentially aceu-rate." (Emphasis added.) Here, no matter how sketchy the corporation's initial description of its proposed settlement trust might seem, the uncontro-verted facts establish that Huna Totem's preliminary packet of information was labeled as a "brief introduction" to the proposed settlement trust; it expressly warned the shareholders of its own incompleteness and promised more information to follow. Keeping this promise, Huna Totem delivered the proxy solicitation itself-the most crucial - document-which provided each shareholder a complete and accurate summary of the proposed trust's review process, as well as a copy of the entire settlement trust document. Applying Brown v. Ward's objective test to the total mix of available information, as the securities act requires, we conclude, as Judge Collins did, that a reasonable shareholder considering the information actually provided would not have been likely to find the information omitted from Huna Totem's preliminary packet and post-solicitation oral communications to be important in deciding how to vote. We thus affirm the superior court's materiality ruling. 3. Appropriateness - of - shareholders' proposed remedies Finally, the shareholders argue that Judge Collins erred in her alternative ruling rejecting as inequitable their proposed remedies of declaratory relief, injunctive relief, and nominal damages. Because the superior court issued its alternative ruling on the assumption that Huna Totem's proxy materials might ultimately be found to be materially misleading-an eventuality that has not materialized-we need not consider the superior court's alternative ground for decision. IV. CONCLUSION We AFFIRM the superior court's judgment. MATTHEWS, Justice, not participating. . 43 U.S.C. § 1601-162%h (1986 & Supp.2003). . Under Congress' 1987 amendments to ANCSA, "Native Corporations are allowed to convey assets to a 'settlement trust' to 'promote the health, education, and welfare of its beneficiaries and preserve the heritage and culture of the Natives." Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1332 (Alaska 1997) (Fabe, J., dissenting) (quoting 43 U.S.C. § 1629e(b)(1) (Supp.1994)). Settlement trusts offer significant tax advantages and insulate assets from creditors' claims. . Brown v. Ward, 593 P.2d 247, 251 (Alaska 1979) (quoting TSC Indus., Inc., v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). . Judge Collins's core findings on ambiguity and materiality are as follows: 7. While the actual Proxy Statement is clear and unambiguous, oral statements by directors and the "brief" review of the proposed trust included in shareholder materials distributed prior to the vote were ambiguous in that they omitted information about the role of the trustees in the review process and procedure regarding future shareholder votes to modify or terminate the trust. Thus, the plaintiffs have established an omission in proxy materials including oral statements and the shareholder information packet. 8. While a close question, the above omissions and/or ambiguity in the oral representations and brief review of the proposed Settlement Trust do not, however, meet the materiality standard of Brown v. Ward. Specifically, under an objective standard, a reasonable shareholder considering future review of a trust for purposes of modifying or terminating the trust would reasonably anticipate some process or procedure would apply both to the review process and to the vote. While the "brief review" of the trust in the April mailing and oral representations likely did not detail the process for future review, it is difficult to conclude that such an omission would cause an objectively reasonable shareholder to assume no process would be followed and/or that a "free for all" vote on modification or termination would occur. 9. While, again, a close question, this court cannot find[] on the particular facts of this case that there is a substantial likelihood that a reasonable shareholder would have considered it important that the five-year review process would entail review and recommendation regarding trust changes by the duly-elected trustees to precede any shareholder vote on modification or termination, particularly in light of the total mix of information available about the review process. Using an objective standard, a reasonable shareholder who thought the precise mechanism for review was important would likely have read the Proxy Statement and/or proposed Settlement Trust Agreement, both of which detailed the role of trustees in the review process and both of which were provided to shareholders. (Footnote omitted.) . TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126 (''The issue of materiality may be characterized as a mixed question of law and fact, involving as it does the application of a legal standard to a particular set of facts."). . See N.A. v. State, 19 P.3d 597, 600-01 (Alaska 2001) ("We defer to the trial court's factual findings unless clearly erroneous and review de novo any questions of law."). . See 43 U.S.C. § 1625 (1986 & Supp.2003). . See Brown v. Ward, 593 P.2d 247, 249 (Alaska 1979). . Id. at 250 ('Since the SEC fraud rule and the common law both prohibit material falsehoods, authorities construing the SEC rule are a useful guide in determining when a misstatement is material under Alaska common law."). . AS 45.55.160. . Id. . Brown, 593 P.2d at 251 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976). . See note 4, above. . Brown, 593 P.2d at 251 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126). . AS 45.55.160 (emphasis added). . See Brown, 593 P.2d at 251 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126). . Pointing to a pattern of similar descriptions some accurate, many incomplete-in various communications occurring between the time of the settlement trust's approval in 1994 and the first five-year review in 2000, the shareholders maintain that the continuing ambiguity and inconsistency of these statements relates back to the earlier communications, somehow confirm ing their originally misleading character. The shareholders further maintain that each of these post-1994 repetitions of the 1994 promise of a shareholder vote amounted to a new contract, creating a new cause of action. Moreover, the shareholders seem to argue, by violating various common law rules implicit in Brown v. Ward-a corporation's duty of disclosure, its duty of completeness, its duty of candor, and its duty of good. faith and fair dealing-FHuna Totem's original and subsequent materials became independently actionable. But these common law duties are largely incorporated in Alaska's statutory standards governing material misrepresentations. Thus, the common law claims depend on the shareholders' initial premise that Huna Totem's May 1994 preliminary statement was materially misleading; they add little to the statutory claims and fail to survive our rejection of the shareholders' arguments on scierter and materiality.

9094214

KOYUKUK RIVER BASIN MOOSE CO-MANAGEMENT TEAM, Appellant, v. BOARD OF GAME, Frank Rue, in his official capacity as Commissioner of Alaska Department of Fish and Game, and State of Alaska, Appellees

Koyukuk River Basin Moose Co-Management Team v. Board of Game

2003-08-22

No. S-10513

383

391

76 P.3d 383

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.

KOYUKUK RIVER BASIN MOOSE CO-MANAGEMENT TEAM, Appellant, v. BOARD OF GAME, Frank Rue, in his official capacity as Commissioner of Alaska Department of Fish and Game, and State of Alaska, Appellees.

KOYUKUK RIVER BASIN MOOSE CO-MANAGEMENT TEAM, Appellant, v. BOARD OF GAME, Frank Rue, in his official capacity as Commissioner of Alaska Department of Fish and Game, and State of Alaska, Appellees. No. S-10513. Supreme Court of Alaska. Aug. 22, 2003. Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, for Appellant. Kevin M. Saxby, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

4068

25668

OPINION EASTAUGH, Justice. I. INTRODUCTION We consider here whether the Alaska Board of Game violated either the sustained yield principle of article VIII, section 4 of the Alaska Constitution or Alaska's subsistence statutes in managing moose hunting in part of the Koyukuk River Basin. We affirm the superior court decision holding that there was no violation. The Board of Game was within its discretion in adopting a regulation that allowed for the issuance of "up to" 400 permits in a controlled use area that was part of two larger Game Management Units. II. FACTS AND PROCEEDINGS This appeal concerns the validity of moose hunting regulations for an area encompassing the Koyukuk Controlled Use Area (KCUA). The KCUA is located in the lower portion of the Koyukuk River drainage, and was established in 1979 to reduce the participation of non-local hunters by prohibiting the use of aircraft. The Koyukuk River flows through Game Management Units (GMT) 21D and 24. Approximately one half of the KCUA lies within the northern portion of GMU 21D, while the other half lies within the southern portion of GMU 24. Together, GMU 21D and GMU 24 cover roughly 38,000 square miles. The KCUA occupies roughly 4,791 square miles-about thirteen percent of the combined areas of GMU 21D and GMU 24. Despite the controlled use area designation, the abundance and density of moose in the KCUA continued to attract increasing numbers of non-local hunters throughout the 1980s and 1990s. The Koyukuk River Basin Moose Co-Management Team (the team) represents a coalition of native villages located along the Koyu-kuk River. Villages in the Koyukuk River drainage are heavily dependent on subsistence, and the team contends that the moose population in the area has declined significantly due to increased hunting pressure. In response to the declining moose population, the Alaska Department of Fish and Game organized the Koyukuk River Moose Hunter's Working Group to advise the department on Koyukuk River moose management. The working group was a citizen-based advisory body composed primarily of representatives from various state fish and game advisory committees. The department and the working group produced a draft management plan for Koyukuk River moose in February 2000. The plan recommended reducing the total moose harvest in the lower Koyukuk River drainage-within the area of the KCUA-by reducing the anterless moose harvest and changing the general hunt in the KCUA to a drawing hunt with separate resident and non-resident drawing pools. The Board of Game met in Fairbanks March 3-18, 2000 and considered the draft management plan. The board heard public testimony on the proposals, including comments from team members, and written and oral comments from the team's counsel. The board ultimately adopted, with some amendments, many of the changes proposed in the draft plan. Significant among these was Proposal No. 30, which recommended changing the portion of 5 Alaska Administrative Code (AAC) 85.045 pertaining to the general moose hunt in the KCUA. The general hunt in the KCUA had been a general registration hunt, but Proposal No. 80 recommended replacing it with a permit drawing hunt. The draft proposed a drawing hunt in the KCUA with an allowance for "up to" 820 resident permits and "up to" 80 non-resident permits in the combined portions of GMU 21D and GMU 24 that are within the KCUA. This proposal allowing for the issuance of "up to" 400 permits in the KCUA was adopted as part of 5 AAC 85.045 and is the focus of the team's appeal in this court. The subsistence registration hunt remained unlimited within the KCUA, as did the general hunt in GMU 21D outside the KCUA, and within portions of GMU 24 outside the KCUA. "Unlimited" here refers to a lack of numerical restrictions on the number of permits issued. And although the non-KCUA remainder of GMU 21D was regulated uniformly under 5 AAC 85.045, the non-KCUA remainder of GMU 24 was further subdivided so that different provisions applied to different geographical regions within that game management unit. The subsections of 5 AAC 85.045 set permit limits for a drawing hunt in the KCUA, but the board does not manage moose in the KCUA as a distinct animal population. Rather, the board made findings under Alaska's subsistence laws and managed moose populations for the larger game management units. The team filed suit against the Board of Game, Commissioner Frank Rue, and the state April 12, 2000. The complaint challenged the validity of 5 AAC 85.045, claiming that (1) the board made subsistence determinations using inconsistent populations; (2) the board failed to limit the moose harvest outside the KCUA; (8) the regulation allowing "up to" 400 general hunt permits in the KCUA violated the subsistence statute and sustained yield requirements of Alaska law; and (4) the board failed to consider predator harvest rates in determining intensive game management goals. The team sought declaratory and injunctive relief. The parties filed cross-motions for summary judgment, and the superior court granted summary judgment in favor of the defendants. The team appeals the grant of summary judgment, arguing that 5 AAC 85.045 violates the principles of sustained yield management and that the board failed to make findings required under Alaska's subsistence statutes. The team does not appeal the board's actual findings. Rather, it argues that 5 AAC 85.045 exceeds the Board of Game's estimated sustained yield harvest rate. III. DISCUSSION A. -Standard of Review We review a grant of summary judgment de novo. We substitute our judgment for that of the board when interpreting the Alaska Constitution and issues of law. We interpret the constitution and legal issues "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." We review the board's application of law to a particular set of facts for reasonableness. Under this standard, we "merely determine whether the agency's determination is supported by the facts and is reasonably based in law." We will not substitute our judgment for that of the board or alter its policy choice when the board's decision is based on its expertise. Regulations adopted under Alaska's administrative procedure statute are presumptively valid," and challengers have the burden of demonstrating that the regulation is invalid. We will not overturn a resource management regulation simply because one group of resource users believes that the regulation should have a different substance. B. The Board Was Within Its Discretion in Not Managing Moose in the KCUA as a Distinct Game Population. The team argues that 5 AAC 85.045, the board's regulation allowing "up to" 400 permits in the KCUA, violates sustained yield principles for moose in the KCUA. The team relies on the board's population estimates and argues that actually issuing 400 permits would exceed sustained yield projections for moose in the KCUA. The state argued below that it was within the board's discretion to delegate management authority to the department, and that the team's alleged violation was only theoretical because the regulation's language was permissive. The board viewed the 400-per-mit limit as a ceiling, and expected the department to issue fewer than 400 permits. On appeal the team relies heavily on language in the superior court's memorandum decision and order which states: When facts are construed in favor of the Team, the authorization of 400 permits represents a harvest rate by hunters of 9.24 percent. Although nothing in the ree-ord suggests that a 9.24 percent harvest rate could be sustained at this time in the KCUA, the Board's discussion of intensive management suggests that a harvest rate as high as 10 percent could be biologically feasible using predator control and habitat manipulation. Despite its observation regarding sustained yield in the KCUA, the superior court granted summary judgment to the state. The superior court upheld the board's regulation as a permissive delegation of authority to the department to issue fewer than 400 permits, and noted evidence in the record supporting the proposition that a harvest rate of 9.24 percent could be sustained in the KCUA with intensive management techniques. The parties' arguments on appeal generally track the superior court's decision, and the briefs provide extensive discussion of permissible board delegations of authority to the department, and departmental discretion in implementing board regulations. Much of this discussion overlooks this fundamental question: does the KCUA designate a relevant game population under Alaska law? The team alleges that the regulation violates sustained yield principles with respect to moose in the KCUA. It is not clear, however, that the controlled use area corresponds to a relevant game population for management purposes. If the KCUA does not designate a relevant game population, the board is not required to make findings or satisfy sustained yield requirements under Alaska's resource management laws for moose within the KCUA. This is a threshold matter because the team's challenge to 5 AAC 85.045 is predicated on the notion that the state must satisfy the sustained yield principle for moose in the KCUA. The team does not dispute the board's findings or sustained yield projections for the two GM Us that encompass the KCUA. The state correctly indicates that the team seems to accept seven percent and five percent as estimates for the maximum sustained harvest for GMU 21D and GMU 24, respectively. The team does not argue that 5 AAC 85.045 exceeds these sustained yield harvest estimates for GMU 21D or GMU 24. Consequently, if GMU 21D and GMU 24 designate the relevant moose populations for purposes of managing all the moose in those GM Us, including moose that happen to be in the KCUA, the team's arguments regarding moose in the KCUA must fail. The superior court's thorough memorandum decision accurately described the me-chanies of game management under Alaska's subsistence statute, AS 16.05.258. The board must first identify game populations customarily and traditionally taken or used for subsistence-the so-called "C & T" designation. It must then determine whether a portion of a game population given a positive C & T designation under AS 16.05.258(a) can be harvested consistent with sustained yield. If so, the board must then determine the amount of the harvestable portion reasonably necessary for subsistence. The board then calculates the amount, if any, available for non-subsistence uses. The amount of moose available for non-subsistence use is the number remaining after subtracting the number of moose necessary for subsistence use from the portion harvestable within the constraints of a sustained yield. If the harvestable portion is insufficient to provide for all uses, the subsistence statute prescribes the allocation of the harvestable portion between different user groups, giving preference to subsistence uses. For these determinations, the statute defines "game population" as "a group of game animals of a single species or subgroup manageable as a unit." The board does not manage moose in the KCUA as a distinct game population. Rather, the board uses the larger GM Us and their subunits as the relevant game populations for managing Koyukuk moose. The subsections of 5 AAC 85.045 use the KCUA's geographic boundaries to set permit limits, but setting permit limits within the KCUA does not equate to game management under Alaska law. In arguing that the board failed to make required findings under AS 16.05.255 and 258, the team contends that the board was required to manage moose in the KCUA as an identifiable game population because its regulation set harvest levels for the KCUA. The team's argument is largely conclusory. The team implies that the board's population determinations were irrational and arbitrary, but it fails to substantiate this proposition. The team presumes that because the board's regulations address moose within the KCUA, the board managed moose in the KCUA as a single population. These two propositions do not necessarily follow. Use of the KCUA boundary in 5 AAC 85.045 does not mean that the board managed moose in the KCUA as an identifiable or biologically significant game population. The team recognizes that the board has substantial discretion to identify game populations, and acknowledges that it can do so "in any rational manner" reasonably related to the purposes of the subsistence statute. But it fails to explain why the board's decision not to manage moose in the KCUA as a distinct game population was arbitrary or somehow unreasonable in light of the statute. The team gives no legal or statutory support for the proposition that a controlled use area necessarily designates a manageable game population. The team similarly fails to substantiate the proposition that the board must manage moose in the KCUA as an identifiable game population because 5 AAC 85.045 sets permit limits within the geographical boundaries of the controlled use area. The team cites the constitutional provision requiring that Alaska's resources be "maintained on the sustained yield principle," but it cites no authority suggesting that this principle must be applied to animals within a controlled use area, or simply to any cognizable game population. Indeed, the latter proposition would be untenable. The team has the burden of demonstrating the invalidity of 5 AAC 85.045, but in this case it failed to do so. The state maintains that it is within the board's discretion to determine game management populations, and that in this case it was reasonable not to manage moose in the KCUA as a distinct game population. We agree. While the burden of demonstrating invalidity lies with the team, the state offers substantial justification for the board's choice of management populations. As an initial matter, creating a controlled use area does not necessarily amount to designating a relevant animal population for management purposes. In this case, the history of the KCUA is instructive: it was created to reduce non-local hunting by prohibiting the use of aireraft-not because it reflected a biologically significant animal population. We have held that the creation and management of a controlled use, area involves "matters of policy committed to the judgment of the Board," and we agree with the board's position that "[rlegulations directed at reducing competition or conflict among users of a game resource in specific areas do not amount to a concession that the animals within that smaller area are 'man-kH ageable as a unit. In defense of its regulations, the board maintains that the KCUA boundaries are highly artificial, and that the KCUA moose population is too small and too dense to serve as a relevant game population for management purposes. The board correctly notes that any harvest would violate sustained yield principles if the population sample were sufficiently narrow. - Given inappropriately small geographic constraints, every resource harvest could approach 100 percent. The board also defends its choice of management populations by noting that the GMUs are the traditional populations used for game management. Moreover, the board points to distinguishing characteristics of the KCUA, other than its size, that justify targeted permit limitations in that area. The board notes the significant moose density in the KCUA, hunter crowding problems not present in adjoining areas, and the significant harvest pressure relative to the larger GMU 21D and GMU 24. The board also refers us to this instructive testimony from an area biologist: When we went through the plan and the discussion we had talked about the harvest rates, at the very back . of the Koyukuk moose hunters working group plan. We gave these 8%, 7.5%, and 7% harvest rates. And those applied only to the high density portion of the controlled use area where it happens to overlay with that high density area of moose population. The generalized harvest rates of 5-7% for 21D still was the out of the bounds. So, even if we did have a higher harvest rate within the controlled use area, we were still-have the sideboards of not exceeding the unit-wide harvest rates. And so, we wouldn't be exceeding that population level for the more meaningful population biologically. This suggests both that the KCUA does not designate the meaningful biological population, and that sustained yield principles could be satisfied for the "more meaningful" moose population despite a high rate of harvest in the KCUA. Faced with a similar question in the fisheries context, we observed in Native Village of Elim v. State that "manageability" was the key element in classifying management populations. We held that a population determination made by the Board of Fisheries should receive "considerable deference" for two reasons: first, because the identification of populations requires knowledge and experience and thus falls within the board's ex pertise, and second, because the subsistence law defines populations broadly in order to give the board the flexibility it needs to accommodate the biological and ecological concerns involved in resource management. In the same case we also noted that courts are "singularly ill-equipped to make natural resource management decisions." The board's discretion is not unlimited in making population determinations, but we will uphold the board's determination if it is reasonably related to the purposes of the subsistence law. The board is not permitted to manipulate game populations "simply to achieve a predetermined outcome." Under this deferential standard, the Board of Game was properly within its discretion in not managing moose in the KCUA as a distinct game population. We are satisfied with the board's rationale and will not second-guess its assessment of the manageability of moose in the KCUA. Such a determination falls within the purview of agency expertise and discretion. The team failed to show that the board's population determinations were not reasonably related to the purposes of the subsistence law, or that they were somehow manipulated to achieve a predetermined outcome. Given the planning effort undertaken by the state, this case strikes us as similar to Native Village of Elim and Interior Alaska Airboat Association v. State, in which we held that we will not overturn a resource management regulation simply because one group of resource users believes that a different outcome is more desirable. We decline to hold that all areas within a GMU must be regulated uniformly, or that the board's decision not to regulate GMU 21D and GMU 24 uniformly denotes the existence of multiple game populations for sustained yield analysis. And because we reject the team's position that the KCUA designates a relevant moose population for management purposes, we are unpersuaded by the team's argument that 5 AAC 85.045 violates the sustained yield requirements of the Alaska Constitution and Alaska law with respect to moose in the KCUA. C. The Team's Other Arguments Regarding Sustained Yield Fail Because They Are Predicated on the Assumption that the KCUA Designates a Relevant Game Population. In an argument similar to its sustained yield contention, the team also asserts that the board failed to make the findings for moose in the KCUA required by AS 16.05.255 (the intensive management statute) and AS 16.05.258 (the subsistence statute). As discussed above, the board was within its considerable discretion in not using the KCUA to define a relevant moose population for management purposes. It therefore was not required to make findings under the statutes for moose in the KCUA. The team also argues that the board should have implemented intensive management techniques in the KCUA. In its memorandum decision the superior court noted that the harvest rate in the KCUA could be maintained through intensive management. The board did not implement intensive management in the KCUA, however, and the team argues that the board's regulation is arbitrary and unreasonable because the board could only avoid violating sustained yield principles for moose in the KCUA by applying intensive management techniques. The team even suggests in its reply brief that its claims "would have been mooted" if the board had adopted intensive management initiatives. Again, though, the team's argument regarding intensive management is inherently predicated on the twin propositions that the KCUA designates a relevant moose population, and that sustained yield must be satisfied with respect to moose in the KCUA. We review the board's population determinations under the intensive management statute with the same deferential standard we apply to population determinations under the subsistence statute. Furthermore, the violation of sustained yield principles alleged here by the team relates to moose in the KCUA-not to the GMU populations that the board permissibly managed. The team's argument calling for intensive management techniques in the KCUA fails because it is aimed at preventing a violation of sustained yield requirements for a population that does not require sustained yield analysis. Similarly, the team advances several arguments questioning whether the board can save 5 AAC 85.045 by delegating authority to the department to issue fewer than 400 permits in the KCUA. We need not reach these arguments because the team's delegation arguments assume that, absent the delegation, the regulation would violate sustained yield requirements for moose in the KCUA. The team's delegation arguments fail because the board permissibly determined that the KCUA does not identify a relevant management population. Because sustained yield analysis for moose in the KCUA is unnecessary, the regulation need not be saved by authority delegated to the department to issue fewer than 400 permits. IV. CONCLUSION For these reasons we AFFIRM the superi- or court's grant of summary judgment in favor of the state. . See Former 5 AAC 85.045 (1999) (general registration hunt in the KCUA). . See 5 AAC 85.045 (2003) (am.7/1/00) (changing the general registration hunt in the KCUA to a drawing hunt). . See 5 AAC 85.045(19), (22) (2003) (ana.7/1/00). . Id. . See, for example, the findings required under AS 16.05.255(e)-(g), and AS 16.05.258. . See, e.g., 5 AAC 92.108 (2003); 5 AAC 99.025 (2003). . - Appellants first brought suit in Koyukuk River Tribal Task Force on Moose Management v. Rue (Superior Court Case No. 4FA-99-561 Ci.), alleging various violations of Alaska subsistence stat-ules and constitutional provisions. That case was dismissed by the superior court for failure to exhaust administrative remedies, and we recently remanded the case following an appeal on the issue of attorney's fees. Koyukuk River Tribal Task Force on Moose Mgmt. v. Rue, 63 P.3d 1019, 1022 (Alaska 2003). The team's opening brief explains that the team "does not dispute the [department's] methodology, estimates of population, the amounts reasonably necessary for subsistence, nor the general hunt success ratios." The team acknowledges that these determinations require agency expertise, and "agrees, for the purposes of this litigation, that the Court[ ] should defer to the agency expertise with regard to the determination of these factors and the methodology used by the agency to determine sustained yield." . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999). . Id. . Id. . Id. . Id. (quoting Hammer v. City of Fairbanks, 953 P.2d 500, 504 (Alaska 1998)). . Id. . See AS 44.62.100. . Native Vill. of Elim, 990 P.2d at 14. See also Interior Alaska Airboat Ass'n v. State, 18 P.3d 686, 689 (Alaska 2001) (noting that regulations will be upheld as long as they are "consistent with and reasonably necessary to implement the statutes authorizing their adoption" (quoting State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997))). . Native Vill. of Elim, 990 P.2d at 14. . See AS 16.05.258; infra notes 19-24 and accompanying text. . AS 16.05.258(a). . AS 16.05.258(b). . Id. . Id. . AS 16.05.258(b)(1)-(4). . AS 16.05.940(19). . See 5 AAC 99.025 (2003) (C & T determinations under AS 16.05,.258); 5 AAC 92.108 (2003) (intensive management findings under AS 16.05.255(e)-(g)). . Alaska Const. art. VIII, § 4. . Native Vill. of Elim v. State, 990 P.2d 1, 14 (Alaska 1999) ("[A] regulation adopted under Alaska's administrative procedure statute, AS 44.62.100, is presumed to be valid, and a challenger has the burden to demonstrate that the regulation is invalid."); see also Interior Alaska Airboat Ass'n v. State, 18 P.3d 686, 689 (Alaska 2001). . Interior Alaska Airboat Ass'n, 18 P.3d at 693. . The record supports the state's contention that the KCUA yields sixty-five percent of the total moose harvest from GMU 21D and GMU 24. . 990 P.2d at 10-11. . Id. . Id. at 8. . Id. at 11. . Id. . 990 P.2d at 14. . 18 P.3d 686, 693 (Alaska 2001).

11162818

TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Appellant and Cross-Appellee, v. STATE of Alaska, Alaska Public Utilities Commission, the City of Klawock, and Alaska Power Company, Appellees and Cross-Appellants

Tlingit-Haida Regional Electrical Authority v. State

2001-01-12

Nos. S-8833, S-8834, S-8843

754

770

15 P.3d 754

15

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Appellant and Cross-Appellee, v. STATE of Alaska, Alaska Public Utilities Commission, the City of Klawock, and Alaska Power Company, Appellees and Cross-Appellants.

TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Appellant and Cross-Appellee, v. STATE of Alaska, Alaska Public Utilities Commission, the City of Klawock, and Alaska Power Company, Appellees and Cross-Appellants. Nos. S-8833, S-8834, S-8843. Supreme Court of Alaska. Jan. 12, 2001. Roger R. Kemppel, Kemppel, Huffman & Ellis, P.C., Anchorage, and William G. Ruddy, Ruddy, Bradley & Kolkhorst, Juneau, for - Appellant/Cross-Appellee. Martin M. Weinstein, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney - General, Juneau, for Appel-lee/Cross-Appellant State of Alaska, Alaska Public Utilities Commission. Clyde E. Sniffen, Jr., Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee/Cross-Appellant City of Klawoek. Robert E. Stoller, Anchorage, for Appel-lee/Cross-Appellant Alaska Power Company. Paul L. Dillon, Dillon & Findley, P.C., Juneau, and John J. Leary, Jr., Smith & Leary, Seattle, WA, for Amicus Curiae Kla-wock Heenya Corporation. Before MATTHEWS, Chief Justice, FABE, BRYNER, and CARPENETI, Justices.

8417

54847

OPINION BRYNER, Justice. I. INTRODUCTION Twenty-five years after it created overlapping service territory between two utilities that later became the Tlingit-Haida Regional Electrical Authority (THREA) and the Alaska Power Company, the Alaska Public Utility Commission (commission) eliminated the overlap in favor of Alaska Power. THREA appeals, alleging that the commission's decision is procedurally flawed, is substantively wrong, is preempted by federal law, and results in a taking of THREA's property without just compensation. Alaska Power, the commission, and Klawock cross-appeal on the takings issue. We affirm the commission's decision. II. FACTS AND PROCEEDINGS This case arises out of Alaska's system of delivering electricity to its rural areas. From 1977 until 1997, THREA operated the electric plant and distribution system in Kla-wock. Initially Klawock and nearby Craig were geographically and electrically isolated, but in 1989 Alaska Power improved the road between the two towns and completed a connecting power line. As electricity and commerce began to flow along these paths, THREA's and Alaska Power's overlapping service territories came into conflict. Under AS 42.05.221(a), any electric utility-private or municipal-must secure a certificate of public convenience and necessity, which defines the utility's service territory. The original version of the certification statute-former AS 42.05.194-applied only to privately held utilities; it contained a grandfather clause that entitled utilities to receive certificates of public convenience and necessity for areas that they were already serving when the statute was passed. Alaska Power had been providing electricity to Craig; hence, in applying for its certificate under former AS 42.05.194, Alaska Power requested that its service area include territory surrounding that town, which it described by certain latitude and longitude measurements. In issuing the requested certificate, the commission used the surveyor's system of townships and ranges to describe Alaska Power's service area, explaining that it did so because accurate "protractions" were not available for the territory around Craig As described in the newly issued certificate, Alaska Power's service area extended beyond the area it had requested, encompassing the town of Klawock, which Alaska Power did not serve. This situation eventually led to conflicting certificates. In 1970, enactment of AS 42.05.221 extended the original certification requirement to municipal utilities. In 1972 the town of Klawock, which then operated its own electric utility, complied with this new statute by applying for a certificate. In granting Klawoek's application, the commission noted the overlap with Alaska Power's certificate: The Commission recognizes that the issuance of a certificate to the City of Klawock to serve the area requested in its application would constitute an overlap of operating authority unless additional action is taken. Accordingly, the Commission will examine, in the near future, the issue of revoking the operating authority of [Alaska Power] to furnish electric utility service in the area to be certificated to the City of Klawoek by this order. Despite this statement of intent to take action "in the near future," the commission did not revisit the issue of overlapping certificates until a quarter-century later, when THREA initiated the present proceedings. THREA entered the picture in 1975, when the Tlingit-Haida Central Council created the utility as a regional electrical authority under AS 18.57. The Tlingit-Haida Regional Electrical Authority is a nonprofit corporation and a subdivision of the state that operates small rural electric utilities in Alaska. THREA's operations are funded by loans from the Rural Electrification Administration. In 1977 THREA purchased Klawoek's electric utility with funds borrowed from the Rural Electrification Administration; the commission then issued THREA a certificate to provide electric service to "Klawock and adjacent areas." The commission's order granting THREA's certificate did not mention Alaska Power's overlapping certificate, but its silence on this point is hardly surprising, since no actual conflict then existed: THREA served Klawock and Alaska Power served nearby Craig through distribution grids that were physically isolated. That isolation ended around 1989, when the state completed a new road and electrical intertie between Klawock and Craig. Soon after, THREA stopped generating its own electricity and began buying wholesale from Alaska Power. THREA also contracted for Alaska Power to perform maintenance on THREA's distribution grid in Klawock. These arrangements left THREA in an advantageous position. With wholesale electricity and contractual maintenance work available through Alaska Power, THREA significantly reduced the cost of servicing its Klawock customers-a large part of its rate base. Yet since THREA was exempt from rate regulation, it was able to charge rates in Klawoek that were unusually high in com- ' parison to those charged to other consumers who were connected to Alaska Power's power grid. In effect, THREA was able to use its increased Klawock profits to cross-subsidize electrical service to its more rural, off-grid customers. Around the time that the intertie went on line, Alaska Power began serving a few customers within the overlapping territory. According to THREA's former general manager, THREA did not object to Alaska Power's serving these - customers. Eventually, though, as more Klawock consumers clamored for Alaska Power's services, THREA felt threatened by unwanted competition. In May 19983, THREA sent a letter asking the commission to cut Klawock out of Alaska Power's territory. The commission construed the letter to be a formal petition, and opened a docket. After receiving comments from Alaska Power, it denied THREA's petition without prejudice, finding that THREA had not proved that exeluding Alaska Power from Klawock would be in the public interest. Two months later, THREA filed a second petition, renewing its request to remove the overlap between THREA's and Alaska Power's service areas. The commission responded by opening docket U-94-2 and by formally designating Alaska Power a party to the proceeding. The town of Klawock then moved to intervene, and the commission granted its motion. The commission conducted several hearings on THREA's petition. At a consumer hearing in Klawock, ten of THREA's Kla-wock customers voiced their desire to be switched from THREA's service to Alaska Power's because Alaska Power's rates for Prince of Wales Island were significantly lower than THREA's rates for Klawock. THREA did not have an opportunity to cross-examine the consumer witnesses. The commission also heard evidence concerning THREA's performance as a public utility: its management and distribution systems, rates, outages, and system of consumer representation. After taking the matter under consideration, the commission issued its judgment in Orders Nine and Ten. Order Nine laid out the commission's factual findings. The most significant of these were: (1) the representation of THREA and Alaska Power throughout the proceedings provided sufficient due process to allow the commission to modify both certificates; (2) the Klawoek consumer reaction "demonstrated a level of dissatisfaction with utility service heretofore unheard of"; (8) THREA's rates were distorted; (4) THREA's service and rates were unregulated because it is a political subdivision of the state; (5) unlike most political subdivisions, THREA was not politically responsible to all of its customers; and (6) since the intertie was built, THREA has acted largely as a broker for power generated and delivered by Alaska Power. In light of these findings, the commission determined that, under AS 42.05.221(d) and .271, competition between THREA and Alaska Power is not in the public interest, and there was good cause for awarding the Klawock territory to Alaska Power. THREA appealed this decision to the superior court, raising three issues: (1) THREA did not receive due process, particularly the opportunity to cross-examine the consumers testifying at the Klawoek consumer input hearing; (2) decertifying THREA amounted to an uncompensated taking of THREA's property; and (8) the commission's action was preempted by the federal Rural Electrification Act. On the preemption issue, the superior court ruled that, by showing that the commission's action may have jeopardized some of THREA's Rural Utility Service loans, THREA had set forth a prima facie case of frustration of federal purpose under the federal Rural Electrification Act. Accordingly, the court remanded the case to the commission, directing it to take a "hard look" at the impact losing Klawock would have on THREA. On THREA's due process claim, the court directed the commission to provide THREA an opportunity to cross-examine witnesses from Klawoek. On remand, the commission directed the parties to resubmit any testimony from the previous hearings that they wanted the commission to consider; the commission also stipulated that if Alaska Power resubmitted testimony from prior witnesses who had not been cross-examined by THREA, those witnesses would have to be made available for cross-examination at the hearing on remand. In addition, the commission scheduled a hearing to take new evidence concerning the financial impact of removing Klawock from THREA's territory. This hearing produced extensive economic testimony concerning how the loss of Kla-wock might affect THREA and its non-Kla-wock customers. Klawock's expert, Loren Ublenkott, foresaw a - minimal - effect; THREA's expert, Dennis Eicher, foresaw economic ruin. These different views arose from differing methodologies. Uhlenkott began by analyzing THREA's actual performance with Klawock included in its service area; he then examined THREA's hypothetical revenue requirements and projected performance ability with Klawoeck removed from its certificate. His hypothetical model factored in various changes-efficiencies, accounting procedures, and a reduced rate of return-that Uhlenkott believed THREA would be capable of adopting. Eicher, in contrast, analyzed two hypothetical seenarios involving THREA's operations, one with Kla-wock and one without; as to both scenarios, he applied identical assumptions about rate of return, accounting methods, and management efficiencies, basing these assumptions on THREA's existing situation. In other words, Eicher's analysis presumed that if THREA lost Klawock, it would make no operational changes to adapt to its new situation. After hearing this evidence, the commission issued its decision on remand. As before, it found that the public interest required that Alaska Power exclusively serve Klawock. Finding Uhblenkott's testimony persuasive, the commission concluded that assigning Alaska Power the exclusive right to serve Klawoek would not frustrate the federal purposes of the Rural Electrification Act-subsidizing rural electricity through low interest loans and loan guarantees-because THREA's loss of Klawoek would not jeopardize that utility's financial well-being or the Rural Electrification Act loans that Kla-woek's physical plant secured. THREA again appealed to the superior court, which affirmed the commission's decision but found that THREA's loss of the use of its Klawock facility amounted to a de facto taking that entitled THREA to "recover fair value for the property taken." The court again remanded the case to the commission, directing it to determine the fair value of THREA's Klawoek property. THREA appeals, challenging multiple aspects of the commission's and the superior court's orders. Alaska Power, the commission, and Klawock cross-appeal certain aspects of the superior court's de facto taking decision. III. DISCUSSION A. Ripeness Because the superior court remanded this case to the commission for further proceedings, its decision is not an ap-pealable final order: [A] decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court.[ ] Nevertheless, we may "treat an appeal improperly brought from a non-final judgment as a petition for review in order to prevent hardship and injustice." The remand ordered by the superior court would focus on the value of THREA's physical plant, which the commission's certificate modification order effectively forces THREA to sell. That value turns on whether or not THREA's certificate is property for which compensation is due. If it is, then a fundamentally different approach to valustion would be nee-essary. - Furthermore, if THREA prevails on its federal preemption and indispensable federal party arguments, the pending proceedings on remand would be inappropriate. Given these circumstances, we conclude that it is "necessary to provide immediate guidance" on the matters before us, and we choose to review this case as though it were properly presented through petitions for review. B. Standard of Review When, as here, the superior court acts as an intermediate appellate court, we decide legal questions ourselves and directly review the agency's decision. We independently review questions of constitutional law, federal preemption, and administrative procedure, substituting our judgment for that of the agency. But when the commission decides issues that fall within its unique expertise, such as issues dealing with rural utility policy goals, we defer to reasonable agency determinations that are "supported by the evidence in the record as a whole." We review the commission's findings of fact for clear error, reversing them only if they are "not supported by substantial evidence on the whole record." C. - Modification of THREA's Certificate 1. Removal of Klawock from THREA's service area Alaska Statute 42.05.271 broadly authorizes the cor imission to amend, modify, suspend, or revoke a utility's certificate when it finds good cause to do so in light of the requirements of public convenience and necessity. In deciding to delete Klawoeck from THREA's service area, the commission relied on this provision, finding that the requirements of public convenience and necessity justified the modification. THREA complains, however, that the commission failed to give adequate notice of its intent to modify THREA's certificate and that it improperly forced THREA to bear the burden of prov ing the absence of good cause for the modification. THREA bases these arguments on the specific manner in which this case arose before the commission. THREA opened the commission proceedings with its petition to modify Alaska Power's certificate by removing Klawock from Alaska Power's service area. In evaluating THREA's request, the commission eventually began to consider whether a better course might be to modify THREA's certificate instead by ousting THREA from Klawock. It ultimately chose that option. THREA argues that, upon converting the proceeding from one in which Alaska Power's certificate was at issue to one that considered modifying THREA's certificate, the commission should have notified THREA of the change and should have formally shifted to THREA's adversaries the burden of establishing good cause for the modification. THREA reasons that, because the commission failed to do so, its order modifying THREA's certificate violates due process and is invalid. The commission has never published rules explaining what burden of proof applies in proceedings before it, but a case decided by this court and a recent commission decision suggest that when a proceeding places a utility's certificate at risk of being unfavorably modified, the usual practice is to assign the burden of proof to the commission or to a complaining party. Here, Alaska Power did not formally move to modify THREA's certificate, and the commission gave THREA no formal notice that the proceedings had been expanded to encompass such a modification. Yet the expanded seope of the proceedings was made unmistakably clear to all parties at an carly stage of the proceedings. At the August 3, 1994, consumer hearing, commission staff explained that the commission had four options before it: "1) to maintain the status quo with regard to the service area; 2) to award the entire service area to [THREA]; 3) to award the entire service area to [Alaska Power]; or 4) to divide the service area into two exclusive service areas." Although the commission reiterated its intent to consider these options during later evidentiary hearings, THREA never objected that the option of modifying THREA's petition was not properly before the commission, never complained that it lacked prior notice of this option, and never suggested the need for a formal complaint alleging good cause for modification of its certificate. Instead, THREA simply acquiesced to the commission's characterization of its available options and continued to litigate the case on its merits. In deciding to modify THREA's certificate, the commission explicitly determined that all parties were afforded sufficient notice and opportunity to be heard. On appeal, THREA offers no indication of how it might have proceeded differently had it received more formal notice that its own certificate was at issue or how such notice might have changed the ultimate outcome of the proceedings. Given that AS 42.05.271 broadly authorizes the commission to modify any certificate for good cause "[ulpon complaint or upon its own motion," given THREA's actual knowledge, early on, that the commission would consider the option of modifying either or both certificates, and given THREA's failure to voice an objection after it acquired this knowledge, we conclude that the commission's failure to give THREA more formal notice that its certificate might be modified amounted, at most, to harmless error. We reach the same conclusion on THREA's claim that the commission erred in failing to formally shift the burden of proving good cause for modification. Although the commission's decision makes passing reference to THREA's failure to meet its burden, the decision also makes it abundantly clear that the commission did not find this to be a close case that might turn on the allocation of burdens rather than on positive proof of good cause for modification. The commission made strong and specific findings concerning the undesirability of THREA's continuing to provide service to Klawock; these findings are supported by substantial, affirmative record evidence. And THREA makes no realistic effort to demonstrate how a formal change in the allocation of burdens could conceivably have changed this decision. Instead, THREA advances two evi-dentiary points arising from the superior court's original order on remand. First, THREA claims that the commission ignored the superior court's order to disregard any consumer testimony presented during the first round of hearings unless THREA was afforded the opportunity for cross-examination on remand. But the commission expressly determined on remand that it would not consider any pre-remand testimony unless the parties specifically designated the testimony and provided an opportunity for cross-examination. THREA infers that the commission must have disregarded this determination because it ultimately found that "the public interest requires that the consumers in Klawoeck receive electrical service from an entity that can provide safe, reliable service at a reasonable rate." According to THREA, this finding necessarily depends on pre-remand consumer testimony. But other evidence strongly supports a finding that THREA was failing to meet those criteria. For example, the record shows that Alaska Power charged significantly lower rates in locations similar to Klawock, yet Alaska Power performed THREA's maintenance and repair work in Klawoek on a contract basis, and THREA did little more than broker Alaska Power's electricity. These facts alone support a finding that Alaska Power is better suited to provide Klawoek with safe, reliable service at a reasonable rate. Second, THREA claims that the commission violated the superior court's order barring it from considering THREA's "postage stamp" rate structure on remand. But THREA's argument misconstrues the court's order, which merely directed that, if other utilities used similar rate structures, THREA's use of a postage stamp rate would not itself amount to good cause for modifying THREA's certificate. On remand, the commission examined THREA's postage stamp rate structure and found that it unfairly burdened Klawock residents. But the commission did not rely exclusively on this factor in finding good cause for modification; instead, it considered a host of other factors. Moreover, the commission did not find that other utilities used similar rate structures. While it heard evidence that Alaska Power, too, used postage stamp rates, this evidence indicated that Alaska Power confined this rate structure to contiguous and geographically similar service areas. Because Klawoek was isolated and geographically differed from other communities served by THREA, the evidence concerning Alaska Power effectively distinguished its use of postage stamp rates from - THREA's, - demonstrating - that THREA's rates were not in the public interest because they applied indiscriminately to widely disparate communities. Since neither of these evidentiary points has merit, THREA has failed to establish that the commission's allocation of the burden of proof amounted to reversible error. Accordingly, we uphold the commission's finding of good cause under AS 42.05.271. 2. Methodology of Klawock's expert witness, Uhlenkott The superior court's original remand order required the commission to determine how the loss of Klawock would affect THREA. The parties called various experts on this question. The commission relied on one of Klawoek's experts in particular, Loren Uhlenkott, to support its conclusion that the federal purpose of the Rural Electrification Act would not be frustrated if THREA lost the Klawoeck service area and to support its original conclusion that the public interest would not be served by allowing THREA to continue providing electrical service in Kla-wock. The superior court upheld the commission's reliance on Uhlenkott. THREA contests this ruling on appeal. THREA claims that in predicting that THREA would be able to survive financially without Klawoeck in its service area, Uhlen-kott relied on an analytical model that was so flawed as to render his expert opinions fundamentally unreliable. Uhlenkott compared THREA's actual situation, with Kla-woeck included in its service area, to a hypothetical situation adjusted to project THREA's operations without Klawock. In building this analytical model, Uhlenkott adjusted many variables relating to THREA's rate base, most importantly the desired rate of return. THREA attacks this approach because it changed several variables at once. But according to Uhlenkott, he designed his hypothetical model to account for real world adjustments THREA would be capable of making to cope with the loss of its profitable Klawock - service - area. In - contrast, THREA's expert, Eicher, assumed that if THREA lost Klawock, it would make no changes to adapt to offset the loss or ameliorate its financial situation-that it would simply continue to operate just as it had with Klawoek. THREA's challenge to the reliability of Uhlenkott's model posits the validity of Eicher's approach. But it could just as easily be argued that the flawed approach is Eicher's. In reality, though, neither approach seems so inherently flawed as to be fundamentally unreliable. Both experts presented substantial, albeit - opposing, - evidence - concerning THREA's financial ability to weather the loss of Klawoek. The commission had the task of determining the strengths of their competing views and assessing their relative credibility. The commission's ultimate decision to favor Uhlenkott's testimony over Eicher's was not clearly erroneous. D. Fair Value of Property Taken from THREA The superior court ruled that THREA is entitled to recover fair value for its property in Klawoeck because the decertifi-cation order effectively prevents THREA from using that property and therefore amounts to a de facto taking. The court ordered the commission to determine the fair value of THREA's property. On appeal, THREA contends that it should be compensated not just for the value of its physical property in Klawoek, but also for the profits it could have made had it continued serving Klawock under its original certificate. In essence, THREA asserts that the certificate itself is valuable property that the commission has taken without just compensation. In response, Alaska Power and the commission do not deny that THREA is due compensation for its stranded facility. But they contest THREA's claim that the proper measure of compensation includes anything more than the fair market value of THREA's stranded Klawoek facility. The Alaska Constitution's takings clause provides: "Private property shall not be taken or damaged for public use without just compensation." This clause must be interpreted generously in favor of the property owner; by requiring the state to pay when property is "damaged," and not just when it is "taken," the clause offers Alaska property owners broader protection than does the federal Constitution's Fifth Amendment. Furthermore, under Alaska's takings clause, any state action that entirely denies a property owner "all the economically feasible use" of the owner's property amounts to a per se taking. Here, because the commission's modification of THREA's certificate had the effect of denying THREA the use of property dedicated to providing Klawock with electrical service, we agree with the superior court that the modification is a per se taking for which compensation is due. But we disagree with THREA's contention that the property taken includes both its stranded Klawock facility and its right, under its original certificate, to operate as a utility in Klawoek. The commission originally granted THREA's certificate under a statutory structure that allows certificate modification. Thus, THREA was on notice that modification in the future was a real possibility. Because the commission at all times had the authority to modify THREA's service area under the circumstances presented here, THREA owned no property interest against the commission's regulatory action. This approach finds support in the United States Supreme Court's decision in Bowen v. Public Agencies Opposed to Social Security Entrapment. There, the Court considered whether Congress took private property by eliminating an opt-out provision in the Social Security Act that allowed voluntarily enrolled states to withdraw from the Social Security System. A key ingredient of the case was that Congress had explicitly retained the power to alter the terms of the Act. The Supreme Court ruled that "contractual rights" conferred under the Act were necessarily subject to the sovereign power of the United States and "bear[ ] little, if any, resemblance to rights held to constitute 'property' within the meaning of the Fifth Amendment." Distinguishing between the right to withdraw from the Social Security program and direct contractual rights or debts against the federal government, the Court emphasized that Congress had "reserved" the power to alter the opt-out element of the Social Security Act. A certificate of public convenience and necessity presents a similar situation. When the legislature passed AS 42.05.271(1), it gave specific notice that the commission could modify or revoke a certificate of public convenience and necessity upon good cause shown. Thus, the certificate grants a utility like THREA no vested right against the commission's exercise of this regulatory power. Since THREA offers no convincing authority or reason why a certificate should qualify as property when the commission exercises a reserved regulatory power that was a condition of the certificate's original issuance, we conclude that the commission's de-certification order is not a compensable taking of business rights conferred by THREA's original certificate. In summary, the commission's action did strand some of THREA's physical assets. The superior court correctly recognized that THREA must be compensated for those assets, and it properly ordered the commission to determine their value in the next phase of its proceedings. But the court did not err in failing to identify THREA's original certificate as compensable property taken by the commission's order. One aspect of the takings issue remains to be considered. In its cross-appeal, Alaska Power expresses reservations about the commission's impending determination of the fair market value of THREA's Klawock facilities. Fearing that the price may prove too high, Alaska Power argues that it should remain free to build new facilities in Kla-woeck, thereby stranding THREA's facilities and leaving the state with the burden of paying THREA fair compensation. But in our view, under AS 42.05.221(d) and other provisions of the Public Utility Act, the commission may direct that Alaska Power purchase the existing Klawoeck facilities as a condition of its exclusive certification. If Alaska Power disagrees with the commission's evaluation of these assets, it may, of course, resort to its administrative appeal rights. But having come this far in this process, Alaska Power may not back away from the obligation to provide service in Kla-wock or to acquire THREA's plant, if the commission makes that purchase part of the package. E. Federal Preemption THREA's operations as a rural utility are funded by federal loans issued under the Rural Electrification Act. The purpose of the Rural Electrification Act is best explained by section 902 of the Act, which "authorizes and empowers" the Secretary of Agriculture to make loans in the several States and Territories of the United States for rural electrification and . for the purpose of furnishing and improving electric and telephone service in rural areas, as provided in this chapter, and for the purpose of assisting electric borrowers to implement demand side management, energy conservation programs, and on-grid and off-grid renewable energy systems.[ ] In both of its appeals to the superior court, THREA argued that the commission's decision to modify its certificate frustrated the purposes of the Rural Electrification Act and was therefore preempted by federal law. In THREA's first appeal, the superior court ruled that THREA had presented a prima facie case of federal preemption and remanded the case to the commission for a "hard look" at whether modifications to THREA's permit would frustrate the federal purpose of the Rural Electrification Act. After a new round of hearings, the commission affirmed its initial decision, ruling that the federal purpose of the Rural Electrification Act would not be frustrated by removing Kla-wock from THREA's service area because the Rural Utility Service's loan interest would be protected and because THREA would be financially capable of continuing to serve other rural areas. The superior court affirmed these findings in THREA's second appeal. THREA challenges the superior court's ruling and argues federal preemption. The law of federal preemption "is derived from the supremacy clause of article VI of the federal Constitution, which declares that federal law shall be 'the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' " Thus, state regulation that conflicts with federal law cannot stand. To determine whether Congress has preempted state action in a particular arena, we "look to the policy, intent, and context of the federal statute to determine whether application of the state law would frustrate the operation of the federal one." Generally, we apply a two-step analysis to preemption questions. First, we look to see whether Congress has overtly preempted the subject matter the state wishes to regulate, either explicitly, by declaring its intent to preempt all state authority, or implicitly, by occupying the entire field of regulation on the subject in question. Second, if neither kind of direct preemption is found, we look to whether federal and state law conflict in this particular instance. If state and federal regulations openly conflict or if state regulations obstruct the purpose of federal regulations, then the supremacy clause blocks the state regulation. THREA asserts that this latter type of preemption-frustration of federal purpose-is at issue here. According to THREA, the commission's order deleting Klawoek from its certificate of public necessity and convenience stands "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the Rural Electrification Act. In considering this argument, we must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." And we must further recognize, as the Supreme Court has, that "the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States." As we have already pointed out, the Rural Electrification Act's central purpose is to lend money to promote rural electrification. In keeping with the Act's purpose, the United States Supreme Court has described the Rural Electrification Administration as "a lending agency rather than a classic public utility regulatory body." Our own decisions have recognized that the Rural Electrification Act is meant "to provide electric energy to persons residing in rural areas who were not able to receive such services from utility companies serving cities and other populated communities." Because the Rural Electrification Act was designed to promote rural electrification by offering financial incentives to utilities that serve outlying areas, direct interference with property mortgaged to the Rural Utility Service could conceivably frustrate the purposes of the Act. But legitimate regulation of a utility that allows the Rural Utility Service and its loan recipient to recoup their investments, does not. Thus, as the United States Supreme Court expressly noted in the context of rate setting, the Rural Electrification Administration has been "expected to play a role in assisting the fledgling rural power cooperatives in setting their rate structures . within the constraints of existing state regulatory schemes." Here, the fact that this federal role does not act as a substitute for existing state regulation is demonstrated by Rural Utility Service's insistence that THREA obtain a certificate of public convenience and necessity as a condition of receiving its Rural Electrification Act loan. Although courts considering federal preemption under the Rural Electrification Act in contexts other than rate regulation have split on the issue, we believe that Stilwell v. Ozarks Rural Electric Cooperative represents the better view. In Stilwell, relying on the trial court's determination that a rural utility would not suffer financial jeopardy if it lost a contested service area, the Tenth Circuit Court of Appeals held that the Rural Electrification Act did not preempt state action restricting the utility's territory, declining "to read the [Rural Electrification Act] so broadly as to expand the [Rural Utility Service's] authority beyond that which is . 'derivative of the Administrator's responsibilities for the operation of the loan and guaran tee programs under the [Rural Electrification Act]" " THREA attempts to distinguish Stilwell, arguing that a Rural Utility Service officer in that case agreed that loss of the contested service area would not be harmful to the rural utility's economic future; in contrast, here, a Rural Utility Service officer testified that losing Klawock would doom THREA. But preemption requires something more than the personal prediction of an agency official. For as the United States Supreme Court has noted, federal officials have not "always welcomed state regulation of rural power cooperatives, or thought it was a good idea.... But, of course, such expressions of opinion do not constitute sufficient grounds for pre-emption." In the present case, after hearing substantial evidence on both sides of the issue-including testimony from Klawoek's expert that favored Alaska Power-the commission found that THREA would be capable of surviving the loss of Klawock. Faced with conflicting evidence on the relative merits of different approaches to utility management, we apply a deferential standard of review and rely on the commission's considerable expertise in resolving such matters. Because substantial evidence supports the commission's finding that THREA will not founder if it loses Klawock, we will not disturb that finding. Given the commission's findings that THREA's continuing service of Klawock was not in the public interest, that the loss of that service area would not jeopardize THREA's ability to serve other rural areas, and that THREA must be justly compensated for the federally-financed facilities that the commission's action would strand, we do not see how the commission's decertification order frustrates the federal purpose of capitalizing rural electrification. Accordingly, we affirm the superior court's ruling that federal law does not preempt the commission's action. F. Indispensable Party Finally, we turn to the question of whether the Rural Utility Service was an indispensable party to this action. Alaska Civil Rule 19 governs courts in deciding whether an absent party is indispensable to particular court proceedings. Rule 19(a) de-seribes when courts must join absent parties, if possible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may () as a practical matter impair or impede the person's ability to protect that interest or (i) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff, If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. Rule 19(b) explains how courts should proceed when joinder is impossible: If a person as described in subsection (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. - Although this rule does not directly apply to administrative actions, we agree with THREA that it appropriately balances the equities involved when a case arises without all necessary parties. The rule thus provides relevant guidance. Moreover, since administrative adjudications are reviewed by courts that are bound by Rule 19, the most consistent approach is to apply Rule 19 at the outset. The parties agree that the Rural Utility Service has declined to take part in these proceedings and cannot be required to participate because it is cloaked by the sovereign immunity of the United States. Therefore, we look to Rule 19(b) to answer whether this litigation should have continued, based on: (1) the prejudice to the Rural Utility Service or the existing parties, (2) how relief may be shaped to avoid prejudice, (8) adequacy of such relief, and (4) what remedy is left if the action is dismissed. Here, the commission found that its inability to order the Rural Utility Service to be joined as a party caused insufficient prejudice to justify dismissing the docket. In reaching this conclusion, the commission distinguished City of Fairbanks v. Electric Distribution System, where we ruled that the Rural Utility Service was an indispensable party in a condemnation proceeding against property for which it held a mortgage. We agree with the commission's reasoning. Though similar to this case in many ways, City of Fairbanks is distinguishable because the regulatory context here allows a remedy to be fashioned that protects the Rural Utility Service's unrepresented interests. City of Fairbanks involved a pure condemnation proceeding; Fairbanks sought to acquire customers from the densely populated portion of a rural utility's territory, evidently to add to the service area of its own municipal utility. In that cireumstance, the rural utility and the Rural Utility Service were the only parties concerned with the provision of electricity to the rural areas outside the contested service area. We thus explained that the United States has an interest in this litigation that would be adversely affected by a judgment condemning the electric distribution facilities in the Island Homes Subdivision. It is an interest that would not be satisfied merely by repayment from the condemnation proceeds of the pro tan-to portion of the money the United States has loaned. . The interest of the United States is not merely that of a money lender who expects repayment of its loan with interest. The interest of the United States is in seeing to it that [the rural utility it has financed] is able to continue to provide electrical services at reasonable rates to the rural areas it has undertaken to serve. This it may not be able to do if the cream of its consumers of electrical energy in the densely populated areas is skimmed off by another utility . . . . ( ) In the present situation, by contrast, the superior court initially remanded this case so that the commission could take a "hard look" at how the loss of Klawock would affect THREA's ability to serve other rural areas. On remand, the commission then heard testimony from several experts, including the Rural Utility Service, regarding THREA's future. Afterwards, the commission specifically found that the loss of Klawoek would not unduly damage THREA. Thus, our con cerns in City of Fairbanks were specifically addressed by the commission. This effort by the commission satisfied the four elements of Rule 19(b). First, the commission's treatment of this case avoids undue prejudice to the parties or to the Rural Utility Service, itself. THREA points out various problems that might arise by proceeding without the participation of the Rural Utility Service. In our view, the commission's planned second phase of hearings is more likely to result in an equitable resolution of the issues than would a dismissal based on the Rural Utility Service's absence. If this action were dismissed, THREA and Alaska Power would be in direct competition for Klawock customers and there would be no guarantee that THREA would receive anything for its facilities if it lost its Klawock business to Alaska Power, its wholesale supplier. Under the commission's proposed procedure, THREA will be able to recoup the value of its Klawoek facility, which will offer it the opportunity to apply that capital to its Rural Utility Service loans and to investments in other rural areas. The second element of Rule 19(b)-the commission's ability to fashion a protective remedy lessening or avoiding prejudice in the Rural Utility Service's absence-also supports the commission's decision to proceed. In the next phase of its proceedings, the commission can assure THREA and the Rural Utility Service alike the opportunity to receive optimal value for THREA's Klawoeck property. We are similarly satisfied that the proceedings on remand will address Rule 19(b)'s third element by ensuring the adequacy of the ultimate judgment in the Rural Utility Service's absence. And turning to the final element of Rule 19(b)-the adequacy of the plaintiffs' remedy in the event of a dismissal for nonjoinder-we again find little reason to declare the Rural Utility Service an indispensable party. In the event of a dismissal, both Alaska Power and THREA would keep Klawock within their service territories; unregulated market forces presumably would decide the fate of THREA's Klawock facility, leaving neither the commission nor Alaska Power under any obligation to purchase it in the future. Because the commission could reasonably deem this remedy to be undesirable, we conclude that the commission did not abuse its discretion in ruling that the Rural Utility Service was not an indispensable party. IV. CONCLUSION For these reasons, we AFFIRM the superior court's order and REMAND this case to the commission for further proceedings consistent with this opinion. EASTAUGH, Justice, not participating. . See Former AS 42.05.194 (1964). . The Alaska Power Company was then called the Alaska Power & Telephone Company. . - The Alaska Public Utility Commission was then called the Public Service Commission. . Townships and ranges are uniform grid blocks measured relative to a specified point. Black's Law Dictionary 1266, 1499 (7th ed.1999). . A protraction is "the drawing to scale of an area of land." Webster's New International Dictionary of the English Language Unabridged 1826 (1963). We interpret the reference to protrac-tions in the original certificate to mean that the commission had no detailed surveys of the area Alaska Power requested. . See Ch. 113, § 6, SLA 1970. . As a condition of its original certificate, THREA agreed that it would be subject to the commission's regulatory powers. - But as a political subdivision of the state, THREA retained the option of choosing not to be governed by the commission's rate making power. See AS 42.05.711. In 1990 THREA requested, and the commission approved, an exemption from rate regulation. . See supra note 7. . THREA is governed by a board chosen by the Tlingit-Haida Council. Thus, one must be on the Council rolls even to have indirect representation on THREA's board. . City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979). . Id. at 631. . Id. . See Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992). . See id. . Id. (quoting Kodiak Western Alaska Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200, 1203 n. 7 (Alaska 1979)). . City of Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493, 495 (Alaska 1980). . AS 42.05.271 reads: Upon complaint or upon its own motion the commission, after notice and opportunity for hearing and for good cause shown, may amend, modify, suspend, or revoke a certificate, in whole or in part. Good cause for amendment, modification, suspension, or revocation of a certificate includes (1) the requirements of public convenience and necessity; (2) misrepresentation of a material fact in obtaining the certificate; (3) unauthorized discontinuance or abandonment of all or part of a public utility's service; (4) wilful failure to comply with the provisions of this chapter or the regulations or orders of the commission; or (5) wilful failure to comply with a term, condition, or limitation of the certificate. . - At the time, THREA did not claim that Alaska Power's certificate to serve Klawock was invalid. . See North State Tel. Co., Inc. v. Alaska Pub. Utils. Comm'n, 522 P.2d 711, 716 (Alaska 1974) (quoting a commission chairman as saying, "The Commission's opening case will be presented by . legal counsel for Alaska Public Utilities Commission. To the extent of any contested factual issues that will develop in this hearing, the burden will be on the Commission to establish its contentions unless otherwise indicated." (alteration in original)); Re: Norgasco, Inc., 9 APUC 446, 1989 WL 418500 (May 16, 1989). . - To support its argument that misallocating the burden of proof amounted to reversible error, THREA also cites Olson v. AIC/Martin J.V., 818 P.2d 669 (Alaska 1991). But in Olson we remanded for other reasons without deciding the question of whether misallocation of the burden of proof was harmless error. See id. at 672. Where substantial evidence has supported a trial court's ruling, we have not hesitated to affirm the ruling, even though the court misapplied the burden of proof. See Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1150 (Alaska 1989). . A postage stamp rate structure charges all customers the same rate regardless of the associated cost of serving them. . Our conclusion makes it unnecessary to consider THREA's challenge to the commission's alternative finding that modification of THREA's certificate was warranted under AS 42.05.221(d) to eliminate undesirable competition between utilities providing identical service. . Alaska Const. art. I, § 18. . See Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993) (citing State v. Doyle, 735 P.2d 733, 736 (Alaska 1987)). . See State v. Hammer, 550 P.2d 820, 824 (Alaska 1976). . See Sandberg, 861 P.2d at 557 (adopting the U.S. Supreme Court's tests for per se takings). . 477 U.S. 41, 106 S.Ct. 2390, 91 LEd.2d 35 (1986). . Id. at 55, 106 S.Ct. 2390. . See id. . See also AS 42.05.221(d) (authorizing the commission to eliminate undesirable competition between utilities providing identical service). . THREA cites Homer Electric Ass'n v. City of Kenai, 423 P.2d 285 (Alaska 1967), to support its position. - But its reliance on that case is unavailing, for although we recognized in Homer Electric that "a certificate of public convenience and necessity is a property right and as such is entitled to protection," the case dealt with a municipality's outright condemnation of a competing certificate, rather than its exercise of a reserved regulatory power. Id. at 289-90. . 7 U.S.C. § 901-950. . Id. § 902(a). . Bald v. RCA Alascom, 569 P.2d 1328, 1331 (Alaska 1977). . Webster v. Bechtel, Inc., 621 P.2d 890, 897 (Alaska 1980) (quoting Bald, 569 P.2d at 1331). . See Webster, 621 P.2d at 897-98. . See id. at 897, 900-01; Bald, 569 P.2d at 1331. . Webster, 621 P.2d at 898 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). . Arkansas Elec. Coop. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375, 377, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983). . 7U.S.C. § 902(a). . Arkansas Elec. Coop., 461 U.S. at 386, 103 S.Ct. 1905. . City of Fairbanks v. Electric Distribution Sys., 413 P.2d 165, 167 (Alaska 1966). . Arkansas Elec. Coop., 461 U.S. at 386, 103 S.Ct. 1905. . - Compare City of Morgan City v. South Louisiana Elec. Coop. Ass'n, 31 F.3d 319, 321 (5th Cir.1994) (determining that a Louisiana condemnation proceeding would frustrate the purpose of the Rural Electrification Act and so was preempted by federal law) with Stilwell, Oklahoma v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038 (10th Cir.1996) (holding that condemnation under state law was not preempted). . Stilwell, 79 F.3d at 1044 (quoting Wabash Valley Power Ass'n v. Rural Electrification Admin., 988 F.2d 1480, 1489-90 (7th Cir.1993)). . Arkansas Elec. Coop., 461 U.S. at 386 n. 10, 103 S.Ct. 1905. . Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992). . We review a trial court's rulings on indispensable party status for abuse of discretion. See In Re Pacific Marine Ins. Co. of Alaska in Liquidation, 877 P.2d 264, 268 (Alaska 1994). . Cf. Hammond v. North Slope Borough, 645 P.2d 750, 766-67 (Alaska 1982); Pan American Petroleum Corp. v. Shell Oil Co., 455 P.2d 12, 16 (Alaska 1969). . 413 P.2d 165 (Alaska 1966). . See id. at 168. . See id. at 167. . Id. at 168. . Thus, THREA claims that unless the Rural Utility Service is a party, THREA may become subject to inconsistent obligations because its loan agreement forbids it from selling or negotiating the sale of "any part of [the Klawock physical plant] without prior written approval" from the Rural Electrification Administrator. THREA also claims that any order directing it to sell its Klawock facilities to Alaska Power will be impossible to fulfill without the Rural Utility Service's blessing. THREA separately expresses concern that the Rural Utility Service might be prejudiced because its interests go beyond those of a mere lender. But this concern is addressed by the commission's finding that THREA will be capable of continuing to serve its other rural territory after it loses Klawock.

9476481

Sean R. HILL, Appellant, v. STATE of Alaska, Appellee

Hill v. State

2001-09-28

No. A-7803

10

13

32 P.3d 10

32

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Sean R. HILL, Appellant, v. STATE of Alaska, Appellee.

Sean R. HILL, Appellant, v. STATE of Alaska, Appellee. No. A-7803. Court of Appeals of Alaska. Sept. 28, 2001. Dick L. Madson, Law Offices of Dick L. Madson, Fairbanks, for Appellant. Jeffrey O'Bryant, Assistant District Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

770

4879

OPINION STEWART, Judge. In November 1997, Sean R. Hill was convicted of manslaughter and sentenced by a three-judge sentencing panel to 6 years in prison. In addition, under the authority of AS 28.15.181(b), the three-judge panel revoked Hill's driver's license for life. Following Hill's release from prison in May 2000, he asked the three-judge panel to grant him a limited license under AS 28.15.201(a) so he could drive for work-related purposes. The three-judge panel ruled that Hill's request was actually a motion for sentence modification. Because Criminal Rule 35(b) specifies that such motions must be filed within 180 days of the distribution of the judgment, the three-judge panel denied Hill's request as untimely. We conclude that a court's decision to grant a limited license under AS 28.15.201(a) does not constitute a modification of a defendant's sentence within the meaning of Criminal Rule 35(b). Rather, a sentencing court's power to grant a post-sentencing request for a limited license under AS 28.15.201(2) is inherent in the defendant's original sentence, much like a sentencing court's power to modify a defendant's conditions of probation. Under AS 28.15.201(a), when a court has revoked a defendant's driver's license because of a conviction for manslaughter (or for any other offense listed in AS 28.15.181(b)), the court may, for good cause, grant the defendant a limited license "that will enable the [defendant] to earn a livelihood without excessive risk or danger to the public." Thus, Hill was seemingly entitled to ask the three-judge panel to grant him a limited license for work-related purposes. (AS 28.15.201(a) specifies that this power to grant a limited license only exists if no other statute prohibits the court from doing so. In Hill's case, no statute prohibited the three-judge panel from granting Hill a limited license.) The three-judge panel refused to consider Hill's request because the panel concluded the request amounted to a late-filed motion for modification or reduction of Hill's sentence. But the granting of Hill's request would not require the three-judge panel to modify the terms of Hill's sentence. By the terms of AS 28.15.201, when a sentencing court has revoked a defendant's driver's license under AS 28.15.181(b), the court retains continuing supervision over the license. Alaska Statute 28.15.201(a) authorizes a sentencing court to grant a defendant a limited license for work-related purposes, but AS 28.15.201(c) clearly envisions that this limited license will be of limited duration as well. This subsection specifies that, following the termination of the limited license, the defendant's license is again revoked. As we recognized in Howell v. State, AS 28.15.201(a) "affirmatively vests the courts with ongoing power to issue a limited license, provided that issuance of such license is not prohibited under a provision of law in effect when the limited license is requested[.]" In other words, AS 28.15.201 establishes a sentencing court's authority to repeatedly grant a limited license when a defendant needs one to pursue a livelihood, but the statute also provides that the defendant's license will return to its former revoked status when the work-related need is ended. Impliedly, the statute also authorizes a sentencing court to terminate a previously granted limited license when later events convince the court that allowing the defendant to drive, even for limited purposes, poses "excessive risk or danger to the public." These powers of the sentencing court are inherent in the original judgment revoking the defendant's license under AS 28.15.181(b), just as a sentencing court's power to modify the conditions of a defendant's probation are inherent in the original judgment suspending imprisonment and imposing probation. The sentencing court does not modify the judgment-at least, does not modify it in the sense contemplated by Criminal Rule 35(b)-when the court grants or rescinds a limited license under AS 28.15.201. We therefore VACATE the order of the three-judge panel and REMAND the case to the three-judge panel to consider Hill's request for a limited license. We express no opinion as to whether that request should be granted. . AS 28.15.181(b) states: "A court convicting a person of [manslaughter resulting from driving a motor vehicle] shall revoke that person's driver's license . for not less than 30 days{.]" . 834 P.2d 1254 (Alaska App.1992). . Id. at 1255.

10375221

NENANA FUEL CO., INC., Appellant/Cross-Appellee, v. NATIVE VILLAGE OF VENETIE, a Native Corporation and Native Village of Venetie Tribal Government, Appellees/Cross-Appellants; NENANA FUEL CO., INC., Appellant, v. NATIVE VILLAGE OF VENETIE, a Native Corporation, and Native Village of Venetie Tribal Government, Appellees

Nenana Fuel Co. v. Native Village of Venetie

1992-07-24

Nos. S-3709, S-3721 and S-4299

1229

1251

834 P.2d 1229

834

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

NENANA FUEL CO., INC., Appellant/Cross-Appellee, v. NATIVE VILLAGE OF VENETIE, a Native Corporation and Native Village of Venetie Tribal Government, Appellees/Cross-Appellants. NENANA FUEL CO., INC., Appellant, v. NATIVE VILLAGE OF VENETIE, a Native Corporation, and Native Village of Venetie Tribal Government, Appellees.

NENANA FUEL CO., INC., Appellant/Cross-Appellee, v. NATIVE VILLAGE OF VENETIE, a Native Corporation and Native Village of Venetie Tribal Government, Appellees/Cross-Appellants. NENANA FUEL CO., INC., Appellant, v. NATIVE VILLAGE OF VENETIE, a Native Corporation, and Native Village of Venetie Tribal Government, Appellees. Nos. S-3709, S-3721 and S-4299. Supreme Court of Alaska. July 24, 1992. Marilyn J. Kamm, Call, Barrett & Burbank, Fairbanks, for appellant/cross-appel-lee in Nos. S-3709, S-3721, and appellant in No. S-4299. Judith K. Bush, William Caldwell and Carol Daniel, Alaska Legal Services Corp., Fairbanks, for appellees/cross-appellants in Nos. S-3709, S-3721 and appellees in No. S-4299. D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Douglas M. Mertz, Asst. Atty. Gen., and Douglas B. Baily, Atty. Gen., Juneau, for amicus curiae, State of Alaska. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

15105

94998

OPINION PER CURIAM. I. INTRODUCTION This appeal comes after the superior court set aside a default judgment against the Native Village of Venetie Tribal Government (Tribal Government) and the Native Village of Venetie (Village Corporation). The court determined that the Tribal Government was a sovereign entity and therefore entitled to sovereign immunity. The court found that the Village Corporation was also a sovereign entity, but that it had waived its immunity when it adopted a "sue and be sued" clause in its corporate charter. Judge Greene stayed Nenana Fuel's action against the Village Corporation, ordering that it exhaust its tribal court remedies before proceeding in state court. Nenana Fuel appealed the court's finding that the Tribal Government and the Village Corporation were entitled to sovereign immunity. Nenana Fuel argued in the alternative that the Tribal Government waived its sovereign immunity when it agreed to the remedies on default clause contained in a note and security agreement signed by the parties. Moreover, Nenana Fuel contended that this waiver pertained to Vene-tie's tribal courts, and that the order to exhaust tribal remedies was therefore improper. The Tribal Government and the Village Corporation cross-appealed the superior court's ruling that the "sue and be sued" clause of the Village Corporation's corporate charter was sufficient to waive its sovereign immunity. Nenana Fuel subsequently obtained a stay of appeal, claiming that it had discovered new evidence which indicated that the Tribal Government and the Village Corporation had misrepresented their history to the court, and that they were not sovereign entities. This evidence consisted of documents and other evidence attached to the State of Alaska's Motion for Summary Judgment in an unrelated federal case, State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, No. F87-051 CIV (D. Alaska, motion filed July 6, 1990). Based on this new evidence, Nenana Fuel filed a motion for relief from the superior court's earlier decision. The trial court denied that motion. Nenana Fuel appeals that decision. Its appeal has been consolidated with the other issues pending in this litigation. We reverse. II. FACTS AND PROCEEDINGS A. Facts Nenana Fuel sold fuel to the Tribal Government and Village Corporation in September 1984, when Venetie was expanding the airstrip at Arctic Village. The fuel was used to power equipment used on the site. The Tribal Government and the Village Corporation executed a Promissory Note and Security Agreement for the payment due Nenana Fuel for the fuel. The Tribal Government and the Village Corporation failed to pay Nenana Fuel as agreed in the promissory note. After unsuccessfully attempting to obtain possession of the collateral provided for in the Security Agreement, Nenana Fuel sought relief in the superior court. At trial, both Nenana Fuel and the superior court accepted the representations made by the Tribal Government and the Village Corporation as to their history. The following history was therefore unquestioned. In 1940, the Secretary of the Interior approved the Village's constitution pursuant to § 16 of the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq. (1982), 48 Stat. 988 (1934), and the Tribal Government has functioned since that time under this federal authority. In 1940, the Village also incorporated under § 17 of the IRA, which empowers it through its charter, constitution and bylaws to transact business for the village. In 1943, at the request of the people from the Native Villages of Venetie, Arctic Village, Christian Village and Robert's Fish Camp, the Secretary of the Interior withdrew the 1.4 million acre Venetie reservation for the use and occupancy of the Natives of those villages, pursuant to the authority vested in him by 48 U.S.C. § 358(a) (repealed 1976). Congress revoked this reservation in 1971 by enacting § 19(a) of the Alaska Native Claims Settlement Act (ANCSA). See 43 U.S.C. § 1618 (1988). Rather than participate in the regional corporation scheme established by ANCSA, the Natives of Venetie and Arctic Village elected to take fee title to their reservation lands pursuant to § 19(b) of ANCSA, 43 U.S.C. § 1618(b) (1988). Upon the federal government's conveyance of these lands in December 1979, the ANCSA village corporation deeded the lands to the Tribal Government. The Tribal Government has owned the former reservation lands in fee since that time. B. Procedural Background In February 1987, Nenana Fuel filed a complaint in superior court alleging that the Village Corporation and Tribal Government owed it $134,128.17 plus interest and costs under the promissory note and security agreement signed by the parties. In June 1987, the superior court entered a default judgment against both defendants. When the judgment was not satisfied, the superior court ordered a judgment debtor examination of both the Tribal Government and the Village Corporation. Neither defendant appeared for the examination. Pursuant to Nenana Fuel's motion, the court then entered an order to show cause why the Tribal Government and the Village Corporation should not be held in contempt for failing to appear at the judgment debtor examination. The Tribal Government and the Village Corporation filed a memorandum in opposition to Nenana Fuel's motion for an order to show cause, arguing that the superior court lacked subject-matter jurisdiction over the controversy due to tribal sovereign immunity. Nenana Fuel replied that the Tribal Government and the Village Corporation had waived any sovereign immunity by failing to raise that defense during the pendency of the underlying suit, and that the Village Corporation had also waived any sovereign immunity by including a "sue and be sued" clause in its corporate charter. The Tribal Government and the Village Corporation then moved to set aside the default judgment against them. They also moved to dismiss Nenana Fuel's complaint, claiming sovereign immunity and insufficiency of process. In April 1988, the trial court ruled that the defendants were entitled to sovereign immunity. It then dismissed the complaint as to the Tribal Government. However, the court found that the "sue and be sued" clause of the Village Corporation's charter was sufficient to waive the Village Corporation's sovereign immunity. The court ruled that the effect and extent of that waiver would be determined after further briefing and argument by the parties. Nenana Fuel argued that the Village Corporation's waiver was a general one, and that suit in state superior court was therefore proper. The Village Corporation contended that the "sue and be sued" clause must be interpreted by the Tribal Government. If it did constitute a waiver, the clause would permit suit only in its own tribal courts. After this court's May 1988 decision in Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988), the superior court reinstated the Tribal Government as a party to the action and again heard argument as to whether the Tribal Government was a sovereign entity. In its supplemental brief on this question, the Tribal Government claimed that, because it had a constitution adopted pursuant to the IRA and a reservation prior to the enactment of ANCSA, it was a self-governing tribe entitled to sovereign immunity. In March 1989, the superior court ruled that, even after Stevens Village, the Tribal Government was a sovereign entitled to immunity from suit. Because the court found that the Tribal Government had not waived its immunity, it again dismissed the case as to the Tribal Government. The court reaffirmed its earlier ruling that the "sue and be sued" clause of the Village Corporation's charter acted as a waiver of the Corporation's sovereign immunity. In November 1989, the superior court set aside the default judgments against both the Village Corporation and the Tribal Government. The court dismissed the action against the Tribal Government, on the basis of its ruling that the Tribal Government possessed sovereign immunity. After asserting that it had subject-matter jurisdiction over the lawsuit, and that it therefore had the authority to resolve the issues of sovereign immunity and the nature and effect of the "sue and be sued" clause in the Village Corporation charter, the court then stayed the action against the Village Corporation with the order that Nenana Fuel exhaust its tribal court remedies. Nenana Fuel appealed this decision. The Tribal Government and the Village Corporation cross-appealed the superior court's assertion of jurisdiction and determination that the Village Corporation waived its sovereign immunity. During the course of this appeal, Nenana Fuel learned of documents filed by the State of Alaska in a federal district court case, State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, No. F87-051 CIV (D. Alaska, motion filed July 6, 1990), which contradict some representations made by Venetie concerning its history. Because the superior court's earlier decision was based in part on the Tribal Government's claim that it is an IRA organization and that its constitution and bylaws were approved by the Secretary of the Interior in 1940, Nenana Fuel requested relief from the court's ruling under Civil Rule 60(b). The superior court denied that motion. III. DISCUSSION A. The Remedies on Default Clause Constitutes an Express Waiver of Venetie's Sovereign Immunity Nenana Fuel argues that the Remedies on Default clause contained in the note and security agreement effected a waiver of any sovereign immunity possessed by the Tribal Government and the Village Corporation (collectively referred to as Vene-tie). That clause provides: On the occurrence of a default and after any notice required . and in addition to any remedies described in the Note, [Ne-nana Fuel] . may: (a) bring an action upon the Note; (d) dispose of the collateral in any commercially reasonable manner and, in the event of a deficiency, bring an action against Debtors for that deficiency; (f) invoke any other remedy provided by law or this agreement; and (g) invoke any combination of these remedies allowable under Alaska law. Venetie argues that this clause contains no express waiver of its immunity, and that a waiver of sovereign immunity cannot be implied. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978) (a waiver of sovereign immunity cannot be implied but must be unequivocally expressed). In Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983), we held that a tribe waives its sovereign immunity by agreeing to contract terms inconsistent with sovereign immunity. Eyak had entered into a contract with GC Contractors under which GC Contractors was to build a community center for Eyak. Pursuant to an arbitration clause in the contract, the parties submitted to arbitration a dispute concerning Eyak's failure to pay money due under the contract. The arbitrator awarded GC Contractors the full sum sought, and rejected Eyak's argument that it would not be bound by any arbitration decision on the grounds of sovereign immunity. Adhering to the general rule that all provisions in a contract should be found meaningful, we affirmed the superi- or court's confirmation of the arbitration award. Id. at 760. The United States Court of Appeals for the Ninth Circuit reached the opposite result in Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418-20 (9th Cir.1989), holding that an arbitration clause in a management agreement between an Indian tribe and the non-Indian operator of the tribe's bingo enterprise did not constitute a waiver of the tribe's sovereign immunity. We distinguished Pan American from Eyak in Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 826 P.2d 751 (Alaska 1992), however, noting that Pan American involved a challenge to the tribe's authority to regulate affairs on its reservation, and did not involve a suit to compel arbitration or enforce an arbitration award. Id. at 754-55. We stated: "Arguably, even under Pan American an agreement to arbitrate disputes arising out of a contract constitutes a tribe's consent to suit for the limited purposes of compelling arbitration or enforcing an arbitration award." Id. at 754. We also noted that "[tjhis principle is well established in situations involving foreign sovereigns." Id. (citing Restatement (Third) of the Foreign Relations Law of the United States § 456(2)(b) (1987)). In the present case, the language of the Remedies on Default clause in the parties' security agreement clearly expresses a waiver of immunity. In the event of default, it authorizes Nenana Fuel to "bring an action upon the Note" or to invoke any other remedy "allowable under Alaska law." As we stated in Eyak, all provisions in a contract should be found meaningful to the extent possible. 658 P.2d at 760. We therefore must read the Remedies on Default clause as expressly waiving any sovereign immunity which Venetie might possess, and referring actions based upon the contract to Alaska courts for application of Alaska law. Accordingly, we find that neither the Tribal Government nor the Village Corporation is entitled to sovereign immunity in this case. Because we find that the Remedies on. Default clause constitutes an express waiver of any sovereign immunity possessed by Venetie, we do not consider whether the Tribal Government and Village Corporation actually constitute sovereign bodies. For the same reason, we need not examine the nature and effect of the "sue and be sued" clause in the Village Corporation's charter. B. The Superior Court Erred In Requiring Exhaustion Of Tribal Court Remedies The superior court ruled that it had jurisdiction over this case because the Village Corporation had waived its sovereign immunity. However, the court stayed the action against the Village Corporation and ordered that Nenana Fuel exhaust its tribal court remedies. In making this holding, the court invoked the doctrine of comity enunciated in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), and refined in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). However, the consent to suit in the Remedies on Default clause was in no sense limited to the tribal court. Venetie agreed that Nenana Fuel could "bring an action upon the note" without restricting jurisdiction to any particular forum. Reference to Alaska law in part (g) of the clause makes it clear that an action in Alaska's courts was within the contemplation of the parties. Therefore we find that the superior court erred in ordering Nenana Fuel to exhaust its remedies in tribal court. Furthermore, we note that the superior court's order was erroneous because there has been no showing that Venetie has a functioning tribal court, and because there has been no showing of what the jurisdiction of such an entity might be. REVERSED and REMANDED for proceedings in accordance with this opinion. MOORE, J., concurs. RABINO WITZ, C.J., dissents. . Venetie also contends that, even if the contract contains an express waiver, the three Tribal Government Council members who signed the document had no authority to waive the Tribal Government's immunity without obtaining a resolution of the entire Tribal Government. While this may be true, Venetie waived this argument by failing to raise it before the superi- or court. . Because the trial court did not base its decision on the Remedies on Default clause, it did not consider the relationship between that clause and the doctrine of exhaustion of remedies. We believe that comity principles are inapplicable when a party brings a legal action in state court pursuant to a contractual provision permitting the invocation of remedies under state law.

10354976

STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; and Alaska Oil and Gas Conservation Commission, Appellants, v. ARCTIC SLOPE REGIONAL CORPORATION, an Alaska corporation, Appellee/Cross-Appellant, and Standard Alaska Production Company, a Delaware corporation; and Chevron U.S.A. Inc., a Pennsylvania corporation, Appellees/Cross-Appellants

State, Department of Natural Resources v. Arctic Slope Regional Corp.

1991-11-22

Nos. S-3400, S-3416 and S-3437

134

145

834 P.2d 134

834

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; and Alaska Oil and Gas Conservation Commission, Appellants, v. ARCTIC SLOPE REGIONAL CORPORATION, an Alaska corporation, Appellee/Cross-Appellant, and Standard Alaska Production Company, a Delaware corporation; and Chevron U.S.A. Inc., a Pennsylvania corporation, Appellees/Cross-Appellants.

STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; and Alaska Oil and Gas Conservation Commission, Appellants, v. ARCTIC SLOPE REGIONAL CORPORATION, an Alaska corporation, Appellee/Cross-Appellant, and Standard Alaska Production Company, a Delaware corporation; and Chevron U.S.A. Inc., a Pennsylvania corporation, Appellees/Cross-Appellants. Nos. S-3400, S-3416 and S-3437. Supreme Court of Alaska. Nov. 22, 1991. Motion to Stay Judgment Denied April 29, 1992. Robert E. Mintz, Asst. Atty. Gen., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellants State of Alaska, Dept, of Natural Resources and Alaska Oil and Gas Conservation Com’n. Stephen M. Ellis and Marc D. Bond, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for cross-appellants Chevron U.S.A. Inc. and Standard Alaska Production Co. David C. Crosby, Council & Crosby, Juneau, and Steven T.. Seward and James Wickwire, Wickwire, Greene & Seward, Se attle, Wash., for appellee Arctic Slope Regional Corp. Before MATTHEWS, C.J., and RABINO WITZ, BURKE and COMPTON, JJ.

6972

43652

OPINION COMPTON, Justice. In this appeal we are asked to decide whether the statutory requirement that oil drillers submit well data to the Department of Natural Resources constitutes an unconstitutional taking of property. We conclude that it does not; therefore, we reverse. I. FACTUAL AND PROCEDURAL BACKGROUND A. State Regulation of Oil and Gas Activities The drilling for and production of oil and gas in Alaska was first regulated under the Alaska Oil and Gas Conservation Act of 1955 (Act). § 47-7-1 to 47-7-15 Alaska Compiled Laws Annotated (ACLA) (Supp. 1958). This statute created an Alaska Oil and Gas Conservation Commission to implement the provisions of the Act. § 47-7-3 ACLA (Supp.1958). The commission had the authority to: (1) regulate, for conservation purposes, the drilling, producing and plugging of wells, the spacing of wells, and the disposal of oil field wastes; and (2) require the filing of well data. § 47-7-4 ACLA (Supp.1958). The commission would keep the logs of exploratory or "wildcat" wells confidential for six months unless the owner had given written permission to release the data at an earlier date. Id. Section 47-7-4 of the territorial statutes contained no provision for an extended period of confidentiality. When Alaska became a state in 1959, the territorial conservation act continued in force as state law pursuant to article XV, section 1 of the Alaska Constitution, and was later codified at AS 31.05. The regulations previously promulgated by the commission were placed in the Alaska Administrative Code (AAC) and are currently codified at 20 AAC 25.005-.570. A new Department of Natural Resources (DNR) replaced the Oil and Gas Conservation Commission. Ch. 64, § 16, 27, SLA 1959. The State Organization Act vested DNR "with the duties, powers, and responsibilities involved in the administration of the entire state program for the conservation and development of the State's natural resources including . petroleum and natural gas...." Ch. 64, § 16, SLA 1959. DNR has undergone several internal reorganizations since statehood; its oil and gas related functions are currently concentrated in its Division of Oil and Gas. In addition to inheriting the regulatory functions previously performed by the commission, DNR became the proprietor of the lands to be transferred to the new state. DNR's Division of Oil and Gas continues to lease the state's land for exploration and development and to ensure that the financial, as well as the environmental, terms of the leases are met. In 1978, however, responsibility for administering AS 31.05 was transferred from DNR to a new Alaska Oil and Gas Conservation Commission (AOGCC). Ch. 158, § 1, SLA 1978. In proceedings before AOGCC, DNR has the same standing as granted by law to any other proprietary interest. AS 31.05.026(e). DNR nonetheless maintains a role under the Act's provision governing oil and gas well data filed by operators. Alaska Statute 31.05.035(a) provides: For all wells for which a permit to drill has been issued by the commission since January 3, 1959, the commission may require: (1) the making and filing of reports, well logs, drilling logs, electric logs, lithologic logs, directional surveys, and all other subsurface information on a well drilled for oil or gas, or for the discovery of oil or gas, or for geologic information; and (2) the filing of flow test information and all logs, except experimental logs and velocity surveys run on a well and not required by (1) of this subsection; (3) the operator to make available for copying the digitized log information, if it is available, on any log required to be filed under (1) or (2) of this subsection. Alaska Statute 31.05.035(c) requires private oil explorers to disclose to DNR the results of oil well tests in order to avoid public release of the information by the AOGCC following a statutory 24-month confidentiality period. This provision for an extended period of confidentiality was adopted in 1978. Ch. 160, § 5, SLA 1978. B. The "KIC" Well On April 24, 1986, Chevron U.S.A., Inc. (Chevron) completed an exploratory drilling operation known as the "KIC" well on land owned by the Arctic Slope Regional Corporation (ASRC) adjacent to the Arctic National Wildlife Refuge (ANWR). The well was drilled to a depth of 15,193 feet and cost in excess of $40 million. The drilling generated substantial information about the subsurface geology in the ANWR area. The well is of particular value because it is the only onshore well ever drilled east of the Canning River on Alaska's North Slope, and three-fourths of the land located within three miles of the well is unleased. Pursuant to AS 31.05.035 and 20 AAC 25.071, Chevron filed confidential reports and information concerning the KIC well with AOGCC. The data was due to be released to the public when the 24-month confidentiality period expired on May 24, 1988, unless the period was extended pursuant to AS 31.05.035(c). Although most of the land in the vicinity of the KIC well is unleased, Chevron and Standard did not request DNR to extend confidentiality for the data. Instead, on April 21, 1988, Chevron, Standard, and ASRC (collectively "the companies") filed a lawsuit against DNR and AOGCC in superior court, seeking a declaration that the disclosure provisions of AS 31.05.035(c) were unconstitutional and an injunction barring AOGCC from releasing the KIC well data either to DNR or to the public. C. The Superior Court Proceedings The superior court granted the companies' motion for a preliminary injunction. They then filed a motion for summary judgment. Although the other parties did not move for summary judgment, all agreed that it was appropriate for the court to decide the case based on the evi-dentiary record without need for trial. In a lengthy memorandum, the superior court invalidated AS 31.05.035(c) and issued a permanent injunction barring the AOGCC from disclosing the KIC well data to either DNR or the public. The court held first that challenges to that portion of AS 31.05.035(c) which would entail disclosure to the public were not ripe for adjudication. The court saw only two circumstances under which a public release would occur. If DNR determined that extended confidentiality was called for, then the well data could not be made public until all unleased land within a three-mile radius was leased. Since the KIC well lies within an inholding in ANWR, the court reasoned that such an occurrence "may take years to pass or . may never pass at all," since an act of the United States Congress would be required for oil and gas production to occur in ANWR. Alternatively, public release could occur if DNR determined that the well data contained no "significant information relating to the valuation of un-leased land in the same vicinity." However, DNR stipulated that it would provide the drillers with "advance notice and an opportunity to challenge any adverse significance determination." The court found next that the required release of the well data to DNR would constitute a regulatory "taking." The court framed the question as whether the release of the KIC well data from [AOGCC] to DNR, for DNR's own internal, proprietary use, would constitute a governmental "taking" of private property for public purposes, thereby requiring just compensation therefor, or whether such action would qualify as the lawful exercise of governmental police powers which, in turn, would have some unintended, adverse economic impact on plaintiffs, for which no compensation would be required. The court noted that it had not been disputed that the drillers possessed a property right in the well data and that "if given access to the KIC well data, DNR would use the information for numerous internal, proprietary and land-management related purposes." It also found that disclosure would adversely affect the economic value of the well data. The superior court concluded that such diminution in value could not be justified as an exercise of the state's police powers since "DNR is not essentially engaged in the regulation of health, safety and environmental matters." According to the court, DNR is "predominantly involved in the management and development of lands" and stands on the same footing as plaintiff ASRC for "[b]oth wish to promote the leasing and development of their land and valuable subsurface resources." The court rejected DNR's argument that promotion of the state's economic well-being is a noncompensable exercise of government police powers. In the words of the superi- or court, "The enhancement of the government's own financial interests, occasioned by the acquisition and use of plaintiff's confidential drilling information, to plaintiff's economic disadvantage, is not, in this Court's view, a legitimate state interest." In creating a remedy, the court found that the taking had not yet occurred since DNR had not yet seen the well data. The court also found that the state did not contemplate paying any compensation (or indeed any cost at all, given the zero fiscal note) in connection with implementation of AS 31.05.035(c). Relying on State v. University of Alaska, 624 P.2d 807, 815-16 & n. 13 (Alaska 1981), the court held that the proper remedy was to declare the statute invalid and enjoin the AOGCC from releasing the data to DNR or to the public. The state filed a motion for reconsideration which took issue with the superior court's evaluation of the damage to the oil companies and ASRC from disclosure of the KIC well data to DNR and the court's conclusion that DNR served no health and safety functions. Along with the motion, DNR submitted the affidavit of Catherine Ariey, a DNR geologist. The oil companies moved to strike the affidavit on the grounds that it violated Alaska Civil Rule 77(m). The superior court denied both the motion to strike and the motion to reconsider. A permanent injunction order and final judgment were entered on April 27, 1989. The state has appealed, challenging the superior court's takings analysis and its factual findings concerning the loss of economic value to the oil companies and ASRC from disclosure of the KIC well data to DNR and concerning the scope of DNR's regulatory authority. The oil companies have filed a cross-appeal, alleging that the superior court erred in failing to strike Ariey's affidavit. ASRC joined the oil companies' cross-appeal and has also appealed the superior court's decision that the issue of public disclosure of well data was not ripe for adjudication. II. DISCUSSION A. Is the Use of the KIC Well Data by DNR without Compensation an Unconstitutional Taking? Article I, section 18 of the Alaska Constitution provides that "[pjrivate property shall not be taken or damaged for public use without just compensation." The Fifth Amendment to the United States Constitution similarly provides: "nor shall private property be taken for public use, without just compensation." In deciding this case we follow the approach taken by the United States Supreme Court in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000, 104 S.Ct. 2862, 2871, 81 L.Ed.2d 815 (1984) (absent explicit confidentiality provision in statute, use by Environmental Protection Agency and disclosure to public of data submitted by pesticide manufacturer to receive registration is not compensable taking). We have previously held that "the term 'damages' affords the property owner broader protection than that conferred by the Fifth Amendment...." DeLisio v. Alaska Superior Court, 740 P.2d 437, 439 n. 3 (Alaska 1987). However, the difference between Alaska's takings clause and the federal clause is irrelevant to this case. We address two issues: (1) Does Alaska law characterize the results of exploratory oil well drillings as property? (2) If so, does DNR's use of the data effect a taking of that property interest? 1. Property Interest The companies contend that their oil well data constitute trade secrets protected under both the Alaska and the United States Constitutions. We agree. "Confidential business information has long been recognized as property." Carpenter v. United States, 484 U.S. 19, 26, 108 S.Ct. 316, 320, 98 L.Ed.2d 275 (1987); see also Monsanto, 467 U.S. at 1002-04, 104 S.Ct. at 2872-74 (holding that a trade secret is property protected by the Fifth Amendment Taking Clause); Chamber of Commerce v. Hughey, 600 F.Supp. 606, 626-27 (D.N.J.1985) ("It is well established in New Jersey law, as in the law of most jurisdictions, that trade secrets are property rights."), affd in relevant part, 774 F.2d 587, 598 (3rd Cir.1985); Captain and Co. v. Towne, 404 N.E.2d 1159, 1162 (Ind. App.1980); General Chemical Corp. v. Dep't of Environmental Quality Engineering, 19 Mass.App. 287, 474 N.E.2d 183, 185-86 (1985) (Hazardous waste facilities, which submit reports to state agency in accordance with agency's hazardous waste regulations, have a property interest in whatever trade secrets may be contained in their reports.); Mountain States Tel. & Tel. Co. v. Dep't of Public Service Regulation, 634 P.2d 181, 185-86 (Mont.1981). As the United States Supreme Court stated in Monsanto, [the] general perception of trade secrets as property is consonant with a notion of "property" that extends beyond land and tangible goods and includes the products of an individual's "labour and invention." 2 W. Blackstone, Commentaries *405; see generally J. Locke, The Second Treatise of Civil Government, ch 5 (J. Gough ed 1947). 467 U.S. at 1002-03, 104 S.Ct. at 2873. By protecting all persons' "enjoyment of the rewards of their own industry," the Alaska Constitution adopts this Blackstone/Locke theory of property. Alaska Const, art. I, § 1. The Alaska Uniform Trade Secrets Act, which gives statutory protection to trade secrets, defines "trade secrets" as information that (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (B) is the subject of efforts that are reasonable under the circumstances to maintain secrecy. AS 45.50.940(3). The superior court found that "the KIC well data allow the [compa nies] to evaluate the potential for oil and gas development of the land surrounding the well and provide [them] with a competitive advantage as to the valuation of these lands." The state does not argue that such finding is clearly erroneous. Since the value of the data depends on its secrecy and the companies obviously have attempted to keep it secret we have no difficulty characterizing the data obtained by the oil companies from the KIC well as trade secrets. We conclude that the information generated by the KIC well is the property of the drillers. The state, in fact, stipulated during the superior court proceedings that "[plaintiffs possess property rights in the KIC well data, specifically including the right to exclude the public from the enjoyment of such data by preventing its unauthorized use by the public and prohibiting its disclosure." The state contends on appeal that since statehood, Alaska law has limited the property rights of oil well drillers to exclude the public but not DNR from the well data. We agree with the state's emphasis on the distinction between disclosure to the public and disclosure to DNR. However, we do not adopt the state's approach that the companies never possessed the right to prevent DNR's use of the data. Instead, as discussed below, we conclude that the companies had no "reasonable investment-backed expectation" that DNR would not use the well data for internal departmental purposes. 2. Government Action The United States Supreme Court has identified three factors that should be taken into account when determining whether government action effects a taking: "the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations." Monsanto, 467 U.S. at 1005, 104 S.Ct. at 2874 (quoting PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980)). As in Monsanto, we conclude that the determinative factor in this case is the drillers' reasonable investment-backed expectations. Monsanto challenged the use by EPA and the public disclosure of data it submitted to EPA in accordance with the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court distinguished pesticide data submitted during three different time periods, defined by different amendments to the federal pesticide statute. As to amendments effective October 1, 1978, which established the data disclosure mechanisms under attack, the court held that their enactment put Monsanto "on notice of the manner in which EPA was authorized to use and disclose any data turned over to it by an applicant for registration." 467 U.S. at 1006, 104 S.Ct. at 2874. Consequently, with respect to data submitted since October 1, 1978, Monsanto "could not have had a reasonable, investment-backed expectation that EPA would keep the data confidential beyond the limits prescribed in the amended statute itself." Id. On the other hand, during the time that earlier amendments were in effect, between October 22, 1972 and September 30, 1978, the statute "had explicitly guaranteed to Monsanto . an extensive measure of confidentiality and exclusive use. This explicit governmental guarantee formed the basis of a reasonable investment-backed expectation." Id. at 1011, 104 S.Ct. at 2877. EPA's disclosure of protected data contrary to that guarantee could, under some circumstances, constitute a taking. Id. at 1013, 104 S.Ct. at 2878. During the period prior to the 1972 amendments, the statute "was silent" on the subject of EPA's use and disclosure of pesticide data. Id. at 1008, 104 S.Ct. at 2875. In particular, the statute gave EPA no authority to disclose the data. Moreover, another general statute, the Trade Secrets Act, 18 U.S.C. § 1905, provided for criminal penalties against federal employees who disclose trade secrets in a manner not authorized by law. Notwithstanding these factors, the court held that Monsanto "had no reasonable, investment-backed expectation that its information would remain inviolate in the hands of EPA" in the absence of "an express promise," and the Trade Secrets Act did not constitute such a promise. 467 U.S. at 1008-09, 104 S.Ct. at 2876. In this case, the trial court did not expressly inquire into the factor of "reasonable investment-backed expectations" in its takings analysis. It did consider this factor, however, when it held that the companies' knowledge of the disclosure requirements of AS 31.05.035(c) before they drilled the KIC well did not "estop" them from challenging the statute. The trial court found that the companies had reasonable expectations that, in reviewing the KIC well data to determine whether to extend confidentiality under AS 31.05.-035(c), DNR would not use the data "for its own internal, proprietary purposes." It based its conclusion on two things: (1) an affidavit by a Chevron exploration manager stating that "Chevron has always" so assumed; and (2) a 1984 opinion letter of an assistant attorney general which approved DNR's review of well data under AS 31.05.035(c) but which also contained a single sentence stating "that this review . must be for the only purpose of determining whether confidentiality will be extended beyond the initial period." Whatever the standard of reasonableness might be for purposes of estoppel, we conclude that the companies' assumption was not a "reasonable investment-backed expectation" for takings purposes. "A 'reasonable investment-backed expectation' must be more than a 'unilateral expectation or an abstract need.' " Monsanto, 467 U.S. at 1005, 104 S.Ct. at 2874. Alaska's oil conservation act and regulations contain no "guarantee" or "express promise" that DNR would not, upon review of the KIC well data under AS 31.05.035(c), use the data for internal departmental purposes. Moreover, the companies were "on notice" that DNR in fact used confidential data filed under AS 31.05.035(c) in its decision making on state oil and gas leasing. See Hammond v. North Slope Borough, 645 P.2d 750, 764 (Alaska 1982). This practice was in accordance with a 1978 attorney general's opinion. The opinion advised that the Division of Minerals and Energy Management — which then exercised what the companies term DNR's "proprietary" functions regarding oil and gas — was entitled to use "for its own legitimate purposes," while keeping confidential the reports and information filed with the Division of Oil and Gas Conservation (AOGCC's predecessor within DNR). The companies contend that DNR no longer utilized reports filed under AS 31.-05.035 and 20 AAC 25.070-.071 for leasing purposes after the creation of AOGCC in 1978. We are not persuaded by Chevron's suggestion that the legislature intended to prohibit such use of well data by DNR. Chevron offers nothing in the legislative history of the 1978 amendments to AS 31.05 in support of this position. In fact, in testimony before the Senate Resources Committee on May 22, 1978, O.K. Gilbreth, Jr., Director of DNR's Division of Oil and Gas Conservation, implied that the provision for extended confidentiality was intended to benefit the state as well as the driller who supplied the data. He stated, "[M]y understanding is that if the Commissioner finds that this information, if the well logs and so forth contains significant information, he can in effect put a moratorium on the two years until such time as he decides that it's no longer valuable to the state to keep it confidential and then release it after the two years is up." (Emphasis added). Furthermore, the act requiring the reporting of well data expressly provides that such data must be shared with the state "for [its] beneficial use." Ch. 75, § 1, SLA 1960. The state acknowledges that DNR does not review the reports until a request for extended confidentiality is made. According to DNR, however, once it receives the data it is impractical to ignore the information when making leasing decisions. As the companies themselves have pointed out, "DNR personnel cannot forget what they have seen." DNR has not sought access to the KIC well data during the initial 24-month confidentiality period. In light of AS 31.05.035(c)'s explicit language providing for review by the "commissioner of natural resources," we find the companies' expectation that DNR would not utilize the data following the initial period of confidentiality unreasonable. We attach little significance to the attorney general's letter of July 3, 1984. First, the focus of the letter was whether DNR could have access to the confidential material filed with AOGCC rather than requiring oil companies to supply separate data when they made a request for extended confidentiality. The attorney general concluded that DNR had a right to direct access to AOGCC's files. The sentence relied on by the companies is found on the final page of the letter. The language in question says DNR's "review" of well data at AOGCC "must be for the only purpose of determining" whether to extend confidentiality; it does not say that DNR's "use" of the data following that review must be so limited. As discussed above, no party contends that DNR can limit its use of the data once it has access to it. We believe that the attorney general, having approved DNR's access to AOGCC's information, simply intended to insure that DNR did not seek such access until reviewing a request for extended confidentiality as authorized by AS 31.05.035(c). Second, the companies offer no evidence of their reliance on this letter. The letter was addressed to DNR's Division of Oil and Gas, and nothing in the record establishes that Chevron, Standard, or ASRC knew of it prior to the drilling of the KIC well. In fact, the affidavit of E.K. Espen-scied, Chevron's Alaska manager, makes no mention of the letter. He simply attests that "Chevron has always assumed DNR's review of data filed in connection with any request for extended confidentiality is a narrow one and conducted for the exclusive purpose of confirming the data 'contains significant information relating to the valuation of unleased land in the same vicinity' of the well." The issue is not simply whether Chevron expected that DNR would not use the KIC well data for internal purposes, but whether such expectation was reasonable and investment-backed. No matter how reasonable or unreasonable the companies' expectations may have been, we are not persuaded that they were "investment-backed." The trial court did not consider this issue. Although Chevron says it assumed that DNR would make no use of the KIC well data for purposes other than the AS 31.05.035(c) determination, none of the companies claim that their decision to invest in the KIC well depended in any way on that assumption. Rather, it depended, according to Chevron official Tom Cook, on the assumption that "extend ed confidentiality" under AS 31.05.035(c)— i.e., confidentiality from the public until after the disposal of nearby unleased lands — was "reasonably assured." This lack of reliance is not surprising, for it is unlikely that a company would have been deterred from leasing or drilling simply because of DNR's confidential use of the well data. The values motivating such investment — the hope of discovering commercial deposits of oil and gas, the utility of the well data to the companies for numerous purposes, and the competitive advantage the data provide vis-a-vis other bidders in future lease sales — outweigh any interest in keeping the data from DNR. We note that DNR's access as lessor to confidential data from wells drilled on state oil and gas leases, see AS 38.05.180(x), has not kept oil companies from making enormous investments in acquiring and drilling on state leases. The companies argue that Monsanto, 467 U.S. 986, 104 S.Ct. 2862, is inapplicable to this case. According to the companies, EPA's use of the information submitted by Monsanto to acquire pesticide registration is significantly different from DNR's use of the well data at issue here. The companies contend that DNR's "proprietary" use of the KIC well data constitutes a "physical invasion" and therefore the regulatory takings approach of Monsanto is inapplicable. The importance the companies attach to the nature of the governmental action at issue is well-founded. "It is well settled that a 'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Keystone Bituminous Coal Ass'n v. Debenedictis, 480 U.S. 470, 488 n. 18, 107 S.Ct. 1232, 1243-44 n. 18, 94 L.Ed.2d 472 (1987) (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978)) (citation omitted). We disagree, however, with the companies' characterization of DNR's use of the well data. This case does not involve the kind of physical interference with real property at issue in the cases in which the United States Supreme Court has found a per se taking. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3145-46, 97 L.Ed.2d 677 (1987) (easement for public access over private beach property); Loretto v. Teleprompter. Manhattan CATV Corp., 458 U.S. 419, 441, 102 S.Ct. 3164, 3179, 73 L.Ed.2d 868 (1982) (mandated installation of CATV cable and fixtures); Kaiser Aet-na v. United States, 444 U.S. 164, 180, 100 S.Ct. 383, 393, 62 L.Ed.2d 332 (1979) (imposition of navigable servitude on marina which was unnavigable prior to significant private investment in dredging); United States v. Causby, 328 U.S. 256, 264-65, 66 S.Ct. 1062, 1067-68, 90 L.Ed. 1206 (1946) (military appropriation of airspace above private property); United States v. Lynah, 188 U.S. 445, 470-71, 23 S.Ct. 349, 357, 47 L.Ed. 539 (1903) (permanent flooding from construction of dam). The category of per se takings is a narrow one. In Loretto, the court articulated the following justifications for the per se category: (1) tradition, 458 U.S. at 430 n. 7, 102 S.Ct. at 3173 n. 7 ("early commentators viewed a physical occupation of real property as the quintessential deprivation of property"); (2) the "serious form of [the] invasion of an owner's property interests," which inter alia destroys the owner's "right to possess the occupied space himself," id. at 435, 102 S.Ct. at 3176; (3) the avoidance of "otherwise difficult line-drawing problems" involving the size of the area occupied, id. at 436-37, 102 S.Ct. at 3176-77; and (4) the minimization of problems of proof, id. at 437, 102 S.Ct. at 3177, ("the placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute"). None of these reasons apply here. We are also not persuaded by the companies' argument that a permit to drill is significantly different from registration of a pesticide. Like the manufacture of pesticides, drilling for oil and gas is a heavily regulated industry. Both industrial activities are distinguishable from the residential development involved in Nollan, 483 U.S. 825, 107 S.Ct. 3141. While the California Coastal Commission simply denies or approves a development permit, AOGCC and DNR continuously monitor drilling operations. The companies do not dispute AOGCC's authority to require well data and to use the data to prevent waste and protect health and safety. According to the companies, DNR exercises only proprietary functions and therefore its use of the well data is not justified by the police power. We find the line the companies draw between "regulatory" and "proprietary" functions more clear in theory than in practice. DNR is responsible in large part for implementing the constitutional mandate that the legislature "provide for the utilization, development, and conservation of all natural resources belonging to the State . for the maximum benefit of its people." Alaska Const, art. VIII, § 2. See AS 44.37.-020(a). In the area of oil and gas leasing, the agency's function is not to run an enterprise but to make decisions that "best serve the interests of the state." AS 38.-05.035(e). The legislature has found that "it is in the best interests of the state," for example, to encourage an assessment of its oil and gas resources and to allow the maximum flexibility in the methods of issuing leases to (A) recognize the many varied geographical regions of the state and the different costs of exploring for oil and gas in these regions; (B) minimize the adverse impact of exploration, development, production, and transportation activity. AS 38.05.180(a)(2). The assessment of the state's oil and gas resources serves at least two legitimate government objectives. First, knowledge of the production potential of state land in various areas is critical to DNR's determination of where development should occur and where preservation is appropriate. Such land management decisions by DNR involve "complex subject matter" and "fundamental policy formulations." Trustees for Alaska v. State, 795 P.2d 805, 809 (Alaska 1990). Unlike a private enterprise, DNR is not exclusively driven by the profit motive. The agency must also concern itself with the social, cultural and environmental impacts on the state from oil production. Id. at 809-11. Second, knowledge of the oil and gas production potential of the state's lands promotes the state's economic welfare by maximizing the amount it receives for the lease of its lands. Other jurisdictions have recognized the legitimacy of using the police power to protect the government's financial stability. See, e.g., Zeigler v. People, 109 Colo. 252, 124 P.2d 593, 598 (1942) ("The police power relates not merely to the public health and to public physical safety, but also to public financial safety."); People v. Kohrig, 113 I11.2d 384, 101 Ill.Dec. 650, 657-58, 498 N.E.2d 1158,1165-66 (1986) ("It cannot be seriously questioned that the police power may be used to promote the economic welfare of the State, its communities and its citizens."), appeal dismissed, 479 U.S. 1073,107 S.Ct. 1264, 94 L.Ed.2d 126 (1987); Sherman-Reynolds, Inc. v. Mahin, 47 I11.2d 323, 265 N.E.2d 640, 642 (1970) ("[I]n the interest of general welfare, the police power may be exercised . to protect the government itself against potential financial loss and the possible disruption of governmental functions."); Washington Educ. Ass'n v. State, 97 Wash.2d 899, 652 P.2d 1347, 1351-52 (1982) (state as employer may lay off teachers in response to a financial crisis). In light of the state government's dependence on petroleum-related income, we conclude that DNR's purpose to maximize the income from leasing state land is within the police power. The cases cited by Chevron, Standard and ASRC do not conflict with this conclu sion. None of the cases exclude protection of the government's financial stability from the scope of the police power. Instead, the government action was invalidated in each case because it had no reasonable relationship to any legitimate government purpose. See, e.g., American Consumer Indus, v. City of New York, 28 A.D.2d 38, 281 N.Y.S.2d 467, 474 (1967) (franchise for ice monopoly not reasonable exercise of the police power); Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511, 518 (Tex. 1968) (purpose of ordinance solely to eliminate competitor of city's electrical service); City of Tukwila v. City of Seattle, 68 Wash.2d 611, 414 P.2d 597, 600-01 (1966) (nothing in ordinance justified impairment of franchise to provide electrical service); Wisconsin Telephone Co. v. City of Milwaukee, 223 Wis. 251, 270 N.W. 336, 339-40 (1936) (fee exacted for opening pavement to install underground communication lines bore no reasonable relationship to the damage incurred by the city). Contrary to these cases, requiring the disclosure of exploratory well data to DNR clearly aids the agency in determining the optimum balance between development and preservation and in maximizing the revenue from leasing state lands. Finally, this case is distinguishable from Noranda, 335 N.W.2d 596, in which the Wisconsin Supreme Court held that compelled disclosure of well data is a compen-sable taking. The court held that public disclosure of data filed with the state geologist bore no reasonable relationship to the purpose of informing agency decisions. Id. at 604. Such public disclosure is not at issue here. The Noranda decision implicitly recognizes the validity of the statutory requirement that oil drillers report well data to the state. Id. at 604 n. 8. See also Hartman, 529 P.2d at 146 (upheld against takings challenge regulation requiring drillers to file drilling information and samples with geological survey). B. Did the Superior Court Err in Allowing DNR to Submit New Information in Conjunction with its Motion to Reconsider under Former Civil Rule 77(m)? In their cross-appeal, the companies contend that former Civil Rule 77(m) does not and ought not authorize the submission of new evidence in conjunction with a motion for reconsideration. The companies appeal the denial of their motion to strike the affidavit of Catherine Ariey which DNR submitted with its motion for reconsideration. They request that this court consider neither the affidavit nor ASRC's 1987 Annual Report, submitted by the state with its opposition to the companies' motion to strike. We conclude that any error the superior court may have committed in denying the companies' motion to strike is harmless. Since the superior court denied the state's motion for reconsideration, the companies received all the relief to which they were entitled. The addition of the Ariey affidavit and ASRC's annual report to the record did not prejudice the companies on appeal. Our decision is based on neither document. III. CONCLUSION For the reasons discussed herein, we conclude that disclosure of well data to DNR following an initial confidentiality period as provided in AS 31.05.035(c) does not constitute an unconstitutional taking. We REVERSE the superior court's decision and VACATE the injunction prohibiting AOGCC from releasing the KIC well data to DNR. DNR shall determine whether an extended period of confidentiality is appropriate. If DNR decides extended confidentiality is unnecessary, the agency shall, in accordance with its stipulation in superior court, provide Chevron, Standard and ASRC "advance notice and an opportunity to challenge any adverse significance determination." . AS 31.05.035(c) provides: The reports and information required in (a) of this section shall be kept confidential for 24 months following the 30-day filing period unless the owner of the well gives written permission to release the reports and information at an earlier date. If the commissioner of natural resources finds that the required reports and information contain significant information relating to the valuation of un-leased land in the same vicinity, the commissioner shall keep the reports and information confidential for a reasonable time after the disposition of all affected unleased land, unless the owner of the well gives written permission to release the reports and information at an earlier date. . ASRC owns only the subsurface estate which it has leased to Chevron and Standard Alaska Production Company (Standard). The surface estate of the lands on which the well is located is owned by Kaktovik Inupiat Corporation— hence the acronym "KIC." . The remaining two questions discussed by the United States Supreme Court in Monsanto— whether the taking is for a public use and whether the statute provides adequate compensation — are not at issue in this case. . The Restatement of Torts provides a similar definition: A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Restatement (First) of Torts § 757 comment b (1939) (This section, together with most discussion of trade practices and labor disputes, is omitted from the Second Restatement because these subjects have become extensively governed by legislation and largely divorced from their initial grounding in the principles of tort.). The United States Supreme Court adopted this definition for constitutional purposes in Monsanto, 467 U.S. at 1001-02, 104 S.Ct. at 2872. . This conclusion is consistent with decisions of other jurisdictions which have addressed the issue. See, e.g., United States v. Geophysical Corp., Ill F.2d 693, 701-02 (9th Cir.1984); Hunter v. Shell Oil Co., 198 F.2d 485, 487-89 (5th Cir.1952); Geophysical Corp. of Alaska v. Andrus, 453 F.Supp. 361, 370 (D.Alaska 1978); Hartman v. State Corp. Comm'n, 215 Kan. 758, 529 P.2d 134, 146-47 (1974); Noranda Exploration, Inc. v. Ostrom, 113 Wis.2d 612, 335 N.W.2d 596, 603 (1983); see generally 2 H. Williams and C. Meyers, Oil and Gas Law § 442.2 (1990). . ASRC's entitlement to the data is based on its contract with the oil companies. The companies agreed to provide ASRC any information generated as a result of drilling wells on the KIC property at the expiration of the lease between ASRC and the companies. . The state correctly notes in its brief that only Chevron and Standard, not ASRC, claim to have had any such expectation, and the only evidence submitted by them concerned Chevron, not Standard. . Defining what constitutes a "reasonable investment-backed expectation" is a question of law and therefore we exercise de novo review. See Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). We will not reverse the trial court's findings concerning the underlying facts unless "clearly erroneous." Donnybrook Bldg. Supply v. Interior City, 798 P.2d 1263, 1266 (Alaska 1990); Alaska R.Civ.P. 52(a). However, we independently review whether the trial court attached the appropriate legal effect to the facts. See Armco Steel Corp. v. Isaacson Structural Steel Co., 611 P.2d 507, 516 n. 22 (Alaska 1980). . The words "of natural resources" were added by a 1984 amendment. Ch. 6, § 86, SLA 1984. The amendment clarified rather than changed the existing law. 1984 House Journal 2290. . We are unable to comprehend how one can "physically" occupy or invade intangible property. The United States Supreme Court recently rejected a theory similar to that of the companies in this case. United States v. Sperry Corp., 493 U.S. 52, 110 S.Ct. 387, 393, 107 L.Ed.2d 290 (1989) (upheld user fee required to be paid to the United States from amount recovered by American claimants before the Iran-United States Claims Tribunal). . The superior court held that the companies' challenge to the public disclosure provisions of AS 31.05.035(c) were not ripe for adjudication. We agree with the superior court's analysis. . In light of our conclusion that no taking has occurred, we need not address the issue of whether an injunction against disclosure is the appropriate remedy. . Former Civil Rule 77(m) provided in part: (1)A party may move the court to reconsider a ruling previously decided if, in reaching its decision: (i) The court has overlooked, misapplied, or failed to consider a statute, decision or principle directly controlling; or (ii) The court has overlooked or misconceived some material fact or proposition of law; or (iii) The court has overlooked or misconceived a material question in the case; or (iv)The law applied in the ruling has been subsequently changed by court decision or statute. (2) The motion for reconsideration shall specifically state which of the grounds for reconsideration specified in the prior subpar-agraph exists, and shall specifically designate that portion of the ruling, the memorandum, or the record, or that particular authority, which the movant wishes the court to consider. The motion for reconsideration and supporting memorandum shall not exceed five pages. (3) No response shall be made to a motion for reconsideration unless requested by the court, but a motion for reconsideration will ordinarily not be granted in the absence of such a request. Alaska R.Civ.P. 77(m) (1990). This rule currently appears as Civil Rule 77(k).

10357248

Charles T. BURT, Appellant, v. STATE of Alaska, Appellee

Burt v. State

1991-12-20

No. A-3550

14

17

823 P.2d 14

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Charles T. BURT, Appellant, v. STATE of Alaska, Appellee.

Charles T. BURT, Appellant, v. STATE of Alaska, Appellee. No. A-3550. Court of Appeals of Alaska. Dec. 20, 1991. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2088

12724

OPINION COATS, Judge. Charles T. Burt was convicted, based upon his plea of no contest, of violating his conditions of release, an unclassified felony offense with a maximum sentence of five years of imprisonment. AS 12.30.060(1). In entering his plea, Burt reserved his right to raise an appellate issue. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Burt contends that Superior Court Judge Charles K. Cranston erred in failing to dismiss the indictment against him. We affirm. Burt was originally convicted of a felony for sexual abuse of a minor. He was ultimately sentenced to five years with all but forty-three months and fifteen days suspended. Burt was placed on probation for a period of five years following his release from custody. Burt served the unsuspend-ed portion of his sentence and was released on probation. Burt's probation officer filed a petition to revoke Burt's probation. Burt appeared in court before Judge Cranston and denied the allegations in the petition to revoke probation. Judge Cranston ordered Burt released on an unsecured bond of $10,000. Judge Cranston also set several other conditions for Burt's release. Burt signed a document called "Order and Conditions of Release." That document provided in part that: If defendant fails to appear before any court or judicial officer as required, an additional criminal case may be instituted against defendant. If the failure to appear is in connection with a felony charge . the penalty is a fine of not more than $5,000 or imprisonment for not more than five years or both. Judge Cranston ordered Burt to appear in court on August 30, 1988, at 2:30 p.m., for an adjudication hearing on the petition to revoke probation. Burt did not appear at the hearing and Judge Cranston issued a warrant for his arrest. Burt was arrested on the warrant in February 1990. The state indicted Burt for violating his conditions of release. Alaska Statute 12.-30.060 provides in part: Violation of conditions. A person released under the provisions of this chapter who wilfully fails to appear before a court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for the person's release and if the person was released (1) in connection with a charge of felony, or while awaiting sentence or pending appeal after conviction of an offense, is guilty of a felony and upon conviction is punishable by a fine of not more than $5,000 or by imprisonment for not more than five years, or by both.... (Emphasis provided.) Burt raises a two-pronged attack on his indictment. He first contends that he was not released "in connection with a charge of felony." He quotes from Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (footnote omitted): A probation revocation hearing is not a criminal proceeding. The focus of the hearing should be to determine whether the probationer violated one or more of the conditions of his probation and the appropriate disposition in the event it is determined that petitioner violated his probation. This contention appears to be answered by our recent decision in State v. Stores, 816 P.2d 206 (Alaska App.1991). In that case, Stores, a parolee, was charged with second-degree escape for running away from an officer who arrested him for a parole violation. Under AS 11.56.310, a person is guilty of escape in the second degree if, without lawful authority, he removes himself from "official detention for a felony." Stores argued that his arrest on a parole violation was not "for a felony." We disagreed, pointing out that the great weight of authority was to the effect that when Stores was arrested for a parole violation he was being arrested on his original felony charge. 816 P.2d at 209-10. In the process of arriving at this decision, we cited State v. Perencevic, 54 Wash.App. 585, 774 P.2d 558 (1989). Perencevic was a probationer who was being detained in jail on warrants for probation violations which arose out of his prior felony convictions. Perencevic attempted to escape, and was charged under a statute which had as an element that Perencevic was being "detained pursuant to a conviction of a felony." The Washington court concluded that when a probationer was being detained in jail for probation violations, he was being "detained pursuant to a conviction of a felony." Following Stores and Perencevic, we conclude that Burt was being held "in connection with a charge of felony" when he was held for á probation violation on a felony offense. Burt next contends that he was not "released uhder the provisions of this chapter." Burt cites Martin v. State, 517 P.2d 1389, 1397-99 (Alaska 1974), as support for his position that he was not released under the Alaska Bail Act, AS 12.30, but was rather released under the inherent power of the court. In Martin, the supreme court decided the rights of various defendants to release on bail under Alaska law. One of the cases which the court decided was the right to bail of a defendant who was facing probation revocation proceedings. The court stated: 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. Id. at 1398 (footnotes omitted; emphasis provided). We have interpreted Martin as "recognizing an inherent power in the trial courts to grant bail where no statute or constitutional provision expressly authorizes or prohibits it." Stiegele v. State, 685 P.2d 1255, 1261 (Alaska App.1984); Dobrova v. State, 674 P.2d 834 (Alaska App.1984), aff'd, 694 P.2d 157 (Alaska 1985). As a starting point, because both the Alaskan probation and bail statutes are modeled after federal law, we have looked to federal authority in resolving this issue. The only federal authority which we have found supports the proposition that a person who has been convicted of a felony and is released pending a probation revocation is subject to being charged for failure to appear under the federal Bail Reform Act. In United States v. Garner, 478 F.Supp. 1 (W.D.Tenn.1979), the court upheld a conviction of a probationer under prior 18 U.S.C. § 3150 (now § 3146), the failure to appear section of the federal Bail Reform Act. The court revoked Garner's probation and sentenced him to nine months' incarceration with two years of probation to follow. The judge released Garner on his own recognizance at the conclusion of the revocation hearing and ordered him to surrender to the United States Marshal on a given date. Subsequently, Garner failed to turn himself in and was eventually convicted for failure to appear. The Garner court essentially held that probationers, by virtue of their probation status, are "awaiting sentence" within the language of prior 18 U.S.C. § 3148 (and current § 3143). Because the court retains jurisdiction over the probationer throughout the period of probation, see 18 U.S.C. § 3651, 3653 (the federal probation statutes), probationers remain "in custody" and are encompassed by the "awaiting sentence" language of prior 18 U.S.C. § 3148 (and current § 3143) from the time of release from confinement until the successful completion of probation. See Garner, 478 F.Supp. at 3. The language of AS 12.30.-040 (the "awaiting sentence" provision of the Alaska Bail Act) and AS 12.55.080, .090, and .100 (the probation statutes) parallel the language of the federal bail and probation statutes on which the court relied in Gamer. Our conclusion that federal probationers are released pursuant to the federal Bail Reform Act is reinforced by the holding in United States v. Giannetta, 695 F.Supp. 1254 (D.Me.1988). In that case, Giannetta was facing revocation of his probation. The court concluded that it had authority to release Giannetta on bail under the provisions of the federal Bail Reform Act, although it declined to do so. We believe that policy arguments support following the federal authority which holds that probationers are released under the Bail Act and are subject to penalties under the Bail Act for failure to appear. We see no reason to treat a person who fails to appear after he has been convicted and is on probation any more favorably than a person who fails to appear when he is initially facing charges before he is convicted and is presumed innocent, or when he has been convicted and is on bail release pending appeal. It is reasonable to assume that the legislature intended that the defendants in all of these situations face charges for failure to appear if they violated their conditions of release. Martin v. State does not require a different conclusion. The direct holding of Martin is that a person who is facing a probation revocation is not entitled to release on bail under AS 12.30.010 as a matter of right. The Martin court nevertheless recognized that the trial court has discretionary authority to release a person charged with a probation violation on bail. In so doing, Martin did not hold that the procedural provisions of AS 12.30 are generally inapplicable when the court does exercise its discretionary power to set bail for an accused probation violator, and the Martin court did not indicate that a release under such circumstances would not be deemed a "release under" that chapter. We accordingly hold that probationers who are released pending revocation, or similar judicial proceedings, are released under the Alaska Bail Act and are subject to the penalties under the Bail Act for failure to appear. We conclude that Judge Cranston did not err in refusing to dismiss the indictment. The conviction is AFFIRMED. . The Alaska Bail Act "was based.largely on SB 1357, 89th Congress, First Session." AS 12.30, Revisor's Notes. AS 12.30 parallels the language of the federal Bail Reform Act. The Alaska probation statutes are substantially similar to the federal probation statutes. See Brown v. State, 559 P.2d 107, 109-10 (Alaska 1977). . AS 12.30.040 provides in part: A person who has been convicted of an offense and is awaiting sentence . shall be treated in accordance with the provisions of AS 12.30.020 unless the court has reason to believe that no one or more conditions of release will reasonably assure the appearance of the person as required or prevent the person from posing a danger to other persons and the community. . If the penalties for failure to appear in the Bail Act did not apply to defendants who were released pending probation violations, the court could of course punish these failures to appear under its contempt power, including the court's inherent power to punish for contempt. However, the court's inherent power to punish contempt is not well defined. It appears to us that there could be considerable confusion involved in charging probationers who violate their conditions of release with contempt rather than with failure to appear. See Stadler v. State, 813 P.2d 270, 273-75 (Alaska 1991); Lastufka v. State, 662 P.2d 991 (Alaska App.1983). . Alaska Statute 12.30.010 provides: A defendant in a criminal proceeding is entitled to be admitted to bail before conviction as a matter of right. (Emphasis provided.)

10370818

Kristopher M. MARCY, Appellant, v. STATE of Alaska, Appellee

Marcy v. State

1991-12-20

No. A-2911

660

671

823 P.2d 660

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Kristopher M. MARCY, Appellant, v. STATE of Alaska, Appellee.

Kristopher M. MARCY, Appellant, v. STATE of Alaska, Appellee. No. A-2911. Court of Appeals of Alaska. Dec. 20, 1991. S. Joshua Berger, Fairbanks, for appellant. William H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6091

37168

OPINION ANDREWS, Judge. Kristopher M. Marcy was convicted of first-degree murder, AS 11.41.100, first-degree sexual assault, AS 11.41.410(a)(1), and first-degree burglary, AS 11.46.300(a)(1). He was sentenced to a total of one hundred thirty-nine years for the current offenses and seven and one-half years of suspended time was reimposed on two cases in which his probation was revoked. His parole eligibility was restricted for ninety-seven years. Marcy appeals his conviction on several grounds. First, he contends that the confession he gave on June 30 should have been suppressed because it was tainted by an involuntary confession which Marcy made on June 28. Second, Marcy claims that his sexual assault conviction must be reversed because the prosecution was unable to prove that the victim was alive when sexually penetrated. Third, Marcy argues that the sentencing judge was clearly mistaken in imposing one hundred forty-six and one-half years and restricting parole. Finally, Marcy asserts that the trial judge erred by summarily dismissing his application for post-conviction relief when it was apparent that the attorney representing Marcy on the application was ineffective. We affirm. I. FACTS Fifty-nine-year-old S.K. was stabbed to death in the yard behind her trailer-home on June 12, 1988. She had been stabbed twenty-six times in her head, neck, and torso. She had ten additional knife wounds on her arms and hands that appeared to be inflicted while she attempted to defend herself. There was other physical evidence of a struggle. Dr. Michael T. Propst, the doctor who performed the autopsy, concluded that S.K. had been sexually penetrated. Dr. Propst testified that S.K. could have lived as long as five minutes after receiving the stab wounds. Trooper James M. McCann investigated the murder and concluded that the murderer had entered the trailer through a front window. The person who entered stepped on a stereo cabinet, on which McCann observed a footprint. After McCann photographed and measured the impression, he determined that the imprint on the stereo was made by an eleven-inch (size nine) Reebok tennis shoe. The troopers discovered that on June 11, 1988, the night before the murder, Marcy went driving with Frank Heffle and Hef-fle's girlfriend, Daphne Evans. The three rode in Marcy's truck and were together until four or five the next morning, when Marcy left Heffle and Evans at Evans's residence. Marcy wore white Reebok sneakers while he was with Evans and Heffle. Heffle stated that Marcy always kept a six- or seven-inch folding knife with an inoperable lock in the truck. Heffle saw the knife for the last time shortly before the murder. A few hours after Marcy left Heffle and Evans at home, Marcy telephoned the Evans residence. Evans answered the phone around 9:00 a.m. Marcy sounded excited. Evans gave the phone to Heffle and Marcy told Heffle he had just killed somebody. During his one to one and one-half hour conversation with Heffle, Marcy described the murder in detail. He repeated that he had killed a lady because she had "pissed him off." He described the woman he had stabbed as in her sixties. He stated that he had stabbed her several times in the neck and chest and that one stab had caused profuse bleeding. He told Heffle he was covered in blood. He stated that he had left the victim on the back lawn outside the back door and that he had to hurry to leave S.K.'s residence because he knew that the victim's daughter planned to pick her up for church that morning. Marcy told Heffle that when he parked his truck by S.K.'s trailer "he kind of had a[n] idea of what he was going to do" and consequently he put on gloves and parked his truck away from the residence. According to Heffle, Marcy claimed that he had found S.K. while she was hitchhiking in her bathrobe. He claimed that she led him to believe that they would have sex; however, S.K. refused to have sex with Marcy when they arrived at her residence and Marcy told Heffle that he "went off" and killed her. Marcy told Heffle that he had disposed of the knife. He stated that he was naked because he was washing the clothes he had worn during the murder. He told Heffle that he had cut himself during the murder because the knife had closed and his fingernail was "sliced pretty good." Marcy asked Heffle not to tell anyone about the murder. Heffle immediately told Evans about the conversation. Specifically, Heffle told Evans that Marcy claimed to have stabbed a woman about twenty-five times in the neck and the chest and that blood had spouted out of her body. Heffle thought that Marcy might have lied about the murder. However, Heffle began to believe Marcy after a story about the murder appeared in the paper the next day. As they were riding in Marcy's truck, Heffle read the story. Marcy looked over at Heffle and said, "See, I told you." Hef-fle recognized the last name of the victim as that of Marcy's best friend. Marcy admitted to Heffle that the victim was his best friend's mother. On June 18, Marcy and Heffle were riding in Marcy's truck when Marcy was arrested for driving under the influence. According to Heffle, Marcy was wearing his white Reebok shoes. The arresting officer photographed and measured the shoes. The sneakers were eleven-inches long. After he left jail, Marcy told Heffle that he was worried because the police had examined his tennis shoes. Heffle told Marcy to throw them away. Marcy put his shoes in a sack, put the sack into the back of his truck, and later disposed of the shoes. On June 21, McCann interviewed Marcy, who admitted that he knew S.K., but he claimed that he had not seen her for at least two and one-half years. McCann interviewed Marcy again on June 28. Marcy admitted that he had been in S.K.'s trailer to commit a burglary, but he denied sexually assaulting or murdering S.K. Subsequently, on June 29, 1988, Marcy was arrested for the current offenses. When he was arrested, Marcy had a cut in the tip of his left index finger. He also had scratches on the front and rear of his right arm and on his left wrist. Marcy claimed that another person went into S.K.'s residence with him, implying that this other person might have murdered and assaulted S.K. The day after his arrest Marcy sent a message from the jail indicating that he wanted to speak with McCann. McCann responded and Marcy gave a tape recorded interview. During the interview, Marcy admitted killing S.K. According to McCann, Marcy was scared, upset, and ashamed. Marcy told McCann he remembered parking outside S.K.'s residence and going through the window into the living room of the trailer. He did not remember whether his knife was in his pocket or open. At the time he saw the victim in the first bedroom to the left, the blade of Marcy's knife was open. S.K. woke and saw Marcy as he was closing the door. Marcy told McCann that S.K. jumped out of bed, said something, and opened the door again. He stabbed her in the stomach and walked backward to the back door. S.K. followed saying, "Kris" and asking, "Why?" Marcy said that he opened the back door of the trailer while S.K. continued to say, "Kris." Marcy started out the back door. S.K. tried to grab Marcy. Marcy stated, "Then I lose it, I don't know what I'm. doing. I see red in my eyes. Like it's totally red. That's all I see." When his "eyes cleared" Marcy could see S.K. "laying there." Marcy recalled standing above S.K. and seeing blood "everywhere." He then ran to his truck. Marcy claimed he did not know whether he had sex with S.K. He claimed that if he did, it happened outside. Later, however, Marcy said he knew he had been sexual with the victim, because his "mother said there was body fluids." He eventually remarked, "It had to have been outside cause I don't remember doing it inside." Marcy added that he did not know whether she was alive or dead when he had sex with her. Marcy claimed a general loss of memory. He stated that he only remembered the stab to the stomach and that he was wearing his Reebok tennis shoes. He did not remember what he did with the knife or the clothing he had been wearing. Chris W. Beheim, a criminalist and footwear expert, testified that the shoe print on the stereo cabinet in S.K.'s trailer and the cast taken of the shoe print in the driveway were similar to enlargements of the police pictures of Marcy's Reebok shoes. James Wolf, another criminalist, testified that the driver's side door and back wall of the cab in Marey's truck reacted positively to presumptive tests for blood. FBI agent Audrey G. Lynch testified that semen was present on the swabs taken from S.K.. Lynch claimed that the semen most likely came from a non-secretor. Non-secretors comprise about twenty percent of the population. Marcy was determined to be a non-secretor. Lynch also reported that human blood was found on a pair of jeans and a sock which were found in Marcy's truck. FBI agent Allyson Si-mons testified that hair found in S.K.'s right hand, on S.K.'s clothing, and on S.K.'s quilt matched hairs taken from Marcy. The jury convicted Marcy of first-degree murder, first-degree sexual assault, and first-degree burglary. II. ADMISSIONS AND CONFESSIONS Marcy made two confessions to police officers investigating the case. The first was made on June 28, 1988; the second on June 30, 1988. In his testimony, McCann referred to the June 28 confession in which Marcy admitted being in S.K.'s residence but denied the murder or sexual assault. The June 30, 1988, confession was played to the jury. Marcy claims that the first confession was involuntary and that it tainted the second confession. Consequently, he argues that both confessions should have been suppressed. Marcy cites several reasons why his June 28 confession was involuntary. First, he claims that McCann admitted at trial that he had lied to Marcy to prompt him to confess. Specifically, he asserts that McCann lied to him about finding Marcy's fingerprints on S.K., observing Marcy's truck at S.K.'s residence, and using special lasers at the crime scene. McCann testified that he lied when he told Marcy that police officers had seen his truck at S.K.'s residence. McCann also testified that he created an illusion that the police had found Marcy's fingerprints, when in fact there were no identifiable prints but merely blood smears. McCann never claimed that the police had used special lasers — he merely claimed that the police officers would use special lasers when investigating the crime. Marcy never asked the trial court to suppress either confession, although he claims that he urged his counsel to request suppression. According to case law, an admissible confession needs the following: [It] must be free and voluntary; that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897) (quoted in Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980) and Sprague v. State, 590 P.2d 410, 413 n. 6 (Alaska 1979)). The circumstances which the court should consider when determining the voluntariness of a confession are: [T]he age, mentality and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Sovalik, 612 P.2d at 1006 and Sprague, 590 P.2d at 414 (quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.1966)). In Sovalik, the Alaska Supreme Court held that Sovalik's confession was voluntary even though the authorities had lied when they told him that his fingerprint had been found on a bottle at the crime scene. 612 P.2d at 1007. The court reasoned that "this artifice was not coercive and [was] not one which would have a tendency to produce an untruthful confession." Id. Furthermore, the court stated that trickery in obtaining a confession is only one factor in determining whether the confession was voluntary. Id. at n. 4. The court noted trickery alone does not render a confession inadmissible and most authorities hold that confessions which result from trickery are admissible so long as the tricks would not tend to produce an untruthful confession. Id. at n. 4 (citing Annot. 99 A.L.R.2d 772, 783 (1965)). In the present case, Marcy's failure to object below to the admission of his statements on the grounds of voluntariness deprived the superior court of the opportunity to conduct an evidentiary hearing to determine the totality of the circumstances surrounding the making of the challenged statements. It is impossible to predict what additional evidence the state may have presented on the voluntariness issue had it been raised. Moreover, there is no way of determining whether Marcy's trial counsel deliberately elected not to challenge the admissibility of the statements. Marcy's claim that he had blacked out and remembered nothing about the stabbing enabled him to argue that he did not intentionally kill his victim and was at most guilty of second-degree murder. Because this claim was set forth in the disputed statements, trial counsel may have decided to forego claiming that the statements were involuntary. Under the circumstances, there is a strong argument that Marcy's failure to raise the voluntariness issue in a timely manner amounts to a forfeiture and precludes further consideration of the issue except in a post conviction relief proceeding, upon a showing of cause and prejudice. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Mor-eau v. State, 588 P.2d 275, 280 (Alaska 1978). In any event, Marcy is at most entitled to review for plain error at this stage. On the current record, we hold that the trial court did not commit plain error by failing to suppress the challenged statements sua sponte. III. SEXUAL ASSAULT CONVICTION The sexual assault offense was charged and presented in the alternative: the jury was told that it could convict Marcy if he sexually penetrated S.K. without her consent, or if he caused serious injury by attempting to sexually penetrate S.K. The jury answered an interrogatory indi- eating that they unanimously agreed that Marcy had penetrated S.K. without her consent. The jury did not answer the next interrogatory which asked whether Marcy had only attempted to penetrate S.K. Marcy argues that a conviction under AS 11.41.410(a)(1) requires proof that the defendant sexually penetrated a live victim. He claims that if the evidence does not establish that the victim was alive, the crime is not rape, but rather the misdemeanor offense of misconduct involving a corpse. Marcy argues that the evidence was insufficient to find that S.K. was alive when penetrated. When reviewing whether sufficient evidence was offered to sustain a conviction this court "will consider only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them." Dor-man v. State, 622 P.2d.448, 453 (Alaska 1981) (quoting Martin v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969)). Regardless of whether this statute requires a live victim, a question we do not decide, the state presented sufficient evidence to allow the jurors to conclude that S.K. was alive at the moment of penetration. Dr. Propst testified that S.K. could have lived as long as five minutes. Marcy told Heffle that he "lost it" and killed S.K. because she refused to have sex with him. The jury could reasonably infer that if Marcy's primary goal was to have sex with S.K., he would not wait long to penetrate her after rendering her defenseless. In addition, Marcy told Heffle that his clothing was "soaked" with blood. Since the blood was not dry when Marcy reached his home, it is reasonable to infer that the stabbings, the penetration, and Marcy's drive home took place within a relatively short period of time. Furthermore, there was other physical evidence concerning the position of the victim's legs and the onset of rigor mortis from which the jury could have reasonably inferred that Marcy sexually penetrated S.K. before she died. See State v. Holt, 128 Wis.2d 110, 382 N.W.2d 679, 685 (App.1985) (under circumstances similar to those in the current case the court held that in a rape-murder case where the exact sequence of events cannot be proved, the jury may reasonably infer . that the victim was alive during the sexual assault). IY. INEFFECTIVE ASSISTANCE OF COUNSEL Marcy argues that Judge Hodges erred by summarily denying his application for post-conviction relief, based on an ineffective assistance of counsel claim, because it was apparent that Marcy's post-conviction attorney was also ineffective. Specifically, Marcy contends that his attorney was obviously ineffective because he failed to respond to the state's motion to dismiss and the court's notice of intent to dismiss. The court ultimately dismissed the case because Marcy, by failing to respond, did not establish a prima facie case of ineffective assistance of counsel. The trial court did not abuse its discretion by dismissing the application. Marcy's counsel's failure to respond to the state's opposition and the court's notice, by itself, does not establish that he was ineffective. It is possible that counsel chose not to respond because Marcy could not make out a prima facie case of ineffective assistance. Furthermore, even if the dismissal of his post-conviction application was due to attorney incompetence, Marcy has failed to show that the dismissal has prejudiced him. He has not shown that the court would not consider the ineffectiveness claim in a second application. The trial court did not abuse its discretion by denying Marcy's application for post-conviction relief. V. SENTENCE CLAIM Marcy received consecutive sentences of ninety-nine years for his murder conviction, ten years for his burglary conviction, and thirty years for his sexual assault conviction. His probation was revoked on two earlier cases, and seven and one-half years were imposed. Judge Hodges thus sentenced Marcy to a total of one hundred forty-six and one-half years. He restricted Marcy's parole for ninety-seven years. Marcy claims that his sentence and parole restriction are clearly mistaken. He argues that a sentencing court may not impose consecutive sentences of more than ninety-nine years and restrict parole unless it has found that the defendant will pose a danger to society during his or her entire life. Finally, he asserts that Judge Hodges's finding that Marcy was not amenable to treatment was mistaken since he did not review a current psychological or psychiatric evaluation. A. The Offender Marcy was twenty-three years old when sentenced. He had an extensive criminal record. As a juvenile, he was charged with minor in possession, theft, and unlawful entry to commit theft. He was adjudicated delinquent on the unlawful entry charge. While on probation for the unlawful entry charge, he was charged with joyriding and a petition to revoke was filed alleging two probation violations because two of his urine samples tested positive for marijuana. The hearing on the petition to revoke was continued until the day before Marcy's eighteenth birthday. At the hearing on June 17, 1983, a probation officer testified that Marcy was not amenable to probation as an adult. In 1984, Marcy, as an adult, was convicted of first-degree burglary. He received a suspended sentence and probation. In June 1984, his probation was revoked because he unlawfully used his parents' checks. In October, only four months after this probation revocation, Marcy failed to appear in court on a reckless driving charge and was ordered to serve nine days. In December 1984, Marcy was convicted of shoplifting and failure to appear on a traffic charge. In February 1985, Marcy was convicted of failure to show an operator's license, failure to stop, minor in possession and consuming alcohol, minor on premises, failure to pay a fine, failure to appear at arraignment, and failure to appear on the minor in possession charge. One month later, in March 1985, Marcy's suspended sentence on the first-degree burglary charge was revoked, and Marcy was sentenced to five years with four and one-half years suspended. While serving this six-month sentence, Marcy was charged with and convicted of third-degree assault and first-degree weapons misconduct. Consequently, Marcy was sentenced to three years on the assault charge, and three years suspended on the weapons misconduct charge. Marcy was released from incarceration on May 9, 1988, and a little more than one month later, on June 12, he committed the current offenses. On June 18, 1988, Marcy was arrested for driving under the influence (DUI). He was convicted of DUI in December 1988. Judge Hodges reviewed Marcy's criminal record and remarked: [The] [c]ourt must take into account the probability of successful rehabilitation of Mr. Marcy into a non-criminal and non-offending member of society. Mr. Marcy's past record indicates that his lack of — that he has a total lack of rehabilitative potential. He first became involved in the criminal justice system as a juvenile; had a record as a juvenile. Shortly after release from juvenile probation, juvenile authorities, was involved in a felony burglary. Not long after, and while on probation, with respect to the burglary offense, became involved with an assault as well as a misconduct involving weapons in the first degree.... Upon completion of that sentence, within weeks of his release from custody and on probation, he committed this offense. Mr. Marcy has served a relatively substantial period of time in custody. He's been involved in two separate cases — two separate occasions with the criminal justice system for felonies. He's had probation revocations; in addition, he has a substantial misdemeanor record. This indicates he's an habitual criminal, • a worst offender in light of his prior record alone. With respect to this offense, as the court has determined, it's the worst with respect to these type[s] of offenses. There's an absolute necessity to isolate Mr. Marcy from society so that he will conform his conduct to acceptable standards. His past record shows that he's not amenable to treatment. With[in] relatively short periods of time of his release from probation/parole/incarceration or while on probation, he engages in criminal conduct. In addition to the substantial crimes which he committed in this offense — in this case, while on probation, he was involved with operating a motor vehicle while under the influence. None of which speaks well for his rehabilitative potential. As the court mentioned, it's necessary to isolate him so it will conform his conduct. Mr. Marcy is a dangerous person. There's no sentence other than incarceration which will deter Mr. Marcy from criminal conduct. It's been proven in the past, and he's demonstrated to this court as well as to society as a whole, that unless he's incarcerated he will continue to commit criminal offenses . In this case the court places emphasis on reaffirming societal norm— norms, deterring others and isolating Mr. Marcy. As the court mentioned, it's hard to imagine [a] more serious burglary, [a] more serious sexual assault. There certainly may be, but when you reach a certain level, whether they're more serious, more aggravated or not, is of no consequence to the maximum penalty that should be imposed. As the court indicated, Mr. Marcy is the worst offender within the class sexual assault in the first degree, burglary in the first degree. He can be characterized as a worst offender in light of his prior record, in light of the time that he's spent incarcerated. It's his third felony conviction for purpose of [a] presumptive sentence. His current attitude and progress, in terms of rehabilitation, is non-existent: Anyone who is released from custody and within weeks of the time, commits this type of offense is not amenable to treatment. This offense is serious, among the most serious as the court has found. Mr. Marcy's a dangerous offender. This court feels, under those circumstances and for the reasons set forth, that a maximum sentence should be imposed to insure that Mr. Marcy remains behind bars_ [The] [c]ourt feels that it's absolutely necessary to incarcerate Mr. Marcy so that he is not released from custody, to insure the safety of the public, so that Mr. Marcy will not commit any other offenses. B. The Offense Judge Hodges found several aggrava-tors. Under AS 12.55.155(c)(1), (4), and (10), he found that the sexual assault and burglary charges were aggravated by three factors: 1) someone other than an accomplice sustained injury; 2) Marcy employed a dangerous instrument; and 3) the offenses were among the most serious in their class. The convictions in general were aggravated because according to AS 12.55.155(c)(5), (2), (15) and (20): 1) The victim was particularly vulnerable; 2) Marcy evinced deliberate cruelty; 3) The defendant had been convicted of three of more prior felonies; 4) The defendant was on probation or parole at the time the current offenses were committed. The burglary conviction was aggravated because the defendant had committed offenses similar to the burglary charge. AS 12.55.155(c)(21). Marcy has not claimed that the court erred by finding these ag-gravators. C. Discussion 1. Consecutive Sentences and Parole Restriction Marcy asserts that a sentence which exceeds ninety-nine years can only be justified if the court finds it necessary to imprison the defendant for life. Marcy claims that the record did not show that he would be a danger to society after serving ninety-nine years. Consequently, he argues that imposing consecutive sentences and a parole restriction was improper. Marcy's claim that consecutive sentences were unjustified lacks merit. Marcy argues that Page v. State, 657 P.2d 850, 854 (Alaska App.1983), supports his position. Page received a ninety-nine year sentence on a second-degree murder charge and a consecutive twenty-year sentence on a first-degree robbery conviction. Id. at 855. This court held that the consecutive sentences were not justified since "nothing in the record supports a finding that Page will continue to be a danger after the expiration of ninety-nine years." Id. We held consecutive sentences were not warranted even though the record showed that Page lacked any remorse for the brutal murder which involved multiple stab wounds. Id. at 854-55. Furthermore, Page had an extensive criminal record. He had failed to benefit from past probationary supervision, and had failed to address his drug problems in a court-assigned drug rehabilitation unit. Id. We noted, however, that Page's past crimes did not involve injury to persons. Id. See also Ridgely v. State, 739 P.2d 1299, 1303 (Alaska App.1987) (court improperly imposed burglary and theft sentences consecutive to murder sentence since the offenders were youthful and had not previously committed violent crimes). Page, however, is distinguishable from Marcy. Page was convicted of second-degree murder and Page's previous offenses did not involve injury to people. Conversely, Marcy had previously been convicted of assault and weapons misconduct. In addition, the nature of Page's crimes differ from Marcy's crimes, indicating that Marcy poses more of a threat to society. Page's testimony suggested that he killed his victim m response to provocation. Marcy, however, stalked his best-friend's mother. He planned to commit his crime when he knew the victim would be alone and most vulnerable. S.K. pleaded with Marcy and attempted to escape, but Marcy continued his brutal assault. In Nukapigak v. State, 663 P.2d 943, 946 (Alaska 1983), the court affirmed three consecutive ninety-nine year sentences for the first-degree murder of three victims. The court noted that consecutive sentences had generally been approved where the offender harmed more than one victim. Id. at 945. The court upheld the consecutive sentences noting the heinous nature of the crimes and a record devoid of any hope for rehabilitation. Id. at 946. Furthermore, Nukapigak had prior convictions for assaulting his wife and for raping and assaulting another woman. Id. In Krukoff v. State, 702 P.2d 664 (Alaska App.1985), this court upheld two consecutive sentences of ninety-nine years for two counts of first-degree murder. We recognized that Krukoff's criminal record involved several felony and misdemeanor assaults. Id. at 666. In addition, Krukoff failed to benefit from five years of incarceration and participation in an alcohol treatment program. Id. Although Nukapigak murdered three people, and Krukoff murdered two victims, the supreme court and this court did not state that consecutive sentences were permissible only because the defendants had killed more than one person. Rather, consecutive sentences were imposed because "there was no way of assuming that society would ever be safe if [the defendants] were released from prison." Nukapigak, 663 P.2d at 945-46; Krukoff, 702 P.2d at 666. See Weitz v. State, 794 P.2d 952, 958 (Alaska App.1990) (consecutive sentences exceeding ninety-nine years may be imposed even though defendant did not murder multiple victims). The sentencing judge could have properly concluded that Marcy, like Nukapigak and Krukoff, is a defendant from whom society may never be safe if released from custody. Marcy committed these heinous offenses within a few weeks of being paroled. When not incarcerated, Marcy repeatedly committed crimes, and violated probation and parole conditions. His offenses continually increased in severity. At sentencing, he denied the murder and sexual assault. Given the nature of Marcy's current offenses, and his abysmal failure to conform his conduct to societal norms, for even a short period of time, Judge Hodges' imposition of consecutive sentences was not clearly mistaken. Similarly, the parole restriction was not clearly mistaken. As noted, the court could properly assume that Marcy would remain a danger to society throughout his life. See Weitz v. State, 794 P.2d 952, 953 (Alaska App.1990) (sentence of one hundred sixty-nine years with no eligibility for parole not clearly mistaken for defendant convicted of first-degree murder, first-degree robbery, third-degree assault, first-degree weapons misconduct, and two counts of attempted first-degree murder); Newell v. State, 771 P.2d 873, 876-77 (Alaska App.1989). 2. Absence of Psychological Report Marcy argues that Judge Hodges should not have restricted his parole without relying on a psychiatric or psychological report. Generally, the trial court should not enhance a sentence based upon a finding that the defendant demonstrated an antisocial nature or dangerous propensities without the aid of a psychiatric or psychological evaluation of the defendant. Pruett v. State, 742 P.2d 257, 260 n. 3 (Alaska App.1987); Salud, v. State, 630 P.2d 1008, 1013-14 (Alaska App.1981). See also Tommy v. State, 551 P.2d 179, 180 (Alaska 1976) (court should not have sentenced a twenty-three-year-old without the aid of a current psychiatric report, when a four-year-old presentence report indicated that the defendant needed psychiatric help). However, when the record does not reflect a defense request for such an evaluation prior to sentencing, and the defendant fails on appeal to indicate how such an evaluation could have benefitted him at sentencing, the trial court's sentence is properly imposed without the evaluation. Spencer v. State, 642 P.2d 1371, 1376 (Alaska App. 1982). See also Brown v. State, 578 P.2d 982, 984 (Alaska 1978) (court could impose sentence without recent psychological report since defendant failed to show that a recent report would differ from a report made three years before the commission of the current offense). [W]hile this court has recognized the importance of psychological and psychiatric data as an aid in arriving at sentences which further the goals of penal administration, we have also held that such evaluations are not indispensable or necessary in every case, and that the absence of a psychiatric evaluation does not necessarily require us to set aside a sentence. Walton v. State, 568 P.2d 981, 984 (Alaska 1977) (citing Adams v. State, 521 P.2d 516, 518-19 (Alaska 1974)). Thus, when a sentence is justified by a defendant's criminal record and personal background, it is not mistaken, even if it is made without the benefit of a psychological examination. Horton v. State, 570 P.2d 482, 483 (Alaska 1977). This is particularly true when the defense has not suggested that the defendant suffers from a "treatable mental illness or that such a mental illness influenced his criminal activity." Spencer, 642 P.2d at 1377 n. 5. In the current case, an unidentified speaker noted that the court was imposing the sentence without a psychological or psychiatric report. The defense, however, never objected to the court's imposition of a sentence without such a report. Furthermore, Marcy has not indicated how a report could have benefitted him at sentencing. He has never suggested that he suffers from a treatable disease which caused him to commit the crime. In fact, Marcy denied committing these offenses at sentencing. Consequently, the court was not mistaken in imposing the sentence, including the parole restriction, by relying on Marcy's criminal record and personal background. VI. CONCLUSION The court did not err by admitting Marcy's June 30 confession into evidence. The evidence was sufficient to find that S.K. was alive when penetrated. The court did not abuse its discretion by dismissing Marcy's application for post-conviction relief. The sentence and parole restriction are not mistaken. We AFFIRM. . The two cases for which Marcy was on probation involved a conviction for burglary, case 4FA-S83-4261, and a conviction for third-degree assault, case 4FA-S85-1061. . Marcy also claims that McCann lied to his mother, Kay Marcy. According to Ms. Marcy, McCann told her that they had found Marcy's fingerprints and body fluids at the scene, and some of S.K.'s belongings in Marcy's possession. At trial, McCann denied telling Marcy's mother that he had found items in Marcy's possession which had been taken from the victim's residence. In any event, Marcy does not explain how McCann's lies to his mother caused him to confess. He merely states that his mother visited him on June 29, 1988, and shortly after the visit he confessed to the murder. Given this record, McCann's alleged lies to Marcy's mother can not be deemed to have rendered Marcy's June 30 confession invalid. . The questions and answers regarding the fingerprints went as follows: Q [McCann]: Something happened. Something happened ah, Kris. A [Marcy]: Why. Q: We got your bloody prints on her leg, okay. Now I don't know what happened between you, she came at you, I don't know what the deal is . A: My bloody prints, no, no. Q: (Inaudible) that's right buddy. A: No, no. Q: That's right buddy. A: No, no. Q: That's right. A: No, no. Q: That's right. A: No, uh'uh, uh'uh, no way, here take blood right now. Q: No. A: Go ahead take blood right now. That's not my blood, no, no. Q: I didn't say your blood, we'll find that from the semen. .The representation regarding the special lasers went as follows: Q [McCann]: Well, I, I'd just kind of like to know some confirmation of kind of ah, whether we're gonna be finding your stuff on the, you know . A [Marcy]: No. Q: . we search everything with magnifying glasses and everything . A: Yeah, well, (inaudible) probably do, you know. Q: . special lasers. Yeah. A: You know, I got some idea what you guys do, what you guys got to do with, you know. . At the time of these offenses, AS 11.41.-410(a)(1) and (2) stated that: A person commits the crime of sexual assault in the first degree if, (1) being any age, the defendant engages in sexual penetration with another person without consent of that person; (2) being any age, the defendant attempts to engage in sexual penetration with another person without consent of that person and causes serious physical injury to that person. . . We note that the defendant has the right not to submit to a psychological or psychiatric exam. R.H. v. State, 777 P.2d 204 (Alaska App. 1989). There is nothing in this case to suggest that the absence of a psychological exam was anything other than an affirmative tactical decision on defense counsel's part.

10382654

MUNICIPALITY OF ANCHORAGE, Appellant and Cross-Appellee, v. ANCHORAGE DAILY NEWS, Appellee and Cross-Appellant

Municipality of Anchorage v. Anchorage Daily News

1990-05-04

Nos. S-2647, S-3076, S-3033

584

595

794 P.2d 584

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

MUNICIPALITY OF ANCHORAGE, Appellant and Cross-Appellee, v. ANCHORAGE DAILY NEWS, Appellee and Cross-Appellant.

MUNICIPALITY OF ANCHORAGE, Appellant and Cross-Appellee, v. ANCHORAGE DAILY NEWS, Appellee and Cross-Appellant. Nos. S-2647, S-3076, S-3033. Supreme Court of Alaska. May 4, 1990. Rehearing Denied June 5, 1990. Richard D. Kibby, Mun. Atty., Kevin Fin-nigan, Asst. Mun. Atty., Anchorage, for appellant and cross-appellee. D. John McKay, Middleton, Timme & McKay, Anchorage, for appellee and cross-appellant. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

6485

40786

OPINION RABINOWITZ, Justice. I. INTRODUCTION. These consolidated appeals involve various disputes relating to the Anchorage Daily News' requests for certain municipality documents. Case No. S-2647 arose out of the municipality's refusal to provide the Daily News with an employee performance report issued by the Anchorage Library Advisory Board. The superior court ordered that the Library Board release this report pursuant to a pre-existing injunction obtained by the Daily News in an earlier ease involving the same parties. The report was released, and a story published without the municipality requesting a stay of the superior court's order. Case No. S-3033 arose out of the municipality's refusal to release a "Blue Ribbon Panel" fiscal report to the Daily News. The superior court similarly ordered that this document be released to the Daily News, with which order the Municipality also has complied. Finally, Case No. S-3076 also arose out of the parties' dispute over the Blue Ribbon Panel report. The municipality requested, and the superior court ordered, that the municipality be permitted to depose certain Daily News staff as to whether the public's interest in being apprised of the Blue Ribbon fiscal report was greater than the May- or's interest in keeping it confidential. Thus, the municipality appeals the two release orders, and the Daily News appeals the superior court's deposition order. II. FACTS AND PROCEEDINGS. In 1984, prior to the events directly relevant to these appeals, Anchorage Assemblyman Don Smith pled nolo contendere to a traffic violation. The Daily News sought the release of a tape-recording of a conversation which took place between a police officer and Smith at the time of the incident. The request was denied by the Police Department, the Prosecutor's Office, and the Mayor's Office. The Daily News then filed a complaint in superior court seeking release of the tape and other in-junctive and declaratory relief. The tape was released and, after a hearing on the Daily News' requests for permanent in-junctive and declaratory relief, summary judgment was entered in favor of the Daily News on terms stipulated by the parties. The final judgment, including the judgment's provisions for injunctive relief relevant to the two document release appeals now before this court, reads in relevant part as follows: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. As required by A.S. 09.25.110 et. seq., and AMC 3.90, all documents, files and records, including drafts, in the possession of the Municipality of Anchorage or its agencies, shall be available for public inspection, subject only to narrowly construed exceptions based on need, set forth in legally valid and controlling provisions of federal, state, or municipal law. 2. Municipal employees and agents shall permit public access to municipal records under reasonable rules during regular office hours, unless nondisclosure is specifically authorized by law. The obligation of the Municipality to provide public access to municipal records is not satisfied by providing the documents requested to a third party, including a public official, for release. Additionally, the Municipality may not delay or otherwise manipulate the release of public records, the disclosure of which is required under A.S. 09.25.110 et. seq., or AMC 3.90.110 et. seq., for political or other extralegal purposes of the Municipal administration, public officials, or third parties. 3. Municipal defendants wrongfully withheld and delayed release of the tape-recorded conversation of Anchorage Assembly member Don Smith at issue in this case, after access to that tape recording was requested by the Anchorage Daily News in [sic] January 18, 1985. IT IS FURTHER ORDERED THAT: 1. The Municipality of Anchorage shall distribute to all municipal employees a copy of standard instructions regarding access to municipal records, in the form stipulated to by the parties on or about April 3, 1985. Distribution of that memorandum shall be accomplished within two weeks following entry of Final Judgment. The municipality did not appeal from this judgment. The components of this injunction were the basis for the superior court's rulings now before us in these consolidated appeals. A.S-26I/.7: The Revelle Case — Facts and Proceedings. In November of 1987 the Anchorage Library Advisory Board ("Board" or "Library Board") met to discuss the performance of Head Librarian Keith Revelle. Pursuant to municipal ordinance, this Board has the power to: Make recommendations to the administration and Assembly for the adoption, change, repeal or alteration of the rules, regulations, restrictions on library services, and all other matters directly or indirectly affecting the municipal library program. AMC 4.60.040(B). After its meeting, the Library Board prepared and forwarded a confidential evaluation of Revelle's performance to Mayor Fink. The Board and Mayor Fink refused to release this report to the Daily News, and the Daily News subsequently filed suit in superior court. The superior court ordered that the report be released. The document was released, and a story based on it published without the municipality's requesting a stay. The municipality appeals the superior court's order compelling release of the Library Board report on the grounds that: (1) the 1985 injunction did not require that the report be released; (2) Revelle should have been given notice and an opportunity to be heard or joined as a party before the document was released; (3) the report was confidential, subject only to release to the Mayor; and (4) the release was not properly predicated on the 1985 injunction. B. S-3033: The Blue Ribbon Panel Report Case — Facts and Proceedings. Case No. S-3033 arose out of the municipality's refusal to release to the Daily News a report issued by the mayor's Blue Ribbon Fiscal Policy Committee. This committee was comprised of local citizens appointed by Mayor Fink for the purpose of preparing a report on Anchorage's economic condition. After a hearing, the superior court ordered the release of the committee's report. The municipality unsuccessfully moved for a stay, and ultimately failed to comply with the order. The superior court held the municipality in contempt, and the report was released. The municipality appeals this order of the superior court on the grounds that (1) the mayor's executive privilege barred disclosure of the report, and (2) the Blue Ribbon Panel was an executive body, not an agency, so its work product is not subject to state or municipal public disclosure laws. C. S-3076: The Deposition Case— Facts and Proceedings. In Case No. S-3076 the Daily News appeals a superior court order denying its motion to quash depositions of certain Daily News employees. The municipality sought these depositions in response to the Daily News' complaint seeking release of the Blue Ribbon Panel Fiscal Report. The depositions ordered have since taken place. The Daily News argues that depositions of persons requesting public records should not be allowed or, in the alternative, that the government's power to compel such depositions should be strictly circumscribed to protect the rights of press and public to access to public documents. III. DISCUSSION. A. Mootness. The disputes which prompted these lawsuits are technically moot. The Revelle evaluation and Blue Ribbon Panel report have already been released; Daily News personnel requesting the Blue Ribbon Panel report have already been deposed. In each case the losing party has submitted to an order by the superior court, the effects of which cannot be undone. Thus, none of the consolidated appeals presents a live controversy. As a general rule, we "refrain from deciding questions 'where the facts have rendered the legal issues moot.' " Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (quoting Doe v. State, 487 P.2d 47, 53 (Alaska 1971)). However, we have held that mootness doctrine is a product of judicial policy, not constitutional mandate, and have recognized on numerous occasions that certain technically moot questions merit review under the "public interest" exception to the mootness doctrine. This court recently reiterated the criteria to be considered in determining whether to review a moot question: The public interest exception involves the consideration of three main factors: 1) whether the disputed issues are capable of repetition, 2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issue and, 3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine. Hayes, 693 P.2d at 834 (citations omitted). We conclude that the questions presented in these appeals come within the public interest exception. First, the issues are capable of repetition so long as newspapers and other members of the public continue to make requests for documents from the municipality. Indeed, a history of ongoing document request disputes between the municipality and the Daily News is reflected in the record before us. Second, it is possible for document request cases repeatedly to evade review by application of the mootness doctrine, since time is of the essence in release cases and orders by the superior court will normally be enforced prior to review by this court. Finally, the questions presented are of considerable public importance. Therefore, we decline to apply the mootness doctrine to any of the issues in these consolidated appeals. B. The 1985 Injunction. As a preliminary matter, we must decide whether the superior court's 1985 permanent injunction has continuing validity against the municipality. We conclude that the superior court erred in applying the terms of the 1985 injunction to the present disputes between the Daily News and the municipality. As noted at the outset, the 1985 injunction was issued in the context of a Daily News request for access to police recordings, circumstances wholly unrelated to those at issue in the instant appeals. Yet injunctions must be specific in their terms, and must describe in reasonable detail the conduct enjoined. See Civil Rule 65(d). Therefore, the 1985 injunction could have continuing force, if at all, only in circumstances similar to those for which it was drafted (i.e., to compel disclosure of police recordings) and the superior court erred in holding it applicable here. If the Daily News now desires permanent injunctive relief, it should seek issuance of a permanent injunction addressed to the specific problems of which it now complains. Essentially, the 1985 injunction commands the municipality, in language of a rather broad scope, to adhere to its pre-ex-isting duties under state law. Although we hold that the terms of the 1985 injunction are not enforceable against the municipality for purposes of these appeals, we must nonetheless examine the validity of the superior court's holdings under Alaska's public records law. C. The Revelle Memorandum. In this case the municipality seeks review of the superior court's order requiring the Anchorage Library Advisory Board to release to the Daily News a performance evaluation report pertaining to head librarian Keith Revelle. The superior court held that the Board was a public entity acting in an official capacity and that the report it produced was a public record, subject to the Alaska Public Records Act, AS 09.25.-110 and .120. We affirm that ruling. We agree with the superior court's conclusion that the Library Board is a municipal entity and as such is subject to the disclosure requirements of the Public Records Act, supra, and the Open Meetings Act, AS 44.62.310 et seq. Alaska's public records statutes apply to municipalities, and codify the common law right of the public to access to government records. AS 09.25.110 provides: Inspection and copies of public records. Unless specifically provided otherwise the books, records, papers, files, accounts, writings and transactions of all agencies and departments are public records and are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of costs a certified copy of the public record. (Emphases added.) AS 09.25.120 reads in relevant part: Inspection and copying of public records. Every person has a right to inspect a public writing or record in the state, -including public writings and records in recorders' offices except (1) records of vital statistics and adoption proceedings which shall be treated in the manner required by AS 18.50; (2) records pertaining to juveniles; (3) medical and related public health records; (4) records required to be kept confidential by a federal law or regulation or by state law. Every public officer having the custody of records not included in the exceptions shall permit the inspection, and give on demand and on payment of the legal fees therefor a certified copy of the writing or record . subject to reasonable rules and regulations.... Exceptions to these disclosure requirements are construed narrowly in furtherance of the legislature's expressed bias in favor of broad public access. Such exceptions include those embodied in federal and state law, and those adopted by "municipalities . [where] based on need." City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1323 (Alaska 1982). The municipality argues that state law creates an express exception exempting the work product of executive sessions held pursuant to the Open Meetings Act, AS 44.62.310 et seq., from the public records laws. We have held that a government agency subject to the Open Meetings Act may, under AS 44.62.310(c)(2), meet in executive session to discuss matters tending to prejudice a person's reputation or character. City of Kenai, 642 P.2d at 1326; Univ. of Alaska v. Geistauts, 666 P.2d 424, 429 (Alaska 1983). However, we have never held that this statute, which provides for closed executive sessions when subjects potentially prejudicial to reputation are discussed, establishes an exception to the pro-disclosure requirements of the Public Records Act or otherwise permits the suppression of documents produced at such sessions. In fact, we have implied the opposite. Our decision in City of Kenai indicates that the secrecy provisions of the Open Meetings Act have not been judicially incorporated into the Public Records Act. See 642 P.2d at 1323-25. There we were asked to decide whether the City of Kenai properly denied a newspaper reporter access to a meeting and records relating to city manager applications. Id. at 1317. We concluded that the meetings could be held in executive session under the "reputation" provision of the Open Meetings Act, but that the records discussed at the closed meeting, including personnel job applications, were subject to disclosure under the Public Records Act. Id. at 1322-26. In accordance with the principle that exceptions to the Public Records Act are to be construed narrowly, and in order to further the public's right to know what its government is doing, we reject the view that the secrecy provisions of the Open Meetings Act authorize the non-disclosure of documents otherwise subject to disclosure under the Public Records Act. Having held that no express exception to the Public Records Act is applicable, we next review the superior court's order under our public records law. In the absence of an express exception to the disclosure laws, a balance must be struck between the public interest in disclosure on the one hand, and the privacy and reputational interests of the affected individuals together with the government's interest in confidentiality, on the other. See City of Kenai, 642 P.2d at 1325. We have described this process of balancing as follows: In determining whether the records should be made available for inspection in any particular instance, the court must balance the interest of the citizen in knowing what the servants of government are doing and the citizen's proprie tary interest in public property, against the interests of the public in having the business of government carried on efficiently and without undue interference . In balancing the interests referred to above, the scale must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference. The citizen's predominant interest may be expressed in terms of the burden of proof which is applicable in this class of eases; the burden is cast upon the agency to explain why the records sought should not be furnished. Ultimately, of course, it is for the courts to decide whether the explanation is reasonable and to weigh the benefits according to the agency from non-disclosure against the harm which may result to the public if such records are not made available for inspection. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413, 421-22 (1961) (En Banc) (citations omitted) (quoted in City of Kenai, 642 P.2d at 1325). As head librarian, Keith Revelle was in charge of public library facilities, 120 public employees, and $7.2 million annually in public monies. These activities are clearly matters of legitimate public concern. See City of Kenai, 642 P.2d at 1324 (qualifications of applicants for municipal offices are matters of legitimate public concern). Balanced against the public's right to monitor Revelle's performance is Revelle's asserted privacy interest in preventing the information in the report from being publicly disclosed. However, public officials are properly subject to public scrutiny in the performance of their duties. Moreover, in the instant case the superior court expressly found that the performance evaluation did not in any way deal with the personal, intimate, or otherwise private life of Keith Revelle. This finding is not clearly erroneous. Under these circumstances the balance of competing interests falls on the side of the public's interest in free access to public documents. Thus, the superior court's decision compelling release of the report is affirmed. D. The Blue Ribbon Panel Report. The municipality argues that the superior court erred in requiring it to disclose a Fiscal Policy Committee report. The report was drafted by local citizens appointed by the mayor for the sole purpose of preparing an analysis of Anchorage's economic condition. The meetings of the panel were open to the public and press, as were materials presented at these meetings. The panel's final report was withheld from the Daily News, however. The municipality contends that (1) the Blue Ribbon Panel was exempt from public disclosure laws because the Blue Ribbon Panel was not a municipal agency; and (2) in the alternative, a municipal executive privilege authorizes non-disclosure of the report. We affirm. The superior court correctly held that the Blue Ribbon Panel report was a public document subject to disclosure. As we have already observed, under state law, records subject to public access include all "papers" and "writings" of "all agencies and departments," AS 09.25.110 and .120, "[ujnless specifically provided otherwise" by state or federal law. Exceptions are to be construed narrowly in deference to the right of citizens to know what their government is doing. See Doe, 721 P.2d at 622. We affirm the superior court's conclusion that the Blue Ribbon Fiscal Panel was a municipal agency subject to the public records disclosure laws. This committee, supported in whole or in part by public money, was created to report to the mayor and assembly on the financial status of the Anchorage area. The Committee served a governmental function and dealt with matters of public concern, and was a public agency or instrumentality for purposes of the Public Records Act. We find no specific exception to the policy of broad disclosure exempting the Panel's report from ordinary disclosure requirements. Therefore the City of Kenai balancing test, see 642 P.2d at 1325, ap plies. Contrasted with the public's fundamental right of access to governmental records such as these, the government's asserted interest in keeping the records confidential is de minimus at best. We conclude that the superior court did not err in ordering those records released. The municipality further contends that even if the Blue Ribbon Panel report is subject to the public records disclosure laws, executive privilege permits the mayor to withhold the report since the panel consisted of executive appointees. While we have recognized a doctrine of executive privilege, applicable to state executives, see Doe, 721 P.2d at 611-26, we have not heretofore considered the applicability of the doctrine at the municipal level. The doctrine of executive privilege recognizes that chief executives sometimes have a qualified power to keep confidential certain internal governmental communications "so as to protect the deliberative and mental processes of decisionmakers." Doe, 721 P.2d at 622-23 (footnote omitted). The doctrine is designed to ensure the availability to executive decision-makers of candid advice. Even assuming an executive privilege applicable to municipal executives exists, the policies underpinning the qualified executive privilege are not implicated at all on the record before us. This case involves documents of an essentially public nature, and does not concern the process of confidential internal decision-making. The uncontroverted evidence is that all of the committee meetings leading up to the report were open to the public, and that the Blue Ribbon Committee was to make a final report not only to the mayor, but also to the municipal assembly. The Fiscal Report was the product of a public process, and was intended for public dissemination. As the assembly is free to discuss and make public the content of the report, the mayor cannot argue that his deliberations and ability to obtain candid advice will be impaired by disclosure. Under these circumstances, any claim for executive privilege must be viewed with skepticism. We conclude that, even assuming the applicability of an executive privilege to municipal officers, such privilege would be unavailable on these facts, and thus the superior court's order compelling release of the Blue Ribbon Panel Report is affirmed. E. Depositions of Daily News Employees. The superior court issued an order permitting the municipality to depose certain Daily News employees, including a reporter, the publisher, and the editor, as a prerequisite to the government's release of the Blue Ribbon Fiscal Report. The municipality's discovery was purportedly for the purpose of determining whether, under our decision in Doe, 721 P.2d at 617, the municipality's interest in the confidentiality of the Report outweighed the public's interest in access to the document. By contrast, the Daily News suggests the depositions were noticed for purposes of delay or harassment. The municipality's reliance upon Doe is misplaced. When the government seeks to deny access to a particular public document, it is the government who bears the initial burden of presenting evidence justifying denial. See Doe, 721 P.2d at 626 (entity claiming privilege has initial burden of presenting prima facie defense to release). As the party requesting re lease will not normally possess evidence that a document is not protected by executive privilege, depositions of those seeking release will generally be of no use to the government in satisfying this burden. Only if this initial burden has been satisfied is the government entitled to depose those whose factual knowledge the party seeking release will rely on in making a case for disclosure. In short, a governmental agency is not entitled to delay access through the use of depositions where it has presented no prima facie defense to release. In the case at bar, the superior court did not require the municipality to make a prima facie case for its defense to the document release request, and we hold that it erred in refusing to quash or stay the depositions. The government made no initial showing at all as to why the document sought should not be subject to release. The Daily News timely moved in the superior court for an order quashing the disputed depositions pursuant to Civil Rules 26 and 30. The superior court denied the motion. We hold that the superior court abused its discretion in this respect. Since the government failed to meet its burden of establishing a prima facie case, any evidence discovered in the deposition proceedings would be inadmissable. The depositions at issue here thus failed to satisfy the most fundamental requirement for discovery, since they were not "reasonably calculated to lead to the discovery of admissible evidence." Civil Rule 26(b)(1). A protective order should have been granted the Daily News pursuant to Civil Rule 26(c). (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (i) In General. Parties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought appears reasonably calculated to lead to the discovery of admissible evidence. IV. CONCLUSION. The superior court's orders compelling release of Keith Revelle's employment evaluation and the Blue Ribbon Panel report are AFFIRMED. The superior court's order refusing to quash the disputed depositions is REVERSED. . The three cases discussed in this opinion were consolidated pursuant to Appellate Rule 204(g). . Other municipal officials named in the original action have not appealed. . See, e.g., Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska 1972). . See, e.g., Falke v. State, 717 P.2d 369, 371 (Alaska 1986) (addressing merits of a claim that candidate's name should have been on ballot although election had already been held); Kentopp v. Anchorage, 652 P.2d 453, 457-58 (Alaska 1982) (addressing merits of malapportionment claim even though reapportionment plan had already been implemented) and cases cited therein at 457 n. 3. . Civil Rule 65(d) provides: (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained[;] and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. .Because we hold the injunction inapplicable to the instant controversies, we need not reach the issue of its putative overbreadth. In any event, the municipality has waived any right it might have had to challenge the injunction as over-broad. The municipality did not appeal the 1985 injunction when it was issued; nor did it then complain, as it now does, that the injunction was overbroad or ambiguous. See, e.g., Williams v. Alyeska Pipeline Service Co., 650 P.2d 343, 351 (Alaska 1982) (arguments not presented to the trial court will not be addressed on appeal). Moreover, we note that the terms of the injunction were consented to by the municipality. . See City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1320-21 (Alaska 1982). . In City of Kenai, 642 P.2d at 1323, we observed: In striking a proper balance the custodians of the records in the first instance, and the court in the next, should bear in mind that the legislature has expressed a bias in favor of public disclosure. Doubtful cases should be resolved by permitting public inspection, (citing AS 44.62.312(a), .110, and .120). See also Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d 617, 622 (Alaska 1986). . Alaska Statute 44.62.310 provides, in relevant part: Government meetings public. (a) All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section.... (b) If excepted subjects are to be discussed at a meeting, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that come within the exceptions contained in (c)of this section shall be determined by a majority vote of the body.... (c) The following excepted subjects may be discussed in an executive session. (2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (3) matters which by law, municipal charter, or ordinance are required to be confidential. (e) Reasonable public notice shall be given for all meetings required to be open under this section. The notice must include the date, time and place of the meeting, and if the meeting is by teleconference the location of any teleconferencing facilities that will be used. (f) Action taken contrary to this section is void. . See Doe, 721 P.2d at 622. . In City of Kenai, we emphasized that The applicants' individual privacy interests in having their names and applications not revealed are also not of an order sufficient to overcome the public's interest. The applicants are seeking high government positions. "Public officials must recognize their official capacities often expose their private lives to public scrutiny." Id. at 1324 (footnotes omitted and emphasis added). . See University of Pennsylvania v. EEOC, — U.S. -, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). In that case the Supreme Court of the United States considered a claim by the University that it enjoyed a special privilege, premised upon the alleged confidentiality of faculty peer review materials, requiring a judicial finding of particularized necessity for access to peer review documents prerequisite to release of such documents to a Title VII plaintiff. The Court rejected this contention, holding that peer review materials enjoy no special privilege against discovery. Id. 110 S.Ct. at 581-586. . The municipality also argues that (1) Revelle should have been joined under Civil Rule 19; (2) compelling the municipality's release of the Library Board report could lead to municipal liability for defamation; and (3) the superior court's release order was flawed because Re-velle was not provided notice of the potential release of the evaluation and an opportunity to object to release of personal matters possibly contained therein. Our review of the record persuades us that these arguments are without merit. Civil Rule 19(a) provides in part; A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest.... We have recognized that persons whose job qualifications and performance are to be discussed have an interest in confidentiality. In City of Kenai, for instance, we held that reputa-tional interests should be balanced against those relating to public access before deciding whether to order the release of a document. See 642 P.2d at 1323. However, while Revelle might have had an "interest" in this case, joinder would not have enabled him to protect that interest. Performance evaluations of government employees who exercise discretion in their duties are subject to release as a matter of law. Revelle could have done no more to prevent release of the job related portions of the report had he appeared in this case than could the municipality. He was not an indispensable party. Thus, the superior court did not err in refusing to join Revelle under Civil Rule 19. The municipality also raises the concern that if it is ordered to release documents which might serve to impair a person's reputation, it could possibly be held liable in a defamation action. Putting aside any question of privilege, in order to recover damages for defamation, "a plaintiff [must] prove that a defamatory statement concerning a matter of public interest was published with 'actual malice.' ' Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d 617, 627 (Alaska 1986) (citations omitted). Where a government agency releases a document in a good faith effort to comply with public disclosure law, "actual malice" will not exist. Finally, while we can agree that it may have been desirable for Keith Revelle to have been given notice of the pending release and an opportunity to present argument to the court as to which, if any, portions of the report were personal and unrelated to the performance evaluation for purposes of convincing the court to strike such portions of the report, see, e.g., AS 44.62.310(c)(2), we cannot conclude on this record that failure to notify Revelle of the pending release constituted a reversible denial of due process of law. Here we note that aside from not giving Revelle notice of the meeting, the municipality totally failed to give the general notice called for by AS 44.62.310. We have reviewed the report in toto and agree with the superior court's ruling that it contained nothing personal or unrelated to Keith Revelle's employment. The superior court could have, on its own motion, struck any scandalous matter from the report prior to ordering its release. The error, if any, was harmless. . Anchorage municipal law further provides that, subject to federal and state law, all "public records [are] open to public inspection." AMC 3.90.030. The term "public record" is not defined. However, a non-exhaustive list is provided, accompanied by the following statement of policy: The foregoing enumeration of information available for public inspection is not designed to limit the categories of records and information that shall be made available to the public, nor is it designed to require disclosure of items specifically exempted.... The policy of providing public access to public information shall be broadly and liberally construed, and where there is no express policy governing the release of a particular report or other information, the information shall be released providing its release does not conflict with the privacy rights of ordinary citizens. AMC 3.90.030 (emphasis added). Municipal law also requires the municipality to give "full disclosure of all records in the possession or control of the municipality," except those specifically exempted. AMC 3.90.010 (emphasis added). .The Supreme Court of the United States has emphasized that the primary impetus for the qualified privilege is the need to protect The public interest in candid, objective, and even blunt or harsh opinions in presidential decision making. A president and those who assist him must be free to explore alternatives . and to do so in a way many would be unwilling to express except privately. United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 3107-08, 41 L.Ed.2d 1039, 1064 (1974). . We express no opinion with respect to this issue. . As we said in Doe: [Any] claim of privilege must satisfy strict procedural requirements. In particular, the government must specifically identify and describe the documents sought to be protected and explain why they fall within the scope of the executive privilege. Since a court usually must rely on an affidavit of the responsible department head for information necessary to determine whether to recognize the privilege, the affidavit should be based on personal examination of the documents by the affiant official. Id. The party seeking discovery then must make a sufficient showing that the need for production outweighs the interest in confidentiality. United States v. Nixon, 418 U.S. at 713-14, 94 S.Ct. at 3110-11, 41 L.Ed.2d at 1067; Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (D.C.Cir.1974). Upon such a showing, the trial court should review the documents in camera before deciding whether to order production. In the absence of such a showing, a claim of privilege should be honored without requiring an in camera inspection. Senate Select Committee, 498 F.2d at 730. . The Daily News also argues in this appeal that the press is entitled to a qualified immunity, based on the first amendment, from certain inquiries into the editorial process. We have not heretofore addressed the issue of a "pressman's privilege," and we decline to do so in this case. The argument was not presented to the superior court and is deemed waived. See, e.g., Williams v. Alyeska Pipeline Service Co., 650 P.2d 343, 351 (Alaska 1982) (arguments not presented to the trial court will not be addressed on appeal). Our holding that it is the government, not the party seeking access, which bears the initial burden of demonstrating the need to withhold public records is a sufficient basis for reversing the superior court's order refusing to quash the depositions. We believe that for the time being the civil rules applicable to discovery constitute a sufficient device for controlling harassment of the type alleged here, and decline to reach the broader constitutional issue. . Courts typically review discovery orders under the abuse of discretion standard. See, e.g., Voegeli v. Lewis, 568 F.2d 89, 96 (8th Cir.1977). . Civil Rule 26(b)(1) provides: . Civil Rule 26(c) provides: (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the judicial district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only by a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

10377719

Richard K. FRAZIER, Petitioner, v. H.C. PRICE/CIRI CONSTRUCTION JV, Home Insurance Company and Alaska Workers' Compensation Board, Respondents

Frazier v. H.C. Price/Ciri Construction JV

1990-06-22

No. S-2902

103

108

794 P.2d 103

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Richard K. FRAZIER, Petitioner, v. H.C. PRICE/CIRI CONSTRUCTION JV, Home Insurance Company and Alaska Workers’ Compensation Board, Respondents.

Richard K. FRAZIER, Petitioner, v. H.C. PRICE/CIRI CONSTRUCTION JV, Home Insurance Company and Alaska Workers’ Compensation Board, Respondents. No. S-2902. Supreme Court of Alaska. June 22, 1990. Chancy Croft, Fairbanks, for petitioner. John J. Connors, Staley, DeLisio, Cook & Sherry, Inc., Fairbanks, for respondent H.C. Price/CIRI Const. JV, Home Ins. Co. Deborah E. Behr, Asst. Atty. Gen. and Douglas B. Baily, Atty. Gen., Juneau, for respondent Alaska Workers’ Compensation Bd. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

3194

20226

OPINION COMPTON, Justice. Richard Frazier, an injured worker, gave notice of his intention to introduce into evidence before the Alaska Workers' Compensation Board (Board) a written medical report prepared at the request and expense of his employer. After the employer asserted a right to cross-examine the authors of the report, the Board held that Frazier should bear the costs of the cross-examination. We reverse. I. FACTS AND PROCEEDINGS Richard Frazier was injured on the job when he inhaled smoke from burning polyurethane foam. His employer, H.C. Price/CIRI Construction Joint Venture (Price/CIRI), controverted his claim for compensation. Frazier filed an application for benefits and requested a hearing. Price/CIRI requested that Frazier attend an examination at the Occupational Health Clinic of San Francisco General Hospital. After examining Frazier, the doctors at the clinic found him to be suffering from severe physical and psychological injuries from his exposure to cyanide compounds contained in the smoke inhaled during the incident. Written medical reports were submitted by them to all parties. Frazier notified Price/CIRI that he intended to introduce in evidence the written medical reports of that examination. The next day, Price/CIRI requested that it be permitted to cross-examine the authors of the medical reports. Frazier objected to paying Price/CIRI's costs. The Board held that under its regulations, Price/CIRI had the right to cross-examine the authors of the written medical reports at Frazier's expense. Thereafter, two clinic physicians were deposed in San Francisco. Frazier bore the costs of the depositions, including the fees of the physicians and the court reporter. Following an unfavorable ruling by the superior court, Frazier filed a petition for review in this court, Appellate Rule 402, arguing that the Board erred in forcing him to bear the costs of the depositions. We granted the petition for review, and requested supplemental briefing on several questions. Initially the Board filed a notice of non-participation, but following our second request for supplemental briefing it requested permission to participate, which we granted. II. DISCUSSION THE BOARD ERRED IN REQUIRING FRAZIER TO BEAR THE COST OF THE CROSS-EXAMINATION. At the outset we note that rules and regulations applied in Board proceedings are not equally applicable in civil proceedings. Frazier was entitled to obtain a copy of employer generated written medical reports pursuant to the Worker's Compensation Act, AS 23.30.095(h). Alaska Rules of Civil Procedure 26 and 35(b), which are not applicable to Board proceedings, AS 23.30.-135, essentially serve to exclude from discovery reports such as the one at issue here. In Commercial Union Companies v. Smallwood, 550 P.2d 1261 (Alaska 1976), we held that when a party introduces a written medical report in evidence before the Board, he must provide his opponent with an opportunity to cross-examine the author of the report. Id. at 1266. Further, since the right of cross-examination should not carry a price tag, the party introducing the report must bear the cost of providing the opportunity for cross-examination. Id. The present regulations of the Board reflect this holding. Specifically, 8 Alaska Administrative Code (AAC) 45.120 (Oct. 1988) provides in part: (f) Any document, including a compensation report, controversion notice, claim application for adjustment of claim, statement of readiness to proceed, petition, answer, or a pre-hearing summary, which is served upon the parties, accompanied by proof of service, and which is in the board's possession 20 or more days before hearing, may be relied upon by the board in reaching a decision unless a written request for an opportunity to cross-examine the document's author is filed with the board and served upon all parties at least 10 days before the hearing. (g) A request for cross-examination filed under (f) of this section must (1) specifically identify the document by date and author, and generally describe the type of document; and (2) state a specific reason why cross-examination is being requested. (h) If a request is filed in accordance with (f) of this section, an opportunity for cross-examination will be provided unless the request is withdrawn or the board determines that, under a hearsay exception of the Alaska Rules of Evidence, the document is admissible. (Emphasis added). Relying upon these sections, the Board held that Price/CIRI must be provided with an opportunity to cross-examine the clinic physicians at Frazier's expense. Alaska Rule of Evidence 801(d)(2)(C) provides that a "statement is not hearsay if . [t]he statement is offered against a party and is . a statement by a person authorized by him to make a statement concerning the subject." Though no decision of this court has expressly considered the application of this rule, other jurisdictions have considered the application of identical rules in analogous circumstances. In Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir.1983) cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983), the chairman of the board of a defendant pulp company asked an employee of a shareholder of the defendant's parent company to prepare a report on the defendant's operation. The court held that the report, which described the price structure for the purchase of logs, was admissible against the defendant under Federal Rule of Evidence 801(d)(2)(C). Id. at 1306-07. In Collins v. Wayne Corp., 621 F.2d 777 (5th Cir.1980), two days after the accident giving rise to the cause of action, a defendant bus manufacturer hired an accident reconstruction expert to prepare a report. The court held that the report and the experts' deposition testimony were admissible against the defendant under Federal Rule of Evidence 801(d)(2)(C). Id. at 782. In Russell v. State ex. rel. Grimes, 672 P.2d 323 (Okla.App.1983), the defendant insurance agent appealed the admission at an agency hearing of the contents of a bankruptcy court's judgment. The court held that because the defendant, by instituting the bankruptcy proceedings, had requested that the bankruptcy court determine his rights, the judgment was admissible under 12 O.S.1981 § 2801(4)(b)(3) (identical to Alaska Rule of Evidence 801(d)(2)(C)). Id. at 325. See also General Elec. Co. v. Hopkins, 411 So.2d 292, 294 (Fla.App.1982) (Under the circumstances of the case, and in the absence of a specific and timely objection, claimant's testimony as to company physician's position is competent substantial evidence); Argonaut Southwest Ins. Co. v. Morris, 420 S.W.2d 760, 763 (Tex.Civ.App.1967) (Doctors to whom employer sent employee considered agents of employer. As a result, their statements concerning employee's physical condition are admissible as statements against interest.) The reason for admitting such reports is obvious: the party that authorized the report has in effect vouched for the competence and credibility of the report's author; his need to impeach the credibility and competence of the author through cross-examination is therefore less urgent. Alaska R.Evid. 801(d)(2)(C) applies in this case. Price/CIRI requested that Frazier submit to examination by clinic physicians of its choice. Thus it vouched for the credibility and competence of the physicians. The regulations of the Board provide that "an opportunity for cross-examination [of a medical report's author] will be provided unless the request [for an opportunity for cross-examination] is withdrawn or the board determines that, under a hearsay exception of the Alaska Rules of Evidence, the document is admissible." 8 AAC 45.-120(h). Arguably Alaska R.Evid. 801(d)(2)(C) is not, strictly speaking, a hearsay "exception." It is instead one aspect of the definition of "hearsay." Nonetheless, the regulation clearly did not intend to require an opportunity for cross-examination in cases like this: cross-examination was to be required only when the written medical report was hearsay. III. CONCLUSION We REMAND this case to the Superior Court with directions that it order the Board to vacate its order of May 6, 1988, and order Price/CIRI to reimburse Frazier for expenses incurred in providing Price/CIRI with an opportunity to depose the clinic physicians. . AS 23.30.135(a) provides in part: (a) In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . Although the Board endorses our application of Alaska Rules of Evidence 801(d)(2)(C) to these written medical reports, it further invites us to re-examine Smallwood "with a potential goal of restoring the principles of informality . to Board proceedings." On the other hand, Frazier expressly endorses "this court's doctrine of twelve years ago [Smallwood ] that the right to cross-examine is absolute and applicable to workers compensation litigation." (Citation omitted). Since the controversy before us can be decided without a re-examination of Smallwood, and since the ramifications of any change in Small-wood have not been fully identified by the parties, we decline to accept the Board's invitation. For the same reasons, we express no view on the position taken by our concurring colleagues. . The official commentary to the Alaska Rules of Evidence states that "there is no good reason to treat . the admissions covered by subsection [801(d)(2)(C) ] as non-hearsay. In fact, if these rules were written on a clean slate without reference to the Federal Rules, the admissions would be treated as exceptions to the hearsay rule and placed under Rule 803." Alaska R.Evid. 801(d)(2) commentary.

10370507

RAN CORPORATION, Appellant, v. David HUDESMAN and H. Martin Smith, Jr., Appellees

Ran Corp. v. Hudesman

1991-12-27

No. S-3639

646

652

823 P.2d 646

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

RAN CORPORATION, Appellant, v. David HUDESMAN and H. Martin Smith, Jr., Appellees.

RAN CORPORATION, Appellant, v. David HUDESMAN and H. Martin Smith, Jr., Appellees. No. S-3639. Supreme Court of Alaska. Dec. 27, 1991. William G. Ruddy, Ruddy, Bradley & Kolkhorst, Juneau, for appellant. Joan Travostino, Preston, Thorgrimson, Shidler, Gates & Ellis, Anchorage, for ap-pellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4365

27354

OPINION MATTHEWS, Justice. RAN Corporation contracted with a lessee for the assignment of a lease, conditional on the approval of the lessor. David Hudesman, the lessor, refused to consent to the assignment because Hudesman had identified another tenant who offered greater economic benefit. RAN sued, alleging, inter alia, intentional interference with contractual relations and intentional interference with prospective economic advantage. The superior court found that RAN had not established a pri-ma facie case for either tort, and that, in any event, Hudesman was privileged to interfere with the assignment contract because he acted to protect his direct financial interest. We find that the trial court correctly ruled that Hudesman was privileged, as a matter of law, to intentionally interfere with the proposed assignment of the lease of his property. I. For many years the Red Dog Saloon, a combination bar and gift shop, occupied the premises at 159 South Franklin Street in Juneau. David Hudesman owned the property. It was leased to Don Harris, the Saloon's owner and operator. In the lease, Hudesman retained the right to approve any assignment. Section 10(a) of the lease agreement provided that lessees shall not assign this lease or any interest therein, and shall not sublet the said premises . without the written consent of lessor ., but such consent shall not be withheld unreasonably, it being understood that the lessees have a right to any assignee or subtenant who is financially responsible and who will properly care for the premises. Lessor may require that adequate security be furnished to him as a condition to such consent.... Harris decided to move his business. He intended to relinquish all interest in the property at 159 South Franklin by assigning the lease, which still had some four years left on its term. Richard Stone, President of both R.D. Stone, Inc., and, later, the RAN Corporation (RAN), contacted Harris after reading about the planned relocation and expressed his interest in leasing the premises. Stone, an operator of Alaskan artifacts galleries in Ketchikan, wanted to open an artifacts gallery in Juneau. Initial negotiations occurred in September 1987. Harris told Stone that he would assign the lease for $15,000. He explained that Hudesman retained the right to approve of the assignment and Stone would be required to submit documentation describing RAN's financial status and proposed use of the premises. Stone delivered a check for $15,000 along with all requested documents. Harris contacted Hudesman's agent, H. Martin Smith, Jr., about the potential assignment. Smith directed Harris to send Stone's prospectus material to Smith "on behalf of Mr. Hudesman," which Harris did. Around the time Harris and Stone were negotiating, Jerry Reinwand contacted Hudesman about the property at 159 South Franklin. Reinwand, a long-time resident of Juneau, had served in a variety of high-level government positions and as a lobbyist, and Hudesman hoped to use Rein-wand's influence in the capital to further his business interests. Specifically, Hudes-man wanted Reinwand's help in securing government leases for a large building Hudesman owned in Juneau. Reinwand agreed to help. In return, Hudesman promised that if Don Harris moved the Red Dog Saloon out of 159 South Franklin, Reinwand could move in. In early January 1988, Smith told Harris that Hudesman refused to consent to the assignment of the lease to RAN. Smith warned Harris that if he persisted in "pushing" RAN as a prospective assignee, Harris "would be looking at litigation" because "Mr. Hudesman wanted Mr. Rein-wand in there." Harris complied with Smith's demand to deal with Reinwand. On February 5, Harris returned Stone's $15,000 deposit and formally notified him in writing of Hudes-man's rejection. Harris' letter enclosed a copy of a letter, dated February 2, 1988, that Harris had received from Smith in which Smith explained: Mr. Hudesman does not approve your assigning your lease, or subletting, to a business different than what is called for in your lease. Instead, he prefers that the premises be taken over by his friend, Mr. Jerry Reinwand, as a home for his various business activities. Mr. Hudes-man will approve an assignment of your leasehold rights to Mr. Reinwand, provided your decision to vacate is final. By March, Harris had assigned his lease to Reinwand, who paid Harris $15,000 and took possession of the premises. RAN filed suit for an injunction to invalidate Reinwand's lease and to enforce the assignment contract that RAN had with Harris. RAN also sought damages, naming Smith, Hudesman, Reinwand, Don Harris, and Perry Harris as defendants. The superior court denied RAN injunctive relief; RAN pursued its damage claims. After a year of litigation, RAN settled with Reinwand and entered into a stipulation of dismissal with Don and Perry Harris. RAN's only remaining claims were against Hudesman and Smith for negligent interference with contract or prospective economic advantage, intentional interference with contractual relations, and intentional interference with prospective economic advantage. All parties moved for summary judgment. The superior court granted the summary judgment motions of Smith and Hudesman. RAN has appealed these rulings on its intentional tort claims only. II. The elements of the tort of intentional interference with contractual relations are: [PJroof that (1) a contract existed, (2) the defendant . knew of the contract and intended to induce a breach, (3) the contract was breached, (4) defendant's wrongful conduct engendered the breach, (5) the breach caused the plaintiffs damages, and (6) the defendant's conduct was not privileged or justified. Knight v. American Guard & Alert, Inc., 714 P.2d 788, 793 (Alaska 1986). The fourth, fifth, and sixth elements also apply to the related tort of intentional interference with prospective economic advantage. Oaksmith v. Brusich, 774 P.2d 191, 198 (Alaska 1989). As our analysis in this case is equally applicable to either tort, we will refer to them collectively in this opinion. The sixth element of the intentional interference tort, that the interferer's conduct not be privileged, is troublingly vague. The Restatement (Second) of ToRts.§ 767 (1965) speaks not in terms of "privilege," but requires that the actor's conduct not be "improper." Other authorities use the catch word "malice." Prosser and Keeton on Torts § 129 at 983 (W. Keeton 5th ed. 1984) (hereinafter Prosser). Regardless of the phrase that is used, the critical question is what conduct is not "privileged" or "improper" or "malicious." The Restatement § 767 lists seven factors for consideration, and while these factors are relevant in some or all of the incarnations of the interference tort, they are hard to apply in any sort of predictive way. We recognized this fact in Bendix Corp. v. Adams, 610 P.2d 24, 30 (Alaska 1980). Instead of relying on the Restatement factors, we adopted a test of privilege based on a number of cases which hold that where an actor has a direct financial interest, he is privileged to interfere with a contract for economic reasons, but not where he is motivated by spite, malice, or some other improper objective. Our conclusion is that, where there is a direct financial interest in a contract, the essential question in determining if interference is justified is whether the person's conduct is motivated by a desire to protect his economic interest, or whether it is motivated by spite, malice, or some other improper objective. Id. at 31. In our view, this rule applies to this case. Although the defendant in Bendix was a corporation which forced its subsidiary to breach a contract with the plaintiff, we recognized that another economic interest which would support a claim of privilege was the interest which a lessor had "in his property to interfere in a sublease." Id. (citing Bergfeld v. Stork, 1 Ill.App.3d 486, 288 N.E.2d 15 (1972)). A number of other cases have recognized that a landlord has a sufficient interest to interfere with a prospective or actual lease assignment. Toys "R" Us, Inc. v. NBD Trust Co. of Illinois, 904 F.2d 1172, 1178 (7th Cir.1990) (recognizing privilege where lessor wished to maintain control over appearance and character of shopping center); Walner v. Baskin-Robbins Ice Cream Co., 514 F.Supp. 1028 (N.D.Tex. 1981). The right to intervene has also been recognized in the analogous setting of transfers of distributorships. Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683, 684 (Fla.App.1986) ("[A] cause of action for tor-tious interference does not exist against one who is himself a party to the business relationship allegedly interfered with."); Birkenwald Distrib. Co. v. Heublein, Inc., 55 Wash.App. 1, 776 P.2d 721 (1989). It seems beyond reasonable argument that an owner of property has a financial interest in the assignment of a lease of the property he owns. An effective lease assignment makes the assignee the tenant of the owner; the assignee becomes the lessee and has a direct contractual relationship with the owner. See generally R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property § 12.40, at 898-99 (Lawyers ed. 1984). The tenant also has an obligation to pay rent directly to the owner, and the use, or abuse, of the property by the assignee may affect its value to the owner. Further, the owner may know of another potential assignee who will pay more rent than the prospective assignee. Moreover, the owner may wish to terminate the lease based on knowledge of a more profitable use for the property. If so, the owner is obviously financially interested in a proposed assignment as the assignor may consent to the termination of the lease while the proposed assignee might not. For the above reasons, we conclude that the Bendix formulation of privilege applies to an owner-landlord who interferes with his tenant's lease assignment contract. Since Hudesman had a direct financial interest in the proposed assignment of the lease, "the essential question in determining if interference is justified is whether [Hudesman's] conduct is motivated by a desire to protect his economic interest, or whether it is motivated by spite, malice, or some other improper objective." Bendix, 610 P.2d at 31. As there is no evidence of spite, malice or other improper objective— Hudesman did not even know RAN Corporation's principals — and since it is clear that Hudesman refused to approve the assignment because he believed that he would receive a greater economic benefit from a tenancy by Reinwand, the interference was justified and summary judgment was properly entered. Hudesman's threat of litigation does not seem relevant to RAN's claim for intentional interference. RAN's assignment agreement with Harris was explicitly conditional on Hudesman's approval. When Hudes-man disapproved of the assignment the interference was complete. Hudesman's disapproval may have been a breach of the Hudesman/Harris lease, but it was privileged from a tort standpoint because of Hudesman's pre-existing interest as a property owner/lessor. The threat of litigation may, at worst, have been another breach of the Hudesman/Harris lease. However, it too was not tortious and it was, in any case, superfluous to the interference, because RAN's prospective economic relationship was terminated by Hudesman's disapproval, not by his threat to sue. For the reasons above we AFFIRM the judgment of the superior court. . Hudesman had leased the property to Don's brother Perry. In late 1986, Perry Harris transferred ownership and control of the Red Dog to his brother Don. . The seven factors are: (a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties. RESTATEMENT (SECOND) OF TORTS § 767. . As Prosser puts it, these factors are "no doubt all appropriate enough but not a list that would inspire one to predict an outcome, or decide one's rights or duties." Prosser, supra, at 984 n. 63. . Many commentators have noted the pervasive vagueness of the intentional interference tort. See, e.g., Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U.Chi.L.Rev. 61, 61 (1982) ("The absence of a coherent doctrine is understandable. The idea that a person should not interfere with another's economic relationships is easier to expound in the abstract than to apply in the particular."). Further, they observe that the tort seems to cover without discernable limiting principles much conduct which in our competitive society seems distinctly valuable. Perlman, supra, at 83 (While contract law facilitates efficiency gains derived from a breach of contract, interference torts seem "designed to reduce the number of such breaches and thus run[ ] counter to a plausible objective of contract doctrine."); Dobbs, Tor-tious Interference with Contractual Relationship, 34 Ark.L.Rev. 335, 343 (1980) ("Liability is imposed for acts permissible in themselves — honest representations, for example — and imper missible only because the defendant's purpose is thought insufficiently laudable. Indeed, the act involved in these cases is often the act of speech, the most protected of all social acts."); Prosser, supra, § 130 (interference with prospective advantage). But see Loewensein, Tender Offer Litigation and State Law, 63 N.C.L.Rev. 493 (1985) (finding tort of interference with prospective economic advantage effective in controlling abuses in tender offers). Because of these concerns, the Supreme Court of Oregon has held that where the defendant does not purposefully act to harm the plaintiff, the tort should be limited to where the interference is independently wrongful in the sense of a tort or a breach of some statutory or regulatory duty '"beyond the fact of the interference itself.' " Straube v. Larson, 287 Or. 357, 600 P.2d 371, 374 (1979) (quoting Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365, 1371 (1978)); Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430, 434 (1987). This result has been endorsed by a number of commentators. Perlman, supra; Dobbs, supra. Perlman suggests "an unlawful means test that restricts tort liability to those cases in which the defendant's act is independently wrongful." Perlman, supra, at 62. Such an approach provides a clearer rule on which potential plaintiffs and defendants can rely in evaluating conduct. These observations suffice to counsel caution in the application of the interference tort to new fact situations. The Oregon rule may be desire-able. However, it is not necessary to decide whether it should be adopted at present because the direct financial interest privilege which we adopted in Bendix applies to this case. . The threat may have been a breach of the covenant of good faith and fair dealing which is implied in all contracts. A breach of the covenant is not tortious and does not give rise to a cause of action in favor of a third party. O.K. Lumber Co. v. Providence Washington Ins. Co., 759 P.2d 523, 525-26 (Alaska 1988). . There is nothing in the record which indicates that Smith and Hudesman caused the termination of the Harris-RAN contract because they wished to harm RAN. However, "[i]t has long been clear . that 'malice' in the sense of ill-will or spite is not required for liability" in interference with contract or prospective business advantage actions. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts § 129, at 983 (5th ed. 1984); Long v. Newby, 488 P.2d 719, 722 (Alaska 1971).

9481448

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

Moses v. State

2001-10-05

No. A-7708

1079

1084

32 P.3d 1079

32

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Jonathan MOSES, Appellant, v. STATE of Alaska, Appellee. No. A-7708. Court of Appeals of Alaska. Oct. 5, 2001. Rehearing Denied Oct. 25, 2001. Robert John, Fairbanks, for Appellant. Alicia D. Porter, Assistant District Attorney, Harry Davis, District Attorney, Fair banks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2970

17816

OPINION COATS, Chief Judge. Following a jury trial, Jonathan Moses was convicted for driving while intoxicated (DWI) and refusing to submit to a chemical test (refusal). On appeal, Moses contends that District Court Judge Jane F. Kauvar erred when she found that Moses was provided the right to make a telephone call prior to deciding whether to submit to a breath test, that an administrative decision at Moses's license revocation hearing did not collaterally estop the state from proving that Moses was provided the right to make a telephone call, that the state troopers were not required to videotape Moses's refusal to take the breath test, and that Moses validly waived his right to an independent chemical test. For the reasons below, we affirm Moses's convictions. Facts and Proceedings On May 15, 1999, at approximately three in the morning, Alaska State Trooper Patrick S. Johnson stopped a vehicle that was repeatedly leaving its lane of travel and crossing the right fog line on Chena Hot Springs Road near Fairbanks. Johnson contacted the driver, Moses, to determine whether he was driving while intoxicated. Upon contact, Johnson smelled a strong odor of alcohol coming from Moses's breath and person, and saw that Moses had bloodshot, watery eyes, slurred speech, and a swaying stance. Johnson had Moses perform some field sobriety tests. Moses failed the horizontal gaze nystagmus test, only partially completed the walk-and-turn and the one-leg-stand tests, and refused to do any other tests. Moses submitted to a portable breath test, and his breath alcohol content was .190 percent. Johnson also found alcohol in Moses's vehicle, and Moses admitted that he had consumed alcohol that evening. After arresting Moses for DWI, Johnson allowed Moses to call his wife from the scene of the traffic stop. The call lasted approximately one minute. Johnson then transported Moses to the station for an Intoximeter test. After they arrived at the station, Moses again asked to make a phone call. Johnson asked if Moses wanted to call his wife or a public defender, and Moses said that he wanted to call his wife. During this conversation, Johnson inquired whether Moses was going to have his wife call a public defender. While the transcript indicates that Moses's response is "indiscernible," the record as a whole shows that Moses indicated that he wanted to call his wife to discuss arranging bail. Moses gave no indication at the station that he wanted his wife to call an attorney. When they returned to the Intoximeter, Johnson asked Moses if he wanted to call a public defender. Moses said no, and the DWI processing proceeded. When the In-toximeter 3000 was ready, Moses refused to provide a breath sample. The DWI processing at the station, including the refusal, was audiotaped but was not videotaped. After Moses refused, he was advised of his right to an independent chemical test. He signed the notice of this right, indicating that he did not want the independent test. Subsequently, Moses moved to suppress the evidence. Among other things, Moses argued that Johnson, by not allowing him a second call to his wife while at the station, had violated AS 12.25.150(b) and Zsupnik v. State. He also argued that a Division of Motor Vehicles (DMV) hearing officer's decision rescinding Moses's license revocation because of Johnson's failure to allow this call collaterally estopped the state from asserting that Johnson had complied with AS 12.25.150(b). Finally, Moses sought suppression on the grounds that the refusal was not videotaped, and that his waiver of the independent test was not valid. Following an evidentiary hearing, Judge Kauvar found that Johnson had complied with AS 12.25.150(b) when he allowed Moses to telephone Moses's wife while still in the field. Although Judge Kauvar ruled that a second call was not required upon Moses's arrival at the police station, she also found that Johnson had offered Moses the opportunity to contact an attorney at the station. Judge Kauvar also ruled that the state was not collaterally estopped by the decision at the license revocation hearing, that Moses's refusal did not have to be videotaped, and that Moses's waiver of the independent test was valid. After a jury trial, Moses was convicted of DWI and refusal. This appeal follows. Did the police comply wilh AS 18.25.150(b) and Zsupnik? Moses first contends that Johnson violated AS 12.25.150(b) and Zsupnik because he did not allow Moses to call his wife at the police station. Relying on Wardlow v. State, Moses argues that AS 12.25.150(b) is not triggered until a DWI arrestee is transported to a police station for DWI processing, and that any prior contact cannot satisfy AS 12,.25.150(b). Moses, however, misapplies our decision in Wardlow. While we concluded that "an arrestee's statutory right to 'immediate' communication with attorneys, relatives, and friends normally does not attach until the arrestee is brought to a place of detention," we did not hold that a communication-whether in person or by telephone-completed after an arrest but before arrival at a place of detention could not satisfy AS 12.25.150(b). In this case, Moses was allowed to contact his wife immediately after his arrest, while still in the field. Moses was able to tell his wife that he had been stopped, the location of the stop, that he had been or was being arrested for DWI, that he was being transported to a police station, and that she would have to retrieve their vehicle. According to the testimony of Moses and his wife, Moses also was able to discuss a considerable number of details about the stop-Moses told his wife that he thought Johnson was tailgating, that Moses had moved to the right onto the shoulder of the road in an effort to have Johnson pass him, and that when Moses finally pulled onto an adjacent bike path, Johnson stopped behind him and then turned on his vehicle's emergency lights. Additionally, Johnson testified that he heard Moses and his wife discuss bail. And while Moses claims that the call lasted no more than one minute, Johnson said he allowed Moses as much time as he needed. Although Moses also argues that the phone call was not completed because of a bad connection, the record does not support this argument. Moses relies on Johnson's testimony that he thought that Moses might have had a bad connection, or that Moses was having trouble with the phone. But Moses and his wife did not testify that there was a bad connection or that other technical problems had interfered with their conversation. We find that the record supports Judge Kauvar's findings that Moses, after his arrest for DWI and prior to taking the breath test, had an opportunity to make a phone call to his wife. Accordingly, we conclude that there was no violation of AS 12.25.150(b) or Zsupnik. In addition, Moses-by asserting that he wanted his wife to call an attorney-suggests there was a violation of Copelin v. State. Copelin provides that when a DWI arrestee asks to consult a lawyer, "the arres-tee [shall] be afforded the right to do so before being required to decide whether to submit to a breathalyzer test." But Cope-lin premised this right on AS 12.25.150(b), and we have just held that Moses's call to his wife satisfied this statute. Moreover, as set out above, the record demonstrates that Moses wanted to make the second call to his wife to arrange bail, not to contact an attorney. Finally, even if Moses were entitled to an additional call to contact an attorney, he was given that opportunity while at the police station and declined it. Therefore, Copelin was not violated. Was the state collaterally estopped? Moses next contends that the state was collaterally estopped from asserting that it had complied with AS 12.25.150(b) because Moses already had received a favorable decision on this issue from a DMV hearing officer. Although collateral estoppel applies in criminal proceedings, it does not under the cireumstances of this case. The issue at Moses's DMV hearing was whether Moses's license should be revoked because he had refused to submit to a breath test. Moses challenged the revocation on the "grounds [that there was] no valid basis for stop and contact [and] no probable cause for [the] arrest." He did not, however, challenge the action on the ground that AS 12.25.150(b) had been violated. During the DMV hearing, while Moses was cross-examining Johnson, the hearing officer became aware that an audiotape had been made and that it established that Johnson had not allowed Moses to call his wife while he was at the station. The hearing officer asked for a copy of the tape, and the hearing was continued. After the hearing officer had listened to the tape, the hearing reconvened. After the hearing restarted, the hearing officer said based on the tape that "[What we do in this office is we rescind [the revocation action] if [police] don't allow [arrestees] to contact a family member and that's what I'm going to do." Because of the way the issue was raised, the hearing officer was never told that Johnson had allowed Moses to telephone his wife before Moses arrived at the station. (We note that while the hearing officer rescinded the revocation action, she also ruled on and rejected the contentions that Moses had raised and had actually litigated: she found that there was a valid basis for the stop and contact and that probable cause for the arrest existed.) The purpose of collateral estoppel is to preclude re-litigation of decided issues. For collateral estoppel to apply, the issue to be precluded must (among other things) be identical to that decided in the first action. We find that the issue before the hearing officer (whether Moses's license should be revoked because he refused to submit to a breath test) was not identical to the issue before Judge Kauvar (whether AS 12.25.150(b) had been violated). Moreover, not only do the issues need to be identical, but our supreme court recent ly held, relying on the Restatement (Second) of Judgments, that collateral estoppel does not apply unless the issue sought to be precluded is "actually litigated." In In re Adoption of A.F.M., the supreme court stated, Our cases have adopted this Restatement standard: "The doctrine of collateral es-toppel 'bars relitigation, even in an action on a different claim, of all issues of fact or law that were actually litigated and necessarily decided in [a] prior proceeding." And in applying the standard, we have said that an issue is "actually litigated" when it "is properly raised by the pleadings or otherwise, is submitted for determination, and is determined." In A.F.M., the court found that the issue sought to be precluded (whether a sexual assault had occurred) was not "actually litigated" in this sense. The A.F.M. court held that while the issue undeniably eropped up in [the victim's testimony in a prior Washington action] and was decided by the commissioner, the parties never "properly raised" it, "by the pleadings or otherwise"; nor did they "submitl ] [it] for determination." Because the issue was not "actually litigated," the Washington court's finding on sexual assault did not preclude . litigating the issue in the Alaska adoption proceeding. Although the issue Moses sought to preclude in his criminal case "undeniably cropped up" during the testimony in the earlier proceeding, and formed the basis for the hearing officer's decision, Moses never "properly raised" the issue by "the pleadings or otherwise." In reality, the record shows that the DMV hearing officer rescinded the revocation not as a result of the issues that were litigated, but on policy grounds based on a misunderstanding of the facts. In short, the issue that Moses asserted was collaterally precluded was not actually litigated at the license revocation hearing. Accordingly, we conclude that the state was not collaterally estopped from proving that AS 12.25.150(b) was satisfied. Are police required to videotape breath test refusals? Moses next contends, relying on Suiter v. State, that police are required to videotape breath test refusals. He argues that videotapes are necessary for a fair trial in refusal cases. Suiter, however, does not support Moses's contention, nor have we held that police have a duty to videotape the DWI processing or the act of refusal. Although we noted in Swanson v. Juneaw that we were not addressing whether refusals should be videotaped, we rejected Swanson's general claim that videotaping the entire DWI processing was required to ensure a fair trial. 'We also ultimately held that the government's decision to audiotape rather than to videotape the DWI processing was "neither arbitrary nor unreasonable, and it did not violate Swanson's rights." In Moses's case, the DWI processing, including the refusal, was audiotaped. Additionally, one of our reasons in Swuiter for rejecting a claim similar to Moses's was that Suiter had not "indicated in any concrete way how [a videotape] might have aided him." Moses has not explained "in any concrete way" how a videotape of his refusal, as opposed to the audiotape, would have aided him. Accordingly, we conclude that there was no error. Did Moses wative his right to an independent test? | Lastly, Moses contends that Judge Kauvar erred when she found that Moses validly waived his right to an independent test. Moses argues that Judge Kauvar found that Moses did not understand this right, but wrongly concluded that Moses had the duty to call an attorney to clear up any misunderstanding. Although Judge Kauvar did indicate that Moses could have called an attorney to discuss the independent test, the record does not show that she accepted Moses's claim that he did not understand the test. Nor would the record support such a finding. At the evidentiary hearing, Moses conceded that he was given notice of his right to an independent test; he also gave the reasons why he declined to get such a test. He testified that: I told [Trooper Johnson} that I didn't want to take that blood test. . I thought they [were] trying to get more evidence . for them . for their case[.] . I didn't think [that the test] would have been in my favor. That's why I didn't take the blood test.... I didn't think it would have been evidence for me. This testimony demonstrates that Moses had a sufficient understanding of the inde pendent blood test; he knew that it was an opportunity to get evidence of his blood aleo-hol content. The reason he declined the independent blood test was that he did not want to give the troopers evidence of his intoxication (which was consistent with his earlier decision to refuse to submit to the requnred breath test). While Moses now claims that he would have asked for the test had he known that the test would have resulted in "evidence for [him]," or have been "in [his] favor," this does not support his argument that he lacked an understanding of the te'st. In Crim v. Anchorage we rejected a similar claim. We concluded that a waiver could be valid even though the arrested motorist might not be able to "assess[ ] the potential advantages and disadvantages of availing himself of the [test]; in other words, a valid waiver did not require that Crim know whether the independent test results would be favorable or unfavorable. We concluded that it was sufficient that Crim was notified of the right, that the record showed that he was aware that he had been arrested for DWI, and that he generally understood that the purpose of the independent test was to obtain evidence of his blood alcohol content. In Moses's case, he was notified of his right to the test, and he chose not to obtain an independent test because he "didn't think . it would have been in [his] favor" and because he "didn't think it would have been evidence for [him]." In short, Moses's argument, like Crim's, is not that he lacked an understanding of his right to the independent test, but that he did not know whether the test results would be favorable to him. Moses's testimony shows that he was aware that he had been arrested for DWI and that he was informed of the right to an independent test. After refusing the mandatory breath test, Moses did not want to generate evidence that could be used against him. This shows that Moses made a knowing and intelligent waiver of his right to obtain an independent chemical test. Accordingly, we find no error. Conclusion The convictions are AFFIRMED. . AS 28.35.030(a)(1); AS 28.35.032, respectively. . 789 P.2d 357 (Alaska 1990). . AS 12.25.150(b) provides in part: "Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend." See also Alaska Criminal Rule 5(b). . 2 P.3d 1238 (Alaska App.2000). . Id. at 1249-50. . 659 P.2d 1206 (Alaska 1983). . Id. at 1215. . See State v. Williams, 855 P.2d 1337, 1342 (Alaska App.1993). . See Snook v. Bowers, 12 P.3d 771, 777 (Alaska 2000). . See id. . Restatement (Second) of Judgments § 27 (1982). . In re Adoption of A.F.M., 15 P.3d 258, 268-69 (Alaska 2001). . Id. at 268 (citations omitted). . See id. at 269. . 1d. . 785 P.2d 28 (Alaska App.1989). . Cf. Swanson v. Juneau, 784 P.2d 678, 681 (Alaska App.1989). . 784 P.2d 678. . See id. at 680 n. 2, 681. . Id. at 681. . Suiter, 785 P.2d at 31. . 903 P.2d 586 (Alaska App.1995). . Id. at 588.

9477406

Robert BRADLEY, Appellant, v. James R. BRADLEY and Leslie Bradley, Appellees

Bradley v. Bradley

2001-09-28

No. S-9345

372

373

32 P.3d 372

32

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Robert BRADLEY, Appellant, v. James R. BRADLEY and Leslie Bradley, Appellees.

Robert BRADLEY, Appellant, v. James R. BRADLEY and Leslie Bradley, Appellees. No. S-9345. Supreme Court of Alaska. Sept. 28, 2001. Terrence H. Thorgaard, Fairbanks, for Appellant. James E. McLain, The Law Offices of James E. Mclain, Fairbanks, for Appellees. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETLI Justices.

759

4647

OPINION MATTHEWS, Justice. Robert Bradley appeals from a partial money judgment entered against him on which the court permitted writs of execution to issue. All parties agree that the judgment is partial because not all of the claims and counterclaims have been adjudicated. Because the superior court has not certified pursuant to Civil Rule 54(b) that there is no just reason for delay, the partial Judgment is not final. Because the judgment is not final and thus cannot be appealed of right, we have treated Robert Bradley's appeal as a petition for review. We grant the petition and conclude that the trial court erred in permitting execution on the judgment. The established rule in Alaska, and elsewhere, is that executions may not issue on partial judgments until they become final. Accordingly, the directive on the partial judgment of August 24, 1999, that execution may issue, must be vacated. This case will be remanded to the superior court for further proceedings which may include consideration of whether this case is an appropriate one for entry of a Civil Rule 54(b) certifi-cate REMANDED with directions to VACATE the partial judgment's directive that execution may issue, and for further proceedings consistent with this opinion. . See Alaska R.App. P. 202(a). . See Alaska R.App. P. 402(b)(1); see also Aleut Corp. v. Rogers, 619 P.2d 472, 473 (Alaska 1980) (treating as petition for review under Appellate Rule 402 appeal from nonfinal judgment because writ of execution for attorney's fees authorized). . See Aleut Corp., 619 P.2d at 473; Cohen v. Board of Trustees of the Univ. of Med. & Dentistry of New Jersey, 867 F.2d 1455, 1463 (3d Cir.1989) (order disposing of one claim but not others not final judgment and could not be certified to permit execution and appeal); Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721, 727 (D.C.Cir.1969) ("An execution ordinarily may issue only upon a final judgment . unless and until [54(b) certification] is done [prevailing party] has no judgment upon which an execution may issue prior to the adjudication of the case in its entirety."); Budget Rent-A-Car Systems, Inc. v. Salazar, 9 Haw.App. 469, 846 P.2d 901, 903 (1993) ("[Rule 54(b) ] order makes a judgment final, both for purposes of execution and appeal"); CIT Fin. Servs. v. Herb's Indoor RV Cir., 108 Idaho 820, 702 P.2d 858, 859 (App.1985) (partial summary judgment not certified under Rule 54(b) will not support writ of execution); see also 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2661 (3d ed. 1998) ("[Entry of judgment under Rule 54(b)] enables a lien to be imposed on the judgment debtor's property and a writ of execution to be issued to begin the process of collecting any damage award. ."). . Consideration of this question is committed to the discretion of the trial court, reviewable for abuse of discretion. See Johnson v. State, 577 P.2d 706 (Alaska 1978). In deciding whether a certificate should issue the court should consider whether there is a good reason for using Civil Rule 54(b). "The finding should not be made simply because counsel request it. There should be some danger of actual hardship caused by delay in entry of final judgment. The court should weigh the general policy against piecemeal appeals against the reasons advanced in favor of the proposed finding." Id. at 710. The general policy disfavoring piecemeal appeals and thus supporting the rule that appeals may be taken only after a final judgment was also addressed in Johnson: This rule [prohibiting appeals until all substantive issues are resolved] has at least two pur poses. First, it is a rule of judicial economy. Issues which seem important at intermediate stages in litigation may become insignificant or moot when the final judgment is entered. Also, interlocutory review often causes delay and needless expense. Second, the rule is designed to ensure that the questions presented on appeal have a full factual and legal setting in which the practical effect of the parties' contentions may be weighed. Piecemeal adjudication of some, but not all points of law governing a case carries the risk that important considerations may be overlooked which would have been perceived had the entire case been presented. Id. at 709.

10368291

Donald Lee RAMSEY, Appellant, v. STATE of Alaska, Appellee

Ramsey v. State

1992-06-05

No. 1227

811

817

834 P.2d 811

834

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Donald Lee RAMSEY, Appellant, v. STATE of Alaska, Appellee.

Donald Lee RAMSEY, Appellant, v. STATE of Alaska, Appellee. No. 1227. Court of Appeals of Alaska. June 5, 1992. R. Scott Taylor, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution.

3656

23049

OPINION BRYNER, Chief Judge. Following a jury trial, Donald Lee Ramsey was convicted of two counts of attempted kidnapping, three counts of third-degree assault, and two counts of reckless endangerment. Superior Court Judge Mark C. Rowland sentenced Ramsey to consecutive terms totalling twenty-five years with ten years suspended. Ramsey appeals, contending that the trial court erred in denying his motion to dismiss for prosecutorial vindictiveness and in de- dining his request to represent himself at trial. Ramsey also contends that his sentence is excessive. We affirm. On January 2, 1985, Ramsey complained to the city of Anchorage about living conditions at his family's home in the Martin Arms Apartments. Dissatisfied with the initial response, Ramsey continued to complain and grew increasingly frustrated with the city bureaucracy. Ramsey eventually initiated a campaign to recall the mayor of Anchorage. Ramsey met with little success in pursuing this campaign over the next year and a half. He became convinced that he was the object of a widespread conspiracy to thwart his efforts. Ramsey believed that the conspiracy included numerous local officials and public figures, including members of Alaska's congressional delegation. On August 14, 1986, Ramsey paid the Anchorage Times to print a full page advertisement critical of Senator Frank Mur-kowski. The newspaper printed the advertisement in its first edition on August 19, but then withdrew it from later editions, apparently because the editors found it to border on being libelous. Ramsey held Anchorage Times publisher Robert Atwood responsible for withdrawing the advertisement and believed that Atwood was among those conspiring against him. On August 21, Ramsey's apartment caught fire and suffered extensive damage. Although the fire department determined that faulty wiring had caused the blaze, Ramsey became convinced that the fire was set purposely, in order to kill him. Ramsey blamed the fire on Atwood. On the morning of October 21, 1986, Ramsey entered the Anchorage Times building in downtown Anchorage; he wore combat camouflage and carried a semi-automatic assault rifle, a .38 caliber handgun, approximately 150 rounds of extra ammunition, some smoke grenades, a knife, club, garrote, firecrackers, thumb cuffs, and food rations. Once inside, Ramsey chained and locked the front doors of the building. He then proceeded to the publishers' offices on the second floor. As he went upstairs, Ramsey threw a smoke grenade onto the ground floor in order to create a diversion. The grenade filled the newspaper offices with dense green smoke, making breathing difficult for Times employees who were in the area. The grenade landed next to some newspapers and started a fire, which burned along one of the interior walls of the building and spread to the ceiling before being doused. When Ramsey reached the second floor, he demanded to know where Robert Atwood was. A nearby Times employee picked up a telephone and began to dial for help. Ramsey started screaming and firing his rifle into the ceiling. Still firing the rifle, Ramsey entered the office of Robert Atwood's daughter, Elaine Atwood. Elaine Atwood crouched behind her desk, and Robert Atwood soon entered the room from his adjoining office. Atwood approached Ramsey from behind and attempted to disarm him. Elaine stood up and joined in her father's efforts. Throughout the ensuing struggle over the rifle, Ramsey kept firing. Many of his shots narrowly missed the Atwoods, and some passed through the floor into the ground level office area of the building. The Atwoods ultimately pulled the rifle away from Ramsey. Ramsey, however, immediately pulled out his pistol and cocked it, threatening to "blow [Atwood's] head off." The Atwoods rejoined their struggle with Ramsey. Other Times employees came to their assistance and managed to subdue Ramsey and hold him until the police arrived on the scene. The state initially filed an indictment charging Ramsey with second-degree arson, attempted first-degree assault, third-degree assault, and reckless endangerment. At an arraignment hearing held on November 3, 1986, the court set Ramsey's ease for trial beginning January 19, 1987. Approximately a week before the date set for trial, the district attorney's office reassigned the case to a different prosecutor. The new prosecutor reassessed the case and decided to obtain a superseding indictment, abandoning the arson charge and charging the more serious crimes of attempted kidnapping and attempted murder. Ramsey's counsel contacted the new prosecutor on January 14, 1987, and told her Ramsey was contemplating a change of plea as to all charges other than arson; counsel indicated that he believed the evidence was insufficient to support the arson charge. In response, the prosecutor informed Ramsey's counsel that she had reviewed the case and was considering going back to the grand jury to seek another indictment. Later the same date, the prosecutor informed the court of her intent to reindict. On January 20, 1987, the grand jury returned a superseding indictment charging Ramsey, in two alternative counts, with attempting to kidnap Robert Atwood, and, in two additional alternative counts, with attempting to kill Atwood. The indictment also charged Ramsey with three counts of third-degree assault (involving Elaine Atwood and two other Times employees), one count of criminally negligent burning, and two counts of reckless endangerment. Ramsey moved to dismiss the second indictment, contending that it was barred by the doctrine against prosecutorial vindictiveness. The motion was assigned to Superior Court Judge S.J. Buckalew, Jr., who denied it. Shortly before trial on the new charges, Ramsey sought to have his court-appointed counsel replaced, alleging irreconcilable differences over the management of the defense case. Counsel joined in the motion, revealing that Ramsey wanted him to subpoena as many as one hundred defense witnesses — many of whom were local officials and politicians — to testify in support of Ramsey's conspiracy theory. Ramsey's counsel told the court that he could not in good conscience accede to Ramsey's demands. During the hearing concerning Ramsey's request for appointment of replacement counsel, it became apparent that no new attorney could be expected to step into the case without requiring an additional continuance of the trial date. Ramsey objected to any further postponement of trial and expressed the desire to waive counsel and represent himself instead. After conducting a formal inquiry, Judge Rowland denied Ramsey's request for self-representation, finding that Ramsey had not unequivocally waived his right to counsel and that, in any event, he would be incapable of presenting a coherent defense. Following trial, Ramsey's jury acquitted him of attempted murder and criminally negligent burning, but convicted him of both counts of attempted kidnapping, and of the three counts of third-degree assault and two counts of reckless endangerment. Judge Rowland sentenced Ramsey to consecutive terms totalling twenty-five years with ten years suspended. On appeal, Ramsey first contends that the superior court erred in denying his motion to dismiss the second indictment on grounds of prosecutorial vindictiveness. As a threshold matter, the state asserts that the prosecutorial vindictiveness doctrine is categorically inapplicable to Ramsey's case. The United States Supreme Court has specifically refused to extend the prosecutorial vindictiveness doctrine to the pre-trial phases of a criminal case. See United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Here, Ramsey's vindictiveness claim is based on actions taken by the state prior to his trial. Relying on Goodwin, the state claims that the prosecutorial vindictiveness doctrine is unavailable to Ramsey. While this court has never squarely decided the issue, our decisions suggest that, under Alaska's constitutional guarantee of due process, the prosecutorial vindictiveness doctrine may apply once the state has filed an indictment, but not before. Compare Morgan v. State, 673 P.2d 897, 900 n. 2 (Alaska App.1983), and Dyer v. State, 666 P.2d 438 (Alaska App.1983), with Atchak v. State, 640 P.2d 135 (Alaska App.1981). Resolution of the issue is unnecessary here, for we find that, even if claims of prosecutorial vindictiveness are not barred in all pretrial situations, Ramsey has failed to show vindictiveness in his case. The prosecutorial vindictiveness doctrine does not apply to all situations in which the state increases the charge against a person accused of a crime. In order to succeed, a claim of prosecutorial vindictiveness must, at a minimum, involve circumstances indicating that the state's decision to increase a defendant's charges was motivated by a desire to retaliate against the defendant for the exercise of some procedural right: Without [a] close temporal — or otherwise apparent — link between the exercise of the right and the 'penalty,' there can be no 'realistic likelihood of vindictiveness.' Atckak v. State, 640 P.2d at 146 (quoting United States v. Thurnhuber, 572 F.2d 1307, 1310 (9th Cir.1977)). Here, Ramsey has failed to make any credible showing that the state's decision to reindict was prompted by the exercise of any right on Ramsey's part. Instead, it appears that the state simply reevaluated its original charging decision and elected to seek more serious charges. Regardless of whether the state's action was arbitrary, or whether its delay in bringing the revised charges was excusable, the new charges did not amount to prosecutorial vindictiveness, because the state's decision to file them was unrelated to any action or inaction by Ramsey. Under the circumstances, we find no error in the trial court's denial of Ramsey's motion to dismiss the second indictment. Ramsey next contends that the trial court erred in refusing to grant his request for self-representation. The trial court in this case made two separate findings. First, the court determined that Ramsey did not, in fact, waive the right to an attorney. Second, the court determined that Ramsey was not minimally capable of presenting a coherent case to the jury. We need address only the first finding, since we conclude that it is not clearly mistaken and supports the trial court's decision to deny self-representation. Generally, a defendant has a right to self-representation. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); McCracken v. State, 518 P.2d 85, 91 (Alaska 1974). The right is not absolute, however; it attaches only when the defendant: (1) having the competency to knowingly, intelligently, and voluntarily waive counsel, (2) does waive assistance of counsel, and (3) is at least minimally capable of presenting a coherent case to the jury. Burks v. State, 748 P.2d 1178, 1180 (Alaska App.1988). See also Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App.1988). Under the applicable standard, mental competency to waive counsel and the ability to present a coherent case are necessary prerequisites to self-representation. But they are not in themselves sufficient. Before allowing self-representation, the court must be satisfied that the defendant has actually entered into a valid waiver of the right to counsel — a waiver expressed, on the record, in terms that are voluntary, informed, and unconditional. See Burks v. State, 748 P.2d at 1180; see also Adams v. State, 829 P.2d 1201 (Alaska App.1992) (Bryner, C.J., concurring). In finding that Ramsey did not waive counsel, and indeed had no desire to do so, the trial court commented: [Ramsey] wishes to have counsel and to secure the advantages of such representation to himself. Mr. Ramsey's unhappy about his present counsel because his present counsel has refused to follow his direction with regard to both strategic and tactical decisions the defendant has made with regard to how his defense should be conducted. His dissatisfaction in this regard is the same as that he expressed about his previous counsel.... Mr. Ramsey by his complaint about counsel is attempting to manipulate the system into appointing counsel who will follow his directions in this regard. It is highly probable that Mr. Ramsey would have the same complaint about any counsel who was appointed to represent him because any counsel appointed would in all likelihood adopt a position consistent with [current counsel's]. The court would then be asked for a third time to replace that counsel as well. These remarks find support in the record. When the court inquired of Ramsey's desire to proceed pro se, the following exchange occurred: RAMSEY: . I've never insinuated that I want to defend myself in a trial, but.... THE COURT: You don't want to defend yourself in a . RAMSEY: If I have to go to trial . THE COURT: If you have to, you will, but you don't want to defend yourself, is that correct? RAMSEY: Yes, sir, if I have to go to trial Tuesday, I'll defend myself. If I have to go to trial the 4th and — and there's no time for a public advocate to prepare for trial, I'll defend my — if I have to go to trial this afternoon, I'll defend myself because I want to go to trial. Sir, I've done nothing to stall the trial. THE COURT: So what — so as I understand what you're telling me, Mr. Ramsey, is that you want to go to trial, you don't want to be delayed in trial, you want counsel, but you don't want this counsel, is that correct? RAMSEY: Yes, sir.... At another point in the hearing, the court asked Ramsey whether he thought he needed an attorney. Ramsey replied, "Oh, I know I need an attorney." Ramsey's offer to waive counsel and proceed pro se thus arose as an integral part of his effort to have a new attorney appointed to replace his original counsel, with whom Ramsey claimed to have irreconcilable differences. Throughout the proceeding, Ramsey insisted that he would prefer to proceed with a new attorney and without any further delay. Indeed, Ramsey insisted that he needed an attorney. Ramsey made it clear that his waiver of counsel was prompted by the belief that his current counsel was incapable of providing competent representation and that his right to a new attorney would be conditioned on his willingness to agree to postpone his trial. It seems evident that, far from offering a voluntary and unconditional waiver, Ramsey viewed himself as being forced to choose between what he perceived to be his right to a new attorney and his right to a trial without further delay. It is all but predictable that, if the trial court had ae-cepted Ramsey's waiver of counsel, Ramsey could now, upon being convicted, claim that his decision to represent himself was involuntary — a decision coerced by the need to choose between two fundamental rights: his right to counsel and his right to a speedy trial. We conclude that, under these circumstances, the trial court did not abuse its discretion in finding Ramsey had not actually offered a valid waiver of counsel, and in denying Ramsey's request for self-representation on that ground. Ramsey lastly contends that the sentence he received — a total term of twenty-five years with ten years suspended — is excessive. Ramsey's sentence represents his conviction of one class A felony (the court merged Ramsey's convictions of alternative counts of attempted kidnapping into a single count), three class C felonies (third-degree assault), and two class A misdemeanors (reckless endangerment). In sentencing Ramsey, Judge Rowland imposed a sentence of fifteen years for the attempted kidnapping conviction. The judge imposed a term of four years for the third-degree assault conviction that involved Elaine Atwood and terms of two years for each of the two remaining third-degree assault convictions; the judge also imposed one-year terms for each of the two reckless endangerment convictions. Judge Rowland ordered all of the sentences to be served consecutively, for a total term of twenty-five years. The judge suspended ten years of the total term, on condition that Ramsey successfully complete five years of probation. With regard to the attempted kidnapping, for which Ramsey was subject to a seven-year presumptive term, Judge Rowland found three aggravating factors: that Ramsey's conduct was among the most serious included in the definition of the offense, that his conduct resulted in physical injury to the victim, and that his conduct caused an imminent risk of injury to three or more persons. In finding the offense among the most serious in its class, Judge Rowland said: [T]he duty of the Court becomes to construct a spectrum of possible ways in which the particular crime could be committed, and to determine where along that spectrum this particular offense and the commission of this particular offense lies. And considering the facts and circumstances of this case, I believe it is among the most serious included in the definition of attempted kidnapping. And in reaching that conclusion I rely upon the aura of terror and violence that surrounded it, the discharging of the firearm repeatedly, the danger to others that was created for whom the victims of the kidnappings felt not only professional kinship but I'm sure responsibility. All of those factors I believe make this offense amongst the most serious of the conduct included in the definition of attempted kidnapping. For similar reasons, Judge Rowland expressly found Ramsey's assault on Elaine Atwood to be an exceptionally serious case of third-degree assault; the judge also emphasized the extreme seriousness of Ramsey's overall conduct: Mr. Ramsey has his whole life long found it difficult to cope with the rather ordinary circumstances that have been thrust upon him. On October 21st, 1986 he was, I believe, responding to an unreasonable belief that a monolithic and insensitive society over which and in which he felt he was powerless had operated to injure him and to deny him health and redress from any quarter. I think all of us probably have had some of these feelings from time to time. On this occasion Mr. Ramsey was, I believe, in his own mind simply striking back. His conscious objective on October 21st, 1986 was to strike terror into the many innocent people who were there present, and particularly Robert Atwood who Mr. Ramsey had elected as his personal adversary and author and major part of all the personal tragedy in Mr. Ramsey's life. From his remarks here today I believe he apparently still holds Mr. Atwood responsible. There is no reason at this time to go over the details of the offenses themselves. This was an outrageous and dangerous terrorist episode. The evidence presented at trial vividly described the circumstances surrounding the commission of these offenses, the danger to the many innocent people who were present, and particularly the Atwoods. I believe it has profoundly affected the lives of many of those who were there and were involved. In deciding to impose a lengthy term of imprisonment, Judge Rowland gave careful consideration to Ramsey's character, and went on to discuss Ramsey's character and the seriousness of his conduct in light of the sentencing criteria articulated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970): There are aspects of the defendant's character and personality which have to be noted. These conclusions I've drawn from the circumstances of the crime, the circumstances leading up to the crime, the general information about the defendant's background furnished to me in the presentence report, and my observations and contacts with the defendant, observations of and contacts with the defendant here in the courtroom. First of all, the defendant is possessed of a remarkable and dangerous arrogance which allows him, when he so desires, to ignore any viewpoint but his own. Secondly, he has an insensitivity to others, to anyone but himself, and an ability to depersonalize other people when his perceived needs so require. Thirdly, he has a willingness to inflict injury upon others, terrorize them in order to secure his own ends, and to create justification for such action out of his own experience even when none logically or reasonably exist. Fourthly, he has the emotional and intellectual capacity for the sustained planning and effort necessary to carry out the kind of criminal terrorist activity involved in this instance. Fifthly, he has an unwillingness to recognize and'confront the wrongfulness of what he's done, and therefore demonstrates no remorse towards Robert Atwood. He continues to cling to the rationalizations for his conduct that he himself has fashioned out of whole cloth. I've concluded that Mr. Ramsey is a dangerous offender, an extremely dangerous offender, likely to re-offend if not rehabilitated, and unlikely to be rehabilitated in the near future. Considering the Chaney criteria, I deem isolation for the protection of society to be the most important of the Chaney criteria to be served. Community condemnation, deterrence of others, and the offender himself, occupy an important but subordinate status. Rehabilitation can only begin when the defendant himself becomes willing to confront himself with what he's done, and he must essentially do that on his own. When and if he makes that important transition, certainly help will be available to him, and should be available to him, so that rehabilitation can be accomplished. In the meantime, he should be in a structured setting for a very substantial period of time, and when released [be] monitored while on probation. A substantial period of time hanging over his head as a deterrent in the event he refuses to conform his conduct to the requirements of his probation, and society, is also required. The sentence Judge Rowland imposed is undeniably severe, particularly given Ramsey's status as a first offender. Nevertheless, it seems equally undeniable that Ramsey's offenses involved exceptionally dangerous conduct and that Ramsey's prospects for rehabilitation are unusually bleak. Having independently reviewed the entire sentencing record, we believe that Judge Rowland's thorough sentencing findings are supported by ample evidence and that his consideration of the applicable sentencing criteria is sound. We conclude that the sentence imposed below was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The judgment is AFFIRMED.

10347045

Gary and Beverly SWEET, Individually and as Parents and Next Friend of their Minor Son, Jacob Sweet, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, a Washington non-profit corporation, d/b/a Providence Hospital; Daniel Tulip, M.D., James Nesbitt, M.D., Gerry J. Schriever, M.D.; The Children's Clinic, Inc., a corporation; The Children's Clinic, a partnership; and Does 1 through 10, partners in The Children's Clinic, Inc., Appellees

Sweet v. Sisters of Providence in Washington

1995-04-14

No. S-4830

1252

1265

893 P.2d 1252

893

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Gary and Beverly SWEET, Individually and as Parents and Next Friend of their Minor Son, Jacob Sweet, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, a Washington non-profit corporation, d/b/a Providence Hospital; Daniel Tulip, M.D., James Nesbitt, M.D., Gerry J. Schriever, M.D.; The Children’s Clinic, Inc., a corporation; The Children’s Clinic, a partnership; and Does 1 through 10, partners in The Children’s Clinic, Inc., Appellees.

Gary and Beverly SWEET, Individually and as Parents and Next Friend of their Minor Son, Jacob Sweet, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, a Washington non-profit corporation, d/b/a Providence Hospital; Daniel Tulip, M.D., James Nesbitt, M.D., Gerry J. Schriever, M.D.; The Children’s Clinic, Inc., a corporation; The Children’s Clinic, a partnership; and Does 1 through 10, partners in The Children’s Clinic, Inc., Appellees. No. S-4830. Supreme Court of Alaska. April 14, 1995. See also, 881 P.2d 304, opinion withdrawn and superseded. Patricia L. Zobel and John T. Robertson, Staley DeLisio & Cook, Anchorage for appellants. James D. Gilmore, Gilmore & Doherty, Anchorage, for appellee Sisters of Providence in Wash. David F. Leonard and Marcus R. Clapp, Hughes, Thorsness, Gantz, Powell & Brun-din, Fairbanks, for appellees Daniel Tulip, M.D., James Nesbitt, M.D., and The Children’s Clinic.

7891

49365

ORDER On consideration of the Hospital's petition for rehearing and the Doctors' petition for rehearing, both filed on October 10,1994, and the Sweets' response to the petitions, filed on January 6, 1995, IT IS ORDERED: 1. Opinion No. 4127, published on September 30, 1994, is WITHDRAWN. 2. Opinion No. 4188 is issued today in its place. 3. The Hospital's petition for rehearing is GRANTED. The opinion is changed to rule that the failure to shift the burden of proof on the issue of causation was harmless error because the jury found in the special interrogatory that the Hospital was not negligent. These changes are located at pages 2,18, and 31 of Opinion No. 4188 [pages 1254,1260 and 1265]. 4.The Doctors' petition for rehearing is GRANTED for the purpose of clarifying the opinion with regard to the issue of informed consent; the result of the review- — namely, a remand for an evidentiary hearing — remains the same. The clarifying language is found at pages 22 and 23 of Opinion No. 4188 [page 1262], Entered by direction of the court. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ. OPINION MOORE, Chief Justice. Jacob Sweet, an infant, allegedly sustained brain damage while a patient at Providence Hospital in Anchorage. Jacob's parents, Gary and Beverly Sweet (the Sweets), brought this action against Providence Hospital (Providence) and Drs. Daniel Tulip, James Nesbitt, Gerry J. Schriever and the Children's Clinic (collectively referenced as "the doctors"), claiming that the defendants' negligence caused Jacob's severe brain injury. The Sweets also alleged that Providence's inability to locate certain medical records precluded them from proving medical negligence, and that they were entitled to recover based on a claim of intentional or negligent spoliation of evidence. The jury's verdict was in favor of the defendants on all claims. The Sweets' appeal addresses five main points of error. We hold that the trial court's failure to apply a rebut-table presumption of causation on the Sweets' medical negligence claim against Providence constituted harmless error. We also find no error in the court's handling of issues related to the expert witnesses. However, we remand the case for an evidentiary hearing to determine whether an administrative regulation should set the standard of care on the Sweets' informed consent claim. We also vacate the attorney's fee award. I. Jacob Sweet is a young boy with a severe brain injury. He suffers from profound mental retardation as well as cerebral palsy and blindness. Jacob is confined to a wheel chair, and he will almost certainly continue to depend upon around-the-clock care for the rest of his life. The cause of Jacob's disabilities is the subject of this lawsuit. Jacob was born to Beverly and Gary Sweet on January 16, 1986, at Providence. Upon Jacob's birth, Dr. Tulip, an employee of the Children's Clinic, became his pediatrician. Dr. Tulip examined Jacob shortly after his birth and found nothing abnormal about the infant's health. The next day, Dr. Nesbitt, another Children's Clinic physician, circumcised Jacob. The parties dispute whether either Dr. Tulip or Dr. Nesbitt advised Beverly Sweet of the risks and benefits of circumcising Jacob. The Sweets contend that they were never advised they had any choice in deciding whether Jacob should be circumcised. They state that, after Dr. Tulip's examination of Jacob on the 16th, Nurse Marianne Rexford presented Beverly with an index-size permit card to authorize circumcision. Beverly stated that she had not discussed circumcision with her husband or any physicians, but she signed the authorization because she believed that all baby boys were circumcised, and she was not aware she had a choice in the matter. Neither Nurse Rexford nor the doctors have any independent recollection of talking with Beverly about Jacob's circumcision. However, both Dr. Tulip and Dr. Nesbitt contend that, prior to circumcising Jacob, they certainly would have separately discussed the risks of circumcision with Beverly as part of their usual practice in caring for newborn boys. They also state that, as part of the usual practice of Providence's nursery staff, Nurse Rexford or another nurse would have provided Beverly with a document called the "Compton Sheet," which describes in detail the risks and benefits of, and alternatives to, circumcision. Jacob and Beverly were discharged from the hospital on January 18, 1986. Over the next week, Gary and Beverly followed the instructions they were given on how to care for the circumcision site. On Saturday, January 25, one week after Jacob's discharge, the Sweets called Dr. Tulip because Jacob had become fussy and was vomiting. Beverly had also noticed that Jacob's circumcision site appeared red and swollen and looked different from the picture on the brochure outlining the proper care of the site. Dr. Tulip advised the Sweets to bring Jacob to Providence, where he would meet them. Dr. Tulip met the Sweets in the Emergency Room at approximately 11:00 p.m. Dr. Tulip examined Jacob and determined that he had a localized infection in his penis. Recognizing that infants are at higher risk of developing potentially life-threatening systemic, or generalized, bacterial infections of the entire body, Dr. Tulip decided the most prudent approach was to admit the infant overnight to the pediatrics ward so that he could receive IV antibiotic therapy. There are numerous critical facts at issue regarding Jacob's condition and treatment between the time he was admitted to the pediatrics ward and the time he was transferred to the neonatal intensive care unit (NICU) approximately 26 hours later, at 2:15 a.m. on Monday, January 27. In addition to the recollections of the parties, a number of different medical records exist which set forth some specifies regarding Jacob's care during this 26 hour period. These records include Dr. Tulip's notes regarding Jacob's care, Dr. Roy Davis' notes following Jacob's prolonged seizure, or "crash," late in the evening of January 26, all laboratory test results over the course of Jacob's stay at Providence, his NICU records, physician's orders, discharge summary and radiology and EEG reports. Other medical records are missing and could not be located after an exhaustive search by the parties. The missing records include Jacob's narrative nursing notes, a medication sheet, a graphic record, and a nursing care flow sheet for Sunday, January 26 (collectively referenced as "the nursing records"). The narrative nursing notes typically would reflect the nurses' assessments of the patient, detailed observations which are updated every four hours, any communications with the patient's parents or doctors, and the records of treatment and doctor visits. These notes have been called the "eyes and ears of the doctor." The medication sheet would indicate all medication given to the patient, including the dose, sequence and time given. The sheet would provide evidence as to whether and when a doctor's orders were actually carried out. The graphic record contains information regarding body temperature, pulse, respiration, blood pressure, body weight and all bodily inputs and outputs. The nursing care flow sheet records matters such as the patient's appetite and the amount of formula consumed. The missing nursing records are the subject of the Sweets' cause of action against Providence for spoliation of evidence. It is undisputed that the records were available at the time Jacob was transferred to NICU. There is no contention that the records were missing during any critical moments of Jacob's stay, or that his care was adversely affected as a result of absent records. The Sweets claim that the missing records precluded them from succeeding on their medical negligence claims, and that as a result they were entitled to a conclusive presumption of negligence. Events over the course of Sunday, January 26 Given the lack of nursing records setting forth the precise nature and timing of events during the day of January 26, the parties dispute a number of facts. The Sweets contend that Beverly returned to Providence the morning of Sunday, January 26 at approximately 8:00 or 8:30 a.m. While holding Jacob, Beverly noticed what she called a "stiffening spell" in which Jacob forcefully arched his back, rolled his eyes and turned red in the face. The spell lasted a few seconds. Beverly stated that she suspected the spell was caused by Jacob's pain in urinating, and that she reported it to the nurse. She also reported it to Dr. Tulip when he came in at approximately 10:00 a.m. According to the Sweets, after Dr. Tulip left the room, Beverly observed two more stiffening spells and noticed that Jacob appeared to be shivering. She reported this to the nurse on duty, and again to Dr. Tulip when he returned at noon. As the afternoon progressed, Beverly stated the stiffening spells became more frequent, occurring approximately every 45 minutes to an hour between the hours of 2:00 p.m. and 9:00 p.m. She remembers describing these episodes to the nurse on duty at around 3:00 p.m. The Sweets contend that, at around 7:00 p.m., Gary called for the nurse when Jacob had a stiffening spell while being held by Gary. According to the Sweets, the nurse asked if Jacob had been fluttering his eyes during the spell. When Gary responded that he had, the nurse said she would call the doctor immediately. Dr. Tulip testified that he felt Jacob's condition on Sunday morning was improved from that of the night before. He recalled that Beverly informed him of a movement that troubled her when he visited Jacob around noon. He otherwise did not recall that anyone informed him of Jacob's "stiffening spells" between Sunday morning and Sunday evening. However, Dr. Tulip stated that he became aware during his noon visit that Jacob had lost interest in feeding and that his temperature had dropped. As a result of this information, Dr. Tulip stated that he ordered lab tests to investigate the possibility that Jacob had a systemic infection. Dr. Tulip denied receiving a call from a nurse at 7:00 p.m. informing him of Jacob's possible seizures. He remembered receiving a call at around 9:00 p.m. in which the nurse reported two movements that she thought were normal infant movements. Nonetheless, Dr. Tulip stated that in response he ordered three procedures to ensure that Jacob's condition was stable. He ordered that (1) an apnea monitor be attached to Jacob to detect Jacob's heartbeat and respiration, and to notify the nurses if there was a delay between breaths or a drop in heart rate below certain intervals; (2) Jacob's IV fluids be increased; and (3) an electroencephalogram ("EEG") be performed the next morning to monitor Jacob's brain activity for possible indication of seizures. The Sweets allege that, after an apnea monitor was attached to Jacob, its alarm sounded several times, each correlating with a stiffening spell. However, the nurse on duty simply turned down the buzzer because it was disturbing other patients. Moreover, they claim that at 11:30 p.m., Nurse Dawn Pope discovered that Jacob's IV was not working. Without the nursing records, it is impossible to tell how long the IV had been inoperative before Nurse Pope became aware of it. The Sweets assert that Nurse Pope did not return to restart the IV until shortly after 1:00 a.m., so it was not functioning for at least an hour and a half. At around midnight, Dr. Tulip reviewed Jacob's chart and ordered lab tests for the following morning. He later crossed out that order and requested immediate tests. He also ordered that Jacob's IV flow rate be increased. The Sweets contend that, although Nurse Pope became aware of this order at 12:30, she did not immediately restart the IV even though it had not been operating for at least an hour. The Crash Around 1:00 a.m. on January 27, Jacob experienced what the parties refer to as "the crash." Again, however, their recollection of events differs substantially. The Sweets allege that Dr. Tulip entered Jacob's room around 1:00 a.m. and told Beverly that Jacob was "a sick little boy." He stated he wanted to take a spinal tap and would move Jacob to a treatment room for that purpose. According to the Sweets, once Jacob was in the treatment room, he had another stiffening spell, which Dr. Tulip recognized as a seizure. Dr. Tulip immediately treated the situation as an emergency and requested that Dr. Roy Davis, a neonatologist who was in the hospital, be called in to assist. Beverly testified that she told Dr. Tulip that Jacob had been making the same movements all day. Dr. Tulip remembers events differently. He recalled that, around 1:00 a.m., he was examining Jacob in Jacob's room. At that time, he saw Jacob have a seizure. He then moved Jacob into the treatment room, where Jacob had a second prolonged seizure known as the "crash." Once Jacob began having his prolonged seizure in the treatment room, Dr. Tulip attempted to restart Jacob's IV so that anti-convulsant medication could be administered. When Dr. Davis arrived several minutes later, Jacob was being given oxygen by mask and bag, and he was blue and mottled in color. Dr. Davis therefore established a first priority of intubating Jacob so that he could be artificially respirated. The next priority was to restart the IV, which was achieved with some difficulty. Jacob was then given blood volume to relieve shock and anti-con-vulsant medication through the IV. Within a minute or two after the medications Were administered, the seizure was controlled. Since Jacob was in the treatment room for about an hour, the seizure may have lasted from twenty minutes to one hour. Dr. Tulip estimated it lasted between twenty and forty minutes. Throughout the prolonged seizure, the doctors contend that Jacob's heartbeat did not stop, he was never in shock, he was not dehydrated, and he never lapsed into a coma. They assert that the seizure did not result in any permanent brain damage. Around 2:15 a.m., Jacob was transferred to the NICU. Although Jacob continued to have seizures in the NICU, the doctors stated that he recovered quickly. He was discharged from the hospital on February 9, and examined again by Dr. Tulip on February 14. Although Dr. Tulip noted that Jacob was at risk for developmental delays, he was not aware of Jacob's significant brain damage until after this lawsuit was filed. Course of Proceedings In 1987, the Sweets filed suit against Providence and the doctors. The Sweets alleged that the defendants had failed to obtain their informed consent before circumcising Jacob. They further alleged that the defendants were medically negligent in failing to adequately monitor Jacob's condition and to promptly diagnose and treat his bacterial infection and seizures, which resulted in his brain damage. The Sweets claimed that the infection from Jacob's circumcision site led to a generalized systemic infection or to meningitis, which directly or indirectly caused his brain damage. Upon discovering that Jacob's nursing records were missing, the Sweets later amended their complaint to include allegations of intentional and/or negligent spoliation of evidence against Providence. At trial, the Sweets' experts testified that Jacob's brain damage was the result of hy-poxic ischemia, or reduced blood flow coupled with reduced oxygen in the blood supply, during Jacob's prolonged seizure in the treatment room. They opined that Jacob's seizures, and his "crash," were caused by a systemic bacterial infection seeded from Jacob's circumcision site. Moreover, they testified that, regardless of whether Jacob's seizures were caused by a systemic bacterial infection arising from his circumcision site or by some other cause such as viral infection, Jacob's injury would have been avoided if the infant had been promptly transferred to NICU where his seizures would have been observed and controlled before the crash, thereby avoiding any brain injury. The Sweets' experts also contended that, had Providence personnel restarted Jacob's IV in a reasonable amount of time on the night of January 26, it would have been operable at the time of the crash, and Jacob's prolonged seizure would have been controlled before any brain damage occurred. The defendants argued that Jacob's seizures were not caused by a systemic infection seeded from his circumcision site, and that his prolonged seizure did not cause him to stop breathing long enough to result in his significant brain damage. Although the defense experts believed that the cause of Jacob's disabilities could not have been hypoxic ischemia, they did not necessarily agree as to what did cause his injuries. The most prevalent theory amongst the defense experts was that a viral infection was at fault. The jury rendered a verdict in favor of Providence and the doctors as to all issues. The trial court subsequently entered judgment against the plaintiffs and awarded Providence and the doctors $150,000 each in attorney's fees. Following this court's decision in Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2 (Alaska 1992), the trial court reconsidered its attorneys' fee order, but it later upheld its original awards. II. On appeal, the Sweets allege that the trial court erroneously (1) handled their spoliation of evidence claims against Providence; (2) instructed the jury regarding their claim of lack of informed consent to the circumcision; (3) permitted an excessive number of defense experts to testify; (4) refused to allow the Sweets to cross-examine certain defense experts using deposition testimony of other, non-testifying defense experts; and (5) awarded excessive attorney's fees. A. SPOLIATION OF EVIDENCE The Sweets contend that Providence's spoliation of evidence stripped them of their ability to successfully prosecute their medical negligence causes of action against Providence and the doctors. On appeal, they claim that Providence breached its duty to create and preserve three types of required medical records: (1) signed informed consent records regarding the circumcision performed on Jacob; (2) the nursing records for January 26; and (3) a contemporaneously created record of Jacob's "crash" in the treatment room. The Sweets argue that Providence's breach of duty with respect to these records impaired their ability to prove medical negligence, and they were entitled to judgment as a matter of law on their spoliation claims. To account for the missing nursing records, Judge Shortell shifted the burden of proof to Providence on the issues of its duty and breach in providing medical care to Jacob. However, the burden remained on the Sweets to establish that any medical negligence was the legal cause of Jacob's injuries. The court additionally instructed the jury regarding negligent and intentional spoliation of evidence and allowed the jury to determine whether the missing records rendered the Sweets unable to pursue their negligence claims. We address the questions arising from the Sweets' claims of error on this issue as follows: 1. The trial court erred in refusing to shift the burden of proof as to causation on the Sweets' medical negligence claim. As discussed above, Judge Shortell shifted the burden of proof to Providence on the issues of its duty and breach on the Sweets' medical negligence claim. However, the court refused to shift the burden of proof as to causation. The burden remained on the Sweets to establish that medical negligence was the legal cause of Jacob's injuries. The Sweets argue that Providence should have borne the burden of proving that Jacob's injuries were not caused by the hospital's negligence. We agree. Just as the missing records may have impaired the Sweets' ability to prove medical negligence, they would in the same way impair the Sweets' ability to prove a causal connection between any negligence and Jacob's injuries. It is for this very reason that a number of courts in other jurisdictions have created a rebuttable presumption shifting the burden of persuasion to a health care provider who negligently alters or loses medical records relevant to a malpractice claim. See Welsh v. United States, 844 F.2d 1239, 1246-47 (6th Cir.1988); Public Health Trust v. Valcin, 507 So.2d 596, 599-601 (Fla.1987); Bondu v. Gurvich, 473 So.2d 1307, 1313 n. 5 (Fla.Dist.App.1984); Thor v. Boska, 38 Cal.App.3d 558, 113 Cal.Rptr. 296, 303 n. 8 (1974) (dicta); see also DeLaughter v. Lawrence Cty. Hosp., 601 So.2d 818, 821-22 (Miss.1992) (imposing presumption that missing records would contain evidence unfavorable to the hospital). While the cases cited above each involve different nuances, we believe that the appropriate approach is that announced by the Florida Supreme Court in Valcin, 507 So.2d at 599-601. In Valcin, the plaintiffs claimed that a surgeon negligently performed a tubal ligation. However, the lack of an operative report by the surgeon impaired the plaintiffs' ability to prove negligence. Id. at 597. The Florida Supreme Court approved of the trial court's use of a rebuttable presumption shifting the burden of producing evidence to the hospital. Id. at 599. In reaching this result, the court made several observations with which we agree. First, the court required a preliminary determination of the potential importance of the missing records before burden shifting should take place: "[W]e point out that upon remand the trial court should consider the existence or adequacy of any operative note . and determine whether or not the absence of an adequate note sufficiently hinders plaintiffs ability to proceed, thus shifting the burden of producing evidence on the merits of the claim." Id. at 601. The court relied on Alaska authority in establishing this requirement: In other words, a plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case. In Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964), for example, the Alaska Supreme Court noted that "it was incumbent upon the appellee surgeon to have de scribed accurately and fully in his report of the operation everything of consequence that he did and which his trained eye observed during the operation.... If these requirements had been met the report would . more likely . have supplied sufficient facts to have permitted expert witnesses to testify on the question of negligence." Id. at 599. The Valcin court also emphasizes that burden shifting should only occur when the essential medical records are missing through the negligence or fault of the adverse party. Id. Finally, the Valcin court noted that the presumption created by burden shifting is rebuttable, but it is not a "vanishing presumption." Valcin, 507 So.2d at 600-01. As the court stated: If the plaintiff is in fact sufficiently "hindered" by the absence of an operative note, odds are that the defendant's production of some evidence of nonnegligence will not place the plaintiff in a better position. Testimony based on the selective recollections of the surgeon and his staff would be considered "substantial" enough to "burst the bubble," thus keeping the presumption from the jury. Plaintiff could rarely prove negligence by a preponderance of the evidence when the presumption has given him nothing more than the self-serving testimony of the defendant. Id. at 600 (citations omitted). Instead, the type of rebuttable presumption which should apply "affects the burden of proof," shifting the burden to the party against whom the presumption operates to prove the non-existence of the fact presumed. Id. at 601. The Valcin court continued: "When evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case." Rebuttable presumptions which shift the burden of proof are "expressions of social policy," rather than mere procedural devices employed "to facilitate the determination of the particular action." [This type of] presumption shifts the burden of proof, ensuring that the issue of negligence goes to the jury. This interpretation appears to best implement public policy that adequate operative notes be kept. Id. at 600-601 (quoting Caldwell v. Division of Retirement, 372 So.2d 438, 440 (Fla.1979)). Applying these observations to the present case, we hold that the trial court should have adopted a rebuttable presumption that Providence was medically negligent in treating Jacob and that this negligence legally caused Jacob's injuries, absent a jury finding that Providence's failure to maintain Jacob's records was excused. However, the trial court's failure to apply a rebuttable presumption of causation did not impact the ultimate outcome of this case. The trial court did shift the burden of proof to Providence on the issue of duty and breach and the jury found that Providence had affirmatively established, by a preponderance of the evidence, that it had not been negligent in providing care to Jacob. Because the jury found that Providence was not negligent, the jury never reached the issue of causation. Therefore, the trial court's error was harmless. See Zoerb v. Chugach Elec. Ass'n, 798 P.2d 1258, 1262 (Alaska 1990) (holding that even if the trial court had erred in denying the defendant's motion for a directed verdict on punitive damages, the error was harmless because the jury found in favor of the defendant and never reached the punitive damages claims); Baker v. Werner, 654 P.2d 263, 267 n. 6 (Alaska 1982) (holding that any error in trial court's comparative negligence instruction was harmless where the jury found that both defendants were not negligent). 2. Shifting the burden of proof makes it unnecessary to separately instruct on the tort of spoliation. We next deal with issues concerning the Sweets' independent tort claim of spoliation. We recognized the tort of spoliation relating to the intentional destruction of records in Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986). Hazen relied strongly on Smith v. Superior Court, 151 Cal.App.3d 491,198 Cal.Rptr. 829 (Dist.1984), the leading ease on intentional spoliation of evidence. See Pati Jo Pofahl, Note, Smith v. Superior Court: A New Tort of Intentional Spoliation of Evidence, 69 Minn.L.Rev. 961 (1985). As the Smith case makes clear, the tort of intentional spoliation is a tort borne of necessity: "for every wrong there is a remedy." Smith, 198 Cal.Rptr. at 832. Although there are certainly cases like Hazen which merit a cause of action for intentional spoliation, we do not believe this is such a case. Based on the record, we see insufficient evidence from which a reasonable person could conclude that Providence lost or destroyed Jacob's January 26 nursing records with the intent to disrupt the Sweets' prospective civil action. Accordingly, a jury instruction as to intentional spoliation was not legally supportable, and we consider only the Sweets' claim of negligent spoliation. In keeping with the Smith rationale, a number of other courts have recognized that negligent destruction of records may give rise to an independent tort of spoliation. See Pirocchi v. Liberty Mutual Ins. Co., 365 F.Supp. 277, 280-82 (E.D.Penn.1973); Velasco v. Commercial Bldg. Maintenance Co., 169 Cal.App.3d 874, 215 Cal.Rptr. 504, 506 (1985); Bondu v. Gurvich, 473 So.2d at 1313. However, it is our view that, in the present ease, the remedy of burden shifting is a sufficient response to the loss or destruction of the records. Other courts have reached the same conclusion. See, e.g., Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, 768 (Spec.1985) ("[T]he remedy for the alleged spoliation would be appropriate jury instructions as to permissible inferences, not a separate and collateral action."). We need not decide in this case whether the recognition of a separate tort of negligent destruction of evidence would ever be appropriate, for example, against a third party not associated with the underlying lawsuit. We are satisfied that an adequate remedy for the spoliation of Jacob's records is provided by the burden shifting discussed in part 1, above. B. INFORMED CONSENT Alaska Statute 09.55.556 sets forth the elements of a cause of action regarding informed consent. It states in part: (a) A health care provider is liable for failure to obtain the informed consent of a patient if the claimant establishes by a preponderance of the evidence that the provider has failed to inform the patient of the common risks and reasonable alternatives to the proposed treatment or procedure, and that but for that failure the claimant would not have consented to the proposed treatment or procedure. The Sweets assert that administrative regulations promulgated by the Alaska Department of Health and Social Services clarify that informed consent requires signed informed consent. Because Providence and the doctors did not obtain signed informed consent documents prior to circumcising Jacob, the Sweets claim the defendants were negligent per se. The trial court rejected the Sweets' argument that the regulation set the appropriate standard of care for tort liability purposes. We reverse the court's ruling as insufficiently supported by the evidence, since the court did not hold an eviden-tiary hearing to establish whether 7 AAC 12.120 was or was not obscure and could be fairly interpreted to set the standard of care. In determining whether to formulate a negligence per se instruction based on the violation of a statute or regulation, our cases rely on the guidelines set forth in the Restatement (Second) of Torts § 286, 288A, 288B (1965). Ferrell v. Baxter, 484 P.2d 250, 263-65 (Alaska 1971). Under the Restatement approach, the trial court must make an initial legal determination whether the conduct at issue falls within the scope of the statute or regulation by applying the criteria set out in § 286 of the Restatement. Id.; State Mechanical, Inc. v. Liquid Air, Inc., 665 P.2d 15, 18 (Alaska 1983); see supra note 8. If the criteria of § 286 are met, the trial court may adopt the law as the standard of reasonable behavior. However, under § 286, the trial court retains discretion to refuse to adopt the law as the standard of care. Ferrell, 484 P.2d at 263-64; Bachner v. Rich, 554 P.2d 430, 440—41 & nn. 11-12 (Alaska 1976). For example, rejection of the legislative enactment is appropriate when the law is so obscure, unknown, outdated, or arbitrary as to make its adoption as a standard of reasonable care inequitable. State Mechanical, 665 P.2d at 18-19; Ferrell, 484 P.2d at 264-65; see also Restatement (Second) of Torts § 288A(2)(b) (1965). The defendants argued to the trial court that the requirements set forth in 7 AAC 12.120(c) are inconsistent with the informed consent statute. They also argued that the regulation should not define the standard of care because its reference to signed informed consent was obscure and unknown in the medical community. Finally, they argued that the Sweets did not present any evidence in their case-in-chief to justify a negligence per se instruction. As a result, the defendants had not presented any evidence, as they otherwise would have, to show that physicians were largely unaware of the regulation, and that it was not the standard practice to obtain signed informed consent to procedures like circumcisions. For this reason, the defendants argued, it would be inequitable to allow the regulation to define the standard of care. We first note that the regulation is not inconsistent with the informed consent statute. It simply imposes a supplemental requirement that the patient's medical record contain a "signed informed consent" before a surgical procedure may begin. However, the court accepted the defendants' claim that the regulation was "obscure and unknown" without further inquiry. This constituted error. Based on the Sweets' allegations, there was an issue whether the regulation's requirement of signed informed consent was in fact obscure and unknown. Because the trial court did not adequately investigate this issue in an evidentiary hearing, there was an insufficient factual basis from which to conclude that the regulation either was or was not obscure and whether it could be fairly interpreted to set the standard of care. Accordingly, we reverse the court's ruling on this issue and remand for an evidentiary hearing. C. NUMBER OF EXPERT WITNESSES AND JURY CONFUSION Prior to trial, the court determined that there was adversity of interest between Providence and the doctors, and they therefore should be treated as separate defendants. As a result, each defendant was permitted to call its own expert witnesses. The Sweets argue on appeal that Providence and the doctors shared common interests, and they joined together to form a single defensive unit. Accordingly, the court should have limited their number of experts regarding the standard of care and causation. The Sweets additionally argue that the defendants' experts as to causation served more to confuse than to assist the jury, because they offered conflicting views as to the cause of Jacob's brain damage. We reject both claims of error. The Sweets rely on Alaska Evidence Rule 702 to support their contentions. The rule provides: (a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (b) No more than three expert witnesses may testify for each side as to the same issue in any given ease, unless the judge permits an additional number of witnesses to testify as experts. Number of Experts Long before the trial in this case, the Sweets moved to limit or strike some of the experts designated on the defendants' preliminary witness lists. During trial, the Sweets apparently renewed their motion. Following a discussion of the issue, counsel for the defendants asserted that a number of the experts on their lists would not be called at trial. With that assurance, the court determined that it could address this issue as the trial proceeded, and it would limit the defendants' experts only if it saw undue repetition in their testimony. The court also noted that there would be no repetition problem if a number of experts testified only to the limited areas within their particular specialties. In this conference, the court referenced Evidence Rule 702(b) and properly noted that it had discretion to allow more than three experts per issue. Over the course of the trial, the defendants jointly called eleven physician expert witnesses regarding causation and the standard of care. The plaintiffs called five physician experts on those issues. During the trial, the court did not step in to limit any repetitious expert testimony presented by the defendants, nor do the Sweets cite to any place in the record where they requested that the court do so. Standing alone, the disparity in numbers of experts does not establish an abuse of the court's discretion. Moreover, we see no error in the trial court's decision to allow the defense experts to testify with the warning that the court would not tolerate repetitive testimony. The Sweets have not shown any reversible error on this issue. Jury Confusion We similarly reject the Sweets' claim of jury confusion. It is true that defense experts who testified as to causation offered some differing theories regarding what could have, and what could not have, caused Jacob's brain damage. Those witnesses also acknowledged that Jacob's case was an extremely difficult one on which the experts could reasonably differ. In fact, three defense experts could not opine as to the cause of Jacob's brain damage within a reasonable degree of medical certainty. However, the other defense experts generally agreed that a form of viral infection most likely caused Jacob's injury. Significantly, each expert testified that the cause of Jacob's problems was probably not hypoxic ischemia, as alleged by the Sweets. We see no reversible error arising from the partially conflicting views of several experts called by the defendants. This case was a very complicated one, involving a number of theories regarding causation. The defense experts agreed on the crucial issue from the defendants' point of view: that Jacob's injuries did not arise from the causes alleged by the Sweets. This testimony rea sonably could have assisted the jury in understanding the evidence and/or in determining the causation question, and meets the standard required by Evidence Rule 702(a). The trial court did not abuse its discretion in refusing to exclude certain experts because they disagreed as to some theories of causation. D. CROSS-EXAMINATION OF DEFENSE EXPERTS The Sweets next argue that they should have been permitted to cross-examine the defendants' experts at trial using deposition testimony of any experts listed as trial witnesses by the defendants, regardless of whether those experts were actually called to testify at trial. In their opening brief, the Sweets frame this issue as one of their right of access to experts designated as trial witnesses. They imply that the court's ruling was based on a determination that the defendants had a proprietary right to their experts' opinions. We clarify that the Sweets were not denied the right to call or rely upon any experts as their own witnesses during their case-in-chief. Rather, the Sweets' complaint is that they were denied free and full use of certain deposition testimony to cross-examine the opposing party's experts. The defendants responded to the Sweets' proposal by arguing that if the Sweets referenced expert testimony by defense witnesses who were not presented at trial and whose opinions seemed to contradict those of the testifying experts, the jury would be improperly led to believe that the defendants were suppressing adverse evidence. See Healy v. Counts, 100 F.R.D. 493, 496 (D.Colo.1984). The defendants also argued that the case would be unduly prolonged because the defendants would then call those experts as witnesses to testify to their full opinions and to clarify that the defendants had nothing to hide. The trial court ruled that the Sweets might be able to cross-examine defense experts with depositions from other defense experts, even if those experts were probably not going to be called at trial, as long as the Sweets laid a proper foundation. To lay an appropriate foundation, the court ruled that the Sweets must request a hearing out of the jury's presence. At that time, the court could weigh the probative value of the deposition testimony at issue against its danger of unfair prejudice or confusion, and against considerations of undue delay and waste of time. See Alaska R.Evid. 403. It could also assess whether the testifying witness was aware of the deponent and the deponent's testimony, and whether the witness had relied on that information in drawing his or her conclusions. However, the court was clear that the Sweets could always present any witness with a hypothetical question based on deposition testimony without identifying the source of the hypothetical opinion, or the fact that it came from an expert retained by the defendants. In their briefs, the Sweets do not acknowledge the court's ruling requiring a hearing or an evidentiary foundation. They argue that, under Alaska Civil Rule 32(a)(3), they had an unrestricted right to use deposition testimony in cross-examination, and it was error for the court to impose any limitation on that right. We disagree with this view. It is well established that trial courts have the right to ensure that proffered evidence meets certain legal thresholds before it may be used at trial. For instance, a court may inquire into whether certain evidence is relevant and material, and wheth er it merits exclusion under Alaska Evidence Rule 403. It is also proper for the court to ensure that foundational requirements will be satisfied. It is entirely appropriate to require a hearing out of the jury's presence to investigate such questions. In this case, the Sweets' proposed use of limited deposition testimony from defense experts who would not appear at trial presented substantial dangers of unfair prejudice to the defendants, as well as jury confusion, undue delay and waste of time. Without an investigation into the specific testimony to be used for cross-examination, there was also no indication whether the Sweets could lay a proper foundation for the deposition testimony. Accordingly, the trial court properly refused to allow the Sweets unlimited use of certain depositions for cross-examination, but instead required a hearing to assess the specific facts of each situation. In their briefs on appeal, the Sweets do not specifically identify any deposition statements from non-testifying experts that they would have used to cross-examine the defendants' testifying experts. The court stated numerous times that it could not rule definitively to exclude any evidence unless it held a hearing on the precise testimony to be used in cross-examination. Despite this, there is no indication that the plaintiffs ever requested a hearing. For this reason, it is impossible to effectively review the Sweets' claims, and this argument on appeal is waived. See Alaska R.Evid. 103(a)(2) (requiring an offer of proof to preserve objection when evidence is excluded from trial); Adamson v. University of Alaska, 819 P.2d 886, 889-90 (Alaska 1991) (failure to make an offer of proof constitutes waiver of claim of error). E. ATTORNEY'S FEES Following the jury's verdict, Judge Shortell awarded Providence and the doctors partial attorney's fees under Civil Rule 82. He awarded $150,000 to each of the two defendants, plus post-judgment interest. After the dissenting opinion was published in Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2, 5 (Alaska 1992), the superior court reconsidered the question whether the fee award was so great as to impose "an intolerable burden on a losing litigant which, in effect, denies the litigant's right of access to the courts." Id. at 6 (Matthews, J., dissenting). Upon weighing the Sweets' evidence and arguments, the court determined that its original awards did not actually or in effect deny the Sweets access to the courts. The court therefore reinstated its original fee awards. In light of our ruling on the informed consent issue, we vacate the attorney's fee awards. III. In summary, we hold that the trial court's failure to apply a rebuttable presumption of causation on the Sweets' medical negligence claim constituted harmless error. We affirm the trial court's handling of expert witness issues. However, we remand the case for an evidentiary hearing to determine whether 7 AAC 12.120(c) should set the standard of care on the Sweets' informed consent claims against Providence and the doctors. We also vacate the court's attorney's fee awards. AFFIRMED, in part, and REMANDED for proceedings consistent with this opinion. . On the date of Jacob's birth, Drs. Nesbitt and Schriever, who are board certified pediatricians, owned the Children's Clinic. Dr. Tulip was not board certified at the time and was an employee of the Clinic. The Clinic expected Dr. Tulip to perform according to the same standard of care required of a board certified pediatrician. . Dr. Nesbitt performed the circumcision because Dr. Tulip did not do circumcisions at that time. Following the circumcision, Dr. Nesbitt was not involved in Jacob's care. . Testifying about Beverly's descriptions of Jacob's movement with the benefit of hindsight, Dr. Tulip stated that the "shivering spells" were probably seizures. Dr. Tulip testified that sei.-zures in infants are subtle and hard to identify, particularly when observed by a lay person who is only relaying information to medically trained persons. . Dr. Schriever was dismissed as a parly defendant prior to trial. . The informed consent issue is addressed separately infra at II.B. . This determination of the relevance of the missing records is a threshold finding to be made by the trial court. . For a discussion of the alternatives to adopting a spoliation tort, see Lawrence Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 Emory L.J. 1085 (1987) (discussing alternative to spoliation tort); Comment, Philip A. Lionberger, Interference with Prospective Civil Litigation by Spoliation of Evidence: Should Texas Adopt a New Tort, 21 St. Mary's L.J. 209, 216-229 (1989) (discussing treatment of spoliation of evidence in jurisdiction not adopting a separate tort and noting alternative remedies available); Abney, Spoliation & Future Civil Actions: Slowing the Rush to a Novel Tort, The National Law Journal, Feb. 2, 1987, at 38, col. 1 (arguing that adequate remedies already exist if spoliator is party to the underlying suit). . The Department of Health and Social Services' regulations pertaining to General Acute Care Hospitals include one reference to signed informed consent. That regulation states in part: 7 AAC 12.120. SURGICAL SERVICE. (c) Before a surgical procedure begins, either the surgeon or the person responsible for administering anesthesia, and the surgical supervisor or his designee shall confirm the patient's identity and the site and side of the body to be operated upon, and ascertain that the patient's medical record contains a complete history and physical examination for the current admission, appropriate current screening tests based on the needs of the patient, and signed informed consent for the surgery. In the case of an emergency, the history and physical examination requirements are waived. 7 AAC 12.120(c) (emphasis added). . The trial court's decision to admit expert testimony lies within the court's sound discretion and is reviewable only for an abuse of discretion. Colt Indus. Operating Corp. v. Frank W. Murphy Mfr., 822 P.2d 925, 932 (Alaska 1991); D.H. v. State, 561 P.2d 294, 296-97 (Alaska 1977). . The only subsequent discussion regarding witnesses cited by the parties involves the question whether testifying experts could be impeached with the opinions of other testifying or non-testifying experts. That issue is addressed separately infra. . As Providence summarizes it, the issues surrounding causation included questions such as whether Jacob's brain damage could have resulted from (1) a systemic bacterial infection seeded from Jacob's circumcision site; (2) a systemic bacterial infection which caused Jacob's seizures which, in turn, caused brain damage; (3) a viral infection; (4) a white brain matter disease or hereditary disease; and (5) Jacob's seizures, independent of hypoxia. . The Sweets further contend that at trial they should have been allowed to use certain admissions against the defendants' interests that were made by the defendants' experts in depositions, regardless of whether those experts actually testified at trial. However, the Sweets do not identify which deposition statements constituted admissions against interest, nor do the parties cite to any discussion in the record regarding reliance on certain statements as admissions. It does not appear that the trial court considered this argument or made any ruling on it. Accordingly, this claim is waived. . Civil Rule 32(a)(3) states in part that, subject to the rules of evidence, the deposition of a witness may be used by any' party for any purpose, if the court finds that the witness is at a greater distance than 100 miles from the place of trial, or is out of the state. . This court will review attorney's fee awards for an abuse of discretion. Malvo v. J.C. Penney Co., 512 P.2d 575, 586-87 (Alaska 1973). An abuse of discretion exists when the trial court's determination is manifestly unreasonable. Id. . The doctors incurred actual attorney's fees of $330,899. Providence incurred fees of roughly $326,289. Therefore, the defendants were awarded 45% and 46% of their actual fees, respectively.

10385713

William A. WEITZ, a/k/a William A. Thompson, Appellant, v. STATE of Alaska, Appellee

Weitz v. State

1990-07-20

No. A-2005

952

958

794 P.2d 952

794

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

William A. WEITZ, a/k/a William A. Thompson, Appellant, v. STATE of Alaska, Appellee.

William A. WEITZ, a/k/a William A. Thompson, Appellant, v. STATE of Alaska, Appellee. No. A-2005. Court of Appeals of Alaska. July 20, 1990. Leslie A. Hiebert, Asst. Public Advocate and Brant McGee, Public Advocate, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3037

18580

OPINION SINGLETON, Judge. On July 23, 1986, the grand jury returned a six-count indictment against William A. Weitz. The counts were one count of robbery in the first degree, a class A felony, in violation of AS 11.41.500(a)(1); murder in the first degree, an unclassified felony, in violation of AS 11.41.100(a)(1)(A); assault in the third degree, a class C felony, in violation of AS 11.41.220(a)(1); misconduct involving weapons in the first degree, a class C felony, in violation of AS 11.61.200(a)(1); and two counts of attempted murder in the first degree, a class A felony, in violation of AS 11.41.100(a)(1) and former AS 11.31.100(d)(1). A jury convicted Weitz on all counts. Superior Court Judge S.J. Buckalew, Jr., imposed maximum consecutive sentences totaling 169 years. Weitz appeals his conviction and his sentence. We affirm. Weitz robbed a convenience store at approximately 2:30 a.m. on July 17, 1986. Shortly thereafter, Weitz and a passenger were riding in a green Toyota wagon. Anchorage Police Officer Cindy Mittasch stopped the vehicle because the brake lights were inoperative. Weitz exited his vehicle, drew his gun, and fired at Officer Mittasch. Weitz then commandeered the patrol vehicle and drove it from the scene, abandoning it shortly thereafter. Other officers responded to Mittasch's request for help and pursued Weitz. Weitz fired at Officer Richard Giles, shot and killed Officer Harry Hansen at near point-blank range, and pointed his gun at Officer Keith Cordell. Weitz was shot by Officer Cor-dell, handcuffed, and transported to the hospital. Weitz argues that the trial court erred in permitting evidence of prior bad acts to be introduced before the jury. He relies on Alaska Rules of Evidence 403 and 404(b). The evidence consisted of the testimony of four witnesses who were friends of Weitz about conversations they had with him pri- or to the shooting, and the testimony of a police officer about an outstanding warrant for Weitz's arrest. Lonie Nelson testified that Weitz told him that Weitz had been in jail, that he did not want to go back, and in addition, on one occasion Weitz said, "If he ever went back, it would be in a pine box and he would be taking some of the motherfuckers with him." Vicky Maison testified that Weitz told her that on an earlier occasion, he had stolen a motorcycle, and was stopped by a police officer, that the officer attempted to handcuff him, and that Weitz had broken away and escaped. She also testified that Weitz had altered his appearance and changed his name. She was asked: Q. After that conversation, what affect did that have on you? A. It upset me really bad because there was just something in the way he said what he said that I felt sooner or later somebody was going to get hurt. Donna Russell testified that on the night preceding the homicide, Weitz told her about stealing the motorcycle and that he had been in prison before. Weitz told Russell that he would never go back to prison, that they would have to kill him first. Anchorage Police Officer Robert Dinwid-die testified without objection that an arrest warrant had been issued for Weitz on June 30, 1986. In addition, he testified that a search warrant was issued for an apartment where Weitz was to be located. At the time of the search, no one was home and a copy of the warrant was left. Finally, Steve McDougald testified that he was a passenger in the Toyota with Weitz at the time Weitz was stopped by Officer Mittasch. McDougald stated: [Weitz] started turning corners and then he started pulling over and he said something about the tail-lights must be out and then he said something about that he had just hit a Qwik Stop — robbed a Qwik Stop and that he's not going back to jail, that he's going to waste the cop. The trial court's admission of evidence under Alaska Evidence Rules 403 and 404(b) will be reversed by this court only for an abuse of discretion. Vessell v. State, 624 P.2d 275, 278 (Alaska 1981). The supreme court has approved the admission of evidence of other crimes, wrongs, or acts, where it has been offered to prove motive or intent. Adkinson v. State, 611 P.2d 528, 531 & n. 6 (Alaska 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 219, 66 L.Ed.2d 97 (1980). The testimony of Maison, Russell, and McDougald related to conversations they had with Weitz the night of the shooting. Nelson's testimony related to events that occurred during the previous five months. Under the circumstances, it appears that all of this evidence was relevant and highly probative to show Weitz's motive and intent when he shot at the officers and that the trial court could find that the probative value of the evidence outweighed any prejudice. Intent was the only issue litigated at trial. In fact, Weitz actively disputed his intent to kill or injure the officers at whom he shot. We are satisfied that the trial court did not abuse its discretion in admitting this evidence. See Cole v. State, 754 P.2d 752, 756 (Alaska App. 1988). We are equally satisfied that the testimony of Officer Dinwiddie concerning the outstanding warrant, and the testimony of Russell and Maison regarding the motorcycle incident and Weitz's efforts to escape capture at the time of that incident, was relevant to his motive for shooting at the officers. The trial court was also acting within its discretion in finding that the probative value of this evidence outweighed any prejudice from portraying Weitz as a bad person. In our view, all of the evidence of Weitz's prior misconduct pales in comparison with the undisputed evidence of his actions on July 17, 1986. Weitz was charged with misconduct involving weapons in the first degree for possessing a concealable firearm after having been convicted of a felony. Before trial, Weitz offered to stipulate that he had a prior felony conviction in order to keep that information from the jury. Weitz argued that testimony about his prior felony record would inappropriately help the state prove its case on the other charges. The state argued that four witnesses would be testifying about Weitz's prior felony conviction in connection with recounting Weitz's statements about prison and Weitz's willingness to kill rather than go back to prison. In the state's view, there was no need to withhold information of the prior felony conviction from the jury. The trial court apparently accepted this argument and declined to keep Weitz's prior felony convictions from the jury. Weitz argues that the trial court erred. He relies on Elerson v. State, 732 P.2d 192, 195-96 (Alaska App.1987), where we indicated that under similar circumstances, counts involving misconduct involving weapons and other offenses should be severed for separate trial.' Weitz did not ask the trial court for a severance. We are of the view that this case presents a close question whether the trial court abused its discretion when it failed to withhold from the jury evidence of Weitz's prior convictions in light of his proffered stipulation. See A.R.E. 403 (requiring a trial judge to balance the probative value of relevant evidence against its potential for prejudice in determining admissibility). While the state's witnesses presented substantial evidence that Weitz had previously been in jail and did not want to go back, their testimony did not disclose that he had previously been convicted of a felony. The probative value of evidence of a prior felony conviction was arguably weak. It was arguably unnecessary to disclose Weitz's prior felony conviction to the jury which was potentially prejudicial in light of his proffered stipulation and disclosure. See Morgan v. State, 661 P.2d 1102, 1104 n. 4 (Alaska App.1983) (defendant had option to stipulate to prior conviction in order to avoid prejudice at trial of an offense for which prior conviction is an element). But see United States v. Williams, 612 F.2d 735, 739-40 (3d Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328, 63 L.Ed.2d 770 (1980) (court may not compel government to accept stipulation in lieu of evidence on an element of an offense). It is not necessary for us to decide this issue in this case, given the strength of the state s ease against Weitz. We are satisfied that any error was harmless. See Poulin v. Zartman, 542 P.2d 251, 261 (Alaska 1975), on reh'g, 548 P.2d 1299 (Alaska 1976). Weitz conceded that he was guilty of the robbery, was in possession of a handgun, and had previously been convicted of a felony. Weitz was arrested at the scene. His identity was not in doubt. The only question at issue was his intent in shooting at the police officers. Given the overwhelming evidence of intent, evidence of the prior felony conviction was not overly prejudicial. Alaska R.Crim. P. 47(a). Judge Buckalew sentenced Weitz to the following maximum terms: robbery in the first degree of the Qwik Stop — twenty years presumptive; attempted murder of Officer Mittash — twenty years presumptive; murder in the first degree of Officer Hansen — ninety-nine years presumptive; attempted murder in the first degree of Officer Giles — twenty years presumptive; assault in the third degree of Officer Cor-dell — five years presumptive; and misconduct involving weapons in the first degree — five years presumptive. All sentences were consecutive, resulting in a total composite sentence of 169 years. In addition, Judge Buckalew ordered that Weitz would never be eligible for parole. Weitz initially argues that the trial court made insufficient findings to enable him to brief, and this court to review, the excessiveness issue. See DeGross v. State, 768 P.2d 134, 138-41 (Alaska App.1989); Houston v. State 648 P.2d 1024, 1030 (Alaska App.1982) (Bryner, C.J., dissenting). We disagree. The trial court found that Weitz's conduct constituting all of the offenses except the robbery of the Qwik Stop were among the most serious within their class, AS 12.55.155(c)(10); that Weitz's conduct in committing all of the offenses except the Qwik Stop robbery were against law enforcement officers, AS 12.55.155(c)(13); that Weitz had three or more prior felony convictions, AS 12.55.-155(c)(15); and that Weitz's prior history included adjudication as a delinquent for conduct that would have been a felony if he had been an adult, AS 12.55.155(c)(19). Weitz did not dispute these aggravating factors at sentencing and does not contest them on appeal. At sentencing, the state asked that maximum consecutive sentences be imposed. The state argued that the court needed to make findings that Weitz would continue to be a threat in order to make the sentences consecutive. In addition, the state pointed out that all of the Chaney criteria must be considered but that the court should focus on isolation. See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (a trial court in imposing sentence should consider rehabilitation, isolation of the defendant to prevent further criminal activity, deterrence of the defendant and others, and reaffirmation of community norms). The court stated: "I think the evidence is overwhelming on the aggravators." Judge Buckalew asked Weitz's attorney if he had any argument to make on the aggravators. Counsel declined to speak. Judge Buckalew said, "I simply find that the state has met [its] burden of proof on the aggravators." Judge Buckalew then gave Weitz an opportunity for allocution which was waived. Weitz presented no arguments and Judge Buckalew proceeded to sentencing. Weitz was sentenced to the maximum on all counts. Judge Buckalew remarked that rehabilitation was not a factor and that the only real factor was the protection of the public. On passing sentence, Judge Buckalew stated that all sentences were presumptive. He also stated that Weitz should never be eligible for parole. See AS 12.55.115 (fixing eligibility for parole at sentencing); AS 33.16.100(c). In Neal v. State, 628 P.2d 19, 21-22 (Alaska 1981), the supreme court upheld an implicit finding of dangerousness and the imposition of consecutive sentences even though formal findings were not made justifying consecutive sentences. The court held that reversal was not re quired because the record contained sufficient evidence that Neal would continue to be a risk to public safety. The supreme court also inferred a finding that Neal was a worst offender based on the record. Id. In this case, Weitz was a twenty-eight-year-old man with a lengthy criminal record that began when he was an adolescent. He had four previous felony-property offenses and a history of drug and alcohol abuse. He has made minimal efforts to address these problems despite spending a substantial period of time in prison or under probationary supervision. Weitz received a very severe sentence. Nevertheless, we believe the record clearly supports the trial court's implied finding that Weitz was a worst offender. A worst offender finding may be based on a defendant's background, the crime for which the defendant was convicted, or both. Hintz v. State, 627 P.2d 207, 210 (Alaska 1981). The circumstances surrounding Weitz's present offenses plainly justified a worst offender finding. The trial court could infer, based on Weitz's statements to his friends, that Weitz foresaw a gun battle in which police officers would be killed or injured. His offense would seem to be premeditated murder. He engaged in a gun battle with several police officers and killed one of the officers. When we add to that the fact that Weitz has four times been convicted of felony offenses and has served substantial prior time in prison and on parole, we are satisfied that Weitz is a clearly dangerous offender. See Pruett v. State, 742 P.2d 257, 264 & n. 8 (Alaska App.1987). In Collins v. State, 778 P.2d 1171, 1175-76 (Alaska App.1989), we upheld a composite sentence of 403 years in prison for four counts of first-degree murder where the court did not specifically make a finding that Collins was a worst offender. We also upheld a composite sentence of 634 years for six counts of first-degree murder and two counts of attempted murder in Hastings v. State, 736 P.2d 1157 (Alaska App.1987). While Weitz has not committed multiple murders like Collins and Hastings, in this case that was merely fortuitous, and after reviewing the record the trial court could find little potential for rehabilitation. See Nukapigak v. State, 663 P.2d 943 (Alaska 1983) (approving consecutive sentences exceeding ninety-nine years of total imprisonment for violent crimes). Having independently reviewed the totality of the sentencing record, we do not find that the sentence of 169 years without possibility of parole was clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Further we are satisfied that the trial court in this case did make the necessary findings to warrant a sentence of life imprisonment without possibility of parole. See Newell v. State, 771 P.2d 873, 876-77 (Alaska App.1989). The judgment and sentence of the superi- or court are AFFIRMED. . The state argues that a perceived practice by this court of routinely staying appeals until post-conviction claims of ineffective assistance of counsel are investigated and presented to the trial court is harmful to the state and individual criminal defendants. Defendants are harmed, the state contends, because their appeals are delayed and, historically, criminal defendants are much more likely to prevail on their merit appeals than on a claim of ineffective assistance of counsel. If a defendant wins a new trial, prior ineffective assistance of counsel claims would be moot. The state also suffers because postponing appeals also postpones any retrial ordered by this court, thereby increasing the problems of keeping physical evidence and witnesses available. On occasion, representatives of the public defender and the public advocate have voiced similar concerns. We have held that ineffective assistance of counsel claims cannot be heard on appeal in the absence of an adequate record. Barry v. State, 675 P.2d 1292, 1295 (Alaska App.1984). We have never held that defense counsel must pursue post-conviction relief for ineffective assist- anee of counsel prior to completing an appeal which addresses other issues. Nothing prevents a defendant from completing an appeal on other issues and only if dissatisfied with the decision on appeal, bringing an application for post-conviction relief. We assume that competent defense counsel will exercise professional judgment in determining which avenue is most likely to benefit his or her client in a specific case and proceed accordingly. Even if defense counsel does wish to delay the appeal, such decision is not binding on the state. If motions to stay appellate briefing are routinely granted, it is because they are routinely unopposed. In summary, professional judgment by both the state and the defense should govern each party's position regarding the order in which merit appeals and applications for post-conviction relief are pursued. If there is a disagreement, the court will resolve it on a case-by-case basis taking into account the respective interests of the parties. . Weitz argues that the trial court never exercised discretion. See Cano v. Anchorage, 627 P.2d 660, 663-64 (Alaska App.1981). We are satisfied from our review of the record that Judge Buckalew understood that the admission of evidence involved trial court discretion and that he exercised his discretion in admitting the evidence. . A murder sentence is not presumptive. AS 12.55.125(a). In light of the sentence imposed and the limitation on eligibility for parole, we conclude that this mischaracterization was harmless. . "Where a defendant has a lengthy criminal history and has demonstrated that he will not benefit from parole or probation supervision," a trial judge may reasonably conclude that parole eligibility should be restricted. Lawrence v. State, 764 P.2d 318, 321 (Alaska App.1988). In our view, Weitz's criminal record and the facts surrounding the offenses Weitz committed on July 17, 1986, permitted Judge Buckalew, in the exercise of his discretion, to restrict parole.

10370250

Mike LAGOS and Mei Fong Lagos, Individually, and d/b/a Marina Restaurant, House of Liquors, Inc. d/b/a House of Liquors, an Alaska corporation; and Pioneer Liquor, Inc., d/b/a Pioneer Bar, an Alaska corporation, Appellants, v. CITY AND BOROUGH OF SITKA, Appellees

Lagos v. City & Borough of Sitka

1991-12-27

No. S-4136

641

645

823 P.2d 641

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Mike LAGOS and Mei Fong Lagos, Individually, and d/b/a Marina Restaurant, House of Liquors, Inc. d/b/a House of Liquors, an Alaska corporation; and Pioneer Liquor, Inc., d/b/a Pioneer Bar, an Alaska corporation, Appellants, v. CITY AND BOROUGH OF SITKA, Appellees.

Mike LAGOS and Mei Fong Lagos, Individually, and d/b/a Marina Restaurant, House of Liquors, Inc. d/b/a House of Liquors, an Alaska corporation; and Pioneer Liquor, Inc., d/b/a Pioneer Bar, an Alaska corporation, Appellants, v. CITY AND BOROUGH OF SITKA, Appellees. No. S-4136. Supreme Court of Alaska. Dec. 27, 1991. William G. Royce, Anchorage, for appellants. Theron J. Cole, Sitka, for appellees. Barbara J. Blasco, Juneau, for amicus curiae, City and Borough of Juneau. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2764

16957

OPINION RABINOWITZ, Chief Justice. I. FACTS AND PROCEEDINGS This appeal raises the question of the validity of 4.08.040 of the Sitka General Code. This ordinance provides, A consumer sales tax is levied on all sales made in the City and Borough of Sitka at the rate of 4% of the selling price. An additional 4% consumer sales tax is placed upon the sale of alcoholic beverages. Normally the burden of this tax rests upon the consumer. In 1989, the City and Borough of Sitka ("Sitka") had amended this ordinance to include the additional tax on alcoholic beverages in response to a ballot proposition passed by voters on October 3, 1989. The ballot proposition also provided for "the resulting revenue to be dedicated toward the prevention and treatment of alcohol and drug abuse in Sitka." Just prior to the election, appellants, as owners of business and businesses which sold alcoholic beverages, ("Lagos") filed a complaint for declaratory judgment and injunctive relief, seeking to have the ballot proposition invalidated. Lagos alleged that the ballot proposition and the ordinance were unlawful on three grounds: (1) AS 04.21.010(c) prohibits taxing alcoholic beverage sales at a rate higher than the tax on other sales; (2) The regulation and taxation of alcohol has been preempted by state law except where such power is specifically conferred on municipalities; and (3) A municipal tax purporting to dedicate resulting revenues violates Article IX, § 7, of the Alaska Constitution. Lagos filed for summary judgment on the first ground, that Sitka's sales tax was illegal under AS 04.21.010(c). This statute provides, A municipality may not impose taxes on alcoholic beverages except (1) property taxes on alcoholic beverage inventories; (2) sales taxes on alcoholic beverage sales if sales taxes are imposed on other sales within the municipality; and (3)sales taxes on alcoholic beverage sales that were in effect before July 1, 1985. Lagos read subsection two of this statute to ban discriminatory sales tax rates on alcoholic beverages. In this regard he argued that the legislative history of AS 04.-21.010(c) showed that the legislature intended to ban discriminatory rates when it enacted AS 04.21.010(c)(2). Sitka filed its own motion for summary judgment, requesting the superior court to dismiss Lagos' complaint for declaratory and injunctive relief. Sitka argued that none of the contentions advanced by Lagos raised any "issue as to any material fact and that [Sitka] is entitled to judgment as a matter of law." The superior court granted summary judgment in favor of Sitka. The court thought Lagos' legislative history argument unpersuasive, and concluded that "[h]ad uniformity in rates of taxation been intended, the language of the legislation could easily have been written to say so.... Some legislators may have opposed a requirement for uniform rates." The superior court did not address Lagos' remaining preemption and unconstitutional dedication arguments. This appeal followed. II. DISCUSSION In this appeal Lagos raises the same arguments against Sitka's differential alcoholic beverage sales tax as were urged before the superior court. A. Does AS 04.21.010(c) prohibit taxing sales of alcoholic beverages at a higher rate than other commodities? AS 04.21.010(c)(2) authorizes municipalities to impose a "sales tax on alcoholic beverages if sales taxes are imposed on other sales within the municipality." Lagos interprets this provision to mean "that sales taxes on alcoholic beverages are allowed only to the extent sales taxes are imposed on other sales." We have stated that the goal of statutory construction is: [T]o give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others. In this respect, we have repeatedly stated that unless the words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage. Tesoro Alaska Petroleum Co. v. Kenai Pipeline Co., 746 P.2d 896, 905 (Alaska 1987). We do not adhere to the plain meaning rule in interpretation of statutes. University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983). However, we have stated that "where a statute's meaning appears clear and unambiguous, . the party asserting a different meaning has a correspondingly heavy burden of demonstrating contrary legislative intent." Id. See also State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982) (under Alaska's sliding scale approach to statutory interpretation, the plainer the language of the statute the more convincing the evidence of contrary legislative intent must be). In interpreting a statute, we look first to the language of the statute. Ward v. State, 758 P.2d 87, 89 n. 5 (Alaska 1988). Here, the language of the statute, on its face, proscribes imposition of a sales tax solely on alcohol. It does not explicitly address rates of taxation. 1. The legislative history The language requiring a municipality to tax sales of other commodities before taxing sales of alcoholic beverages was added to AS 04.21.010(c) in 1985. Ch. 74, § 20, SLA 1985. Similar language had been deleted from the statute in 1980. Ch. 131, § 4, SLA 1980. Lagos argues that the legislative history supports his interpretation of the 1985 amendments to AS 04.21.010(c). Senator Eliason sponsored the amendment to AS 04.21.010(c), and the Senate Finance Committee deliberated over the merits of the amendment. In proceedings before the Senate Finance Committee, Senator Eliason asked Senator Ray to "testify on the background of this particular amendment." Proceedings of the Senate Finance Committee, May 8, 1985 ("Proceedings") (testimony of Senator Eliason). Senator Ray testified as to his involvement with the 1980 recodification of the code dealing with alcoholic beverages. He noted that the 1980 elimination of the language in the amendment was inadvertent. He then stated, "[i]n fact, two or three years after the bill had passed when . Juneau . considered adding an additional tax, it surprised me immensely, and L said, 'Well, they can't do that.' " Id. Senator Ray went on to explain, "It would seem to me it would be discriminatory to have an additional tax on anything." Id. Because Ju neau did in fact enact a tax which taxes sales of alcohol at a higher rate than it taxes other commodities, Lagos concludes that Senator Ray was interpreting the missing language to prohibit enactment of differential sales taxes on sales of alcohol. After listening to Senator Ray's testimony, Senator Eliason explained, The only limitations we're imposing on local governments is the fact that they cannot take a specific sales tax on a specific industry. What we're saying is that if you want to tax liquor and whatever else you might want to tax, that's alright. But we want to — it's keeping any specific industry — going out and point and saying, "We're going to tax you and no one else." . They can . impose a ten percent tax on liquor and tobacco — that wouldn't be in violation of this provision.... If the proposition read, "Shall we impose a ten percent tax on tobacco only?" they couldn't under this provision. Id. Earlier in the proceedings, Senator Eli-ason had stated, Under this language, no they can't discriminate between alcohol or food or clothing or any other commodity that's sold in the market. Its reasoning being that the state does regulate very stringently the alcoholic program in Alaska, so that's what the intent of the legislation is to treat them all equally. Id. This history suggests that both senators intended to eliminate differential rates of taxation on sales of alcohol. Additional support for Lagos' position is found in a comment by Senator Ferguson. At the May 7, 1985 proceedings of the Senate Finance Committee, Senator Ferguson asked, "Dillingham is thinking about raising the taxes on alcohol, and would they be allowed to continue their movement? I guess they wouldn't be able to after July 1, 1985?" Id. Senator Kerttula in response stated that "[a]s long as their ordinance is fully implemented prior to July 1st, they would be grandfathered in." Id. Apparently, both these senators believed that the amendment in question prohibited differential rates on alcohol sales tax. Subsequently, at the same May 7, 1985 Senate Finance Committee meeting, the strongest statement concerning the subject of differential rates of taxation was made by the then Acting Commissioner of the Department of Community & Regional Affairs, in response to the comment by Senator Ferguson. The Acting Commissioner stated, "I understand then in the amendment that this refers to tax equalization and you cannot set a sales tax for alcohol higher than any other commodity within the community." Id. Sitka counters by noting that the Lagos' are relying upon the statements of individual legislators made in a single committee. There are no committee findings, no report, no journal entries, no indication that the whole legislature knew of or considered the statements or even considered anything beyond the words of the amendment that was part of a much larger bill.... Since there is no indication that the statements made in the committee were before the legislature, the legislature's intent must be presumed to be that expressed in the words of the statute. Sitka, and the amicus, also rely on an opinion from an Assistant Attorney Gener al and a memorandum from-the then Deputy Director of the Division of Legal Services for the Legislative Affairs Agency, both of which concluded that the 1985 amendment to AS 04.21.010(c) did not speak to the rate of taxation. 2. The effect of AS 04.21.010(c)(3) Lagos further argues that the grandfather clause of AS 04.21.010(c)(3), which permits the continuation of "sales taxes on alcoholic beverage sales that were in effect before July 1, 1985," demonstrates that the legislature intended to prohibit differential rates of taxation when it enacted its amendments to AS 04.21.010(c). Lagos asserts that this grandfather clause applied to the communities of Craig, Juneau, and Kotzebue, because those communities had in place differential taxes on the sale of alcoholic beverages at the time the 1985 amendments were enacted. Additionally, Lagos points to the discussions of the Senate Finance Committee which indicate that the committee believed these three communities were the only communities affected by the grandfather clause. From a review of the legislative history of the amendment to AS 04.21.010(c)(3), and the differential sales tax ordinances of Juneau, Craig, and Kotzebue, Lagos concludes that AS 04.21.-010(c)(3) was enacted for the specific purpose of preserving the two-tiered municipal sales taxes on alcohol in these three communities. Thus, Lagos concludes that any ambiguity as to whether AS 04.21.010(c)(2) prohibits discriminatory rates of taxation on sales of alcoholic beverages is resolved by the provisions of AS 04.21.010(c)(3). The City and Borough of Sitka reply that there is no indication in the wording of AS 04.21.010(c)(3) that it is limited to instances of unequal taxation or that it is limited to the communities of Craig, Juneau, and Kot-zebue. "It could just as easily be applied to communities taxing alcohol alone prior to July 1, 1985." III. CONCLUSION Our review of the merits leads us to the conclusion that Lagos' position is the more persuasive one. We therefore hold that the Sitka ordinance which taxes the sales of alcoholic beverages at a 4% higher rate than sales made on other commodities within the City and Borough of Sitka is violative of AS 04.21.010(c). The text of AS 04.21.010(c)(2) is ambiguous in that it fails to clearly indicate whether it prohibits the imposition of discriminatory rates of sales taxes on sales of alcoholic beverages. On the other hand, the text of AS 04.21.010(c)(3) and the relevant legislative history concerning this 1985 amendment to AS 04.21.010(c), indicate that the legislature intended its amendments to prohibit the imposition of discriminatory sales taxes, whether in the form of sales tax rate differentials or a sales tax imposed solely on the sale of alcoholic beverages. Thus, we conclude that AS 04.21.010(c)(2) and AS 04.21.010(c)(3) when read together, bar a municipality from taxing only the sale of alcoholic beverages and further require that if sales taxes are imposed on other commodities then the rate of taxation on the sale of alcoholic beverages may not exceed the rate of taxation imposed upon such other commodities sales. REVERSED. . The parties agree that this appeal does not raise any issues of fact, but rather concerns the interpretation of statutes. This court will employ de novo review to a grant of summary judgment, Kollodge v. State, 757 P.2d 1028, 1032 (Alaska 1988), and will adopt the rule of law which is "most persuasive in light of precedent, reason and policy." Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (citations omitted). . Before the superior court Lagos argued in part: If one restricts the analysis to the language amending (c)(2), one may argue (as Sitka does) that the statute allows Sitka to tax alcoholic beverages at any rate, so long as sales taxes are imposed on some other sales within the municipality. It is true that (c)(2) contains no discussion regarding the rate of taxation on alcoholic beverage sales. Thus, so long as the analysis is restricted to (c)(2), one could argue (as Sitka does) that municipalities are free to single out sales of alcoholic beverages for taxation at a rate greater than taxes imposed on other sales. Others could argue with equal convincing force that sales taxes on alcoholic beverages are allowed only to the extent sales taxes are imposed on other sales within the municipality — thus requiring an equality of rate. Thus, it is necessary to consider the meaning and intended effect of (c)(3) adopted as part of the 1985 amendment.... (Emphasis in original.) . The original language read, "nor shall any municipality impose taxes other than property taxes on liquor inventories and sales taxes on liquor sales when such taxes are levied on other property and sales within the community." Ch. 86, § 1, SLA 1960. Apparently, the language requiring taxes on all commodities was inadvertently eliminated when the code was revised in 1980. See Senate Finance Comm. Proceedings, May 7, 1985 (testimony of Sen. Eliason); id., May 8, 1985 (testimony of Senator Ray). . After hearing the testimony of the Acting Commissioner, the committee then questioned the drafter of the amendment, Tamara Cook (of the legislative affairs committee staff). She stated, '[a]s I read this language, if a municipality, whether it be a city or a borough, in fact imposed a sales tax on anything other than alcohol, it would be free to then also include alcohol within its sales tax structure." Proceedings, May 7, 1985. . The amicus, City and Borough of Juneau, argues in part as follows: Under the statute, a preexisting sales tax on alcoholic beverages was "grandfathered" regardless of whether the tax was part of a two-tiered sales tax system (such as Juneau's sales tax on alcoholic beverages) or part of a single-tiered system which imposed a tax on the sales of alcoholic beverages only. Thus, the only sales tax system proscribed by the statute is one which would impose a tax on the sales of alcoholic beverages only and which was not in effect before July 1, 1985. (Emphasis in original.) . In support of its reliance on these two documents Sitka cites State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 nn. 6 & 7 (Alaska 1981) and Camey v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) ("Opinions of the Attorney General, while not controlling on matters of statutory interpretation are entitled to some deference."). . In addition to the text and legislative history surrounding the adoption of AS 04.21.010(c)(3), the legislative history of AS 04.21.010(c)(2) noted above, provides evidence that some members of the Senate Finance Committee, including the amendment's sponsor, intended that there be no discrimination in a municipality's rate of taxation concerning alcoholic beverages. .Our holding that the ordinance in question is unlawful makes it unnecessary to address any of the remaining issues in this appeal.

10381757

Fannie SUMMERVILLE, Appellant, v. DENALI CENTER and Fidelity and Casualty, Inc., Appellees

Summerville v. Denali Center

1991-05-24

No. S-3793

1047

1051

811 P.2d 1047

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Fannie SUMMERVILLE, Appellant, v. DENALI CENTER and Fidelity and Casualty, Inc., Appellees.

Fannie SUMMERVILLE, Appellant, v. DENALI CENTER and Fidelity and Casualty, Inc., Appellees. No. S-3793. Supreme Court of Alaska. May 24, 1991. Michael J. Jensen, Anchorage, for appellant. James E. Hutchins, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appel-lees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2393

15939

OPINION COMPTON, Justice. This appeal arises from the denial of temporary and permanent total disability benefits to Fannie Summerville by the Alaska Workers' Compensation Board (board). Summerville's physical and mental impairments have prevented her from working since she fell while employed as a housekeeper at the Denali Center. Sum-merville received rehabilitation services for almost three years, paid for by Denali Center. On May 11, 1988, a Rehabilitation Administrator (RA) denied Summerville further rehabilitation benefits on the ground that rehabilitation would not enable her to return to suitable gainful employment. Following the RA's decision, Sum-merville applied to the board for temporary and permanent total disability benefits. The board denied benefits on the ground that regular and continuous employment was available to her. In reviewing this case, we must first address the relationship between an RA and the board. Summerville argues that the doctrine of res judicata bars the board's reconsideration of the issue of whether suitable gainful employment is available to her. We disagree. Since we conclude that the board's decision is supported by substantial evidence, we affirm the board's denial of disability benefits. I. FACTUAL AND PROCEDURAL BACKGROUND Fannie Summerville is in her fifties. She cannot read or write and has engaged in only physical labor during her life. She moved to Fairbanks in 1983 and within a month after her arrival began working as a housekeeper for Denali Center. Prior to this job, Summerville had little work experience. While growing up in Texas, she picked cotton. After she married and moved to California, she worked briefly as a nurse's aide. She also sorted and stapled tags on clothes for the Salvation Army for seven months in 1983. Otherwise, Summerville remained at home to take care of her children. On January 28, 1985, Summerville slipped and fell at work, injuring her hip, lower back, right ankle and index finger. She has received frequent medical treatment and physical therapy since her injury. She has been unable to work as a result of various health problems, some not directly related to her fall at work. Summerville suffers from muscle tension, headaches, depression and anxiety. In June 1985 Alaska Placement Services, Inc. (APS) began providing vocational rehabilitation services to Summerville. APS prepared a vocational rehabilitation services plan for her with on-the-job training as a sorter/tagger or a self-service attendant or cashier. Informal labor market contacts indicated that these positions appeared to be readily available in the market and did not require extensive reading, standing or walking. Summerville received some tutor ing through the Literary Council to improve her reading. APS placed Summer-ville's file on hold when she moved to Anchorage in September 1985. Following her move to Anchorage, Sum-merville was referred to Collins and Associates, Inc. (C & A) for further vocational rehabilitation assistance. Summerville continued to experience pain and anxiety and felt unable to return to work. C & A decided to delay vocational rehabilitation until Summerville's medical condition stabilized. Patricia Scott, a vocational rehabilitation counselor with C & A, began job development for Summerville in December 1986. Despite some indications to the contrary, Summerville remained unwilling to return to work because of her disability. Denali Center paid Summerville temporary total disability benefits from January 29, 1985, to May 11, 1987. On May 15, Denali Center filed a Notice of Controversion. A formal rehabilitation conference was held in September before Rehabilitation Administrator Deborah Torgerson. The RA addressed the issue of whether Sum-merville was non-cooperative concerning rehabilitation efforts and whether Denali Center was obligated to provide additional rehabilitation services. In her Decision and Order, Torgerson found that Summerville was entitled to a vocational rehabilitation services plan with not more than 60 days of direct job placement/on-the-job training. Neither party appealed this decision. Later all parties approved a vocational rehabilitation services plan for Summer-ville's return to work at a dry cleaning establishment as a counter attendant. Placement as a child or adult care attendant was also initially considered. However, Summerville's psychologist, Dr. David Williams, believed that Summerville should not work with children because of her anxiety disorder. Over the 60-day period, C & A identified approximately 69 job leads. Summerville cooperated with these efforts. She reported to C & A three times a week at which time she made telephone calls, reviewed help wanted ads, practiced interview techniques, and completed employment applications. These efforts were unsuccessful in finding Summerville employment. Teresa Blais, a counselor with C & A, attributed Summerville's lack of success to her inability to read or write. The various physical problems Summerville reported on her job applications also contributed to her inability to secure a job. A second formal rehabilitation conference was held before Ms. Torgerson on May 2, 1988, to consider whether Summer-ville was entitled to further rehabilitation services. Torgerson determined that Sum-merville was not entitled to further rehabilitation because these services would not be likely to return her to suitable gainful employment. Neither Denali Center nor Sum-merville appealed this decision. Summerville's benefits ceased in May. In September the board held a hearing to determine whether Summerville was entitled to temporary total disability or permanent total disability benefits. The board heard Summerville's testimony as well as that of Mr. William Skilling, a vocational rehabilitation counselor who performed a job analysis at the request of Denali Center. In November the board issued its Decision and Order, denying Summerville's claim. The board concluded that work within Summerville's capacities was regularly available and that lack of motivation and physical problems not related to her work injury were her primary impediments to re-employment. Summerville appealed the board's decision to the superior court. AS 23.30.125; Appellate Rule 609(b). The superior court affirmed the board's denial of benefits. Summerville appeals. II. DISCUSSION A. Is the Board Bound by the Rehabilitation Administrator's Decision that Further Rehabilitation Would Not Enable Summerville to Return to Suitable Gainful Employment? The nature of the relationship between an RA and the board is a question of statutory interpretation. We have previously stated, "Statutory interpretation is within the scope of the court's special competency, and it is our duty to consider the statute independently." Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 904 (Alaska 1987) (quoting Union Oil Co. of California v. Department of Revenue, 560 P.2d 21, 23 (Alaska 1977)). Summerville argues that the doctrine of res judicata bars the board's reconsideration of the issue of whether suitable gainful employment is available to her. Res judicata precludes a subsequent suit between the same parties asserting the same claim for relief when the matter raised was or could have been decided in the first suit. State v. Smith, 720 P.2d 40, 41 (Alaska 1986). We conclude that res judicata does not apply in this case because separate suits are not involved and because the board decided separate questions. Summerville mistakenly equates a rehabilitation plan that will enable a person to return to suitable gainful employment with the availability of suitable gainful employment. The RA's role is a narrow one. The function of an RA is to review a rehabilitation plan and decide whether to approve, modify or deny the plan. Former AS 23.-30.041(f). In this case, the RA's role was simply to determine whether Summerville was entitled to further vocational rehabilitation services. The RA decided that further rehabilitation services would not enable Summerville to return to suitable gainful employment within the seventy-four week limit under former AS 23.30.041(g); hence, she was not entitled to further participation in a plan. The issue of total disability, however, is beyond the scope of the RA's authority. The board, not the RA, is authorized to decide whether Summerville is entitled to temporary or permanent total disability benefits. The Alaska Workers' Compensation Act (Act) authorizes the board to "hear and determine all questions in respect to [a] claim." Former AS 23.30.110(a). The board selects RA's for the explicit purpose of implementing the provisions of the rehabilitation statute. Former AS 23.30.041(a) & (b). The board must accept an RA's decision concerning rehabilitation services that has not been appealed, but is not bound by the RA's underlying factual findings. Summerville implies that she is the victim of a "Catch-22." She is without rehabilitation services because the RA concluded that further services would not make her employable. The board, however, concluded that employment was available to her and therefore denied her temporary and permanent disability benefits. Summerville might have avoided this apparent dilemma if she had appealed the RA's decision. Perhaps she did not appeal the decision because she had no interest in further rehabilitation, having pursued this course for three years without success. Yet we need not speculate on her reasons. In seeking disability benefits Summerville now is asking the court to limit the board's authority to. determine whether such benefits are appropriate by binding the board to the RA's factual findings. The Act precludes giving such effect to the RA's decision. B. Is the Board's Decision Denying Sum-merville Disability Benefits Supported by Substantial Evidence? An employee is not entitled to either temporary or permanent total disability benefits if there is regularly and continuously available work in the area suited to the claimant's capabilities. This principle follows from the criteria for determining disability articulated in Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266-67 (Alaska 1974), and the "odd-lot" doctrine explained in J.B. Warrack Co. v. Roan, 418 P.2d 986, 988 (Alaska 1966). "For workmen's compensation purposes total disability does not necessarily mean a state of abject helplessness." War rack, 418 P.2d at 988. The "odd-lot" doctrine entitles an injured employee to total disability benefits if the employee is unable to perform services other than those "which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist." Id.; see also Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 187 (Alaska 1978); Larson, 2 The Law of Workmen's Compensation, § 57.51 (1989). The board found that steady employment was available to Summerville. We will affirm the board's factual findings where "there is substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the board's conclusion." Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985). We find substantial evidence in the record to support the board's conclusion. William P. Skilling, a' Washington vocational rehabilitation counselor, testified that suitable gainful employment was available to Summerville. His testimony was based on his review of Summerville's claim file and a labor market survey he completed of the Anchorage market. Skill-ing identified thirteen job categories within the physical restrictions set by Summer-ville's physician and within Summerville's limited educational skills. After talking with about twenty-five Anchorage employers, Skilling concluded that jobs in these thirteen categories were regularly and continuously available to Summerville. The board also relied on reports of Sum-merville's various rehabilitation counselors. In its decision, the board reviewed the job possibilities available to Summerville since rehabilitation counseling began in 1985. The board found that Summerville's inability to find work was due to her unwillingness to work rather than the unavailability of jobs within her limited capabilities. Evidence in the rehabilitation counselors' reports supports this finding. Admittedly there is evidence in the record that contradicts the board's finding that regular and continuous employment is available to Summerville. Weighing the evidence, however, is the role of the board, not of this court. Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978). In addition, the board has the sole power to determine the witnesses' credibility. AS 23.30.122; Resler v. Universal Services, Inc., 778 P.2d 1146, 1149 (Alaska 1989). AFFIRMED. . Summerville also argues that the board erred in not allowing the record to be reopened to include the affidavit of Teresa Blais. We find Summerville's argument on this point to be without merit. While title 8, section 45.074(d) of the Alaska Administrative Code (AAC) authorizes the board to "grant further hearings for good cause," the regulation does not require the board to do so. Matters of evidence are within the board's discretion. 8 AAC 45.120 (1991 Supp.). The board did not abuse its discretion by denying Summerville's request to reopen the record. First, the facts in Blais's affidavit were available to Summerville at the time of the hearing. Second, inclusion of the affidavit would deny Denali Center's right of cross-examination. See Employers Commercial Union Ins. Group v. Schoen, 519 P.2d 819, 822-24 (Alaska 1974). Finally, reopening the record would frustrate the valid interest of the board and of the parties in finality. Interior Paint Co. v. Rodgers, 522 P.2d 164, 169 (Alaska 1974). .The Alaska Workers' Compensation Act was amended significantly in 1988. The 1988 amendments apply only to injuries sustained on or after July 1, 1988. Ch. 79, § 48, SLA 1988. Since Summerville was injured in 1985, the former law applies. Nevertheless, our decision concerning the relationship between the RA and the board would be the same under the current statute. Former AS 23.30.041(f) provided: The employer and employee may agree on a vocational rehabilitation plan. If the employer and employee fail to agree on a vocational rehabilitation plan, any of the parties may submit a plan for approval to the rehabilitation administrator. The rehabilitation administrator shall approve, modify, or, deny a plan within 14 days after the plan is submitted. Within 10 days of the rehabilitation administrator's decision any party may seek review of the decision by requesting a hearing in accordance with AS 23.30.110. . Former AS 23.30.041(d)(1) provided: A full evaluation by a qualified rehabilitation professional shall include a determination whether a rehabilitation plan is necessary and shall include the following specific determinations: (1) whether the rehabilitation plan will enable the employee to return to suitable gainful employment; . Former AS 23.30.041(a) provided: The board shall select and employ a rehabilitation administrator and may authorize the rehabilitation administrator to select and employ additional rehabilitation staff. The rehabilitation administrator is in the partially exempt service under AS 39.25.120. Former AS 23.30.041(b) provided: The rehabilitation administrator shall implement the provisions of this section, and study the issue of rehabilitation, both physical and vocational, on a continuing basis.

10391869

Gale C. BANDOW, Appellant, v. Faye D. BANDOW, Appellee

Bandow v. Bandow

1990-06-29

No. S-3248

1346

1350

794 P.2d 1346

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Gale C. BANDOW, Appellant, v. Faye D. BANDOW, Appellee.

Gale C. BANDOW, Appellant, v. Faye D. BANDOW, Appellee. No. S-3248. Supreme Court of Alaska. June 29, 1990. James L. Johnston, Anchorage, for appellant. Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2639

16785

OPINION MATTHEWS, Chief Justice. I. The Bandows were married in 1961. In 1981 Gale was the alleged victim of medical malpractice. The Bandows filed suit against the surgeon considered responsible for the malpractice, and in 1986 received a substantial settlement, including an annuity which provides for a monthly payment of $1,850. Such payments are to continue for 20 years or the duration of Gale's life, whichever is longer. Should Gale die within 20 years, Faye will receive the remaining monthly payments. This settlement was not apportioned between past and future items of damage, or between Gale's damages and those suffered by Faye for loss of consortium. Approximately one year after the settlement the Bandows separated and subsequently divorced. The trial court determined that the annuity was marital property and awarded half of it to Faye. The court's classification of the annuity as marital property is the subject of this appeal. II. Property division upon divorce is governed by AS 25.24.160(a)(4). This statute requires application of a three-step process. The trial court must first determine what property is available for distribution, then ascertain the value of that property and, finally, equitably allocate the property between the parties. Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). Here we are concerned only with the first step, i.e., the identification of assets available for distribution. AS 25.24.-160(a)(4) states that all marital property (property "acquired . during coverture") is available for distribution. The statute also permits invasion of separate property (property "acquired before marriage" ) when required by the balancing of the equities between the parties. On appeal, Gale challenges the trial court's determination that the settlement annuity was distributable as an item of marital property. According to Gale, the fact that the injuries and settlement occurred during marriage does not automatically lead to the conclusion that the entire annuity was "acquired . during cover-ture" for purposes of AS 25.24.160(a)(4). He argues that the trial court should have treated as his separate property portions of the annuity which were intended to compensate for his separate property losses. Gale further argues that to the extent the annuity compensates him for lost post-marital earnings, post-marital medical expenses, and his pain and suffering (both during and after marriage) the annuity recompenses his separate property losses, and should therefore be classified as his separate property. With this much of Gale's argument, we agree. However, we do not agree with Gale's argument that this court can in effect determine that the entire annuity is attributable to his separate property losses. Accordingly, the trial court's division of the property is reversed, and the case remanded for further proceedings consistent with the following. III. In recent years, courts from other jurisdictions have taken one of three approaches to classification of tort and workers' compensation recoveries. The approach taken by the trial court is in line with what has been termed the "mechanistic" approach. See Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430, 435 (1986). Under this approach, the time of injury, and perhaps receipt of the recovery, controls the classification of the recovery. Where, as in the present case, a recovery is received during marriage for injuries sustained during marriage, the entire recovery is deemed to be "acquired" during marriage and, absent a statutory exception of such recoveries from the definition of marital property, must therefore be classified as marital property. See e.g., Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447, 452 (1986). The second approach has been characterized as "unitary." See Weisfeld v. Weisfeld, 545 So.2d 1341, 1346 (Fla.1989). Under this approach, even if the recovery was received during marriage for injuries sustained during marriage, the recovery is not deemed to be "acquired" during marriage because it arises from fortuitous circumstances entirely unrelated 'to a marital initiative to acquire assets. See e.g., Unkle v. Unkle, 305 Md. 587, 505 A.2d 849, 854 (1986). The unitary approach thus results in a classification directly contrary to that reached under the mechanistic approach; i.e., the entire recovery is treated as the separate property of the injured spouse. See id. The third, and more middle-ground, approach has been termed "analytic." See Johnson, 346 S.E.2d at 435-438. Under this approach, the purpose for which the recovery is received controls its classification; a recovery, or portion thereof, being classified as that which it is intended to replace. Id. To the extent the recovery compensates for losses to the marital estate, it is marital property. To the extent the recovery compensates for losses to a spouse's separate estate, it is his or her separate property. Id. Although a definite trend in other jurisdictions is not yet discernible, we believe that the analytic approach represents the best view. Since one spouse has no right to the other spouse's separate property, she should have no right to a tort recovery which is intended as a substitute for this property. Conversely, that which is the marital property of both spouses should not be converted to the separate property of one spouse simply because it is replaced by a tort recovery. This rationale is no less obvious today than it was when we implicitly adopted the analytic approach in Miller v. Miller, 739 P.2d 163 (Alaska 1987). In Miller we stated: [A] workers' compensation disability award is marital property only to the extent that it compensates for loss of earnings during the marriage. To the extent that a workers' compensation award compensates for loss of post-divorce earnings, it must be considered separate property, even if the compensa-ble injury occurred during the marriage. The policy rationale is obvious: since one spouse has no right to the other spouse's earnings after the marriage ends, she should have no right to a disability award that is intended as a substitute for those future earnings. Id. at 165. Accordingly, the lost earnings component of the present annuity could be a combination of marital and. separate property. To the extent this component replaces pre-divorce lost earnings, it is marital property; to the extent it replaces post-divorce lost earnings, it is Gale's separate property. Likewise, any other economic component of the annuity should be classified as that which it replaces or restores. For example, if the annuity compensates for medical expenses, it could be a combina tion of marital and separate property: marital property to the extent it compensates for pre-divorce expenses; Gale's separate property to the extent it compensates for post-divorce expenses. More difficult questions are presented with respect to portions of the annuity which compensate for non-economic losses; i.e., Gale's pain and suffering and Faye's loss of consortium. Indeed, it seems strange to even suggest that there is a "property" interest, be it marital or separate, in one's physical or mental health. But this is no reason to shun thoughtful consideration of the nature of that which is purportedly replaced by the settlement. Unfortunately, these non-economic characteristics have been reduced to dollars and cents, and the latter is in fact "property" which must be classified for purposes of distribution. In this regard, at least one thing seems clear. Any "property interest" the marital enterprise may have in a spouse's physical or mental health ceases to exist upon termination of the marital enterprise. Therefore, to the extent that the annuity is intended to compensate for a post-divorce non-economic loss, it is the separate property of the claimant spouse. Whether the marital enterprise has a "property interest" in the physical and mental health of the spouses during the marriage is a more difficult question. States adopting the analytic approach answer this question in the negative, classifying awards for pre-divorce non-economic loss as the separate property of the claimant spouse. See Weisfeld, 545 So.2d at 1345. One of the reasons given for this classification is particularly compelling. Damages for pain and suffering, mental anguish, and the like compensate for a loss which is so personal to the claimant spouse that classifying them as marital property would be inequitable. Nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage attending severe bodily injury. Mental injury, as well, has many of these characteristics. Equally personal are the effects of even mild or moderately severe injury. None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse. Why, then, should the law, seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse? In such case the law would literally heap insult upon injury. The uninjured spouse has his or her separate and equally personal right to an action for loss of consortium. Just as there is no equitable reason for that spouse to profit from his or her ex-mate's recompense for suffering, there is no justification for allocation of a share in the right to loss of consortium. The only damages truly shared are those discussed earlier, the diminution of the marital estate by loss of past wages or expenditure of money for medical expenses. Any other apportionment is unfair distribution. Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639, 643 (App.Div.N.J.1981). See also Landwehr v. Landwehr, 111 N.J. 491, 545 A.2d 738, 742-43 (1988) (following Amato). From our decision in Julsen v. Julsen, 741 P.2d 642 (Alaska 1987), we discern a second reason for treating awards for non-economic losses incurred during marriage as separate property. In Julsen, we held that an inheritance received by one spouse is not "acquired . during coverture" for purposes of equitable distribution under AS 25.24.160(a)(4), even if it was received during coverture, and even though the statute does not specifically except such property from the definition of marital property. Id. at 648. This classification followed from (1) our view that equitable distribution is based on a partnership theory of marriage, and (2) the plain meaning of the term "acquired." Under the partnership theory of marriage, property obtained without the joint efforts of the parties, such as inherited property, should not ordinarily be subject to division. Id. Likewise, the term acquired "[a]s commonly used . presupposes some effort, endeavor or action in the acquisition of property, and thus, does not include property, like inheritances, which are received gratuitously from a third party." Id., n. 8. Similarly, tort recoveries result from fortuitous circumstances entirely distinct from the efforts or economic undertakings of the marital partners. Therefore, where a portion of the award replaces, so to speak, that , which is instead intimately related to the person of the claimant spouse, we think it appropriate to regard that portion of the award as the separate property of the claimant spouse. Faye argues that allocating an undifferentiated tort recovery is an impossible task and, therefore, the analytic approach should be disregarded in cases, like the present one, where the recovery is not allocated among various elements of damage. We disagree. Although mathematically exact allocation of the award may not be possible, we are confident of the ability of the trial court to make a reasonable apportionment. Like the Supreme Court of New Jersey, "[w]e do not expect that the allocation of such awards will present any serious problems. Trial courts are used to allocating and tracing assets in equitable distribution cases." Landwehr, 545 A.2d at 744. However, to the extent that the parties do not provide sufficient evidence to make a reasonable allocation to a separate estate, the award should be classified as marital property. See id. See also Johnson, 346 S.E.2d at 439-40. Therefore, on remand, Gale will have the burden of proving by a preponderance of the evidence what amount or proportion of the annuity represents compensation for loss of his separate property; i.e., compensation for his post-divorce economic losses, and compensation for non-economic losses, whether incurred before or after divorce. Likewise, should Faye claim that a portion of the annuity represents compensation for loss of her separate property, i.e., loss of consortium, she will have the burden of proving this by a preponderance of the evidence. Following the apportionment, the trial court should equitably divide the marital estate. REVERSED and REMANDED. . Under AS 25.24.160(a)(4), the trial court may provide for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it[J . Because post-marital acquisitions are "excluded from the category of marital property," Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986), this opinion will also apply the "separate property" label to such assets, but only as a convenient shorthand. The invasion of post-marital acquisitions for purposes of property division is obviously not permitted by the statute. See infra. .Whether an asset is marital property or separate property "is in large part a legal determination, involving the interpretation of AS [25.24.160(4)], and applying legal principles to the facts of the case." Wanberg, 664 P.2d at 570. With respect to the legal analysis employed at the trial court level, review is based upon our independent judgment. Id. Whether or not the equities require invasion of premarital assets, on the other hand, lies within the broad discretion of the trial court and will not be overturned absent a clear abuse of discretion. Id. Julsen v. Julsen, 741 P.2d 642, 646 n. 4 (Alaska 1987). . See Weisfeld, 545 So.2d at 1344; Freed and Walker, Family Law in the Fifty States: An Overview, 21 Fam.L.Q. 417, 499 (1988). . Except to the extent that pre-marital acquisitions may be invaded when the balancing of the equities so requires. AS 25.24.160(a)(4). . With respect to Gale's post-divorce pain and suffering, this conclusion is obvious. After the marriage ended, any pain and suffering endured by Gale cannot, by any stretch of the imagination, be regarded as a loss to the marital estate. This is not changed by the fact that compensation was, in effect, provided in advance. If the divorce was not apparent at the time of the settlement, however, advance compensation for Faye's loss of consortium may include a windfall recovery for loss of consortium expected to occur during the time following the date of divorce. In light of the divorce, the marital estate cannot claim any actual injury. It is also unlikely that Faye's separate estate actually incurs any post-divorce loss of consortium. As between these two estates, we think that Faye's separate estate is the only logical candidate for receipt of the windfall. Likewise, if it were established that the settlement overcompensated for Gale's post-divorce pain and suffering, he would be the only logical candidate for the windfall. We also point out that our rationale for classifying pre-divorce non-economic losses as separate property, infra, provides an alternative rationale for classifying post-divorce losses as separate property. . We relied, in part, on the fact that the Uniform Marital Property Act classifies inherited property as separate property. Julsen, 741 P.2d at 647. The UMPA also classifies as separate property a recovery for personal injury, except to the extent that the recovery is attributable to expenses paid from marital property and pre-di-vorce lost earnings. Uniform Marital Property Act § 4 and 17, reprinted in 9A U.L.A. 103 (1987). Thus, under the UMPA, awards for both pre- and post-divorce non-economic losses are treated as the claimant spouse's separate property-

10356978

STATE of Alaska, Petitioner, v. Danny J. JESKE, Respondent

State v. Jeske

1991-12-20

No. A-3758

6

10

823 P.2d 6

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Danny J. JESKE, Respondent.

STATE of Alaska, Petitioner, v. Danny J. JESKE, Respondent. No. A-3758. Court of Appeals of Alaska. Dec. 20, 1991. Eric A. Johnson, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Attorney General, Juneau, for petitioner. James W. McGowan, Sitka, for respondent. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2537

15330

OPINION MANNHEIMER, Judge. The State of Alaska charged Danny J. Jeske with third-degree assault and second-degree weapons misconduct, AS 11.41.-220(a)(1) and AS 11.61.210(a)(1). The superior court dismissed these charges because it ruled that Jeske had not been brought to trial within the time limits of Alaska Criminal Rule 45. We granted the State's petition for review of this dismissal, and we now reverse the superior court and reinstate the charges against Jeske. Jeske was arrested on June 30, 1990. Shortly after his arrest, he retained an attorney to represent him. Jeske's case was originally scheduled for trial on October 9, 1990. On September 19, three weeks before the scheduled trial, Jeske's attorney was interviewed by the Sitka police regarding the attorney's potential violation of AS 11.46.-620(a), misapplication of property. The attorney confessed to the police, and he was charged with this crime. Later that day, the attorney was hospitalized for stress. Jeske's attorney stayed in the hospital for four days; released on September 23, he remained under a doctor's care and eontin- ued to take both anti-depressant drugs and tranquilizers under prescription. Because Jeske's attorney believed himself temporarily incapable of pursuing his legal practice, he and the Discipline Counsel for the Alaska Bar Association agreed on September 28 that a trustee attorney would be appointed to oversee his practice. See Alaska Bar Rules 30 and 31, allowing the appointment of trustee counsel when an attorney is "unable to continue the practice of law by reason of mental or physical infirmity or illness". Bar Rule 30(b). Because the turmoil in his life had given him little time to prepare for Jeske's trial, and because of his continuing stress and depression, Jeske's attorney concluded that he would be unable to adequately represent Jeske at a trial which, by then, was only two weeks away. He therefore obtained the State's stipulation to continue the trial until November 6, with the time to run against the defense for purposes of the Rule 45 calculation. This stipulation was filed on October 1, and on October 2 the court adopted the stipulation and granted the requested continuance. Jeske did not know that his attorney had sought a continuance. He found out about the continuance a day or two later, during a telephone conversation with his attorney. Jeske's attorney did not offer an explanation of why the trial had been delayed, and Jeske, although he was displeased with the delay, apparently did not press his attorney for an explanation. A few days after this conversation, Jeske saw an announcement in the newspaper that his attorney was closing his law practice. See Alaska Bar Rule 30(e). Jeske, now aware of his attorney's personal difficulties, decided that he did not want the attorney to handle his case any more. Jeske therefore hired a new attorney, James McGowan. McGowan prepared a pleading that combined the first attorney's motion for withdrawal with Jeske's consent to substitute McGowan as his attorney. Jeske's first attorney signed his portion of the document (the motion to withdraw) on October 11, 1990. However, McGowan did not file the completed document or his accompanying entry of appearance until November 1. That same day, McGowan filed a motion to dismiss the charges against Jeske on the ground that Jeske had not been brought to trial within the time limits of Criminal Rule 45. In this motion, Jeske did not mention the stipulated continuance; he simply asserted that he had been arrested on June 30.and that his trial was currently scheduled for November 6, the 129th day following his arrest. The State responded that Jeske's former attorney had stipulated to a 28-day continuance of trial, and thus the Rule 45 time limit had not yet expired. In his reply, Jeske for the first time asserted that the stipulated continuance was not valid because it had been entered without his consent. Superior Court Judge Larry C. Zervos, after listening to the testimony of both Jeske's first attorney and Jeske himself, found that Jeske had not been told of his attorney's intention to seek a continuance of trial. Based upon this finding, Judge Zervos ruled that Rule 45 had continued to run during the stipulated continuance. Judge Zervos based his decision on the wording of Rule 45(d)(2): (d) Excluded Periods. The following periods shall be excluded in computing the time for trial: (2) The period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and his counsel. Judge Zervos concluded that, because Jeske had not been consulted or given a chance to object before his attorney stipulated to the continuance of the trial, and because Rule 45(d)(2) requires the consent of both the defendant and the defendant's attorney, the Rule 45 clock continued to run unabated in spite of the stipulated continuance of trial. Thus, Judge Zervos ruled, the Rule 45 time limit had expired. Judge Zervos also considered and rejected application of Rule 45(d)(7), which allows tolling of Rule 45 during "other periods of delay for good cause". The judge found that Jeske's first attorney had not been able to proceed with trial because of his illness. However, Judge Zervos viewed the pre-trial illness of an attorney as an "entirely foreseeable" circumstance, not a "unique [or] exceptional" situation. He therefore declined to apply Rule 45(d)(7). We reverse the superior court's decision because we disagree with Judge Zervos concerning what is to be done when, after a continuance has been granted, it turns out that the defendant did not consent to it. Although the cases discussing Rule 45(d) often refer to "waivers" of Rule 45, the term "waiver" is not being used in the restricted sense of an affirmative, personal, voluntary relinquishment of a known right. In Snyder v. State, 524 P.2d 661 (Alaska 1974), the defendant's attorney appeared in court without him and asked for a 30-day continuance to allow the defendant to be examined by a psychiatrist to determine his competency to stand trial. On appeal, the defendant contended that his attorney had no authority to waive Rule 45 in his absence. Id. at 662-63. The Alaska Supreme Court replied that a defendant's rights under Rule 45 were not constitutional or fundamental rights, and that a "waiver" of these rights could be accomplished by the actions of the defendant's attorney, without the defendant's personal participation: We think this contention is answered by our decision in [State v.] Clouatre [516 P.2d 1189 (Alaska 1973) ] where we said that Criminal Rule 45 is only a "basic datum" and that a considerably longer period could elapse before trial without resultant unfairness or injustice to the accused. The outer limits of Alaska's constitutional right to a speedy trial are not defined by Rule 45. In short, we are of the view that our decisions pertaining to waiver of fundamental constitutional rights are inapplicable, in the factual context of the instant case, to the Criminal Rule 45(d)(1) excluded period issue raised herein. Snyder, 524 P.2d at 664. Thus, the trial court normally does not need to secure a personal waiver from the defendant when the defense attorney takes action or acquiesces in action that, under Rule 45(d), stops the running of Rule 45. While the wording of Rule 45(d)(2) apparently requires a criminal defendant's concurrence in any delay or continuance requested by the defense attorney, this court and the Alaska Supreme Court have repeatedly stated that the trial court can rely on a defense attorney's request for a continuance and need not seek a separate, personal consent from the defendant unless the defendant affirmatively objects to the defense attorney's action. Henson v. State, 576 P.2d 1352, 1356 n. 9 (Alaska 1978); Yearty v. State, 805 P.2d 987, 991 (Alaska App.1991); Machado v. State, 797 P.2d 677, 684-85 (Alaska App.1990). This is true even when the defendant is not present in court to witness the defense attorney's request for a continuance, Snyder, 524 P.2d at 663-64, or when defense acquiescence in a continuance is manifested by the attorney's filing a statement of non-opposition, O'Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska 1978). Under the cases cited in the previous paragraph, the superior court was entitled to rely upon Jeske's attorney's stipulation to the continuance. But after the trial court had rescheduled Jeske's trial in reliance on this stipulation, Jeske came to court and proved that his attorney had not consulted him before seeking the continuance — thus rebutting the presumption that Jeske had consented to his attorney's action. The issue presented by Jeske's case is this: When a defendant proves that he did not consent to a continuance requested by his attorney, does Rule 45 nevertheless remain tolled until the day the court makes its finding that the defendant did not consent to the continuance? Or does the defendant's proof of non-consent require the trial court to invalidate the previously granted continuance and calculate Rule 45 as if the continuance had never been requested? Judge Zervos decided that, under these circumstances, Rule 45(d)(2) required him to treat the continuance as invalid from its inception and to calculate the running of Rule 45 as if it had never been interrupted. We disagree. When defense counsel has requested or consented to a continuance, a judge setting the date for the defendant's trial is entitled to rely upon the fact that the rule is tolled during that continuance, at least until the judge is affirmatively apprised of the defendant's objection to the continuance. Once it is clear that the defendant has not consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to restart the Rule 45 clock. But the time already elapsed must remain excluded from the calculation of the time for trial. The Supreme Court reached this same result under analogous circumstances in Coffey v. State, 585 P.2d 514 (Alaska 1978). Coffey was charged with selling marijuana in Homer. At that time, Kenai was the normal trial venue of an offense alleged to have been committed in Homer. However, when Coffey was arraigned, the superior court set the case for trial in Anchorage. At the arraignment, the defense asked for a nine-week continuance of the omnibus hearing; Coffey, both personally and through his attorney, waived Rule 45 for these nine weeks. Coffey at 517. Three weeks after Coffey's arraignment, the superior court re-examined the file and discovered that, because Coffey's offense was alleged to have been committed in Homer, venue should have been set in Ke-nai; venue was changed. Later, at the omnibus hearing, Coffey asserted that he never would have waived Rule 45 if he had known that the case would be tried in Ke-nai. He also argued that, since venue had always properly been in Kenai, the proceedings in Anchorage (and, particularly, his waiver of Rule 45) were nullities. Coffey therefore moved for dismissal of the case under Rule 45. Id. at 518. The trial court ruled that Coffey could withdraw his waiver and, if he did so, the time for trial under Rule 45 would start to run again the next day. However, Rule 45 would remain tolled during the time between Coffey's waiver and the day he withdrew it. Id. On appeal, the Supreme Court upheld the trial court's decision: Coffey argues that his waiver of Criminal Rule 45 was conditional on the continuance of venue in Anchorage and that, once venue was set in Kenai, the waiver was automatically revoked, thereby charging the time against the state. The record does not show that Coffey waived Criminal Rule 45 on the condition that venue would "remain" in Anchorage.... The condition, if it existed at the time of waiver, was subjective, inasmuch as it was not brought to the attention of the court. Coffey's argument is unpersuasive. Once venue was set in Kenai by the order of June 25,1975, Coffey could have moved to rescind his waiver. His argument that affirmative steps to protect the right to a speedy trial are not required is inapplicable to postwaiver situations, where affirmative steps to withdraw a waiver may reasonably be required. Coffey, 585 P.2d at 520-21. Until Jeske secured a new attorney and filed his motion to dismiss, Jeske's lack of consent to the stipulated continuance of his trial — like the repented waiver in Coffey— remained "subjective", in the sense that "it was not brought to the attention of the court." The trial judge in Jeske's case, like the trial judge in Coffey, was entitled to treat Rule 45 as tolled until an event or circumstance altering that status was affirmatively brought to the judge's attention. A contrary rule would leave Rule 45 calculations unsettled and tentative until the day of trial. There is another problem with Jeske's interpretation of the rule. Under Jeske's view, a defendant who learned that defense counsel had requested a continuance without the defendant's explicit consent could wait until the time for trial (calculated without reference to the disputed continuance) had expired, then file a motion to set aside the continuance — a motion which, if successful, would result in dismissal of all charges. Such an interpretation of Rule 45(d)(2) would give rise to an unacceptable potential for manipulation of the rule in a manner that thwarts the ends of justice. We therefore hold that Judge Zervos erred when he calculated the Rule 45 time limit as if the stipulation for a continuance had never been filed. When a defendant asserts that he or she never consented to a continuance obtained or stipulated to by defense counsel, Rule 45 remains tolled until the judge makes an affirmative finding that the defendant did not consent to the previously ordered .continuance. The decision of the superior court is REVERSED. This case is REMANDED for renewed proceedings on the indictment. . Alaska Criminal Rule 45 was taken from the ABA Standards for Criminal Justice, what is now Standard 12-2.3 (Approved Draft 1978). Subsection (c) of Standard 12-2.3 declares: "The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel" should be excluded in computing the time for trial, (emphasis added) The State argues that the Alaska Supreme Court, when promulgating Rule 45(d)(2), inadvertently changed the "or" of the ABA standard to an "and". Compare Peterson v. State, 562 P.2d 1350, 1356-58 (Alaska 1977). We find it unnecessary to decide this issue. We assume, for purposes of deciding this case, that Rule 45(d)(2) requires the defendant's consent to any continuance requested by defense counsel. . In such circumstances, Rule 45 remains tolled through the day of the trial court's ruling; the time for trial would normally begin to run the next day. Stobaugh v. State, 614 P.2d 767, 770 n. 3 (Alaska 1980).

10381232

Eric Dale VAN BUREN, Appellant, v. STATE of Alaska, Appellee

Van Buren v. State

1992-01-03

No. A-3487

1258

1263

823 P.2d 1258

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Eric Dale VAN BUREN, Appellant, v. STATE of Alaska, Appellee.

Eric Dale VAN BUREN, Appellant, v. STATE of Alaska, Appellee. No. A-3487. Court of Appeals of Alaska. Jan. 3, 1992. Christine Schleuss, Schleuss & McComas, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2616

16831

OPINION BRYNER, Chief Judge. Eric Dale Van Burén was charged with one count of misconduct involving a controlled substance in the third degree (possession of cocaine). Van Burén moved to suppress evidence seized from his residence pursuant to a warrant, which he contended had been issued without probable cause. After Superior Court Judge Mark C. Rowland denied the motion to suppress, Van Burén entered a plea of no contest, reserving his right to bring this appeal challenging the superior court's ruling. We affirm. On August 11, 1989, Superior Court Judge Victor D. Carlson issued warrants authorizing the Alaska State Troopers to search Van Buren's residence in Anchorage, as well as residences occupied by Kenneth Federico and Tomas Pousada-Gonza-lez. The warrants were based on an affidavit submitted by Trooper Investigator William R. Gause, which Gause supplemented with live testimony before Judge Carlson. Gause's affidavit focused on Federico and Gonzalez, implicating both men in an ongoing course of cocaine distribution in Anchorage. Gause began the affidavit by describing a series of controlled purchases of cocaine by an undercover informant from an individual named Mary Goudreau. The affidavit went on to relate circumstances indicating that Federico was Gou-dreau's source of supply for the cocaine. From there, the affidavit set forth information indicating Gonzalez's active involvement in large-scale cocaine trafficking in the Anchorage area. Then, the affidavit recited facts establishing a link between Gonzalez and Federico, indicating that Federico sold cocaine for Gonzalez. The link between Gonzalez and Federico was made out chiefly through a five-month period of electronic surveillance by federal agents, who used pen registers and calling line identifiers to determine the sources and destinations of telephone calls to and from Gonzalez's apartment. The surveillance had been authorized by a separate federal court order. According to Gause's affidavit, Gonzalez's apartment received 686 telephone calls during the five-month period of surveillance, 253 of which were from Federico's primary Anchorage residence. A handful of additional calls came from other residences maintained by Federico. The calls occurred at all hours of the day and night, most lasting only a short time, usually less than a minute — a circumstance that Gause, from his past experience, believed to be consistent with drug trafficking. In addition, forty-five of the calls to Gonzalez's residence had originated from twenty-five different pay telephones in the Anchorage area — another circumstance Gause believed to be indicative of drug trafficking. Gause's affidavit mentioned Van Burén only once. The mention occurred in connection with information concerning Gonzalez's telephone activity and appeared toward the end of the affidavit: Finally, your affiant has knowledge that, the Federal pen register indicates that GONZALEZ is without telephone activity during regular intervals. Most recently, from June 17 through June 19, 1989, there was no telephone activity from GONZALEZ' telephone, indicating that he might have been away from his home. The telephone activity resumed in the early morning hours of June 20, 1989, including an early morning telephone call to KENNETH FEDERICO, and ERIC VAN BUREN, one McCaw pager and one Person Page pager, pagers being a common means for drug dealers to communicate with one another. This pattern occurred on other earlier occasions when GONZALEZ' telephone was inactive. (Emphasis added.) Gause provided additional evidence linking Van Burén to Gonzalez and Federico in his supplemental testimony before Judge Carlson at the warrant hearing. Gause initially testified about observations made by N-371, an undercover officer who had moved into Gonzalez's apartment building to "get close" to Gonzalez. According to Gause, at about 3:40 p.m. on August 10, the day before the warrant hearing, N-371 had seen Van Burén approach Gonzalez's apartment, carrying a shopping bag. Van Burén knocked and was admitted. He left the apartment about eight minutes later, without the shopping bag, and drove away from the building. Fifteen minutes later, N-371 saw Federico leave Gonzalez's apartment and drive away (N-371 apparently did not know when Federico entered the apartment). N-371 then left the area for a short time. Upon returning, at around 4:30 p.m., he noticed that Van Bu-ren's car had again been parked in front of the apartment building. N-371 looked again at 5:10 p.m. and the car was no longer there. After Gause finished telling Judge Carlson about N-371's observations, he provided the judge with updated information con cerning telephone activity at the Gonzalez apartment: Q: The PEN registers and calling [indiscernible — away from mike] identified that are in place on Tomas Pousada-Gonzalez' telephone and Kenneth Federico's telephone. Have you updated information about those statistics which are actually listed in the affidavits? A: Yes, the PEN register activity had been updated through some time around 8 o'clock this morning, the calling line identifier with incoming phone calls, had not been updated since approximately a week and a half ago and that's because it usually takes eight to ten days to obtain the information from the phone company. Q: Okay, and what — how many telephone calls had Tomas Pousada-Gon-zalez made to Eric Van Burén at this point in time? A: He's made approximately 60 phone calls to Mr. Van Burén at his residence at 2221 Muldoon, space 500. He also made five phone calls to a pager which has been identified as belonging to Mr. Van Burén. Q: Also at that address? A: Yes. It comes back via — the information from — the subscriber information from the pager company that unit is [indiscernible — bad recording]. Q: And how many phone calls has Gonzalez now made to Federico's home phone number on Sun Crest Drive? A: 72 phone calls. Approximately 72. Gause went on to describe Van Buren's residence, and testified that Van Buren's car had been seen parked there that morning. Based on the foregoing information, Judge Carlson concluded that the state had established probable cause to search Van Buren's home. Execution of the warrant issued by Judge Carlson yielded the cocaine that resulted in Van Buren's conviction in this case. Van Burén contends on appeal that the evidence presented to Judge Carlson did not amount to probable cause. He argues that the evidence included no direct proof of his involvement in drug trafficking, indicating at most a general association with Gonzalez. Moreover, Van Burén contends that the evidence established no nexus between his residence and any dealings that he might have had with Gonzalez. We use the following standard to determine probable cause in this context: In evaluating a search warrant we view the evidence in the light most favorable to upholding the warrant and will only invalidate the warrant if the magistrate abused her discretion. Doubtful or marginal cases are resolved in favor of the warrant, and the evidence presented to the magistrate must be considered "in a reasonable and common sense manner." State v. Chapman, 783 P.2d 771, 772 (Alaska App.1989) (citations omitted). Applying this standard to the totality of the evidence before Judge Carlson, we conclude that the judge did not abuse his discretion in deciding to authorize the search of Van Buren's residence. The fact that the information relating to Van Burén was circumstantial and included no direct observations of drug-related transactions is beside the point: Probable cause to issue a search warrant exists when "reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed." Badoino v. State, 785 P.2d 39, 41 (Alaska App.1990) (quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)). Regardless of whether the evidence offered in support of probable cause is direct or wholly inferential, the ultimate inquiry is the same: The magistrate is not required to determine whether in fact the items to be searched for are located at the premises to be searched, but only whether there is reasonable ground to believe they are there. Metler v. State, 581 P.2d 669, 672 (Alaska 1978) (emphasis in original) (citation omitted) (quoting United States v. Bowers, 534 F.2d 186, 192 (9th Cir.1976)). The evidence in this case connecting Van Burén to Gonzalez's and Federico's drug-selling activities, though circumstantial, was indicative of far more than a casual and legitimate association between an innocent person and persons separately engaged in illegal activities. See, e.g., Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968) (defendant's mere presence in a bar during the execution of a search warrant did not establish probable cause to search the defendant's person). Here, the evidence tended to show Van Buren's integral involvement in the same illegal activities that Gonzalez and Federico were pursuing. Gause's affidavit convincingly established that Gonzalez and Federico were involved in ongoing cocaine trafficking and that they relied heavily on the telephone to carry on their criminal enterprise. The affidavit also revealed that a distinctive pattern of telephone calls had emerged in the course of the federal surveillance: telephone activities at Gonzalez's apartment would cease altogether for intervals of several days and would thereafter resume with calls from Gonzalez's telephone to Federico's residence, Van Buren's residence, and two telephone pagers. Gause's testimony provided a further indication of Van Buren's involvement in Gonzalez's and Federico's criminal enterprise. According to Gause, in the one and one-half week period immediately preceding the warrant hearing, approximately sixty calls were placed from Gonzalez's apartment to Van Buren's residence, with five additional calls to a pager belonging to Van Burén. In the same period, approximately seventy-two calls were made to Federico's primary residence. Standing in isolation, the information concerning Van Buren's involvement in telephone traffic with Gonzalez's apartment might not amount to probable cause. However, against the strong backdrop of evidence showing Gonzalez's and Federico's ongoing involvement in drug trafficking and the pattern of telephone activity that emerged therefrom, the information about Van Buren's telephone communications provides a telling indication of his probable participation in the same illegal enterprise. This evidence, in turn, was bolstered by Gause's testimony concerning Van Buren's comings and goings at Gonzalez's apartment the day before the search warrant hearing, as well as Gause's testimony that Van Burén apparently delivered a shopping bag to Gonzalez and that Federico emerged from Gonzalez's apartment a short time later. Again, this information was certainly not peculiarly significant in its own right, being in itself only marginally suggestive of drug trafficking. Yet, by establishing a personal link between Gonzalez, Federico, and Van Burén, this evidence significantly reduced the possibility that the anonymous telephone activity between Gonzalez's residence and Van Buren's might have involved a third party other than Van Burén; by the same token the evidence substantially lessened the possibility that the police were misreading the apparent significance of the calls from Gonzalez to Van Burén. Viewing the totality of the evidence in a reasonable and common sense manner, we believe that Judge Carlson could properly find probable cause to believe that Van Burén was actively engaged in an ongoing, course of cocaine distribution. The remaining issue is whether the information given to Judge Carlson supports the further inference that evidence of Van Buren's misconduct would likely be found at his residence. See generally Metler v. State, 581 P.2d 669, 672-73 (Alaska 1978). In the absence of direct observation, the nexus between a person who is engaged in criminal activity and the particular premises for which a warrant is sought may be established by consideration of factors such as the type of crime committed, the nature of the items sought, the suspect's opportunity to conceal those items, and the normal inferences as to where such items might be concealed. Id. at 672; State v. Conway, 711 P.2d at 555, 557 (Alaska App.1985). It is logical to assume that persons regularly engaged in illicit distribution of controlled substances will keep drugs, drug paraphernalia and related records in concealed places; absent contrary indications, the most likely place will be the place where those persons live. See, e.g., State v. Conway, 711 P.2d at 557; Morrow v. State, 704 P.2d 226, 230 (Alaska App.1985); State v. Gutman, 670 P.2d 1166, 1171 (Alaska App.1983); Stuart v. State, 698 P.2d 1218, 1221 (Alaska App.1985). See also Snyder v. State, 661 P.2d 638, 645-46 (Alaska App.1983). In Van Buren's case, although there was evidence that Federico maintained multiple residences — a practice commonly used by drug dealers to minimize the risk of detection — there was no evidence suggesting that Van Burén maintained any place other than his residence where he could conceal drugs. Furthermore, evidence that a large number of recent calls were placed from Gonzalez's apartment to Van Buren's home strongly supports the inference that Van Burén conducted business at home. We believe that the nexus established to Van Buren's residence was sufficient in this case to support the issuance of the challenged warrant. Accordingly, we conclude that the superi- or court did not err in denying Van Buren's motion to suppress. Van Buren's conviction is AFFIRMED. MANNHEIMER, J., not participating. . Van Burén notes that Judge Rowland referred to the "clearly erroneous" standard of review in upholding Judge Carlson's decision to issue a search warrant. Van Burén argues that the clearly erroneous standard is unduly deferential and that Judge Rowland's reliance on it was unjustified. However, when this court considers the issue of probable cause for a warrant in an appeal in which there is no dispute as to the evidence presented to the issuing judge, our reviewing function is essentially identical to that of the court ruling on the motion to suppress at the trial level. State v. Conway, 711 P.2d 555, 557 (Alaska App.1985). Accordingly, any error by Judge Rowland in applying the clearly erroneous standard has no effect on this court's ruling. . Gause's affidavit described the most recent occurrence as being between June 17 and 19. The affidavit did not specifically describe other occurrences, but stated, "[t]his pattern occurred on other earlier occasions when Gonzalez' telephone was inactive." In his brief and at oral argument, Van Burén has maintained that the affidavit's mention of calls to Federico and Van Burén was meant as a description of a single occurrence, and not as part of the "pattern" of calls described by Gause in the affidavit. Although Gause's affidavit might be interpreted in the manner suggested by Van Burén, it is also capable of being read to mean that the pattern of telephone activities included not only periodic interruption of calls from Gonzalez's residence but also the regular resumption of telephone activity by calls to Federico and Van Burén. Judge Carlson could reasonably have adopted the latter interpretation. The deference we owe to the issuing judge and our consequent duty to construe the evidence in the light most favorable to upholding the warrant require us to reject Van Buren's proposed reading of Gause's affidavit. . Van Burén contends that Gause did not specify that the sixty calls to Van Burén and seventy-two calls to Federico were made in the one and one-half weeks immediately before the warrant hearing. Van Burén reads Gause's testimony as indicating only that the calls were made at some time over the five-plus months of federal surveillance. However, a common sense reading of Gause's testimony would support the conclusion that Gause was describing calls occurring during the most recent, one and one-half week time period covered by Gause's update. Again, any ambiguity in this regard must be resolved in favor of upholding the warrant.

10391896

Chester J. SEVERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Severson v. Municipality of Anchorage

1990-07-27

No. A-3185

1351

1352

794 P.2d 1351

794

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Chester J. SEVERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Chester J. SEVERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-3185. Court of Appeals of Alaska. July 27, 1990. Michael J. Keenan, Anchorage, for appellant. Michael R. Stahl, Asst. Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

785

4751

OPINION SINGLETON, Judge. Chester J. Severson, through counsel, pled no contest and was convicted of one count of driving while intoxicated on April 29, 1982. Anchorage Municipal Code (AMC) § 09.28.020(A). Approximately seven years later Severson moved to withdraw his plea, pursuant to Alaska Rule of Criminal Procedure 11, arguing that the trial court failed to substantially comply with the requirements of that rule in taking Severson's no contest plea. Specifically, Severson argued that the trial court did not personally address him to determine if he understood the nature of the charge, did not inform him that by pleading guilty he would waive his right to trial by court or by jury and that he would be waiving his right to confront the witnesses against him, did not inform him of the mandatory minimum punishment, and failed to inform him of the maximum possible punishment. Severson did not allege or attempt to prove that his counsel failed to advise him of his rights, or that he did not knowingly, intelligently and voluntarily enter into the plea and sentence agreement pursuant to which he was sentenced. He did not contend that the municipality breached the plea agreement. District Court Judge John D. Mason concluded that there was not substantial compliance with the rule, but that Severson had waited too long to bring his motion to withdraw his plea. He denied the motion and Severson appeals. Severson contends that the trial court ignored controlling decisions of this court and the Alaska Supreme Court, specifically Swensen v. Anchorage, 616 P.2d 874, 877 (Alaska 1980); Lewis v. State, 565 P.2d 846, 850-51 (Alaska 1977); and Petranovich v. State, 709 P.2d 867, 869 (Alaska App.1985). In those cases, the appellate courts concluded that a person moving to withdraw a guilty plea need not show that the motion was made with due diligence. We agree with Severson that the trial court has no authority to impose a due diligence requirement on a motion to withdraw plea, pursuant to Criminal Rule 11, where the motion is predicated on the contention that the trial court did not comply with the provisions of that rule. We nevertheless affirm the trial court's decision on other grounds. In our view, as a matter of law, Severson is not entitled to relief. Alaska Rule of Criminal Procedure 38(c)(2) provides: Presence Not Required. A defendant need not be present in the following situations: (2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence.... In this case, Severson was represented by an attorney at all significant times. He filed a written consent for proceedings to take place in his absence, pursuant to Criminal Rule 38(c)(2). The parties reached a plea and sentence agreement, specifying a particular sentence. Severson does not contend that his plea was coerced or that the sentence imposed violated that agreement, nor does he contend that he did not understand the nature of the charge, driving while intoxicated, or the various applicable penalties. Given the fact that Severson was represented by counsel, and agreed to a plea and sentencing agreement, he was obligated to affirmatively allege and prove that counsel had materially misled him or that the plea was for some reason involuntary in order to establish a prima facie case for plea withdrawal. Where a person enters a plea on the advice of counsel and is sentenced pursuant to a plea and sentence agreement, he may not withdraw his plea merely because the trial court failed to give the warnings and make the inquiries specified in Criminal Rule 11. See Fulton v. State, 630 P.2d 1004 (Alaska App.1981) (where defendant alleged both a failure to substantially comply with Criminal Rule 11 and inaccurate and misleading advice from his attorney and neither claim was disputed by the state). Under the circumstances, the showing he made in support of his motion to withdraw his plea is insufficient as a matter of law. Lewis, 565 P.2d at 851-53. The judgment of the district court is AFFIRMED. . In Swensen and Petranovich the defendants entered pleas without the aid of counsel. In Lewis, Lewis was assisted by counsel and was sentenced pursuant to a plea and sentence agreement. Lewis was not permitted to withdraw his plea.

11866988

Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee

Rynearson v. State

1997-12-19

No. A-6108

147

152

950 P.2d 147

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

Before COATS, C.J., MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice.

Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee.

Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee. No. A-6108. Court of Appeals of Alaska. Dec. 19, 1997. G. Blair MeCune, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. William H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice. Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

2322

15067

MANNHEIMER, Judge. Joleen R. Rynearson pleaded no contest to two counts of fourth-degree misconduct involving a controlled substance (possession of Valium and Darvon), AS 11.71.040(a)(3)(B). When Rynearson entered her pleas, she reserved the right to challenge the legality of the police seizure of her bags (which led to the search in which the police found the drugs). See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In our previous decision in this ease, we held that the seizure of Rynearson's bags exceeded the bounds of temporary investigative detention, and that therefore the seizure was justified only if the officers had probable cause to believe that Rynearson's bags contained illicit drugs. Rynearson v. State, Memorandum Opinion No. 3068 (Alaska App., January 11,1995), at 8-9. Because the superior court had not addressed the question of whether there was probable cause for the seizure of the bags, we remanded Ryn-earson's case to the superior court for further findings on this issue. Id. On remand, the superior court found that the police did have probable cause to seize Rynearson's bags, based on a tip they had received from an anonymous informant. The question now on appeal is whether the superior court's ruling is correct. We agree that the police had probable cause to seize Ryn-earson's bags, and we therefore affirm her convictions. The State Troopers contacted Rynearson at the Anchorage International Airport based on information they had received from an anonymous informant. According to this informant, Rynearson would be arriving in Anchorage around midnight on an Alaska Airlines flight from Mexico. The informant supplied the flight number. The informant also provided a physical description of Ryn-earson and of her luggage. Finally, the informant told the authorities that Rynearson would be carrying drugs — specifically, Valium, Quaaludes, and morphine — and that Rynearson would be carrying these drugs on her person, in her luggage, and concealed in plastic toys. The troopers followed up on this tip by contacting Alaska Airlines. Airline officials confirmed that a person named Joleen Ryn-earson would be arriving in Anchorage around midnight on an Alaska Airlines flight from San Francisco, and that this flight had originated in Puerto Vallarta, Mexico. When Rynearson got off the plane, the troopers saw that both she and her carry-on bags matched the informant's description. When Rynearson retrieved her checked luggage, the troopers saw that those bags also matched the informant's description. When the troopers approached Rynearson and questioned her, Rynearson confirmed that she had just arrived from Mexico, and she admitted that she was in possession of prescription Valium. To decide whether this information constituted probable cause to seize Rynear-son's luggage, we apply the test crafted in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, under Alaska law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure). The Aguilar-Spinelli test requires the State to prove two things: first, that the hearsay informant obtained the information in a reliable way; second, that the hearsay informant is trustworthy. Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980). The assessment of probable cause presents a mixed question of fact and law. With regard to the facts, we must accept the facts found by the trial court unless those findings are shown to be clearly erroneous. However, once the facts are determined, the question of whether those facts constitute probable cause is a question of law which a reviewing court determines independently. LeMense v. State, 754 P.2d 268, 272-73 (Alaska App.1988). In the present case, the informant did not explain how she obtained her information regarding Rynearson. In fact, the troopers specifically asked the informant how she had obtained her information, and the informant refused to say. However, under Spinelli, the detail of a hearsay tip can support the inference that the information was obtained firsthand: In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. Schmid, 615 P.2d at 574 (quoting Spinelli, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644). For example, in Draper v. United States, 358 U.S. 307, 309, 79 S.Ct. 329, 331, 3 L.Ed.2d 327, 329-330 (1959), the informant described the defendant and his clothing, described the defendant's gait, stated that the defendant would be carrying a zippered bag, and predicted that the defendant would arrive at the Denver railroad station on either of two dates. The Supreme Court held that this amount of detail established the inference that the informant was speaking from personal knowledge rather than reporting a rumor or making an accusation based merely on Draper's general reputation. Similarly, we find that the anonymous tip in Rynearson's case was sufficiently detailed to support the inference that the informant was speaking from personal knowledge. The anonymous informant accurately described Rynearson and her luggage, knew that Ryn-earson was returning to Alaska from Mexico, and predicted that Rynearson would arrive in Anchorage around midnight on a specific day and on a specific Alaska Airlines flight. This amount of detail matches the amount that was declared adequate in Draper and Schmid. The remaining question is whether the State proved that the anonymous informant was a trustworthy person. There are basically three ways in , which an informant can be shown to be trustworthy: by evidence that the same informant has proved reliable in the past, by evidence that independently corroborates the informant's present tip, or by evidence that the informant is among the class of people presumptively deemed credible, such as the "citizen informants" recognized in Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973). See Carter v. State, 910 P.2d 619, 623 (Alaska App.1996). In Rynearson's case, the superior court concluded that the anonymous informant was a "citizen informant". From the informant's desire to remain anonymous, the court inferred that the informant had not been motivated by hope of official concession or reward. This was a reasonable inference. However, as we recently- explained in Lloyd v. State, 914 P.2d 1282 (Alaska App.1996), an informant's anonymity does not, by itself, qualify the informant as a "citizen informant" for Aguilar-Spinelli purposes. Lloyd involved a search warrant application that was based, in substantial part, on information given by a caller to a Crime Stoppers hot line. The State argued that the caller could be deemed a "citizen informant". In support of its argument, the State cited two prior decisions in which this court extended a presumption of credibility to anonymous informants. See Effenbeck v. State, 700 P.2d 811 (Alaska App.1985), and Beuter v. State, 796 P.2d 1378 (Alaska App.1990). We explained, however, that the State had read too much into Effenbeck and Beuter: [N]either Effenbeck nor Beuter stand for the proposition that . informants of unknown or undetermined status can automatically gain citizen informant status by [anonymously] calling a Crime Stoppers number; to adopt such a rule would simply encourage police to channel calls from their regular informants through a Crime Stoppers line. To the extent that [they] are relevant[, Effenbeck and Beuter] support the conclusion . that [an] infor-mantes] status must be determined by a realistic, case-by-case assessment of the informant's probable motives, as they appear from the information properly before the court. Lloyd, 914 P.2d at 1287. We also emphasized that it is the government's burden to demonstrate the informant's status as a citizen informant: [A] finding of citizen informant status requires at least some circumstantial showing of intrinsically trustworthy motivation. Credibility ⅛ not presumed by default: when the information available . does not actually identify the informant as an apparently well-meaning citizen, and when it otherwise sheds insufficient light on [the informant's] identity and motive to dispel the underlying concerns of Aguilar-Spi-nelli, the informant's status as a citizen informant cannot simply be assumed. Id. at 1287. In Rynearson's case, although the troopers did not affirmatively state whether the informant sought or received a reward for her information, the superior court could justifiably conclude that the anonymous informant was unlikely to be motivated by prospects of official concessions or monetary gain. However, little else was known (or, at least, little else was presented) concerning the informant. The troopers testified that the informant (a) was female, (b) wished to remain anonymous, and (c) refused to reveal how she had obtained the information about Rynearson. As in Lloyd, the State did not explain "the nature or circumstances of the call", did not tell the superior court "[whether] the call was recorded", and did not provide the court with "any assurance that the report could not have been fabricated." Lloyd, 914 P.2d at 1288. These factors lead us to conclude that the informant in Rynearson's case should not be deemed a citizen informant. Even though an anonymous informant will generally not expect reward or favorable treatment from the authorities, we reiterate what we said in Lloyd: an informant's anonymity does not, standing alone, qualify the informant as a citizen informant. In Rynearson's case, the State presented essentially nothing, other than the informant's desire to remain anonymous, to "identify the informant as an apparently well-meaning citizen" or to otherwise "dispel the underlying concerns of Aguilar-Spinelli". Lloyd, 914 P.2d at 1287. Thus, to justify the seizure of Rynearson's luggage, the record must demonstrate sufficient corroboration of the informant's tip to satisfy the second prong of the Aguilar-Spinelli test for a police informant. In Rynearson's case, the police had no evidence that the anonymous informant had proved reliable in the past (or even had contacted them in the past). However, the second prong of the Aguilar-Spinelli test can be satisfied by independent corroboration of an otherwise untested informant's tip. State v. Jones, 706 P.2d at 325; Atkinson v. State, 869 P.2d 486, 490 (Alaska App.1994). In the present case, police investigation independently confirmed certain aspects of the informant's tip. Rynearson arrived as predicted on the specified Alaska Airlines flight, and her journey began in Mexico, as the informant had said. The informant accurately described Rynearson's person as well as Rynearson's luggage. Finally, Rynearson told the troopers that she was carrying Valium, one of the three drugs mentioned by the informant — although Rynearson explained that she had obtained the Valium under prescription. Rynearson discounts this independent corroboration of the informant's tip; she argues that this corroboration consists only of "public facts [and] wholly innocuous details", insufficient to meet the Aguilar-Spinelli requirement. Lloyd, 914 P.2d at 1288 (quoting Carter v. State, 910 P.2d 619, 624 (Alaska App.1996)). We do not agree. The corroborated details included matters that typically would not be known to the general public— Rynearson's flight number, arrival time, and point of origin, as well as the description of her luggage and the assertion that she was carrying Valium. Moreover, in the context of the informant's tip, Rynearson's admission that she was carrying Valium was not a "wholly innocuous" detail; instead, this information was partial corroboration of the informant's primary incriminating assertion- — -that Rynearson was bringing Valium, Quaaludes, and morphine to Alaska. The police need not obtain independent corroboration of the incriminatory details of the informant's tip; such a rule was specifically rejected in Schmid, 615 P.2d at 577. What the law requires is independent corroboration that "relate[s] to the tip in a way that lends substantial credibility to the report of illegality". Lloyd, 914 P.2d at 1286. The police corroboration of the informant's tip in Rynearson's case meets this test. Based on the foregoing, we conclude that both prongs of the Aguilar-Spinelli test were satisfied in this case, and the police therefore had probable cause to seize Ryn-earson's luggage. Accordingly, the judgement of the superior court is AFFIRMED. . The troopers received two tips concerning Ryn-earson. One tip was received in a telephone call from a woman who refused to identify herself. A second tip was received from a federal agent working for the Drug Enforcement Agency. However, the federal agent was simply passing on information that he had received from an anonymous female caller. Thus, all of the troopers' information regarding Rynearson was ultimately based on these two anonymous tips. The record does not reveal whether the same woman contacted both the troopers and the DEA, or whether a different informant contacted each agency. The superior court made no finding on this issue. However, because the presence of two cross-corroborating informants would bolster the State's case, see Stam v. State, 925 P.2d 668, 671-72 (Alaska App.1996), and because it was the State's burden to establish probable cause, we will assume that there was only one informant. . Conversely, Lloyd, Effenbeck, and Beuter together stand for the proposition that anonymity does not necessarily defeat citizen informant status. As demonstrated by the decisions in Effen-beck and Beuter, if the government has instituted a program that encourages citizens to come forward with information anonymously, and if that program is set up in a manner that "dispelfs] the underlying concerns of Aguilar-Spinelli", then the fact that a person has volunteered information anonymously will not prevent the court from concluding that this person is a citizen informant.

11866959

Leonard J. HOFFMAN, Appellant, STATE of Alaska, Appellee

Leonard J. Hoffman, Appellant, State of Alaska, Appellee.

1997-12-19

No. A-6047

141

147

950 P.2d 141

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Leonard J. HOFFMAN, Appellant, STATE of Alaska, Appellee.

Leonard J. HOFFMAN, Appellant, STATE of Alaska, Appellee. No. A-6047. Court of Appeals of Alaska. Dec. 19, 1997. Carmen L. Gutierrez, Anchorage, for Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

4156

24743

OPINION COATS, Chief Judge. Leonard J. Hoffman was convicted by a jury of four counts of tampering with a witness in the first degree, AS 11.56.540(a)(1) or (2) & AS 11.16.110(2)(A) or (B), four counts of interference with an official proceeding, AS 11.56.510(a)(1)(A) or (D) & AS 11.16.110(2)(A) or (B), arson in the first degree, AS 11.46.400(a) & AS 11.16.110(2)(A) or (B), assault in the third degree, AS 11.41.220(a)(1), and four counts of sexual assault in the first degree, AS 11.41.410(a)(1). On appeal, Hoffman raises two issues: first, he asserts that the trial court erred by communicating with the jury outside the presence of Hoffman and his counsel; second, he contends that the trial court erred by admitting evidence of an assault which Hoffman allegedly committed prior to committing the assault and sexual assaults for which he was ultimately convicted. We affirm. • At around midnight on October 12, 1998, Hoffman knocked on the door of the residence of M.B. M.B. had known Hoffman for about five years and had engaged in acts of prostitution with him on previous occasions. When M.B. answered the door she was wearing only a negligee and a pair of satin underwear. Since M.B. was acquainted with Hoffman, she let him inside. Once inside, Hoffman asked M.B. if anyone else was present; after M.B. answered "no" Hoffman put one hand over M.B.'s mouth and wielded a knife with the other hand. A struggle ensued during which Hoffman shoved M.B.'s face into a couch and told her that he was going to "stick" her. During this struggle, M.B. scratched Hoffman's face. Hoffman then ripped M.B.'s underwear off and tried to tie the underwear around her head and then tried to stuff it in her mouth. After he was unsuccessful in stuffing M.B.'s underwear in her mouth, Hoffman ceased the attack and began talking to M.B. After the attack, Hoffman told M.B. that he always paid before and that he had never done anything like this before. He also told M.B. that he had just killed a couple of black people and that they beat him up with a baseball bat. M.B. then asked Hoffman to leave. In response, Hoffman asked for M.B.'s car keys. After M.B. gave Hoffman her keys, Hoffman told M.B. that he would leave her car at the Carrs Aurora Center, and M.B. agreed not to call the police. After Hoffman left with her car, M.B. walked to the Carrs Aurora Center. When M.B. did not find her car at the center, she called the police and reported the assault, identifying Hoffman as her attacker. Later in the early morning of October 13, 1993, K.V. was awakened by a knock on the door of her residence. K.V. looked out the window and saw Hoffman standing outside. K.V. knew Hoffman because he had dated K.V.'s sister. Hoffman "looked like he'd been in a fight" and asked K.V. to let him in to use her phone. Hoffman stated, "Help me, open the door, is your sister home, some niggers beat me up, I think my arm is broken." K.V. then opened the door and let Hoffman in. Once inside K.V.'s trailer, Hoffman asked K.V. to get him some hydrogen peroxide and an Ace bandage; K.V. retrieved these items while Hoffman used the phone. K.V. noticed that Hoffman had a scratch under his eye and appeared to have a-hurt wrist. While K.V. wrapped Hoffman's wrist with the bandage, Hoffman was saying "those f-ing niggers, those f-ing niggers." Hoffman was upset, dripping with sweat, and pacing back and forth. K.V. talked with Hoffman and tried to calm him down. Hoffman then asked K.V. if he could use the bathroom. Because K.V. had become leery of Hoffman, she told him that he shouldn't use the bathroom because her boyfriend was in the back room. However, Hoffman disregarded K.V.'s instructions and walked to the back room. After seeing that no one else was in the trader, Hoffman indicated to K.V. that he was upset that she had lied to him. K.V. responded by asking Hoffman to leave; Hoffman agreed and began to walk out of the trailer. As K.V. followed Hoffman out of the trailer, Hoffman turned around, grabbed K.V. with his hand over her mouth, threw her onto the daybed and got on top of her. Hoffinan then ripped off K.V.'s clothes and took a knife out of his back pocket. After he bound K.V.'s wrists Hoffinan picked K.V. up and pushed her into another room. While holding the knife, Hoffinan then forced K.V. to perform fellatio on him. Subsequently, Hoffman forcibly penetrated K.V.'s rectum and' vagina with his fingers, attempted to penetrate her rectum with his penis, and forcibly penetrated her vagina with his penis. Throughout this attack Hoffinan hit and slapped K.V., pinched and twisted her breasts, and ran the knife back and forth across her naked body. After the attack, K.V. asked Hoffinan if he was hungry. Hoffinan answered that he was hungry and K.V. followed him to the kitchen. K.V. then placed a TV dinner in the microwave. While Hoffinan looked in the freezer for more food, K.V. ran out of her home to a neighbor's house where she called 911. Shortly thereafter, the police arrived on the scene. After K.V. went to the hospital, she returned to her residence to obtain some clothing. While K.V. was gathering her clothes, she found two pair of panties which were not hers on her daybed. M.B. had purchased these items the previous day and had left them in her car. K.V. testified that she found Hoffman's jacket with M.B.'s ear keys and house keys in the pocket. K.V. also testified that M.B.'s car was in K.V.'s driveway. Hoffinan was arrested on October 15,1993, and remained incarcerated pending trial. While in jail, Hoffinan called William Lopez and Gilbert Montiel and asked them to make threatening calls to K.V. in order to keep her from testifying. Per Hoffman's instructions, on November 22, 1993, Lopez made three threatening phone calls to K.V. In late November 1993, Hoffinan called Shannon Kennington and offered him a gram of heroin to shoot at M.B.'s trailer. Ken-nington accepted Hoffman's offer and in late November or early December, 1993, Ken-nington fired five or six shots into what he thought was M.B.'s trailer. However, Ken-nington fired the shots into the trailer next to M.B.'s trailer. After the shooting, Hoffinan continued to ask Kennington, Montiel and Lopez to intimidate K.V. and M.B. On December 11, 1993, M.B.'s neighbor found a burnt out Molotov cocktail in the driveway between his trailer and M.B.'s trailer. Two days later, M.B. found a. partly burned Molotov cocktail in front of her trailer. On January 6, 1994, at Hoffman's request, Montiel and Lopez threw a Molotov cocktail through KV.'s living room window. Finally, on April 11,1994, Hoffinan offered Kennington $1000 to firebomb M.B.'s trailer. On October 26, 1993, the grand jury returned a seven-count indictment (3AN-S93-7782CR) against Hoffinan. Counts I and II charged Hoffinan with assault in the third degree and assault in the fourth degree; these charges arose from his assault on M.B. Count III charged Hoffinan with assault in the third degree against K.V. and counts IV through VII charged him with sexual assault in the first degree against K.V. On May 4, 1994, a grand jury returned a nine-count indictment against Hoffinan. Counts I, II and III charged Hoffinan with tampering with a witness in the first degree for attempting to influence the testimony of M.B. on three occasions in late 1993. Count TV charged Hoffinan with tampering with a witness in the first degree for attempting to influence the testimony of K.V. on January 6, 1994. Counts V through VIII charged Hoffinan with interference with official proceedings for attempting to influence the testimony of M.B. and K.V. on four occasions between November 1993 and January 6, 1994. Finally, Count IX charged Hoffinan with arson in the first degree for the -firebombing of KV.'s residence on January 6, 1994. On May 9, 1994, the state moved to join the two indictments for trial. Hoffinan opposed joinder of the indictments. Judge Hunt granted the state's motion to join the two indictments; however, Judge Hunt ordered the assault counts pertaining to M.B. severed from those pertaining to K.V. On October 12, 1994, Hoffinan filed a motion in limine seeking to exclude evidence of the assault on M.B. from the trial for the assault on K.V. On December 16,1994, Judge Hunt denied this motion and ruled that evidence of the assault on M.B. was admissible to show Hoffman's state of mind at the time of the assault on K.V. The trial on the charges involving assaults against K.V. and the charges in the second indictment were joined but bifurcated. Thus, the jury first deliberated on the sexual assault and assault charges involving K.V. The jury then considered additional evidence pertaining to the second indictment and deliberated on those charges. Hoffman was never tried for the alleged assault on M.B. and those charges were dismissed. At the first stage of the trial, M.B. testified as a witness for the state. M.B.'s testimony described Hoffman's attack on her in detail. Subsequently, Judge Hunt instructed the jury to consider M.B.'s testimony for the limited purposes of testimonial completeness and establishing Hoffman's state of mind. After the conclusion of the first stage of the trial, the jury began its deliberations at around 3:00 p.m. on February 16, 1995. The following discussion occurred immediately after the jury was excused for deliberations in the first phase of the trial: THE COURT: Okay. Whenever I get anything out from the jury that touches on the merits of the case, or touches on their deliberations on the case, then my intent will be that I will call each counsel and call for Mr. Hoffman, we'll go on record, we'll resolve it and then proceed. Any comments? . Does the defendant and does the state waive presence during any playback which may be requested? PROSECUTOR: The state does waive. DEFENSE COUNSEL: Your Honor, I've discussed this with Mr. Hoffman and he will waive appearances, however, I would like to be notified when there are playback. THE COURT: [W]hat I'll do then, since nobody wants to be here, I'll just have my staff call and tell you that playback of such and such and so and so.... On February 17, 1995, at 10:14 a.m., the court received a note from the jury. The jury's note read as follows: "We would like to rehear K.V.'s testimony along [with] log notes[.] If at all possible — we would also like to listen to Copeland and Dr. Riley[.]" Six minutes later, without notifying counsel or-Hoffman, Judge Hunt responded, "[a]s soon as we can arrange a courtroom, you can rehear K.V.'s testimony (10-12 hrs) Copeland's testimony (1 — [1.5] hrs) and Dr. Ripley's testimony (45 min-60). Because of maintenance going on in the courthouse, you may be moved around." At 11:00 a.m., before the jury had started to listen to any playbacks, the jury issued a second note informing the court that they had reached a verdict on all counts. The jury convicted Hoffman of counts III through VII in case No. 3AN-S93-7782CR. Before the second phase of the trial began, Hoffman's attorney expressed to the court her concern that she was not informed of the communication between the court and the jury. She also asked that the court provide a copy of the note between the judge and the jury. However, she never asked for a mistrial or for any other remedy. After hearing additional evidence, the jury began deliberations on the charges in the second indictment. Subsequently, the jury convicted Hoffman of all nine counts. Hoffman now claims that Judge Hunt committed error when she responded to the jury's playback request without consulting Hoffman or his attorney. In Dixon v. State, 605 P.2d 882, 884 (Alaska 1980), the court stated: Under both the United States Constitution and the Alaska Constitution the right of the defendant to be present at every stage of the trial has been recognized. Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. In Alaska, this constitutional right has been further implemented by the provisions of Criminal Rule 38(a). (Footnotes omitted.) Alaska Criminal Rule 38 provides in pertinent part: Rule 38. Presence of the Defendant. (a) Presence: Required. The defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule. (b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present: (1) Is absent voluntarily after the trial has commeneed[.] When the trial court communicates with the jury in violation of the defendant's right to be present at every stage of the trial we are to reverse the conviction unless we find the error is harmless beyond a reasonable doubt. Dixon, 605 P.2d at 884. The state contends that Hoffman waived his right to be present at jury playbacks, and therefore Judge Hunt did not err in communicating with the jury. However, we do not lightly infer the waiver of an important constitutional right. See Wilson v. State, 680 P.2d 1173,1176 (Alaska App.1984). The record of the discussion which occurred immediately after the jury was excused for deliberations after the first phase of the trial shows that Hoffman waived the right to be present during the playbacks. However, that waiver did not authorize Judge Hunt to communicate with the jury in his absence. Therefore, Judge Hunt erred when she communicated with the jury. The next question which we must answer is whether this error was harmless beyond a reasonable doubt. Hoffman cites Cox v. State, 575 P.2d 297, (Alaska 1978) and Dixon v. State, 605 P.2d 882 (Alaska 1980), in support of his contention that the error was not harmless. The defendant in Cox was tried for assault with intent to commit rape. The defendant relied on the defense of alibi. To support this defense, the defendant presented the testimony of two alibi witnesses. Cox, 575 P.2d at 298-99. One hour after the jury began deliberations, the jury requested playback of the testimony of these two witnesses. The trial judge denied this request and informed the jury that they could renew their request at a later time. Id. The jury subsequently convicted Cox without listening to the playbacks. Neither Cox nor his attorney learned of the request until after the verdict. Id. at 298. The court reversed Cox's conviction, holding that Cox was denied his right to be present at every stage of the trial. The court concluded that the error was not harmless beyond a reasonable doubt. Id. at 300-01. In Dixon, the defendant was tried on charges of rape. Dixon presented a defense of consent. To a large extent, the result of the trial rested on the jury's assessment of whether Dixon or the complaining witness was more credible. 605 P.2d at 888. Shortly after deliberations began, the jury requested playbacks of the victim's and the defendant's testimony. Without consulting Dixon or either counsel, the trial judge sent a note to the jury stating that he would not allow the jury to hear all of the requested testimony again, but he would allow them to hear a portion of the testimony. Id. at 883. One hour later the jury sent a note stating, "We need nothing more at this time apparently. Thank you[.]" Without hearing the requested testimony, the jury returned a verdict of guilty five hours later. Id. at 883-84. On appeal, the state conceded, and the court found, that the trial court's communication was error. Id. at 884. The court also found that the error was not harmless beyond a reasonable doubt and accordingly reversed Dixon's conviction. Id. at 889. In Dixon the court stated: The trial judge's response, informing the jury that he could not allow them to hear "all of the testimony of a witness to be replayed" and suggesting that the jury narrow its request, may have caused the jury to abandon that request, particularly as it may have placed considerable pressure on the minority of two members of the panel who apparently initiated the request. Had the defendant been present and his counsel allowed the chance to influence the trial court's decision, the trial court might have been persuaded to allow the jury's request or to phrase his preference for a narrower request in less absolute terms. While we do not reach the question whether the trial court's response in itself amounted to an abuse of discretion, we hold that in the circumstances presented here the superior court committed reversible error by responding to the jury's request out of the presence of and without consultation with the defendant and his attorney. Id. at 888-89 (footnotes omitted). Hoffman contends that Judge Hunt's response to the jury, in which she informed the jury of the length of the testimony which the jury had requested and in which she indicated that the jury would face some logistical difficulties because of the "maintenance going on in the courthouse," tended to discourage the jury from hearing the requested testimony. Hoffman contends that his ease is therefore factually similar to Cox and Dixon. We disagree. In Cox and Dixon, the trial judges' responses to the jury could have discouraged the jury from listening to the requested testimony. However, in Hoffman's ease, the jury asked to hear the testimony of K.V., Copeland, and Dr. Ripley. Judge Hunt's communication granted the jury's request. Although Judge Hunt's response notified the jury of the length of the requested testimony, the jury was certainly aware of the approximate length of testimony which they requested. The jury had been present in court when these witnesses testified. In fact, the testimony of the witnesses was in all probability much more lengthy when it was originally given, given the recesses and delays necessary to present live testimony. We therefore conclude that even though Judge Hunt's note informed the jury of the anticipated length of the replay, there was no reasonable possibility that this information discouraged or deterred the jury from pursuing its request. We also note that nothing in Judge Hunt's response prevented the jury from narrowing their request. We also fail to see that informing the jury that they might have to be moved at some point because of maintenance in the courthouse would have an adverse influence on the jury's decision to listen to testimony of the requested witnesses. We accordingly conclude that the Cox and Dixon cases are distinguishable and conclude that Judge Hunt's communication with the jury, though error, was harmless error beyond a reasonable doubt. Hoffman contends that the trial court committed reversible error by admitting evidence of the assault on M.B. in the trial for the sexual assault on K.V. Hoffman asserts that this evidence was not relevant for any purpose other than to show propensity and therefore was inadmissible under A.R.E. 404(b). The state counters that M.B.'s testimony was admissible to show Hoffman's state of mind at the time of the attack on K.V. "The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion." Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995). Evaluating the admissibility of "other acts evidence" consists of a two-step analysis. First, under 404(b)(1) the court must determine whether the evidence has relevance apart from the defendant's propensity to engage in similar misconduct. Second, if the court determines that the evidence has some relevance apart from propensity, it must determine whether the nonpropensity relevance outweighs the prejudicial impact under AR.E. 403. Jordan v. State, 895 P.2d 994, 999 (Alaska App.1995); Lerchenstein v. State, 697 P.2d 312, 315 (Alaska App.1985). Hoffman was charged with engaging in a violent sexual assault upon K.V.; Hoffman defended by asserting that he had not assaulted K.V. (and that his sexual activity with her had been consensual). Thus, the jury was asked to decide whether K.V. had been coerced by force into engaging in sexual activity with Hoffman, and whether Hoffman had recklessly disregarded KV.'s lack of consent. See Reynolds v. State, 664 P.2d 621 (Alaska App.1983). We conclude that M.B.'s testimony was relevant to resolving these issues. Hoffman's violent (and apparently inexplicable) assault on M.B. occurred just prior to his encounter with K.V.; it therefore can be inferred that Hoffman was in the same emotional state during both encounters. We faced a similar evidentiary question in Ler-chenstein, 697 P.2d at 317-19, where we held that Evidence Rule 404(b) allowed the introduction of evidence that a murder defendant had been "angry and combative . immediately prior to the [homicide]." Id. at 319. [T]he primary issue . was whether Ler-chenstein was acting in self-defense when he shot [the victim]. In order to establish that Lerchenstein did not act in self-defense, the state was entitled to rely on evidence indicating that, at the time of the shooting, [Lerchenstein] was angry, emotionally agitated, and extremely combative — in other words, that he was not acting reasonably.... Since this evidence had specific relevance beyond its mere tendency to establish a propensity toward violence, its admission was not categorically precluded by Evidence Rule 404(b). Id. at 317-18. We similarly conclude that, under the facts of this ease, Hoffman's just-completed assault on M.B. had "specific relevance beyond its mere tendency to establish a propensity toward violence." Because this evidence had a valid non-propensity purpose, Evidence Rule 404(b) did not categorically exclude it. Nevertheless, the trial judge still had to weigh the probative value of this evidence against its potential for unfair prejudice under Evidence Rule 403. In Hoffman's ease, Judge Hunt gave extensive attention to this evidentiary question. In fact, she initially excluded the evidence in a pre-trial ruling. Later, she changed her mind and decided that the relevance of this evidence to establish Hoffman's state of mind outweighed its potential for unfair prejudice and justified its admission. Having examined the record, we conclude that Judge Hunt's ruhng was not an abuse of discretion. M.R.S., 897 P.2d at 66. The judgment of the superior court is AFFIRMED. . Out of the presence of the jury, just as deliberations were starting, Judge Hunt informed the parties that it was her policy to require a jury to hear the complete testimony of any requested witness. If the jury in Hoffman's case had requested only a partial replay of any witness's testimony, then any communication of this "all or nothing" policy could have had the effect of discouraging the jury from pursuing its request for playbacks. If Judge Hunt had sent such a communication to the jury without consulting Hoffman and his attorney, it would have constituted reversible error under Dixon and Cox. However, the jury note in this case indicated an apparent desire to hear the complete testimony of the three named witnesses, and Judge Hunt's response gave every indication that the court would honor the jury's request. . When a defendant is aware, prior to the verdict, of an improper ex parte communication and the defendant does not object, the defendant waives any error. See Owens v. State, 613 P.2d 259, 263 (Alaska 1980). It therefore appears that Hoffman waived any error as to the verdicts which the jury returned during the second phase of the trial which commenced after he learned of the ex parte communication. Since we find harmless error, we need not resolve the waiver issue. . A.R.E. 404(b)(1) provides: Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

6905557

Robert J. FARMER, Appellant, v. ALASKA USA TITLE AGENCY, INC. and Peggy Jo Watson, Appellees

Farmer v. Alaska USA Title Agency, Inc.

2014-10-24

No. S-15163

160

166

336 P.3d 160

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Robert J. FARMER, Appellant, v. ALASKA USA TITLE AGENCY, INC. and Peggy Jo Watson, Appellees.

Robert J. FARMER, Appellant, v. ALASKA USA TITLE AGENCY, INC. and Peggy Jo Watson, Appellees. No. S-15163. Supreme Court of Alaska. Oct. 24, 2014. Kenneth P. Jacobus, P.C., Anchorage, for Appellant. David D. Clark, Law Office of David Clark, Anchorage, for Appellee. Peggy Jo Watson. No appearance for Ap-pellee Alaska USA Title Agency, Inc. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

3336

20523

OPINION STOWERS, Justice. I. INTRODUCTION A debtor was given proper initial notice of a pending nonjudicial foreclosure sale but was not given additional notice when the sale was postponed. The debtor argued that equity required re-notice after each postponement and that the lack of re-notice violated his due process rights. The superior court granted summary judgment to the creditor. We affirm because equity does not require re-notice after postponement of a nonjudicial foreclosure sale and notice of a postponement by public announcement satisfies due process.: II. FACTS AND PROCEEDINGS In 1992 Robert J. Farmer and his wife, Kathy J. Farmer, bought Wolverine Lodge in Glennallen from Peggy Jo Watson. The purchase price of $365,000 was secured by a deed of trust on the property. Farmer defaulted on the mortgage for the first time in 1996, but he cured before the foreclosure sale occurred. In 2012 Farmer defaulted again. Farmer was almost five months late on the payments, had not paid the real estate taxes or room taxes, and had no insurance on the property. Watson paid all of these expenses herself in order to keep the property up-to-date and insured. She testified that "Farmer promised many times that he would bring the loan current and obtain insurance," but "hle never did." In March 2012 Watson commenced nonjudicial foreclosure proceedings. Watson's attorney recorded a notice of default and a notice of sale, and distributed them to Farmer by mail and personal service. Notice of the nonjudicial foreclosure sale was published in the Alaska Journal of Commerce and posted at various locations in Anchorage. The nonjudicial foreclosure sale was postponed six times. It was initially set for July 25, but Watson postponed it until August 29. On August 28 Farmer filed for Chapter 183 bankruptcy, and Watson again postponed the sale, this time at Farmer's request, until September 26. Because of the ensuing automatic bankruptcy stay, the sale was postponed until October 31, then until November 28, then again until December 19, and finally until December 27, when the sale actually took place. Watson's attorney was the only attendee at each of the scheduled sales. Each of these postponements was announced publicly on the sale date, and the trustee signed the notice of postponement every time. Farmer was not otherwise notified of any of the postponements, and, at the time of the actual sale, he alleges that neither "Thel, [his] wife, nor [his] bankruptcy attorney knew . that a deed of trust foreclosure sale was scheduled for December 27, 2012." Over the course of the postponements, Farmer asked for the cure amount three separate times, the last time being on December 11, 2012. Watson's attorney provided the cure amount after each request. Farmer testified that he "was in the process of obtaining funds in order to bring the deed of trust current, and would have been able to do so." But the record contains no documentation of any attempt to cure, and Farmer presented no evidence of his attempts to "obtain[ ] funds." At the time of the bank-ruptey proceedings, Farmer had $200 in cash and $113 in his bank account. Watson swore in an affidavit that Farmer "never promised . to cure the foreclosure" after she received relief from the bankruptcy stay. At the nonjudicial foreclosure sale on December 27, 2012, Watson bought the property with a bid of $120,000. The only valuation of the property was Farmer's own valuation on his bankruptey worksheet, which was $150,000. Watson believed that $150,000 was "in the ball-park given the amount of deferred maintenance on the property." Farmer filed suit in January 2018, challenging the nonjudicial foreclosure. He argued mainly that he had not received notice of the sale, that he could have cured, and that the foreclosure was a forfeiture. Watson moved for summary judgment on the validity of the foreclosure. She argued that the trustee was not required to send notice to Farmer every time the sale was postponed, and that Farmer offered no evidence showing that he was in a position to cure. The superior court granted summary judgment to Watson. The court concluded that the foreclosure was conducted "according to the appropriate statutes," was properly postponed, and that "Watson did not mislead [Farmer] by providing a cure amount." Farmer appeals. III. STANDARD OF REVIEW We review the "grant of a summary judgment motion de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law." In this examination, we draw all reasonable inferences in favor of the nonmovant. In order to survive a motion for summary judgment, a party must present more than "unsupported assumptions and speculation." We "apply our independent judgment to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy." IV. DISCUSSION Farmer makes three arguments on appeal: (1) that failing to notify him after each postponement was inequitable and violated his due process rights under the Alaska Constitution; (2) that he was misled into thinking that he would have a "reasonable time" to cure; and (8) that the sale price was a forfeiture. A. The Superior Court Did Not Err By Concluding That Farmer Had Sufficient Notice Of The Sale. Farmer's central contention is that he should have received notice of the date and time of the foreclosure sale after each postponement. He argues that re-notice is required by equity, and the lack of such notice violated his due process rights. The superior court determined that "[the foreclosure sale . was done correctly" and "[the sale was properly postponed." We agree: equity does not require re-notice after postponement of a nonjudicial foreclosure sale, and Farmer received constitutionally sufficient notice. Nonjudicial foreclosure sales are governed by AS 84.20.080. The statute requires re-notice to the debtor only when "the foreclosure [is] postponed for more than 12 months." Re-notice is not required here because the foreclosure sale occurred within 12 months of the original foreclosure sale date. Parties may also contract for additional notice, but Farmer did not. Thus, any re-notice requirement must be based in equity or flow from constitutional rights. 1. Equity does not require re-notice after a nonjudicial foreclosure is postponed. Farmer argues that we should impose an "actual notice" requirement "based on equity, similar to Rosemberg [v. Smidt ] and Young [v. Embley ]" He further argues that "lf a trustee has to exercise due dili-genee to locate an actual address for the purpose of actual notice, equity also requires that the trustee must provide actual notice when the address is known." Neither Rosenberg nor Young supports the proposition that the court should imply a notice requirement in equity. Young did not speak to the issue of equity at all, and the situation in Rosenberg is distinguishable. In Rosenberg, we examined whether the trustee was required to exercise due diligence to learn the debtor's new address when notice of the pending foreclosure was returned "unclaimed." We noted a tension "between [the] free and easy alienability of real property and notice to persons whose interest in real property is to be affected by . private action." We implied a heightened notice requirement to "balance adequately the competing interests involved" at that stage in the nonjudicial foreclosure process. But Rosenberg dealt with a much more important stage of notice-initial notice of the pending nonjudicial foreclosure. Here Farmer had actual initial notice that his property would be sold via nonjudicial foreclosure; he simply did not receive actual re-notice after each public postponement. But Farmer had the critical piece of information-that foreclosure was pending. Had Farmer appeared at each scheduled sale, he would have learned of the postponements and rescheduled dates of the sale. Thus, his interest in re-notice is much weaker than the interest in receiving notice of the initial foreclosure at stake in Rosenberg. Since Rosenberg, we have declined to imply a heightened notice requirement when it "would impose a significant burden on a routine transaction." Postponement of a nonjudicial foreclosure sale is one such routine transaction. Foreclosures may be postponed multiple times; implying a re-notice requirement after each postponement would severely complicate the nonjudicial foreclosure process. And as we have explained, the debtor's interest in notice here is much weaker than was the debtor's interest in Rosenberg: in Rosenberg, the interest was in receiving initial notice of the pending nonjudicial foreclosure; in this case, the debtor's interest is in the right to be inattentive. Farmer could have contracted for more notice, but he did not; he could have attended the foreclosure sales, but he did not; and he could have contacted Watson's attorney to inquire about the sale date, but he did not. Thus, Farmer bears the consequence of his own inattention. The superior court did not err when it concluded that re-notice is not required by equity. 2. Re-notice is not required under the Alaska Constitution. Farmer also argues that failing to give notice after every postponement violated his procedural due process rights because "lolne of the fundamental requirements of procedural due process is the right to have adequate notice of what is being done to you or your property." He argues that there was state action because "[the entire statutory scheme under which nonjudicial foreclosures take[ ] place was created by state action." But we have already decided this issue. In Ostrow v. Higgins the appellant argued that her due process rights were violated when the trustee did not give notice after the nonjudicial foreclosure of her property was postponed. We held: Even assuming arguendo the presence of state action in Alaska's deed of trust statute, we conclude that Ostrow suffered no deprivation because both she and potential third party bidders received sufficient notice. A construction of AS 34.20.080(e) as allowing sale by public declaration gives notice reasonably calculated to reach interested parties.[ ] Farmer fails to present any persuasive reason to depart from our precedent. Therefore, we continue to hold that postponement by a public announcement "gives notice reasonably calculated to reach interested parties." B. The Superior Court Did Not Err By Concluding That Farmer Was Not Misled By The Cure Amount Or The Time To Cure. Farmer next argues that "he was not aware of the amount required to cure, and believed and relied on acts of Ms. Watson . that there would be a reasonable time allowed to bring the default current." But he supplied no evidence of communications with Watson to support his allegation that Watson misled him. The superior court found that "Ms. Watson did not mislead the plaintiff by providing a cure amount." We have held that under AS 34.20.070(b) the lender has a duty to "seasonably advise the obligor on request of the amount in default." This requires the lender to "provide the figure at a reasonable time before foreclosing" if the debtor has requested it. In Young v. Embley we found the cure procedure defective when the debtor had repeatedly asked for the cure amount, but the lender only provided it on the morn ing of the foreclosure. Likewise, in Hag-berg v. Alaska National Bank we concluded that a preliminary injunction should have been granted to stop a nonjudicial foreclosure where the cure amount was only provided three days before the foreclosure sale. Watson's attorney provided cure figures to Farmer in July and September. The cure amount was provided a third time on December 11, 2012. The foreclosure sale occurred two weeks later, on December 27, 2012. Watson timely provided the cure amount every time Farmer asked. Farmer knew of the cure amount throughout the pendency of the sale, yet failed to cure. He also failed to inquire in his cure-amount requests when the sale was scheduled. So long as the debtor is promptly provided the cure amount on request, the trustee need not wait a set time after the cure amount is provided to foreclose. The superior court did not err by concluding that Watson did not mislead Farmer regarding the time to cure. C. The Nonjudicial Foreclosure Sale Was Not A Forfeiture. Finally, Farmer argues that the $120,000 sale price was inadequate because he had paid over $500,000 to Watson and had made substantial improvements to the property. Watson responds that the sale price was not a forfeiture because it was 80% of Farmer's valuation. Under a deed of trust, the trustee has the power to "foreclose and sell the property according to the terms provided in the deed" if the debtor defaults on the loan. The nonjudicial foreclosure sale may be voided for certain types of defects in the process, but mere inadequacy of price is generally not sufficient by itself. However, if the inadequacy of the sale price is (1) 'so gross as to shock the conscience and raise a presumption of fraud or unfairness, or (2) is coupled with other irregularities in the sale procedures, then invalidation of the sale may be justified." "Gross inadequacy is measured by reference to the fair market value of the property at the time of the sale." We considered what would constitute an inadequate price for a trustee foreclosure sale of a property in Baskurt v. Beal. We explained that, although jurisdictions disagree on the threshold for unacceptability, "[floreclosure sale prices of fifty percent or more of fair market value are routinely upheld." " Here the property sold for 80% of its undisputed value; this is not a forfeiture. And whatever improvements Farmer made would be reflected in the valuation of the property, a valuation Farmer himself provided. Finally, the amount Farmer has paid on the property is not relevant to whether the property sold for a reasonable amount. The superior court did not err in concluding that the sale of the property was properly conducted. v. CONCLUSION We AFFIRM the decision of the superior court in all respects. . The deed of trust reflects that the property was purchased from Peggy Jo Dicks and Jesse Allen Dicks. Peggy Jo presumably later changed her name to Peggy Jo Watson. . See 11 U.S.C. § 362(a) (2012). . The automatic stay was lifted on December 7, 2012. . Erkins v. Alaska Tr., LLC, 265 P.3d 292, 296 (Alaska 2011) (quoting Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 (Alaska 2008)) (internal quotation marks omitted). . Id. . Boyko v. Anchorage Sch. Dist., 268 P.3d 1097, 1103 (Alaska 2012) (quoting Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413, 416 (Alaska 2006)) (internal quotation marks omitted). . Shaffer v. Bellows, 260 P.3d 1064, 1068 (Alaska 2011) (quoting Smith v. Radecki, 238 P3d 111, 114 (Alaska 2010)) (internal quotation marks and alterations omitted). . AS 34.20.080(e); see Ostrow v. Higgins, 722 P.2d 936, 941-42 (Alaska 1986) (holding that the statute did not require re-notice because "the legislature presumed that the trustee followed postponement notice requirements enunciated in the deed of trust itself"). . See Ostrow, 722 P.2d at 941. . 727 P.2d 778 (Alaska 1986). . 143 P.3d 936 (Alaska 2006). . In Young we held that the trustee, if requested, had a duty to provide the cure amount "at a reasonable time before foreclosing." Id. at 947. But our holding was an exercise in statutory interpretation, not based in equity. Id. . Rosenberg, 727 P.2d at 779-80. . Id. at 783. . Id. . Id. at 780. . Blood v. Kenneth A. Murray Ins., Inc., 151 P.3d 428, 434 (Alaska 2006). . Under the current statutory requirements, debtors must either keep in contact with the trustee or attend the foreclosure sales to learn of the postponement dates. See AS 34.20.080(e). If re-notice were required, debtors would not have to make any independent inquiries or attend the foreclosure sales. . See Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986). Farmer's deed of trust allows the trustee to postpone the sale without providing further notice. . In re Nghiem, 264 B.R. 557, 562 (B.A.P. 9th Cir.2001) ("Other courts have . point[ed] out that debtors who receive notice of foreclosure sales before bankruptcy know that the property is threatened with foreclosure and have an obligation to stay informed of the status of the foreclosure process."); In re Jauregui, 197 B.R. 673, 675 (Bankr.E.D.Cal.1996) ("A debtor who ignores or chooses to forget the status of a pending foreclosure should rightly bear the consequences of doing so."); Fitzgerald v. First Nat'l Bank of Boston, 46 Mass.App.Ct. 98, 703 N.E.2d 1192, 1195 (1999) ("[Tlhe plaintiffs failed to attend the . auction at their peril.... They could have protected their interests by attending the . auction and communicating with the auctioneer...."}. . Ostrow, 722 P.2d at 940-42. . Id. at 942 (italicization removed). . See McCrary v. Ivanof Bay Vill., 265 P.3d 337, 341 (Alaska 2011) ("We will overrule a prior decision only when clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." (quoting Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 982 n. 104 (Alaska 2005)) (internal quotation marks omitted)). . Ostrow, 722 P.2d at 942 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Wickersham v. State, Commercial Fisheries Entry Comm'n, 680 P.2d 1135, 1144 (Alaska 1984). . Farmer argues that he was denied the right to cure and that the cure amount kept changing. Neither argument has merit. Farmer was provided with the cure amount on three separate occasions but still failed to cure. He presented no evidence, aside from his affidavit, that he had any money with which to cure. And the cure amount kept increasing to reflect the fees and unpaid costs that accumulated over the months. See AS 34.20.070(b) (allowing cure "by payment of the sum then in default, other than the principal that would not then be due if no default had occurred, and attorney and other foreclosure fees and costs actually incurred by the beneficiary and trustee due to the default"); Albrecht v. Alaska Tr., LLC, 286 P.3d 1059, 1063 (Alaska 2012) (holding that inclusion of foreclosure costs and fees was proper under AS 34.20.070(b)). . Hagberg v. Alaska Nat'l Bank, 585 P.2d 559, 562 (Alaska 1978). . Young v. Embley, 143 P.3d 936, 947 (Alaska 2006). . Id. . Hagberg, 585 P.2d at 561-62. . Farmer also alleges that Watson sold two of his liquor licenses at the foreclosure sale and that the proceeds of these licenses should have been used to bring his payments up to date. But the liquor licenses were not part of the nonjudicial foreclosure and are not relevant to this proceeding. If the liquor licenses are eventually sold in a private UCC sale, the surplus above the debt that they are securing will be paid to Farmer's company, Farmer Valley Liquors, Inc. See AS 45,.29.615; U.C.C. § 9-615(d)(1) (2012); 4 James J. Waits & Rosset S. Summers, Unirorm CommeRciat Cope § 34-4 (6th ed.2010). . Baskurt v. Beal, 101 P.3d 1041, 1044 (Alaska 2004) (citing AS 34.20.070(a)). . See Rosenberg v. Smidt, 727 P.2d 778, 784 (Alaska 1986) (holding that sale is voidable when defect goes "not to the trustee's right to proceed with foreclosure but only to the mechanics of exercising the power") (internal quotation marks omitted). . Baskurt, 101 P.3d at 1044 (citing McHugh v. Church, 583 P.2d 210, 213 (Alaska 1978). Homes generally do not sell at a foreclosure sale for the full amount they would fetch through a normal transaction. BFP v. Resolution Trust Corp., 511 U.S. 531, 537-38, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). . Baskurt, 101 P.3d at 1044 (quoting McHugh, 583 P.2d at 213-14). . Id. . Id. at 1046 (invalidating a sale for 15% of the value of the property). . Id. at 1044 (collecting cases from other jurisdictions).

10404361

Charles B. SIMPLER, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, John Williams, Burke Riley, Robert Simon, Commissioners of Alaska Commercial Fisheries Entry Commission, Appellees

Simpler v. State, Commercial Fisheries Entry Commission

1986-11-14

No. 6406

227

231

728 P.2d 227

728

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:24:54.184555+00:00

CAP

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

Charles B. SIMPLER, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, John Williams, Burke Riley, Robert Simon, Commissioners of Alaska Commercial Fisheries Entry Commission, Appellees.

Charles B. SIMPLER, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, John Williams, Burke Riley, Robert Simon, Commissioners of Alaska Commercial Fisheries Entry Commission, Appellees. No. 6406. Supreme Court of Alaska. Nov. 14, 1986. Paul D. Kelly, Strachan & Dahl, Kelly & Patterson, Anchorage, for appellant. John B. Gaguine, Juneau, Margot O. Knuth, Asst. Attys. Gen., Harold M. Brown, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2402

14987

OPINION COMPTON, Justice. This case is before us for the second time. Previously we remanded it to the Commercial Fisheries Entry Commission (CFEC) for further proceedings to determine several specific issues. Charles Simpler (Simpler) now appeals from one such determination that he was ineligible to apply for a limited entry permit in the Prince William Sound herring fishery. We affirm. I. FACTS AND PROCEEDINGS Simpler is a long-time Prince William Sound salmon and herring fisherman. In 1975, he obtained permanent entry permits to operate gear in the Prince William Sound salmon fisheries. When the herring fishery was limited in 1977, however, Simpler did not then apply for a permit. Several months after this court issued the opinion in State, CFEC v. Templeton, 598 P.2d 77 (Alaska 1979), Simpler did file an application, which was denied as untimely filed. He requested a hearing on the denial. The CFEC denied this request as well as a request for reconsideration. Simpler appealed to the superior court, which affirmed the CFEC's decision. Earlier before this court, both parties focused primarily on whether Simpler was "misadvised" by a CFEC agent and whether this misadvice was the reason he did not timely file an application. For purposes of that appeal, the parties stipulated that Simpler was eligible to apply. We remanded the case to the superior court with instructions to remand it to the CFEC to answer the following questions: 1. Was Charles B. Simpler eligible to apply for a limited entry permit during the initial application period for the Prince William Sound purse seine herring fishery? 2. Why did Charles B. Simpler fail to file an application? Was his failure to file the result of his disgust with the system and his view that the herring fishery would be closed, the result of advice given him by a CFEC agent, or by a combination of the two? 3. What specifically was Charles B. Simpler told by a CFEC agent during the initial application period? The CFEC concluded that Simpler was ineligible to apply for a limited entry permit because he held neither a gear license nor an interim-use permit for the Prince William Sound herring fishery. It stated it was unable to discern from the record why Simpler failed to file an application. II. WAS SIMPLER ELIGIBLE TO APPLY FOR A LIMITED ENTRY PERMIT FOR THE PRINCE WILLIAM SOUND HERRING FISHERY? The CFEC found that Simpler had neither an interim-use permit nor the appropriate gear license for the Prince William Sound herring fishery, thus he was not eligible to apply for a limited entry permit for that fishery. Simpler argues that the CFEC regulation requiring an interim-use permit exceeds the scope of its statutory authority and that he did indeed possess the appropriate gear license. Simpler concedes that he did not possess an interim-use permit as required by 20 AAC 05.664. He argues that since the version of AS 16.43.260(a) in effect during the initial application period required participation as a gear license holder and did not mention interim-use permits, the re quirement in 20 AAC 05.664 is "violative of the statutory scheme for limited entry." This court reviews administrative regulations by a two-step procedure. First, we decide "whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency." Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). Next, we determine "whether the regulation is reasonable and not arbitrary." Id. We will not substitute our judgment as to the content of the rule if it meets these standards. Id. at 911 n. 23. The statutory provisions conferring rule-making authority on the CFEC are AS 16.-43.100-110. Portions of these statutes indicate that the legislature intended to give the CFEC broad authority to promulgate such regulations as 20 AAC 05.664. On a general level, the CFEC is directed to "regulate entry into the commercial fisheries for all fishery resources in the state," AS 16.43.100(a)(1), and is authorized to "adopt regulations, consistent with law, necessary or proper in the exercise of its powers or for the performance of its duties." AS 16.43.110(a). Specifically, the CFEC is to "designate, when necessary to accomplish the purposes of this chapter, particular species for which separate interim-use permits or entry permits will be issued," AS 16.43.-100(a)(5), and to "issue interim-use permits as provided in AS 16.43.210 and 16.43.220." AS 16.43.100(a)(8). Simpler points out that former AS 16.43.-260(a) did not mention interim-use permits as an eligibility requirement. He argues that the CFEC cannot impose additional threshold requirements not mentioned in the statute, citing State, CFEC v. Templeton, 598 P.2d 77 (Alaska 1979). In Templeton, however, we were reviewing the interpretation of a CFEC regulation, not deciding whether a regulation was authorized by statute. Id. at 81. The standard of review is different when an administrative body is interpreting, rather than promulgating, rules. See Kelly v. Zamarello, 486 P.2d at 916. We have recently stated that the Limited Entry Act "effectively transfers much of the legislature's rulemaking authority to the Commercial Fisheries Entry Commission." Kalmakoff v. State, CFEC, 693 P.2d 844, 851 (Alaska 1985). We pointed out that the "statutes are general, but the regulations are necessarily specific; and it is clear that the legislature intended to give the Commission considerable discretion in promulgating them." Id. Furthermore, we must consider other provisions of the Limited Entry Act together with those specifically granting rulemak-ing authority. 2A Sutherland Stat.Const. § 47.05 (4th Ed.1984). AS 16.43.140(a) states: "After January 1, 1974, a'person may not operate gear in the commercial taking of fishery resources without a valid entry permit or a valid interim-use permit issued by the commission." (Emphasis added). Before the legislature enacted the limited entry statute, interim-use permits did not exist. The issuance of interim-use permits was to be the first phase in the limited entry scheme. Rose v. CFEC, 647 P.2d 154, 156 n. 1 (Alaska 1982). After January 1, 1974, persons fishing commercially were required to have either a limited entry permit or an interim-use permit. AS 16.43.-140(a). In fisheries which were to be limited immediately, the requirement of a gear license as stated in AS 16.43.260(a) served the statutory purpose of allocating entry permits according to the degree of hardship a person would suffer if excluded from the fishery. See CFEC v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980) (Apokedak I). Since interim-use permits had not previously existed, they could not be con- . sidered as an indicator of hardship. In contrast, some fisheries were not immediately limited. For example, the herring fishery in this case was not limited until 1977. Interim-use permits were issued in the period between the enactment of the limited entry scheme and the actual limiting of the herring fishery. Given that those participating in the fishery were required to have an interim-use permit as well as the appropriate gear license, AS 16.43.140(a), and that the eligibility requirement of AS 16.43.260(a) was intended to segregate hardship from non-hardship cases, Apokedak I, 606 P.2d at 1266, it appears consistent with the purposes of the Act for the CFEC to require an interim-use permit as an indicator of participation, and thus of hardship. Finally, the Alaska legislature in 1981 amended the statute upon which Simpler relies. AS 16.43.260(a) now provides: The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.05.536-16.05.670 and interim-use permits under AS 16.43.210(a) before the qualification date established in (d) or (e) of this section. (Emphasis added). This amendment "may be regarded as a legislative interpretation or clarification of the pre-existing law." City of Anchorage v. Thomas, 624 P.2d 271, 273 (Alaska 1981). The legislature could not have considered interim-use permits as an indicator of participation when the Limited Entry Act was originally drafted because interim-use permits did not then exist. Since interim-use permits were required starting in 1974 even in unlimited fisheries, they came to be a reliable indicator of participation. The 1981 amendment to AS 16.43.260(a) can be also seen as reflecting legislative recognition that only those with both the appropriate gear license and interim-use permit were fishing lawfully during the period between original enactment of the statute and limitation in a given fishery. The requirement of an interim-use permit was made explicit to clarify that the legislature intended to establish eligibility based on lawful participation. We conclude that the Commission's regulation is consistent with and reasonably necessary to carry out the purposes of the Limited Entry Act provisions which confer rulemaking authority on the CFEC. See Kelly v. Zamarello, 486 P.2d at 911. Next we must determine whether the regulation is reasonable and not arbitrary. Id. In previous cases involving the Limited Entry Act, we have stressed the importance of the permit applicant's status in the fishing industry. See, e.g., Rose v. CFEC, 647 P.2d 154, 159 (Alaska 1982); Apokedak I, 606 P.2d at 1263,1266. In order to fulfill the statutory purpose of preventing unjust discrimination, one important consideration is the loss to be suffered by exclusion from the fishery. Apokedak I, 606 P.2d at 1266. In Apokedak I, we held that the eligibility requirement of holding a gear license was valid since only previous gear license holders would lose a privilege they had enjoyed previously. We noted that non-gear licensees who had participated in a fishery in other capacities were still entitled to participate in those capacities. While these participants were deprived of some opportunities to change their status, their loss was not as great as those who might have lost a previously acquired status. Id. A similar analysis is appropriate in the case of the requirement at issue here. Simpler concedes that he did not have an interim-use permit, yet argues that he was not fishing illegally because he was working with a partner who held an interim-use permit and who was present when fish were being caught. He points to AS 16.43.-140(b), which provides: A permit is not required of a crewmem-ber or other person assisting in the operation of a unit of gear engaged in the commercial taking of fishery resources as long as the holder of the entry permit or the interim-use permit for that particular unit of gear is at all times present and actively engaged in the operation of the gear. By arguing that he falls under this exception, Simpler concedes that he was merely assisting in the operation of commercial gear. The CFEC's findings support his concession. During the combme[d] operation in each of the years 1974, 1975 and 1976, it was Mr. Simpler's responsibility to carry the aviation gas to fuel the airplane they used to spot herring concentrations and to provide general assistance in the purse seine fishery. This assistance took the form of helping to hold up the seine on a big set, tendering fish to a processor for his two gear operator partners, and in one instance, keeping the vessel actually operating the purse seine gear from turning over because of the weight of the catch in the set. (Citation and footnote omitted). The CFEC found that in view of the functions Simpler performed, he was correct in asserting that he did not need an interim-use permit. Nothing in the statutory scheme prohibits Simpler from performing in the same capacity that he previously did by assisting his partners in the operation of gear. He can still come within the exception provided in AS 16.43.140(b). While he may be precluded from upgrading his status as a participant in the herring fishery, he has not suffered any loss of a status previously held during the relevant measuring years. As applied in this case, the regulation is reasonable and not arbitrary. See Kelly v. Zamarello, 486 P.2d at 911. III. CONCLUSION Simpler was not eligible to apply for a limited entry permit in the Prince William Sound herring fishery. The eligibility requirement of an interim-use permit as contained in 20 AAC 05.664 is within the scope of the CFEC's rulemaking authority. Simpler admits that he did not have an interim-use permit. He was therefore not eligible to apply. AFFIRMED. . The first issue is dispositive and therefore we do not address the second. . 20 AAC 05.664 (eff. 2/25/77) provides in relevant part: POINT SYSTEM FOR SOUTHEASTERN AND PRINCE WILLIAM SOUND ROE HERRING PURSE SEINE AND COOK INLET COMBINED ROE HERRING AND HERRING PURSE SEINE FISHERIES. (a) Past Participation. Points will be awarded to an applicant for past participation in the fishery applied for based on the following: (1) Past Participation as a Herring Purse Seine Interim-Use Adm. Areas Adm. Area Permit Holder A-l and H E-l YEAR POINTS POINTS 1976 2 2 1975 2 1 1974 1_1 Maximum Allowable 5 4 Award (3) "Past participation," for purposes of this section, means (A) the commercial taking of the herring resource in herring administrative areas A-l, E-l or H with a herring purse , seine, interim-use permit and appropriate licenses; or (B) being on the fishing grounds in herring administrative areas A-l, E-l or H, with the appropriate vessel, gear, licenses, and interim-use permit with the intention of taking the herring resource during the time the season was open and the herring resource was harvested. .Former AS 16.43.260(a) provided: Application for Initial Issue of Entry Permits. (a) The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.05.536-16.05.670 before the qualification date established in (d) or (e) of this section. (Amended 1981). . The CFEC surmised that Simpler was asserting partnership status since he had assisted his partners who held interim-use permits. He does not argue this point before us. A partnership eligibility claim would be foreclosed by CFEC v. Apokedak, 680 P.2d 486, 488 (Alaska 1984).

10446465

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

Miller v. State

1980-10-03

No. 4244

516

519

617 P.2d 516

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before CONNOR, BURKE, and MATTHEWS, JJ., DIMOND, Senior Justice, and CARLSON, Superior Court Judge.

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

David MILLER, Appellant, v. STATE of Alaska, Appellee. No. 4244. Supreme Court of Alaska. Oct. 3, 1980. Robert H. Wagstaff, Wagstaff & Middleton, Anchorage, and Irwin Ravin, Fairbanks, for appellant. James P. Doogan, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before CONNOR, BURKE, and MATTHEWS, JJ., DIMOND, Senior Justice, and CARLSON, Superior Court Judge. . At the omnibus hearing on June 8, 1978, defense counsel argued that Miller had a right to enter a nolo plea to the misdemeanor information. The court, however, rejected this argument.

1533

9172

OPINION CONNOR, Justice. On February 7, 1978, David Miller, an elementary school teacher at University Park School in Fairbanks was charged by information with two misdemeanor counts of contributing to the delinquency of a minor. Count I alleged that Miller had fondled the genitals of L.N.A., age 8, a member of his class. Count II alleged that Miller engaged in identical conduct with A.P.W., age 9, also a member of Miller's class. Prior to filing the information, the Fairbanks District Attorney entered into plea negotiations with Miller's counsel. In return for a plea of guilty to the misdemean- or charges and a promise to identify other children with whom Miller had had similar contacts, the state agreed not to seek felony charges against Miller for acts subsequently charged. It was further agreed that Miller would resign his teaching position and that the state would not prosecute Miller for then undiscovered similar acts, provided that Miller admitted the acts before the state found out about them through its own investigation. No agreement was made as to sentencing. On February 7,1978, Miller entered pleas of nolo contendere to both counts of the information. After thorough inquiry, the court concluded that Miller's pleas were knowing, understanding and voluntary. Therefore, the pleas were accepted. Sentencing was ultimately set for May 1, 1978. At that time, the court announced sua sponte that it would no longer accept Miller's nolo pleas. In the intervening weeks the court had received numerous letters from friends and associates of Miller indicating that Miller was innocent and that he was pleading no contest only to save the children from having to testify in open court. In addition, the court had been made aware of Miller's own statements of innocence in the presentence psychiatric evaluation. These factors led the court to doubt that Miller's pleas were in fact knowing and voluntary. The court advised Miller that he could either admit to the court that there was a reasonable basis for the pleas, and that he understood their consequences, or the pleas would be considered withdrawn. Miller made no attempt to make such a showing and the pleas were, therefore, deemed withdrawn. On May 10, 1978, Miller was indicted on six felony counts of lewd or lascivious acts toward a child. AS 11.15.134. In addition to the conduct charged in the original information, Miller was charged with two incidents against L.N.A., one incident against A.P.W., and an incident against another nine year old, F.F.W. Miller was arraigned on May 18, 1978, and entered pleas of not guilty on each count. The first trial commenced on July 10, 1978. During the prosecution's case the two counts alleging misconduct against A.P.W. were dismissed because A.P.W. was unable to testify. The jury returned a verdict of not guilty as to F.F.W. and was unable to reach a verdict as to the three counts involving L.N.A. Miller was retried on the three counts involving L.N.A., with the second trial commencing on August 28, 1978. At the conclusion of trial, the jury returned guilty verdicts on all three counts. On September 13,1978, the court sentenced Miller to three five-year sentences, to run concurrently, with four years suspended, and placed Miller on probation upon the condition that he undergo psychiatric coun-selling. Appellant argues that the trial court, having first accepted his plea of nolo con-tendere, committed error when it ultimately rejected that plea. We agree. In Alaska, a defendant may plead nolo contendere as a matter of right. Alaska R.Crim.P. 11(a); Lowell v. State, 574 P.2d 1281, 1285 (Alaska 1978). In passing on such a plea the only inquiry permitted the trial court by Criminal Rule 11 is that of determining whether the plea is knowing and voluntary. Alaska R.Crim.P. 11(c) and (d). Therefore, once the trial court determines that a plea of nolo conten-dere is knowing and voluntary, it is bound to accept that plea and, once accepted, the plea cannot then be rejected. The state argues that Criminal Rule 11(f) permits the court to inquire as to whether there is a reasonable basis for a plea of nolo contendere. We disagree. Subsection (f), by its terms applies only to guilty pleas. Lowell v. State, 574 P.2d at 1285. Moreover, to require a defendant to show that there is a reasonable basis for a plea of- nolo contendere puts the defendant in the awkward position of having to demonstrate his guilt in order to be allowed to plead nolo contendere. Such a practice destroys the unique purpose of the nolo plea, which is that the issue of guilt shall not be contested. See United States v. Wolfson, 52 F.R.D. 170, 176 (D.Del.1971), affirmed, 474 F.2d 1340 (3d Cir. 1973). The state argues that appellant repudiated his nolo plea by continuing to maintain his innocence to friends and associates. According to the state, such conduct violates the basic policy of the nolo plea which it asserts is "to allow conviction and sentencing of an otherwise guilty defendant without subjecting him to collateral civil liability." We reject the state's premise that pleas of nolo contendere allow conviction of the "otherwise guilty." After reviewing the history of the nolo plea, the United States Supreme Court said in North Carolina v. Alford, 400 U.S. 25, 35 n.8, 91 S.Ct. 160, 166, 27 L.Ed.2d 162, 170 n.8 (1970): "The plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be ^punished as if he were guilty and a prayer for leniency." Moreover, it is entirely conceivable that an innocent defendant will plead nolo conten-dere. We have found no case which even indirectly supports, the proposition that a defendant's right to plead nolo contendere may be waived "by violating the policies underlying the rule." Nor do we find anything in reason or logic which supports such a proposition. We conclude that the trial court erred in rejecting appellant's pleas of nolo conten-dere and, therefore, remand for reinstatement of the nolo pleas. The case is reversed and remanded to the superior court for further proceedings in accordance with this opinion. REVERSED and REMANDED. RABINOWITZ, C. J., and BOOCHEVER, J., not participating. . The state filed a dismissal of the misdemean- or information on May 19, 1978. . The right to plead nolo contendere does not include, however, the right to plead to a lesser included offense than the one charged. See State v. Carlson, 555 P.2d 269, 271-72 (Alaska 1976) (holding that the decision what charge to initiate is solely within the discretion of the executive branch). . Alaska R.Crim.P. 11(f) provides: "Determining the Accuracy of Plea. The court shall not enter a judgment upon a plea of guilty without- first being satisfied that there is a reasonable basis for the plea." . Any intimation to the contrary in Gieffels v. State, 552 P.2d 661, 669 (Alaska 1976) is hereby disapproved. The reasons for requiring such a finding in the case of guilty pleas was explained by Professor Wright: "A person may well know what he has done but not be sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. The amendment is intended to protect against this. . . In the absence of a showing of a factual basis for the plea, however, it would be wrong to accept a guilty plea coupled with a protestation of innocence in absence of sufficient inquiry by the court." [footnotes omitted] 1 C. Wright & A. Miller, Federal Practice and Procedure § 174 at 376-77 (1969). In contrast, in the case of a plea of nolo contendere, a person may not wish to contest the charge for a variety of reasons and, though innocent, may wish to plead nolo contendere instead. Id. § 177 at 390. See also North Carolina v. Alford, 400 U.S. 25, 35 n.8, 91 S.Ct. 160, 166 n.8, 27 L.Ed.2d 162, 170 n.8 (1970). . See Lowell v. State, 574 P.2d 1281, 1284 (Alaska 1978) (acknowledging that plea of nolo contendere is not an express admission of guilt). To the extent that Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974) indicates otherwise, that opinion is hereby disapproved. . See note 5, supra. .In this regard, we note that it is not inappropriate for a court to accept even a guilty plea coupled by protestations of innocence. In such instances, however, the federal rules, as well as many state rules, require, for the protection of the innocent, a factual basis for the plea. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970).

10447968

Rick L. THIBEDEAU, Appellant, v. STATE of Alaska, Appellee

Thibedeau v. State

1980-10-03

No. 4325

759

762

617 P.2d 759

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Rick L. THIBEDEAU, Appellant, v. STATE of Alaska, Appellee.

Rick L. THIBEDEAU, Appellant, v. STATE of Alaska, Appellee. No. 4325. Supreme Court of Alaska. Oct. 3, 1980. Mary E. Greene, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Bill D. Murphree, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ.

1323

7844

OPINION MATTHEWS, Justice. On February 19, 1978, Rick L. Thibedeau sideswiped a vehicle driven by Melitta Reid. The Reid vehicle left the paved portion of the highway, rolled over two times, and came to rest on its wheels. The Thibedeau vehicle continued to travel south, went out of control, and left the roadway. Thibe-deau proceeded on foot into Fairbanks where he was later arrested. He admitted at sentencing that he was drunk when driving, and maintained that he had no knowledge at all of being in a two-car accident. Ms. Reid sustained neck, knee and internal injuries. The medical bills and vehicle damage totalled $4,896.92. The jury found Thibedeau guilty of failing to render assistance in violation of AS 28.35.060(c). The trial court sentenced Thi-bedeau to a jail term of three years with all but 90 days suspended. A condition of probation provided: [T]hat defendant shall pay a fine of $5,000.00 to be paid to the victim, Melitta Reid, through the Clerk of the trial courts. A hearing will be held on the 1st Friday in October, 1980 at 1:30 p. m. wherein the defendant will be required to show he has made substantial effort to pay such fine. Thibedeau made a Rule 35(a) motion to correct the sentence, alleging that the sentence was illegal in so far as it required $5,000.00 to be paid to Ms. Reid. He argued that the $5,000.00 payment was not a fine because a fine can only be remitted to the general fund and that it could not be considered to be restitution for the crime of failing to render assistance since Ms. Reid's damages were caused by the accident, not his subsequent criminal conduct. The court granted the motion to correct and issued the following amendatory order: Defendant has moved to have his sentence corrected. Defendant's argument is persuasive. Instead of paying a $5000.00 fine to Ms. Reid, defendant will pay a $5,000.00 fine to the State of Alaska. The remainder of the sentence and Judgment is unchanged. Thibedeau challenges the constitutionality of this order, contending that it increases his sentence and, therefore, violates the double jeopardy provisions of both the federal and state constitutions. Thibedeau's argument is that the amended sentence was an increase because a $5,000.00 payment to Ms. Reid, had it been valid, would have reduced Thibedeau's potential civil liability to her. Changing the recipient of the $5,000.00 from Reid to the state, so the argument goes, meant that Thibedeau's future civil liability to Reid would not be reduced. Therefore such a change would increase Thibedeau's sentence and violate the constitutional prohibition against double jeopardy. The fundamental flaw in this argument lies in Thibedeau's attempt to characterize the initial payment to Ms. Reid as restitution. The trial court, in both the original and amended sentence and in its sentencing remarks, made it quite clear that the $5,000.00 was to be considered a fine, not restitution. Thibedeau offers no authority, and we can find none, to the effect that payment of a fine to a victim of a crime would be offset against future civil liability. A fine in such circumstances would be analogous to an award of punitive damages in a civil case. Payment of punitive damages not not reduce a tort feasor's liability for compensatory damages. Since there was no increase in his sentence, Thibedeau's basic premise fails, and with it, his double jeopardy argument. We find no merit in Thibedeau's additional contention that his sentence is excessive. AFFIRMED. . AS 28.35.060 provides: Duty of operator to give information and render assistance, (a) The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle which is driven or attended by a person shall give his name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner which will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable. Under no circumstances is the giving of assistance or other compliance with the provisions of this paragraph evidence of the liability of an operator for the accident. (b) Except as provided in (c) of this section, a person who fails to comply with any of the requirements of this section is, upon conviction, punishable by imprisonment for not more than one year, or by a fine of not more than $500, or by both. This provision does not apply to. a person incapacitated by the accident to the extent he is physically incapable of complying with the requirement. (c) A person who fails to comply with a requirement of this section regarding assisting an injured person is, upon conviction, punishable by imprisonment for not more than 10 years, or by a fine of not more than $10,000, or by both. This provision does not apply to a person incapacitated by the accident to the extent he is physically incapable of complying with the requirement. . Alaska R.Crim.P. 35(a) provides: Correction or Reduction of Sentence. The court may correct an illegal sentence at any time. The court may reduce a sentence within 120 days after sentence is imposed, or within 120 days after receipt by the court of either a mandate issued upon affirmance of the judgment or an order of dismissal of the appeal, or within 120 days after receipt of an order of the supreme court of the state or of the United States denying an application for relief. The court shall retain jurisdiction under this paragraph notwithstanding the pend-ency of an appeal. If such a motion is filed during the pendency of a sentence appeal, the proceedings on that sentence appeal shall be automatically stayed upon the filing of a copy of the motion with the court in which the sentence appeal is pending. The stay shall remain in effect until the motion is decided. . AS 12.55.100 provides in part: Conditions of probation, (a) While on probation and among the conditions of probation, the defendant may be required (1) to pay a fine in one or several sums; (2) to make restitution or reparation to aggrieved parties for actual damages or loss caused by the crime for which conviction was had; . . The fifth amendment to the United States Constitution provides in part: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . This was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Article I, section 9 of the Alaska Constitution provides in part: No person shall be put in jeopardy twice for the same offense. . The following colloquy occurred at sentencing: THE COURT: . In addition to the jail sentence there's a $5,000.00 fine that's to be paid to Mrs. Reid. DEFENSE COUNSEL: Your Honor, I think you want that to the insurance company, 'cause they've already paid Mrs. Reid. THE COURT: Any agreements between Mrs. Reid and her insurance company are between them, so-this is a fine to be paid to Mrs. Reid and if she's made agreements with-to pay back to the insurance company, why, that's between Mrs. Reid and the company. I'll set a review hearing for the first Friday in October of 1980, to review the payment of that fine . . .

10446348

William Guy McMAHAN, Appellant, v. STATE of Alaska, Appellee

McMahan v. State

1980-10-10

No. 3389

494

502

617 P.2d 494

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

William Guy McMAHAN, Appellant, v. STATE of Alaska, Appellee.

William Guy McMAHAN, Appellant, v. STATE of Alaska, Appellee. No. 3389. Supreme Court of Alaska. Oct. 10, 1980. Phillip P. Weidner, Drathman, Weidner & Bryson, Anchorage, for appellant. John A. Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

4396

26278

OPINION DIMOND, Senior Justice. William McMahan kicked open the door to an apartment, and with a rifle, shot and killed Steven Gribble. McMahan was convicted by a jury of first degree murder. He appeals on numerous grounds. His first contention is that the police elicited from him, at various times, incriminatory statements in violation of the Miranda rule. I. MIRANDA After oral argument, we ordered this case remanded for an evidentiary hearing, primarily to clarify the Miranda issues. Following the evidentiary hearing, the trial court entered findings of fact and conclusions of law. That court found that McMa-han's statements on October 13, 1976, were unsolicited and spontaneous. The court concluded that McMahan was fully advised of his rights on October 14, 1976, and on that occasion he waived his rights freely and voluntarily before making the statement which was recorded on tape. We shall discuss each of McMahan's statements separately. A. The First Incident Police Officer Cooper arrived at the apartment minutes after the shooting. He placed McMahan in handcuffs, and shortly thereafter escorted McMahan to jail. On the way to the jail, which was a short distance away, McMahan said, "I shot him . I shot him before he could shoot me," and said something to the effect that the victim was "messing with my woman." The trial court found that these statements were not given in response to any questioning by Cooper, and thus were unsolicited. We have recognized that volunteered statements of any kind are not barred by the fifth amendment and their admissibility is not affected by the Miranda rule. Soolook v. State, 447 P.2d 55, 60 (Alaska 1968), cert. denied, 396 U.S. 850, 90 S.Ct. 107, 24 L.Ed.2d 99 (1969). There is no evidence that McMahan's statements at this time were anything but spontaneous. We hold, therefore, that they were properly admitted, and that the Miranda rule was not violated. B. The Second Incident Approximately thirty seconds after McMahan had made the statements to Officer Cooper, he and Cooper arrived at the jail. Chief Bagron arrived at the jail immediately after McMahan's arrival. At that time, the testimony revealed that McMahan was bleeding from a cut over his eye, that he smelled of alcohol, and that he was yelling profanities. While attempting to stop the flow of blood from the cut over his eye with a gauze compress, Bagron tried to shout the Miranda warnings over McMa-han's yelling. Bagron testified that McMahan "appeared excited, keyed up," and that he did not respond to the warnings, but kept yelling. However, Bagron indicated that McMahan "knew all this stuff . [he said] T know all this shit.' " It is not clear from the record when McMahan gave this acknowledgment. Eventually, McMahan made incriminating statements. He said, "I killed the son of a bitch. He shot at me earlier in front of [a bar]." Although Bag-ron initially claimed that the statements were unsolicited, he later admitted that they were given in response to his questioning. On remand, the trial court found that the statements were admissible because no police officer "questioned the appellant on October 13, 1976 [the day of the killing, and] his statements were unsolicited and spontaneous." McMahan argues that this finding is clearly erroneous. We agree. The trial court's finding was in error because Chief Bagron admitted that the statements by McMahan were made in response to questioning. Consequently, they were not admissible as spontaneous and unsolicited statements. We must, therefore, determine whether these statements were made after McMahan was adequately informed of, and waived, his Miranda rights. At the time McMahan made these statements, it is clear that he was in "custody" since he had been placed in handcuffs and was in jail. See Hunter v. State, 590 P.2d 888, 895 (Alaska 1979). It is also clear that Bagron's questions constituted "interrogation," since they were "designed to elicit incriminating statements." Eben v. State, 599 P.2d 700, 708 (Alaska 1979). Consequently, Bagron was required to advise McMahan of his Miranda rights. See State v. Cassell, 602 P.2d 410, 415 (Alaska 1979); Hunter v. State, 590 P.2d 888, 893 (Alaska 1979). McMahan argues that the Miranda warning given by Bagron was inadequate. We agree. We discussed in State v. Cassell, 602 P.2d 410, 416 (Alaska 1979), what must be included in the warnings given to satisfy the requirements of Miranda. There we held that the words, "you have a right to have an attorney and if you cannot afford to have an attorney one could be arranged to be appointed for you," were insufficient to convey to the suspect his right to counsel. We said: The Miranda warning given in this case falls short of this standard because it failed to advise Cassell of his present right to consult with an attorney and his right to have one appointed prior to questioning if he could not afford one. In addition, the warning did not clearly inform Cassell that he had a right to have counsel present with him during interrogation. These flaws in the Miranda warning are fatal to petitioner's case. Id. at 417 — 18 (emphasis added). Concerning McMahan's right to counsel, Bagron merely informed him that he had the right to an attorney. This falls well short of the Cassell standard. Furthermore, no attempt was made to determine if McMahan understood the warnings as given. In addition, the warnings must also be viewed in the circumstances in which they were given. Here, McMahan was bleeding from a cut over his eye while Bagron was administering first aid, and McMahan was shouting profanities while Bagron shouted the warnings. We hold in these circumstances that the warnings given were insufficient. Nevertheless, admission of these statements is not cause for reversal because they added nothing of incriminating value to evidence which was legally obtained. McMahan said in essence: (1) he killed "the son of a bitch," (2) Gribble had shot at him earlier, and (3) "get the girl, she knows about this." As discussed in Part I-A, McMahan admitted while being escorted to the jail that he had shot Gribble. He claimed, "I shot him before he could shoot me." We held that this statement was admissible. Furthermore, McMahan testified at trial that he killed Gribble in self-defense and that he had taken his rifle to the encounter with Gribble because of fear that Gribble would shoot him. Therefore, admission of the statements made shortly after McMahan's arrival at the police station was harmless beyond a reasonable doubt. C. The Third Incident On October 14, 1976, the morning after the shooting, McMahan was taken to the courthouse for his arraignment. There, the magistrate attempted to advise McMahan of his Miranda rights. The. magistrate told McMahan that he would be transported to Anchorage where he would have an opportunity to talk with a public defender. After McMahan's return to jail, and approximately twenty minutes after his arraignment, Bagron, in the presence of Officers Gorman and Collins, read McMahan his Miranda rights from a booking card. Although a tape recorder was available, as well as a written waiver form, the reading of the Miranda rights was not recorded and no attempt was made to get a waiver either signed by McMahan or to have a waiver stated by McMahan and placed on the tape. McMahan said that he had not object to the use of the tape recorder. Officer Gorman conducted an interrogation at that time, and obtained a confession from McMahan. This was played for the jury at the trial. On remand, the trial court concluded that McMahan had waived his rights freely and voluntarily. The applicable standard for determining whether a defendant has waived his constitutional rights was articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966): A heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. The Miranda opinion further provides: Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962), is applicable here: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not a waiver." Id. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724. See also Tarnef v. State, 512 P.2d 923 (Alaska 1973). The state's burden of showing that a confession was voluntary and that the defendant had waived his Miranda rights can be met by a preponderance of the evidence. In determining voluntariness, the court must look to the totality of the circumstances surrounding the defendant's statements. See Quick v. State, 599 P.2d 712, 720 (Alaska 1979); Hampton v. State, 569 P.2d 138, 141-44 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S.Ct. 1225, 55 L.Ed.2d 757 (1978); Schade v. State, 512 P.2d 907, 916 (Alaska 1973). McMahan had been properly informed of his Miranda rights, and he had indicated that he understood those rights before the tape recording took place. There was no indication in the record that McMahan was in bad physical or mental shape when he gave the taped statement, which was the day following his arrest. Before the statement was recorded, McMa-han was asked if he desired an attorney or if he objected to being taped. He replied, "No." During the taped statement, Officer Gorman asked McMahan, "Now it doesn't bother you us talking to you now does it?" McMahan replied, "No." Considering the totality of the circumstances under which McMahan gave his recorded statement, we hold that there was substantial evidence to support the trial court's conclusion that McMahan intended to waive his Miranda rights. His subsequent statements were therefore admissible at the trial. McMahan argues that we should adopt a prophylactic rule prohibiting the use of custodial statements where it is demonstrated that an explicit waiver could have been obtained. We note, however, that the United States Supreme Court recently rejected a per se rule that an express waiver is necessary where an accused indicates an understanding of his rights and gives a statement without expressly waiving them. North Carolina v. Butler, 441 U.S. 369, 373 76, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292-94 (1979) (4-1-3 decision). The Supreme Court said: An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. Id. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292 (emphasis added) (footnote omitted). II. FALSE GRAND JURY TESTIMONY Another point presented by McMahan's appeal is whether the indictment of first degree murder against him is defective because of false police testimony to the grand jury. Police Chief Bagron testified before the grand jury that he had gone to the scene of the shooting and that he had been present while the body was still there. He was asked by a grand juror if he had noticed whether there had been a knife on the counter of the apartment or anywhere near the body. Bagron answered, "Yes I — I did. There were — there was no sign of a knife or sheath or any other weapon." Immediately afterward the following questioning occurred: Q. Did you go through the deceased's clothing? A. Yes, I did. Q. Was there a pocketknife? A. No, sir. At trial Bagron contradicted his grand jury testimony. He testified that, in removing the personal effects from Gribble's body, he found a folded jackknife in one of Gribble's pockets. McMahan contends that Bagron's false grand jury testimony requires dismissal of the indictment. He argues that, if Bagron had testified accurately, the grand jury might have found the homicide legally justified as an act of self-defense and refused to return an indictment, or that the grand jury might have charged only second degree murder or manslaughter on the ground that the defendant's belief regarding harm to himself was reasonable. We considered the question of when false grand jury testimony requires dismissal of an indictment in Keith v. State, 612 P.2d 977 (Alaska 1980). We held that the standards for evaluating attacks on an indictment set forth in Taggard v. State, 500 P.2d 238 (Alaska 1972), were applicable: The indictment is the foundation underlying a criminal prosecution. If the indictment is seriously flawed, the conviction cannot stand. 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. Taggard, 500 P.2d at 243 (footnotes omitted), quoted in Keith, 612 P.2d at 980-81. Assuming that the objection was properly preserved at trial, we must determine whether the defect was substantial. In Keith this court noted that the giving of false grand jury testimony apparently had been unintentional. We held that "if the unintentional misstatement goes to a nonmaterial fact that would not substantially affect the grand jury's conclusion, it would not be reversible error." Keith, 612 P.2d at 981. In this case it is not clear whether the giving of false testimony was unintentional. Nevertheless, we believe that under Taggard the indictment stands, unless the misstatement would substantially affect the grand jury's conclusion. See Taggard v. State, 500 P.2d 238, 243 (Alaska 1972). The presence of a folded pocketknife in the deceased's pocket does not substantiate any theory of self-defense. Therefore, Bagron's misstatement is not so material as to require dismissal of the indictment. We have earlier held that the prosecutor has a duty to present exculpatory evidence to the grand jury pursuant to Criminal Rule 6(q). Frink v. State, 597 P.2d 154, 164-66 (Alaska 1979). We need not decide whether the prosecutor is charged under Rule 6(q) with the police chief's knowledge because the evidence of the pocketknife was not so material that it reasonably tended to negate McMahan's guilt. See Mallott v. State, 608 P.2d 737, 744 (Alaska 1980). III. BIFURCATION MOTION At the beginning of McMahan's trial, his attorney requested that the trial be bifurcated. The reason for this request was that there would be a potential conflict between (a) McMahan's defense of self-defense, and (b) his defense of diminished capacity due to large amounts of alcohol he had consumed in the hours preceding the shooting of Steven Gribble. The trial judge denied the motion, stating that there is no statutory right to a bifurcated trial. It is true that there is no statute governing this matter. But apart from statute, the trial court, in its discretion, may grant a bifurcated trial under its common law power to control the submission of issues to a jury. Indeed, it must do so where a defendant shows that he has a substantial insanity defense and a substantial defense on the merits, such as self-defense, and it is evident that either defense would be prejudiced by simultaneous presentation with the other. Thus, in Houston v. State, 602 P.2d 784, 787-88 (Alaska 1979), we held that, because Houston had a substantial insanity defense, denial of a bifurcated trial substantially prejudiced him in the presentation of his theory of self-defense. We need not decide at this time whether the bifurcation principle of Houston applies when the defense of diminished capacity is raised rather than insanity. Assuming that there could be a conflict between the defenses of diminished capacity and self-defense, McMahan was not entitled to bifurcation unless he presented substantial evidence to support a valid self-defense theory. This he did not do. McMahan and Sheila Robicheaux lived together for a couple of months. McMahan moved out of the apartment they had shared after an argument between them. A few days later, on October 12, 1976, Robicheaux introduced McMahan to Gribble and told McMahan that she and Gribble planned to share an apartment. McMahan testified that he talked further with Gribble on October 13. According to McMahan, Gribble told him not to go back to Sheila Robicheaux's apartment and threatened him by saying, "I have a new rifle and I wouldn't want to use it — have to use it on you." Some time after parting company with Gribble, McMahan decided to go to Robicheaux's apartment. He testified that he took his rifle with him because he believed, "I'd be foolish to go back up there if I wasn't able to defend myself." McMa-han claimed that he shot Gribble because, when he entered the apartment, Gribble came at him with a knife. This testimony by McMahan does not substantially support a theory of self-defense. In Bangs v. State, 608 P.2d 1 (Alaska 1980), we held that a defendant in a similar factual situation was not entitled to a self-de fense instruction. We reasoned that, when a defendant has a prior grievance with the deceased and takes a deadly weapon to an encounter with-the deceased, the defendant should be deemed to have provoked the violence which resulted in the death of the deceased. This is because the defendant in such a situation " 'knows or reasonably should know that the encounter will result in mortal combat.' " Bangs, 608 P.2d at 5, quoting State v. Millett, 273 A.2d 504, 510 (Me.1971). See also Gray v. State, 463 P.2d 897, 908 (Alaska 1970). Under that reasoning, McMahan did not present a valid theory of self-defense. McMahan has raised several other points on appeal. However, after careful consideration, we have determined them to be unpersuasive, and not to merit discussion in this opinion. The judgment of the trial court is AFFIRMED. RABINOWITZ, C. J., not participating. . The occupant of the apartment was a lady who was referred to by McMahan as "my woman." McMahan had been drinking and was jealous of the attention paid to this woman by Steven Gribble. . See Eben v. State, 599 P.2d 700, 708-09 (Alaska 1979); Padgett v. State, 590 P.2d 432, 436 (Alaska 1979); Ladd v. State, 568 P.2d 960, 966-67 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1979). . The apartment was located approximately 40 to 50 steps from the jail. . McMahan received a cut over one eye during a struggle in the hallway of the apartment building when a person attempted to detain him until the police arrived. .Normal practice was to read the Miranda rights from a card and then obtain a written waiver. Bagron did not read the rights but gave them from memory. According to Bag-ron, "I told him that he had a right to remain silent. Anything he would say would be held against him in a court of law. He had a right to an attorney. That if he decided to answer questions, he had a right to stop answering questions." Even though a waiver form was nearby, Bagron did not ask for a waiver. . The full text of Bagron's warning is set out in note 5 supra. . Erroneous admission of evidence is harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710-11 (1967), when it is unreasonable to conclude that the evidence influenced the verdict. See, e. g., Benefield v. State, 559 P.2d 91, 95-96 (Alaska 1977). .The magistrate told McMahan: You have the right to have an attorney represent you at all of these proceedings and if you feel you can not afford an attorney, the court can appoint a public defender to represent you. You also have the right to remain silent. That is, no one can compel you to make any statement, however, any statement you do make can be used against you in a court of law. We note that this warning did not inform McMahan that he had a right to have counsel present with him during the following interrogation. See State v. Cassell, 602 P.2d 410, 415 (Alaska 1979). . The booking card read: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. . According to Gorman, Bagron asked McMa-han if he wanted a lawyer present. He replied that he did not feel it was necessary "to have one at that point." . Again we advise law enforcement agencies that, as part of their duty to preserve evidence, it is incumbent upon them to tape record, where feasible, any questioning and particularly that which occurs in a place of detention. Mallott v. State, 608 P.2d 737, 743 n.5 (Alaska 1980). Furthermore, as we stated in In re S. B., 614 P.2d 786, 790, n.9 (Alaska 1980): It will be a great aid to the trial court's determinations and our own review of the record if an electronic record of the police interview with a defendant is available from which the circumstances of a confession or other waiver of Miranda rights may be ascertained. In addition, if Miranda rights are read to the defendant, this too should be recorded. . It also appears that many states have rejected a per se rule. See Butler, 441 U.S. at 375 n.6, 99 S.Ct. at 1758 n.6, 60 L.Ed.2d at 293 n.6, for a list of these states. Contra, Commonwealth v. Bussey, 404 A.2d 1309, 1314-15 (Pa.1979). . The knife which was found in Gribble's pocket was later identified as a folding knife of the nonlocking type, with a two and three-quarter inch blade. . McMahan's failure to object to the false grand jury testimony prior to trial is excused because the falsity of Bagron's testimony was not apparent until Bagron gave contradictory testimony at trial. The record on appeal does not disclose any instance at trial in which McMahan argued that the indictment was defective because of false grand jury testimony. We are not required to consider this type of attack on an indictment unless it is preserved at trial, Keith v. State, 612 P.2d 977, 981 (Alaska 1980), but the state does not argue that McMahan failed to preserve the objection. .Bagron's grand jury appearance was only eight days after his search of Gribble's body. When asked at trial why he did not admit to the grand jury that he had found a pocketknife, he said, "1 don't remember." During his grand jury testimony, Bagron had been aware of McMahan's claim that Gribble had lunged at him with a knife. At the evidentiary hearing on remand from this court, Bagron claimed that he had not remembered about the pocketknife during his grand jury appearance and that an inventory slip jogged his memory just prior to trial. Bag-ron's memory at the evidentiary hearing more than three years after his observation of the pocketknife was sufficient for him to estimate the length of the knife's blade. .The prosecutor's discovery obligations under Criminal Rule 16(b)(4) "extend to material and information in the possession or control of . . any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office." As in Keith, 612 P.2d at 981, the prosecutor in this case was not shown to have known that the evidence presented to the grand jury was false. . Houston v. State, 602 P.2d 784, 787 (Alaska 1979); Post v. State, 580 P.2d 304, 306 (Alaska 1978). . Holmes v. United States, 363 F.2d 281 (D.C.Cir.1966), cited with approval in Kinsman v. State, 512 P.2d 901, 903-04 (Alaska 1973). . On remand, we ordered the superior court to inquire into an item of possible evidentiary value belonging to the victim which was not produced at trial because the police sent the item out of state to the victim's next of kin. The superior court determined that had this item "been produced at trial it would not have led the jury to entertain a reasonable doubt as to appellant's guilt." We agree. Nevertheless, we remind law enforcement agencies that their duty to preserve evidence includes the retention of items of potential evi-dentiary value to the defense. See Catlett v. State, 585 P.2d 553, 558 n.5 (Alaska 1978).

11441798

Frederick Wilbur MORGAN, III, Appellant, v. STATE of Alaska, Appellee

Morgan v. State

2002-09-27

No. A-7700

332

341

54 P.3d 332

54

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Frederick Wilbur MORGAN, III, Appellant, v. STATE of Alaska, Appellee.

Frederick Wilbur MORGAN, III, Appellant, v. STATE of Alaska, Appellee. No. A-7700. Court of Appeals of Alaska. Sept. 27, 2002. Michael D. Dieni, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

5286

33204

OPINION MANNHEIMER, Judge. The defendant in this case was being tried for sexual assault. He asked the trial judge to allow him to introduce the testimony of several witnesses who purportedly were prepared to say that the complaining witness (the alleged victim) had twice previously made false accusations of sexual assault against other men. In Covington v. State, 703 P.2d 486, 441-42 (Alaska App.1985), we held that this type of evidence is admissible if, as a foundational matter, the defendant establishes the falsity of the prior accusations-"as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity". In this appeal, we are asked to clarify our holding in Covington. What exactly must a defendant prove when seeking to establish that an alleged sexual assault victim has made a prior false accusation of rape? And what is the burden of proof on this issue? For the reasons explained here, we conclude that a defendant must convince the trial judge by a preponderance of the evidence (1) that the complaining witness made another accusation of sexual assault, (2) that this accusation was factually untrue, and (8) that the complaining witness knew that the accusation was untrue. The defendant can prove these elements through voir dire examination of the complaining witness or through presentation of extrinsic evidence-i.e., documentary evidence or the testimony of witnesses having knowledge of the prior accusation. The defendant must present this foundational evidence to the trial judge outside the presence of the jury. If the trial judge concludes that, more likely than not, the complaining witness made a knowingly false accusation of sexual assault on another occasion, then the defendant will be permitted to present this evidence to the jury. Underlying facts: Morgan's offer of proof and the trial judge's ruling Frederick Wilbur Morgan, Jr., was charged with engaging in sexual penetration with TF. while she was so intoxicated as to be incapacitated or unaware that a sexual act was occurring. Morgan defended this charge by asserting that T.F. had been fully aware of the sexual intercourse and had consented to it. In other words, he argued that TF. was falsely accusing him of sexual assault. In support of this defense, Morgan asked the trial judge to allow him to present the testimony of four witnesses who (according to Morgan's offer of proof) were prepared to say that T.F. had accused men of sexually assaulting her on two previous occasions, only to later concede that these accusations were false. The trial judge, Superior Court Judge Thomas M. Jahnke, ruled that Morgan's proposed evidence was barred by Cov-ington. As explained above, Covington states that this type of impeaching evidence is admissible only if "the charges somehow halve] been disproved or where the witness has] conceded their falsity". Judge Jahnke interpreted this passage to mean that it was not enough for a defendant to present witnesses who would testify to the falsity of the prior accusations or who would testify that the complaining witness had recanted those accusations. Rather, Judge Jahnke concluded that Covington required Morgan to show either (1) that TF. had "made [an] official concession that the charges were false by, for example, testifying under oath . that they were false or conceding their falsity in a deposition or [in an] answer to an interrogatory"; or (2) that T.F.'s prior accusations "hald] been adjudicated false by a court or other neutral tribunal". (emphasis in Judge Jahnke's written order). Based on this interpretation of Covington, Judge Jahnke refused to hear the testimony of Morgan's witnesses concerning T.F.'s alleged prior accusations of sexual assault. (The judge noted, however, that Morgan was still free to have these same witnesses present their opinion of T.F.'s character for honesty, so long as they did not go into specifics. See Alaska Evidence Rules 404(a)(8), 405, and 608.) Later, at trial, Judge Jahnke allowed Morgan's attorney to conduct what was essentially a voir dire examination of T.F. to see if she would concede (1) that she had previously accused the two other men of sexual assault and (2) that those prior accusations were false. But T.F. denied accusing these other men of sexual assault. In light of these answers, and given Judge Jahnke's earlier ruling, Morgan's attorney let the matter drop. The questions left unanswered by our decision in Covington In Covington, the defendant argued that he should have been allowed to present evidence suggesting that the complaining witness had falsely accused two other men of sexual abuse. The complaining witness agreed that she had accused the two men of abusing her, but she asserted that the accusations were true. Covington wanted to call one of the two men to the stand and have him deny the truth of the accusations. This Court noted that "[a] majority of the courts which have considered [this] issue permit such evidencel, but] only if the defendant makes a showing out of the presence of the jury that the witness'[s] prior allegations of sexual assault were false". We then declared that we would "adopt this rule for Alaska". The problem is that, even though a majority of states allow a defendant to raise the issue of a complaining witness's prior false accusations under certain circumstances, there is no "majority rule" concerning this evidence. Our sibling states rely on several different theories to justify allowing a defendant to inquire or present evidence concerning the complaining witness's prior accusations-and the scope of the permitted inquiry varies from state to state, depending on that state's legal rationale for allowing the inquiry. (a) Cam a defendant introduce extrinsic evidence of a complaining witness's prior false accusations? The court decisions in this area focus on two potential legal impediments to a defendant's right to introduce evidence of prior false accusations. The first impediment is the rule embodied in Alaska Evidence Rules 405 and 608: the prohibition against attacking a witness's character for honesty by presenting proof of specific instances in which the witness has acted dishonestly. The see-ond impediment is the rule that a party is not allowed to introduce extrinsic evidence to impeach a witness's answers on cross-examination regarding collateral matters (such as the witness's possible acts of dishonesty on other occasions). Adhering to these rules, the courts of New Mexico and Maryland allow a defendant to cross-examine the complaining witness about potentially false prior accusations, but these states bar the defendant from presenting extrinsic evidence to rebut or impeach the complaining witness's answers. Massachusetts appears to follow this same rule. Moreover, Massachusetts restricts the defendant's right of cross-examination to cases in which the complaining witness's testimony is confused or improbable, there is no corroboration, and the defendant produces evidence of a series or pattern of false accusations of the same type of sexual misconduct. Other courts have answered these potential objections by holding that, when a defendant is on trial for sexual assault, the complaining witness's prior false complaints of sexual assault constitute a special kind of prior falsehood that has particular relevance above and beyond the fact that it may indicate the witness's general character for dishonesty. In these states, a defendant may both cross-examine the complaining witness and present extrinsic evidence of prior false accusations if the complaining witness denies having made them. This result appears to be consistent with the common-law doctrine that a party could present evidence of a witness's "corruption"-a term that encompassed evidence of (1) the witness's general willingness to lie under oath, (2) the witness's offer to give false testimony for money or other reward, (8) the witness's acknowledgement of having lied under oath on prior occasions, (4) the witness's attempt to bribe another witness, or (5) the witness's pattern of presenting false legal claims. Dean Wigmore concedes that the precise theoretical foundation of this sort of impeachment is "not easy to determine" because, he says, the impeachment "is related in one aspect to interest, in another to bias, in still another to character (%4e., involving a lack of moral integrity)". Despite this ambiguity, Wigmore concludes that "the essential discrediting element" of the impeachment was its relevance to proving the witness's willingness to corrupt the legal process-the witness's "willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony". But the common-law rules of evidence have been superseded in most American jurisdictions by evidence codes modeled after the Federal Rules of Evidence, and not all courts believe that the common-law doctrine of impeachment for "corruption" has survived the enactment of these evidence codes. For example, the Texas Court of Criminal Appeals concluded that the practice of allowing a complaining witness to be impeached by evidence of prior false accusations "cannot easily be squared with the dictates of [Evidence] Rule 608(b)"-the rule that prohibits a party from attacking a witness's character for honesty by presenting evidence of specific instances in which the witness has acted dishonestly. Nevertheless, even these courts allow sexual assault defendants to delve into a complaining witness's prior false accusations when the cireumstances are particularly compelling. Thus, the Texas court, the Oregon Supreme Court, and the Kansas Court of Appeals have concluded that, despite the prohibition contained in their counterparts to Evidence Rule 608, the confrontation clause of the Constitution requires this kind of impeachment if the evidence of the complaining witness's fabrication is strong enough. We believe that this confrontation-clause rationale is, at its core, simply a restatement of the principle that, in sexual assault prosecutions, a complaining witness's prior false accusation of sexual assault can indeed have a special relevance-a relevance that removes this evidence from the normal ban on attacking a witness's general character for honesty through the use of specific instances of dishonesty. Thus, the confrontation-clause states effectively reach the same conclusion as the states which interpret their evidence rules to allow this type of impeachment: when there is strong evidence that the complaining witness has falsely accused others of sexual assault, this evidence is admissible. We therefore clarify our decision in Covington: if the defendant proves that a complaining witness has made prior false accusations of sexual assault (under the rules explained in the next section of this opinion), the defendant is not limited to cross-examining the complaining witness concerning these prior accusations. Rather, the defendant can both cross-examine the complaining witness and present extrinsic evidence on this point. (b) What is the defendant's foundational burden of proof? This brings us to the question: how does a defendant prove that a complaining witness has made false accusations of sexual assault? Again, there is no "majority rule" on this issue, even among the states that allow defendants to present extrinsic evidence of a complaining witness's false accusations. Louisiana and Wisconsin have perhaps the most wide-open rule. The Louisiana Supreme Court has declared that this issue is governed by Louisiana's counterpart to Alaska Evidence Rule 104(b). Thus, a Louisiana court will allow a defendant to introduce evidence tending to show that a complaining witness has made prior false accusations if the defendant merely offers "evidence sufficient to support [this] finding"-evidence from which a jury might reasonably conclude that the complaining witness had made a false accusation. The Wisconsin Supreme Court has reached this same conclusion. The Oregon rule of admissibility is somewhat stricter, but again judges are instructed not to resolve the disputed issue themselves. Rather, they are to let the defendant litigate the issue to the jury if there is "substantial evidence" that the prior accusation was false, and if the probative value of this evidence is not outweighed by the risk of unfair prejudice created by litigating this issue. In contrast to Louisiana, Wisconsin, and Oregon, other states require their trial judges to be more active "gate-keepers". In these states, the impeaching evidence is admissible only if the defendant first convinces the trial judge-sitting as a preliminary finder of fact-that (1) the complaining witness made another complaint of sexual assault, (2) this complaint was untrue, and (8) the complaining witness knew that the complaint was untrue. The courts use various phrases to describe the requisite showing of falsity; indeed, you will find different wording even among decisions from the same jurisdiction. Some courts require proof of "actual falsity" or a "reasonable probability of falsity" ; other courts require proof that the accusation is "demonstrably false" or "convincingly false" But despite these variations, all of these courts subscribe to the same underlying principle: It is not sufficient for the defendant to show that the prior accusation is "arguably false" or that the matter is reasonably debatable. Rather, the defendant will not be allowed to present this matter to the jury unless the defendant first convinces the trial judge that the complaining witness has knowingly made a false complaint of sexual assault. This is the approach we adopted in Covington , and we reaffirm it here. But what exactly must a defendant prove to establish the falsity of the complaining witness's prior accusation? In Covington, we stated that it was the defendant's burden to prove "that the witness'[s] prior allegations of sexual assault were false, as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity". The trial judge in the present case interpreted this language to mean that there are only two methods of proof available to a defendant, and both of these methods require formal litigation. The judge ruled that the Covington test could be met only by proof that the complaining witness has conceded, under oath, that the accusation was false, or by proof that a court has formally adjudicated the accusation to be false. We conclude that this is too narrow a reading of Covington. Unless the person named in the prior accusation brought and won a slander suit against the complaining witness, or unless the prior false accusation eventually led to the complaining witness's conviction for perjury, it will be rare that a tribunal will have directly adjudicated the truth or falsity of a prior accusation. If the accusation led to a eriminal prosecution and the defendant was acquitted, this proves only that the jury had a reasonable doubt concerning the truth of the accusation. In deed, courts from other states have ruled that not even the dismissal of a criminal prosecution at preliminary hearing-1ie., dismissal for lack of probable cause-is sufficient to establish the necessary foundational proof of falsity, since such dismissals can occur for reasons unrelated to the credibility of the complaining witness. The other suggested method of proof-formal concession, under oath, that the prior accusation was false-leaves a defendant at the merey of the complaining witness's conscience. Even when there is overwhelming evidence that a prior accusation was false, there will be times when the complaining witness will not concede this point. Moreover, even when the complaining witness has recanted under oath, this will not always resolve the true factual question: was the prior accusation actually false? The distinction between recantation and actual falsity is highlighted in State v. MacDonald, 131 Idaho 867, 956 P.2d 1314 (App.1998). The defendant in MacDonald was charged with rape. He wished to present evidence that when the complaining witness was a teenager, she had accused her adoptive father of sexual abuse but later formally recanted the charge. When the trial judge held a hearing on this matter, the complaining witness admitted that she had recanted the charge against her adoptive father, but she explained that she had done so only because of her family situation, and she declared that the charge had in fact been true. On this record, the Idaho Court of Appeals upheld the trial judge's decision to exclude evidence of the complaining witness's recantation. The appellate court concluded that the trial judge's decision was a valid exercise of discretion under Evidence Rule 403, since the probative value of the recantation was questionable and was outweighed by the risk of unfair prejudice and confusion of issues. In other words, a complaining witness's recantation is conclusive of the falsity of the prior accusation only when the validity of the recantation is not disputed. For these reasons, we conclude that the trial judge in the present case did not construe Covington correctly. Covington refers to recantations and prior adjudications as examples of how the falsity of a prior accusation might be proved, but the true issue-the question to be resolved by the trial judge-is whether the prior accusation was actually and knowingly false. We conclude that a defendant is entitled to 'rely on normal evi-dentiary methods-the presentation of witnesses, documents, and physical evidence-to prove this point to the trial judge at the foundational hearing. One final issue must be resolved: what standard of proof must the defendant meet when presenting the foundational proof that a complaining witness's prior accusation was knowingly false? We have already rejected the approach taken by Louisiana, Wisconsin, and Oregon-states that require the defendant to prove only that the falsity of the accusation is reasonably debatable. We also agree with other jurisdictions who hold that the alleged perpetrator's denial of the prior accusation is not sufficient, in itself, to establish the falsity of the accusation. Indeed, this was the offer of proof that the defendant made in Covington, and we held that this offer of proof was insufficient, as a matter of law, "[to] establish the falsity of the alleged prior complaints". This leaves us with a choice between two burdens of proof: proof by a preponderance of the evidence, and proof by clear and convincing evidence. As the Supreme Court of Hawai'i recently noted, "courts have varied widely with re spect to the standard of proof required" to establish the foundational showing of falsity. Based on its own prior decisions involving foundational proof, the Hawai'i court concluded that the proper burden of proof was preponderance of the evidence. Other states use a preponderance standard too. We acknowledge that some courts require "convincing" evidence of falsity, in order to make sure that juries are not distracted by debatable and possibly collateral informa-tions. Having considered this matter, we adopt "preponderance of the evidence" as the standard of proof that a defendant must meet when seeking to prove (as a foundational matter under Covington ) that the complaining witness has made a prior knowingly false accusation of sexual assault. If we were to adopt the "some evidence" test used in Louisiana and Wisconsin, a test which merely requires sufficient evidence to put the matter in doubt, then we would be encouraging trials within trials, and we would also throw open the doors to debates about a complaining witness's sexual history based on dubious evidence. We note that "preponderance of the evidence" is the: foundational standard commonly used in Alaska to determine similar questions of admissibility or exclusion. We also note that if we adopted the "clear and convincing evidence" standard, we would require trial judges to exclude evidence of a complaining witness's prior accusations of sexual assault even after the judge had concluded that those prior accusations were probably false. For these reasons, we conclude that "preponderance of the evidence" is the proper standard of proof. If, based on the defendant's evidence at the foundational hearing, the trial judge concludes that the defendant has demonstrated by a preponderance of the evidence that the complaining witness made a knowingly false accusation of sexual assault on another occasion, then the trial judge shall allow the defendant to present this evidence to the jury. If, on the other hand, the defendant fails to meet this standard of proof-either with respect to whether the complaining witness made the prior accusation, or with respect to whether that accusation was know ingly false-then the defendant's evidence will not be admissible. (On appeal, an appellate court will not disturb the trial judge's resolution of this question unless the trial judge's finding is clearly erroncous. ) Conclusion In the present case, the trial judge declined to hear the testimony of Morgan's four witnesses who were purportedly ready to assert that TF. had made knowingly false accusations of sexual assault in the past. This was error. The trial judge should have heard Morgan's witnesses and then decided whether Morgan had shown by a preponderance of the evidence that T.F. had made knowingly false accusations of sexual assault. We therefore remand this case to the superi- or court so that this foundational hearing can be held. If Morgan proves that T.F. made knowingly false accusations of sexual assault, then the trial judge should re-determine Morgan's guilt in light of this evidence. (Morgan was tried by the court sitting without a jury.) If, however, Morgan fails to meet this burden of proof, then the superior court should affirm Morgan's conviction. . Covington, 703 P.2d at 442. . See id., 703 P.2d at 441-42. . Id. at 442. . Id. . See Worthy v. State, 999 P.2d 771, (Alaska 2000): "As a general rule, contradictory evidence may not be admitted if it relates to a collateral matter. If a matter is considered collateral, the testimony of the witness on direct or cross-examination stands-the examiner must take the witness's answer. If the matter is not collateral, extrinsic evidence may be introduced disputing the witness's testimony on direct or cross-examination." . See State v. Scott, 113 N.M. 525, 828 P.2d 958, 963 (App.1991); State v. Cox, 298 Md. 173, 468 A.2d 319, 323-24 (1983). . See Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987, 991 (1978); Commonwealth v. Barresi, 46 Mass.App.Ct. 907, 705 N.E.2d 639, 641 (1999); Commonwealth v. Nichols, 37 Mass.App.Ct. 332, 639 N.E.2d 1088, 1090 (1994); Commonwealth v. Hicks, 23 Mass.App.Ct. 487, 503 N.E.2d 969, 972 (1987); Commonwealth v. Blair, 21 Mass.App.Ct. 625, 488 N.E.2d 1200, 1202-03 (1986). . See, eg., State v. Anderson, 211 Mont. 272, 686 P.2d 193, 199-200 (1984). . See Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); People v. McClure, 42 Ill.App.3d 952, 1 Ill.Dec. 617, 356 N.E.2d 899, 901 (1976); Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980); Beck v. State, 824 P.2d 385, 388-89 (Okla.Crim.App.1991); State v. Izzi, 115 R.I. 487, 348 A.2d 371, 372-73 (1975); Miller v. State, 105 Nev. 497, 779 P.2d 87, 89-90 (1989). . See John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev'n 1970), § 956-964, Vol. 3A, pp. 802-812. . Wigmore, § 956, Vol. 3A, pp. 802-03. . Lopez v. State, 18 S.W.3d 220, 225 (Tex.Crim.App.2000). . See Lopez 18 S.W.3d at 225; State v. Nab, 245 Or. 454, 421 P.2d 388, 390-91 (1966); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288, 1289-90 (1989). . Alaska Evidence Rule 104(b) states: "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." . State v. Smith, 743 So.2d 199, 203 (La.1999), citing Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988). . See State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600, 606-07 (1990). . See State v. LeClair, 83 Or.App. 121, 730 P.2d 609, 613-16 (1986). . State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209, 212-13 (App.1984). . Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288, 1290 (1989); Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 266 (1988). . State v. Superior Court, 154 Ariz. 624, 744 P.2d 725, 730-31 (App.1987), disapproved on other grounds by State v. Getz, 189 Ariz. 561, 944 P.2d 503, 506-07 (1997); Little v. State, 413 N.E2d 639, 643 (Ind.App.1980); State v. Anderson, 211 Mont. 272, 686 P.2d 193, 199-200 (1984); State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984). . Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981); State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984). . State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984). . See Covington, 703 P.2d at 442. . Id. at 442. . See United States v. Watts, 519 U.S. 148, 155, 117 S.Ct 633, 637, 136 LEd.2d 554 (1997); Dowling v. United States, 493 U.S. 342, 359-360, 110 S.Ct. 668, 678, 107 L.Ed.2d 708 (1990). . See State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209, 213 (App.1984); People v. Alexander, 116 Ill.App.3d 855, 72 Ill.Dec. 338, 452 N.E.2d 591, 595 (1983). . MacDonald, 956 P.2d at 1315-16. . Id. at 1316-17. . Id. at 1318. . See United States v. Withorn, 204 F.3d 790, 795 (8th Cir.2000); State v. Anderson, 211 Mont. 272, 686 P.2d 193, 200 (1984). . Covington, 703 P.2d at 442. . State v. West, 95 Hawai'i 452, 24 P.3d 648, 655 (2001). . Id. at 656. . See Miller v. State, 105 Nev. 497, 779 P.2d 87, 90 (1989). . See State v. White, 145 N.H. 544, 765 A.2d 156, 159 (2000); State v. Johnson, 102 N.M. 110, 692 P.2d 35, 43 (App.1984); Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981); see also Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 266 (1988) (holding that, because two of the complaining witness's claims were "patently untrue", there was a "reasonable probability" that two other accusations made by her were false as well). . The foundational facts required to establish the admissibility of a co-conspirator's statement must be proved to the trial judge by a preponderance of the evidence. Arnold v. State, 751 P.2d 494, 502 (Alaska App.1988). The government must prove the voluntariness of a defendant's confession by a preponderance of the evidence. John v. State, 35 P.3d 53, 62 (Alaska App.2001). False statements in an affidavit supporting a search warrant must be struck unless the State shows, by a preponderance of the evidence, that the statements were not made intentionally or with reckless disregard for the truth. State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); Wallace v. State, 933 P.2d 1157, 1163 (Alaska App.1997). The state bears the burden of proving the validity of a Miranda waiver by a preponderance of the evidence. State v. Ridgely, 732 P.2d 550, 554-55 (Alaska 1987). But compare Reutter v. State, 886 P.2d 1298, 1307-08 (Alaska App.1994), where the court rejected the "preponderance of the evidence" standard and held that the government must prove its foundational facts by clear and convincing evidence when it seeks to have a child victim in a sexual abuse case testify outside the presence of the defendant pursuant to AS 12.45.046: Given the constitution's express protection of confrontation as an individual right of the accused, and . [blecause of the integral role confrontation plays in the adjudication of innocence and guilt, and its direct bearing on the integrity of fact-finding at trial, . any risk of error in balancing the individual right against the countervailing public interest must fall on the side of protecting the innocent from an unjust conviction.... [The preponderance of the evidence standard cannot provide such protection, and no dilution of the right to confrontation should be permitted without an express finding that the requirements of AS 12.45.046 . have been met by clear and convincing evidence. . State v. West, 95 Hawai'i 452, 24 P.3d 648, 657 (2001). . See People v. Sheperd, 37 Colo.App. 336, 551 P.2d 210, 212-13 (1976); Shelton v. State, 196 Ga.App. 163, 395 S.E.2d 618, 620 (1990) (holding that when the trial judge has erroneously refused to hear the defendant's evidence of a possibly false accusation, the remedy is to give the defendant the opportunity to present the evidence).

10444499

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

Hentzner v. State

1980-06-20

No. 3649

821

829

613 P.2d 821

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

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

Harry HENTZNER, Appellant, v. STATE of Alaska, Appellee. No. 3649. Supreme Court of Alaska. June 20, 1980. Deborah Paquette, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant. Timothy Petumenos, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

5158

30358

OPINION MATTHEWS, Justice. Hentzner was convicted of two counts of offering and two counts of selling unregistered and non-exempt securities in violation of AS 45.55.070. He was sentenced to four concurrent sentences of five years in the penitentiary with four years suspended on the condition that he notify purchasers of his conviction and make restitution. On appeal, he contends that what he offered for sale and sold were not securities; that the trial court gave erroneous jury instructions on the definition of security and on the state of mind required for a conviction; and that mistakes concerning the admission and exclusion of evidence were made. I We turn first to a statement of the facts necessary for understanding this case. During the summer of 1968, Hentzner staked thirteen mining claims in an area northeast of Delta Junction. In 1974, he raised some $36,000 from investors in his native state of Wisconsin, with which he acquired mining equipment and began to mine. In February of 1975, in an effort to raise more money for mining, Hentzner placed advertisements in newspapers in Fairbanks and in Delta Junction. In them he offered to sell no more than 2,000 ounces of gold at the considerably below market price of $80 per ounce. Delivery was to be within six to eight months. The advertisement explained that the money would be used to finance mining to begin in the spring. Several people responded to the ads and ordered gold from Hentzner. In April of 1975, while on one of his mining claims, Hentzner was served with what he has described as an injunction to stop mining by an Alaska State Trooper. Evidently Hentzner obeyed what he regarded as the command of the state not to mine. He has not delivered gold to the investors. II At the close of the state's case, Hentzner moved for judgment of acquittal on the ground that the subject matter of his transactions was not a security as a matter of law. The motion was denied. In considering a motion for a judgment of acquittal, both at trial and on appeal, the court "must take the view of the evidence and the inferences therefrom most favorable to the state. If . fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt," the motion must be denied. Gray v. State, 463 P.2d 897, 905 (Alaska 1970). See, e. g., Gipson v. State, 609 P.2d 1038 (Alaska 1980), Martin v. State, 456 P.2d 462, 464-65 (Alaska 1969). When Hentzner performed the acts complained of the term "security" was defined as follows: AS. 45.55.130. (12) "security" means a note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificates; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title or lease or in any sale of or indenture or bond or contract for the conveyance of land or any interest in land; or, in general, any interest or instrument, commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing; "security" does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed sum of money either in a lump sum or periodically for life or for some other specified period; [Emphasis added]. The state contends that what Hentzner offered and sold was an investment contract as that term is used in the foregoing definition, and thus a security. In Securities and Exchange Com'n v. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), "investment contract" was defined as a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party . Id. 328 U.S. 299-300, 66 S.Ct. 1100-1103, 90 L.Ed. 1249. The United States Supreme Court has recently stated that this definition embodies the essential attributes that run through all of the Court's decisions defining a security. The touchstone is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. United Housing Foundation, Inc. v. Foreman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621, 632 (1975). Hentzner contends that the transactions at issue do not contain either the common enterprise or the profit from the efforts of others elements set forth in the Howey definition. We believe that both are readily present. The common enterprise requirement has come to mean only that the investor's financial interests must be "inextricably interwoven" with those of the promoter or third parties. Securities and Exchange Com'n v. Commodity Options International, Inc., 553 F.2d 628, 633 (9th Cir. 1977); Securities and Exchange Com'n v. Glen W. Turner Ent., 474 F.2d 476, 482 n. 7 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973); Hannon and Thomas, The Importance of Economic Reality and Risk in Defining Federal Securities, 25 Hastings L.J. 219, 236 (1973-74). That was the situation in this case. The advertisements made it clear that the money received from investors was to be pooled in order to buy mining equipment and supplies so that Hentzner could mine the gold he was contracting to sell. While Hentzner's obligation to deliver gold was not legally conditional upon his mining success, the plain implication of the ads was that a mining failure would result in nondelivery of the gold. Essentially the same thing can be said of the requirement that the expected profits come from the efforts of others. One who buys gold for investment purposes does so with the hope that its price will increase and that it can be sold at a profit. That expectation does not depend on the managerial efforts of the seller of gold, and such a transaction is therefore not ordinarily regarded as an investment contract. See, e. g., Sinva, Inc. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359, 366-67 (S.D.N.Y.1966). However, add to the buyer-seller relationship a continuing dependency by the buyer on the seller's expertise and ability in managing the investment and the efforts of others test is met. The contract will then be regarded as a security, assuming the other parts of the Howey definition are satisfied. See, e. g., Commodity Options International, Inc., 553 F.2d at 633; Glen W. Turner, Ent., Inc., 474 F.2d at 482 (the test is satisfied if the "efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise"); McClellan v. Sundholm, 89 Wash.2d 527, 574 P.2d 371, 374 (1978). Since the investors were in a position of continuing dependency on Hentzner's efforts to extract gold from the ground, the efforts of others test was satisfied. The form, as well as the substance, of Hentzner's plan was that investors would pay money to him so that he could mine gold, and if he did so successfully the investors would profit. The contracts he made fall squarely within the definition of an investment contract and are therefore securities. No error was committed in denying Hentzner's motion for judgment of acquittal. Ill AS 45.55.210(a) provides that upon a wilful violation of the Securities Act, including the registration requirement of AS 45.55.-070, one may be convicted of a felony punishable by a fine of not more than $5,000 or imprisonment for not less than one year nor more than five years, or both. As to each count of the indictment, the jury was instructed that in order to convict Hentzner it had to find that he acted wil-fully, unlawfully, feloniously, and with specific intent to violate the law. In response to questions from the jury expressing uncertainty over what state of mind was required, the trial judge stated that the term "feloniously" should be disregarded and that Hentzner did "not have to intentionally violate the law; he [did] have to intentionally do the acts which are prohibited by law." Hentzner argues that the state had to prove knowledge of wrongdoing in this case and that the instructions, especially as amended by the court following the jury's questions, were inadequate to convey this point. The state contends that the only state of mind required was an intention to offer and sell and the fact that Hentzner might not have known that those acts were unlawful or that his conduct was in any sense wrongful is not relevant. Thus, the state contends that the trial court's instructions were correct. The issue before us is the meaning of the word "wilfully" as used in AS 45.55.210(a). There are several possibilities. One is that the defendant must act intentionally in the sense that he is aware of what he is doing; another is that the defendant must be aware that what he is doing is illegal; and a third is that the defendant must know that what he is doing is wrong. It is in this last sense that we think "wilfully" should be interpreted as it is used in Section 210. We recognized in Speidel v. State, 460 P.2d 77, 78 (Alaska 1969) that criminal intent is an essential predicate of criminal liability. "It is said to be a universal rule that an injury can amount to a crime only when inflicted by intention — that conduct cannot be criminal unless it is shown that one charged with criminal conduct had an awareness or consciousness of some wrongdoing." [Footnote omitted]. We noted as well that the "general conditions of penal liability" require [N]ot only the doing of some act by the person to be held liable, but also the existence of a guilty mind during the commission of the act. Although an act may have been objectively wrongful, the mind and will of the doer of the act may have been innocent. In such a case the person cannot be punished for a crime, unless it is one such as the 'public welfare' type of offense, which we have discussed, where the penalties are relatively small and the conviction does no great damage to an offender's reputation. Id. at 80. We followed Speidel most recently in State v. Guest, 583 P.2d 836 (Alaska 1978). The issue in Guest was whether in a prosecution for statutory rape a reasonable belief by the defendant that the victim was of, or older than, the age of consent was a defense. We answered that question in the affirmative stating that "[t]o refuse such a defense would be to impose criminal liability without any criminal mental element." Id. at 839. Where the crime involved may be said to be malum in se, that is, one which reasoning members of society regard as condemnable, awareness of the commission of the act necessarily carries with it an awareness of wrongdoing. In such a case the requirement of criminal intent is met upon proof of conscious action, and it would be entirely acceptable to define the word "wilfully" to mean no more than a consciousness of the conduct in question. See Alex v. State, 484 P.2d 677, 680-82 (Alaska 1971). However, where the conduct charged is malum prohibitum there is no broad societal concurrence that it is inherently bad. Consciousness on the part of the actor that he is doing the act does not carry with it an implication that he is aware that what he is doing is wrong. In such cases, more than mere conscious action is needed to satisfy the criminal intent requirement. The criminal conduct charged in Speidel, failure to return a rented car at the time stated in the agreement, fell within this category. We held that proof of a conscious purpose to injure the owner of the vehicle was required to sustain a conviction. 460 P.2d at 80-82. The crime of offering to sell or selling unregistered securities is malum prohibi-tum, not malum in se. Thus, criminal intent in the sense of consciousness of wrongdoing should be regarded as a separate element of the offense, unless the public welfare offense exception referred to in Speidel applies. The public welfare offense exception encompasses a narrow class of regulations "caused primarily by the industrial revolution, out of which grew the necessity of imposing more stringent duties on those connected with particular industries, trades, properties, or activities that affect public health, safety or welfare." Speidel, 460 P.2d at 78 (citation omitted). The penalties imposed for public welfare offenses " 'commonly are relatively small, and conviction does no grave damage to an offender's reputation.' " Id. at 79, quoting Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 297 (1952). We do not think that the offenses of which Hentzner was convicted fall within the public welfare offense exception, because the penalty for violating them is not small. Hentzner could have been sentenced to a maximum term of imprisonment of twenty years; he has been sentenced to a one year prison term which, should he violate a condition of probation, might easily be extended to five years. Such a sentence must carry with it considerable societal opprobrium. "[T]he infamy is that of a felony, which, says Maitland, is '. . .as bad a word as you can give to a man or a thing.' " Morissette, 342 U.S. at 260, 72 S.Ct. at 248, 96 L.Ed. at 299. (Footnote omitted). The criminal intent requirement of Spei-del and Guest is based on the constitutional requirement of due process. We construed the statute involved in Guest to include criminal intent as an element of the offense proscribed in order to avoid finding the statute unconstitutional. Guest, 583 P.2d at 839. We construe "wilfully" as it is used in AS 45.55.210(a) to require an awareness of wrongdoing for the same reason. There is substantial authority holding that in securities crimes prosecuted under statutes similar in structure to AS 45.55.-210(a), "wilful" requires awareness of wrongdoing as an essential element of the offense. In United States v. Peltz, 433 F.2d 48 (2nd Cir. 1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971), Judge Friendly, writing for the court, addressed the question of what mental state the government must prove in order to establish criminal liability under Section 32(a) of the Securities Exchange Act. Referring to an article by Judge Herlands, Criminal Law Aspects of the Securities Exchange Act of 1934, 21 Va.L.Rev. 139 (1934), he stated: The Herlands article concluded it was necessary only that "the prosecution establishes a realization on the defendant's part that he was doing a wrongful act," 21 Va.L.Rev. at 149. We accept this with the qualifications, doubtless intended by the author, that the act be wrongful under the securities laws and that the knowingly wrongful act involve a significant risk of effecting the violation that has occurred. 433 F.2d at 55 (citations omitted). The Peltz formulation has been followed in United States v. Chiarella, 588 F.2d 1358, 1370-71 (2nd Cir. 1978), cert. denied, 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979); United States v. Charnay, 537 F.2d 341, 352 (9th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 527, 50 L.Ed.2d 610 (1976); United States v. Dixon, 536 F.2d 1388, 1395 (2d Cir. 1976); State v. Cox, 17 Wash.App. 896, 566 P.2d 935, 940 (1977), cert. denied, 439 U.S. 823, 99 S.Ct. 90, 58 L.Ed.2d 115 (1978). Other authorities requiring an awareness of wrongdoing as the mental state applicable in securities law prosecutions include United States v. Crosby, 294 F.2d 928, 948 (2nd Cir. 1961); and Van Antwerp v. State, 358 So.2d 782, 786 (Ala.Cr.App.1978). In United States v. Dardi, 330 F.2d 316, 331 (2nd Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964), the trial court charge that an act was wilful if "done knowingly, deliberately and with evil motive or purpose" was approved. In Tarvestad v. United States, 418 F.2d 1043, 1047 (8th Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970), the trial court instructed the jury that an act is done wilfully "if it is done knowingly and deliberately with bad purpose," and charged that good faith was a complete defense. The court of appeals did not rule that these instructions were required, being content to conclude that they satisfied any requirement for evil motive which the law imposed. A similar charge received a similar response by the Fifth Circuit in Roe v. United States, 316 F.2d 617, 621 n. 9 (5th Cir. 1963). There is contrary authority which supports the state's position, United States v. Caster Channel Wing Corp., 376 F.2d 675, 680-82 (4th Cir.), cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119, reh. denied, 389 U.S. 998, 88 S.Ct. 458, 19 L.Ed.2d 503 (1967); United States v. Sussman, 37 F.Supp. 294, 296-97 (E.D.Pa.1941); State v. Burrow, 13 Ariz.App. 130, 474 P.2d 849 (1970); People v. Clem, 39 Cal.App.3d 539, 114 Cal.Rptr. 359 (1974); State v. Hodge, 204 Kan. 98, 460 P.2d 596, 604 (1969); State v. Russell, 119 N.J.Super. 344, 291 A.2d 583, 587 (1972), but we do not find it persuasive. In Sussman, a trial judge, with no discussion or citation of authority upheld the validity of his own instruction to the jury on the meaning of wilfully. In Custer, awareness of wrongdoing was not actually in issue since the case was a criminal contempt proceeding resulting from violation of a court order of which defendants had knowledge. The state cases are notable in at least two other respects both of which make them inapplicable to this case. First, Clem, Hodge and Russell, strongly rely on the Commissioner's Note pertaining to the meaning of "wilfully" used in section 204(a)(2)(B) of the Uniform Securities Act which states: As the federal courts and the SEC have construed the term "willfully" in section 15(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78o (b), all that is required is proof that the person acted intentionally in the sense that he was aware of what he was going. Proof of evil motive or intent to violate the law, or knowledge that the law was being violated, is not required. The principal function of the word "willfully" is thus to serve as a legislative hint of self restraint to the Administrator. 7A ULA 591 (1978). The section of the Uniform Securities Act commented on solely involves administrative sanctions, as does the federal law section to which the comment refers. A Commissioner's Note appended to the criminal penalty section of the Uniform Act, Section 409(a), does refer the reader to the note following 204(a)(2)(B). 7A ULA 665 (1978). However, at least two commentators, including Professor Loss who was the draftsman of the Uniform Act, id. at 562, have expressed substantial doubt as to whether the meaning of "wilfully" for administrative enforcement purposes is the same as for purposes of criminal liability. 2 L. Loss, Securities Regulation ch. 8(B), at 1309 (1961); James, note 7 supra at 3, 14, 61. Moreover, the United Securities Act was approved by the Commissioners in 1956. 7A ULA 561. The Commissioner's Note thus antedates almost all of the cases construing the word "wilfully" in the context of criminal prosecutions under the federal securities acts and, understandably, does not accurately summarize what those cases hold. Our second observation is that Burrow and Russell acknowledge that the absence of a requirement of awareness of wrongdoing makes the crime of selling unregistered securities one of strict liability. Burrow, 474 P.2d at 851; Russell, 291 A.2d at 587. This court has consistently stated that strict criminal liability may not constitutionally be imposed for serious crimes, Guest, 583 P.2d at 839; Kimoktoak v. State, 584 P.2d 25, 29 (Alaska 1978); Alex, 484 P.2d at 681; Speidel, 460 P.2d at 80. We believe, therefore, that these authorities cannot be reconciled with our prior decisions. IY Another claim of error is that expert testimony that Hentzner's contracts were securities should not have been admitted. The state has confessed error on this point and contends only that the error was harmless. In view of our disposition of this case, the issue need not be addressed. Hentzner also contends that his cross-examination of two investor witnesses was unduly restricted by the trial court. He argues that he was barred from asking the investors what they thought they were buying. The only objection which was sustained on this point was made during the testimony of the witness Largin. Hentz-ner's counsel then made an offer of proof that Largin would testify that all she was buying was gold, not an interest in Hentz-ner's mine. Subsequently, Largin so testified before the jury. Thus, there is no basis for this claim of error. Hentzner also claims that the instructions to the jury pertaining to the definition of an investment contract were erroneous. Specifically he claims that the court's instructions did not include the elements of common enterprise and dependency on the efforts of others. The state in response, does not defend the instructions on the merits. Instead, it contends that Hentzner did not properly object to them at trial and that they were adequate under the facts of this case because the omitted elements were present as a matter of law. Since Hentz-ner's conviction must be reversed on other grounds we need do no more than express our view that in the event of a re-trial the jury should be given an instruction which sets forth the constituent elements of an investment contract. United States v. Carman, 577 F.2d 556, 563 (9th Cir. 1978); United States v. Austin, 462 F.2d 724, 736-37 (10th Cir.) cert. denied, 409 U.S. 1048, 93 S.Ct. 518, 34 L.Ed.2d 501 (1972); Roe v. United States, 287 F.2d 435, 440-41 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961). REVERSED AND REMANDED. . AS 45.55.070 provides: Registration requirement. It is unlawful for a person to offer or sell a security in this state unless (1) it is registered under this chapter or (2) the security or transaction is exempted under § 140 of this chapter. . The full text of the advertisement placed in the Delta Junction newspaper is as follows: ORDER NOW ORDER NOW GOLD SALE $80 OUNCE Only 2,000 ounces at this price FOUR DAYS ONLY A chance to double and even triple your money within the next six to eight months. Many financial men predict that gold could reach $300 by the end of this year. WHY AM 1 SELLING GOLD FOR ONLY $80 AN OUNCE? I need your HELP to buy mining equipment, fuel, supplies, payrol, etc. to start mining this spring. You HELP me out, and I am willing to let the first 2,000 ounces of GOLD go on sale for $80 an ounce. Over $45,000 was spent last summer on the Pilot Testing of the ores, and the chances of succeeding are 99%, and only 1% chance of failure. Our mines are located in Black Mountain, Tibbs Creek, Goodpaster area, about 110 air miles Southeast of Fairbanks and 50 air miles Northeast of Delta Junction, Alaska. Arrangements have been made for delivery from the Refinery, directly to the Banks in this area, for disbursement of your gold orders. Please allow six to eight months for delivery. 400 ounce Ingot $32,000 100 " " 8,000 50 " " 4,000 5 " Bar 400 1 " " 80 >/2 " Wafer 40 ¼ " " 20 All gold will be certified as to value and fineness of 99.5% or better. Sale starts Friday February 28, 1975 EVERGREEN INN — DINING ROOM From 10:00 A.M. until 7:00 P.M. Daily Many people will consider this a gamble, but I am gambling on my name and reputation, and that the people in this area will give me their HELP. I have spent thousands of dollars in Delta Junction, and I expect to spend hundreds of thousands of dollars in the future. Any HELP will be greatly appreciated, and should be profitable to you for any gold purchased. No order too small, nor too large, up to 2,000 ounces. Based on First Come, First Served. Thank you, Harry J. Hentzner Black Sands Mining Company P.O. Box 606 Delta Jet., Alaska 99737 . The documents which were served on Hentz-ner are not in the record. . This definition is nearly the same as the definition of security found in Section 401(1) of the Uniform Securities Act, 7A ULA 628 (1978), and in section 2(1) of the Securities Act of 1933, as amended, 15 U.S.C. § 77b(l). . Thus the ad placed in the Delta Junction newspaper refers to a "1% chance of failure" and states, "many people will consider this a gamble, but I am gambling on my name and reputation, and that the people in this area will give me their HELP." . See note 1. . AS 45.55.210(a) provides: Criminal penalties, (a) A person who wilfully violates a provision of this chapter except § 160 of this chapter, or who wilfully violates a rule or order under this chapter, or who wilfully violates § 160 of this chapter knowing the statement made to be false or misleading in a material respect or the omission to be misleading by any material respect, upon conviction, is punishable by a fine of not more than $5,000, or by imprisonment for not less than one year nor more than five years, or both. Upon conviction of an individual for a felony under this chapter, imprisonment for not less than one year is mandatory. However, no individual may be imprisoned for the violation of a rule or order if he proves that he had no knowledge of the rule or order. No indictment or information may be returned under this chapter more than five years after the alleged violation. [Emphasis added]. . The jury instructions provided in relevant part: As used in these instructions, the word "unlawfully" means contrary to law. "Willfully" is defined as an act done intentionally and purposely and with specific intent to do that which the law forbids. "Feloniously" means with criminal intent and evil purpose. The crimes charged in this case require proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the acts. To establish specific intent the State must prove that the defendant willfully offered to sell unregistered and non-exempt securities and willfully sold unregistered and non-exempt securities. Such intent may be determined from all the facts and circumstances surrounding the case. .See James, Culpability Predicates For Federal Securities Laws Sanctions: The Present Law And The Proposed Federal Securities Code, 12 Harv.J. on Legislation 1, 5-6 (1974-5). . See, e. g., People v. Ferguson, 134 Cal.App. 41, 52-53, 24 P.2d 965, 970 (1933) where the court stated in a securities prosecution: It is true generally that where the act is knowingly and willfully done the act imports the intent. People v. O'Brien, . . 31 P. 45, which case we had recent occasion to consider; see People v. A. L. Ferguson, 18 P.2d 741. However, it occurs to us that a different situation is here presented. The regulation which has not been complied with is malum prohibitum and not malum in se. It covers one of the most complicated phases of modern commercial life. The statute can be read strictly or liberally, according to the type of mind applied to it. . The case of changing a public record, as in the O'Brien Case or of the possession of metal knuckles as in the A. L. Ferguson Case, were instances of knowingly doing that which the law prohibits. In such instances the act imputes the intent. In the instant circumstance the act does not impute intent. Id at 970. . See, e. g., State v. Burrow, 13 Ariz.App. 130, 474 P.2d 849, 851 (1970); State v. Russell, 119 N.J.Super. 344, 291 A.2d 583, 586 (1972); 2 L. Loss, Securities Regulation Ch. 8(B), at 1309 (1961). . In the past half century the United States Supreme Court has several times construed "wilfully" as used in criminal statutes to include at least an awareness of wrongdoing. Thus, in United States v. Murdoch, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933) the Court concluded that use of the word "wilfully" in a criminal statute prohibiting the wilful failure to supply information relating to income tax returns meant that evil intent was a constituent element of the crime. Murdoch was reaffirmed in Spies v. United States, 317 U.S. 492, 498, 63 S.Ct. 364, 368, 87 L.Ed. 418, 422 (1943) ("we would expect willfulness in such a case to include some element of evil motive . . . ."). In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the plurality opinion of the Court stated concerning the meaning of "willfully:" But 'when used in a criminal statute it generally means an act done with a bad purpose. In that event something more is required than the doing of the act proscribed by the statute. . . . An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. 325 U.S. at 101, 65 S.Ct. at 1035, 89 L.Ed. at 1502. (Citations omitted). . In Charnay the court stated on rehearing: Although we did state that the cases have held that there is no requirement of proof that a defendant knew he was violating a particular S.E.C. rule, we did not hold that scienter per se was not a required element of the offense. Rather we noted that it was necessary for the prosecution to show an intentional act with "a realization on the defendant's part that he was doing a wrongful act." 537 F.2d at 358. . The State would add to this list, a recent Colorado decision, People v. Blair, 579 P.2d 1133 (Colo.1978). The state's reading of this case is, however, debatable because the court affirmed the conviction only after satisfying itself that the "thrust" of the instructions "was that, in order for the jury to convict the defendant, it must find that he actually knew that the statements were misleading." Id. at 1138.

9019717

Gregory O. BROWN and Karl H. Greenewald, Jr., individually and derivatively on behalf of Huna Totem Corporation, Appellants, v. Albert W. DICK, Bertha M. Franulovich, Sam M. Hanlon, Jr., Ernest W. Hillman, Jr., Ernest Jack, William O. "Ozzie" Sheakley, and Peter D. Hocson, individually and in their capacity as shareholders, officers and directors of Huna Totem Corporation, Appellees

Brown v. Dick

2005-01-21

No. S-10976

260

267

107 P.3d 260

107

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Gregory O. BROWN and Karl H. Greenewald, Jr., individually and derivatively on behalf of Huna Totem Corporation, Appellants, v. Albert W. DICK, Bertha M. Franulovich, Sam M. Hanlon, Jr., Ernest W. Hillman, Jr., Ernest Jack, William O. “Ozzie” Sheakley, and Peter D. Hocson, individually and in their capacity as shareholders, officers and directors of Huna Totem Corporation, Appellees.

Gregory O. BROWN and Karl H. Greenewald, Jr., individually and derivatively on behalf of Huna Totem Corporation, Appellants, v. Albert W. DICK, Bertha M. Franulovich, Sam M. Hanlon, Jr., Ernest W. Hillman, Jr., Ernest Jack, William O. “Ozzie” Sheakley, and Peter D. Hocson, individually and in their capacity as shareholders, officers and directors of Huna Totem Corporation, Appellees. No. S-10976. Supreme Court of Alaska. Jan. 21, 2005. Rehearing Granted in part March 15, 2005. Fred W. Triem, Petersburg, for Appellants. Barbra Zan Nault, Bankston, Gronning, O’Hara, Sedor, Mills, Givens & Heaphey, P.C., Anchorage, Bruce E. Gagnon, Atkinson, Conway & Gagnon, Anchorage, and Daniel G. Bruce, Baxter, Bruce & Sullivan, P.C., Juneau, for Appellees. Before: BRYNER, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices.

3841

25171

OPINION BRYNER, Chief Justice. I. INTRODUCTION The Huna Totem Corporation proposed a land exchange that became controversial and sparked a struggle for control of Huna's board of directors; the struggle ended in an unsuccessful superior court action against individual members of Huna's board. The pivotal issue on appeal is whether the superior court should have awarded nominal damages against the directors for violating two proxy disclosure requirements. We hold that, because the violations occurred inadvertently as a result of the board's good-faith reliance on expiert advice and thus did not amount to a fiduciary breach, the superior court properly denied nominal damages. II. FACTS AND PROCEEDINGS In early 1997 the Huna Totem Corporation's board of directors unanimously voted to exchange corporate land for land held by the United States Forest Service. The proposed exchange eventually became controversial. Some dissident Huna shareholders led by Gregory Brown and Karl Greenewald, Jr., (collectively, Brown) organized a group named Shareholders for Shareholders (SFS) to recall the existing board of directors and amend Huna's bylaws to block the proposed exchange. Huna and SFS issued competing proxies before the corporation's May 1999 annual meeting. Both organizations subsequently complained to the Alaska Department of Community and Economic Development's Division of Banking, Securities, and Corporations (the Division), alleging numerous proxy violations and irregularities. Huna held its annual meeting and elections soon after the Division received these complaints; the SFS recall and proposed bylaw amendments received insufficient votes to prevail. Brown then filed suit in superior court against Huna's CEO and individual members of its board of directors, alleging violations similar to those charged in the earlier complaints before the Division and seeking injunctive relief, a declaratory judgment, compensatory and punitive damages, and an award of costs and attorney's fees. Because the issues in the superior court case paralleled those raised in SFS's complaint to the Division, the court ordered the civil case to be stayed until the Division decided the administrative action. The court indicated that either party could then reactivate the superior court case by appealing the Division's ruling or seeking direct resolution of any issues that the Division left undecided. In issuing this order, the superior court relied on Wade Oilfield Service Co. v. Providence Washington Insurance Co. of Alaska. There, we considered an analogous situation and held that when a superior court case raises regulatory issues involving agency expertise that are simultaneously raised in a pending administrative proceeding, the doctrine of primary jurisdiction allows the court to stay the judicial action and retain jurisdiction until the administrative proceeding is finally resolved, after which either party could seek review of the agency's ruling under applicable law governing administrative appeals. SFS did not contest the stay pending completion of the Division's proceedings. After the superior court issued its stay, the Division investigated the parties' complaints and entered a temporary cease and desist order against Huna, as well as a notice of intent to levy fines against the company and a notice of right to a hearing; these orders provisionally found the company guilty of four separate proxy violations, directed it to cease and desist, announced that it would be subject to fines totaling $10,000, and notified it that these temporary provisions would become the Division's final order if Huna failed to request a hearing within fifteen days. Huna requested a hearing to contest the temporary order's findings, and an administrative law judge was appointed to hear the proceeding. The Division and Huna subsequently entered into a consent agreement that resolved the cease and desist order's charges and set out various findings. As to two of the four most prominent violations charged by the temporary cease and desist order — failing to spell out SFS's proposed amendment in Huna's proxy solicitation materials and failing to provide a box in the proxy for shareholders to specify their voting preference — the consent decree set out the Division's finding that Huna had committed these violations but had acted inadvertently. As to the cease and desist order's two other prominent charges — alleged misstatements in two election flyers (the "Know the Facts" and "Code of Conduct" flyers)— the consent decree expressly provided that, in the interest of settlement, the Division agreed not to pursue these allegations. And as to all other alleged violations, the decree stated that the Division found these allegations to be either factually unsupported or insufficiently material to warrant further action. The consent decree specifically declared itself to be "a final settlement of Huna's liability"; it further specified that it would "remain in full force and effect and be binding until it is amended or vacated by further order of the Administrator or the mutual agreement of the parties." After the consent decree was entered, Brown moved to reopen the dormant superi- or court case and asked for judicial notice of the consent decree and the Division's findings of fact. The superior court granted the motion in part. While declining to take notice of the Division's findings of fact, the court lifted the stay, directed the civil action to proceed, and took judicial notice of the decree as the Division's final decision, ruling that Brown had exhausted his administrative remedies. As already mentioned, the court's earlier order staying the civil case stated that either party would be allowed to contest the Division's final decision by following the applicable procedures for pursuing an administrative appeal to the superior court. The order had also established that the superior court would directly resolve any issues left unresolved in the administrative proceeding. Brown did not contest the superior court's order treating the consent decree as the Division's final decision. Nor did either party seek to appeal any aspect of that decision. The superior court thus set the matter for trial to resolve issues left undecided by the Division's consent decree. By then, Brown had dropped the plaintiffs' claim for injunctive relief and compensatory damages. The only remedy still sought was a judgment declaring that the individual defendants had breached their fiduciary duty and an award of nominal damages against them based on that breach. Given this procedural setting, the superior court viewed the consent decree as leaving four issues to be decided at trial. The first two issues focused on the consent decree's finding that Huna had inadvertently committed two proxy violations; the court sought to determine whether either violation amounted to a fiduciary breach warranting an award of nominal damages. The two remaining issues focused on the two allegedly misleading proxy flyers— the "Know the Facts" flyer and the "Code of Conduct" flyer — that the consent decree had expressly declined to address. Shortly before trial, Brown asked the superior court to take judicial notice of the findings of intentional and knowing proxy violations set out in the Division's temporary cease and desist order and to treat those findings as continuing to be valid and binding. But while agreeing to take notice of the temporary order's existence, the court declined to regard its findings as having any continuing force and effect. At trial, the defendants presented evidence to bolster the consent decree's finding that the two proxy violations resulted from inadvertent and good-faith actions; they also sought to show that the disputed proxy flyers were not materially misleading. After a two-day trial the superior court entered extensive oral findings of fact and conclusions of law on the record, and also issued a thorough written decision. The court ruled in favor of the defendants, concluding that Brown had failed to prove a fiduciary breach warranting nominal damages. Specifically, regarding the two inadvertent proxy violations described in the Division's consent decree, the superior court found that Huna's directors and CEO had acted in good-faith reliance on expert advice that they had received from competent, unbiased legal and securities counsel. The court concluded that no breach of fiduciary duties occurred under these circumstances. Relying on case law from Delaware and Arizona, moreover, the court further ruled that it would be inappropriate to award nominal damages for these inadvertent and good-faith errors — particularly because Brown had failed to allege or prove that the plaintiffs had actually suffered any compensable economic harm. Turning next to the two disputed proxy flyers, the court evaluated the totality of the circumstances surrounding their preparation and issuance. As to the "Code of Conduct" flyer, the court expressly found that testimony offered at trial by the plaintiffs lacked credibility; while noting that the flyer itself could have been "more complete," the court found that it was not materially misleading when viewed in context. Regarding the "Know the Facts" flyer, the court similarly observed that, while it might have been clearer, the flyer did not misstate or omit material facts and would likely have been understood as a fair response to statements by SFS members. And in any event, the court concluded, the flyer did not amount to a fiduciary breach and so would not support Brown's request for nominal damages. Based on this ruling, the court entered final judgment against Brown. Brown appeals. III. DISCUSSION On appeal, Brown raises several intertwined claims of error and generally accuses the defendants of flagrant misconduct: "The six dominant directors and their CEO used an illegal scheme to steal a corporate election — They put their hands over the ballot box and prevented shareholders from voting in the directors' recall — The directors' obvious motive was entrenchment." But these claims tilt the facts and the law in Brown's direction: they largely ignore the superior court's careful findings, and draw scant support from the record. A. Proxy Violations Brown argues at length that the defendants knowingly committed multiple violations of corporate and securities law by neglecting to set out the SFS initiative in detail in its proxy materials and by failing to provide boxes on the proxy for shareholders to mark their voting preferences. Yet the defendants do not dispute that these circum stances amounted to proxy violations. They emphasize instead that the Division's consent decree and the superior court's decision expressly found the violations to be inadvertent errors resulting from the defendants' good-faith reliance on advice they obtained from a qualified expert on proxy solicitations. We agree with the defendants' position that the nature and scope of these violations is fixed by the Division's findings in the consent decree, which Brown failed to appeal, and by the superior court's findings, which Brown has not persuasively refuted. The Division's finding of inadvertence was incorporated in the consent decree, which the superior court specifically characterized as a final administrative determination from which either party could appeal to the superi- or court. Brown asserts in his reply brief that he could not have appealed from the consent decree. Yet the superior court's express orders to the contrary belie this conclu-sory assertion. The court's order staying the case specifically decided that the Division's final determination would be subject to an administrative appeal under the approach described in Wade Oilfield Service Co. v. Providence Washington Ins. Co. of Alaska. And the court's subsequent order dissolving the stay expressly deemed the consent decree to be the Division's final decision. Brown challenges neither order, which together unambiguously required him to appeal any disputed finding embodied in the consent decree. Because his failure to appeal the point to the superior court precluded the preparation of an administrative record and prevented that court from reviewing the Division's finding that the violations amounted to inadvertent technical errors, Brown is now bound by this characterization and is barred from advancing a contrary argument here. Brown nonetheless maintains that the consent decree was merely a settlement agreement to dismiss the Division's charges, and so could not contain any meaningful findings. The Division's true findings, according to Brown, are located in its earlier cease and desist order; and these findings continue to be binding, Brown insists, because they have never been vacated. Since the cease and desist order's findings characterize the defendants' violations as knowing or intentional actions that amount to fiduciary breaches, Brown contends, these findings bar the defendants from claiming inadvertence and good-faith reliance. On its face, however, the cease and desist order was designated as a temporary order. Moreover, its findings were merely preliminary: they were provisionally slated to become final and binding only if Huna failed to request a hearing. As it happened, Huna did file a timely request for a hearing, so the findings remained mere allegations. And although the ensuing consent decree undeniably reflected an amicable settlement, it hardly resulted in an outright dismissal of the administrative proceeding. Instead, the decree required Huna to relinquish its right to dispute the charges of committing two proxy violations and called for it to agree to pay the Division a substantial sum as costs of investigation. In return, the Division set out formal and final findings that Huna had committed two proxy violations that were inadvertent; it agreed to drop the cease and desist order's allegations stemming from Huna's two proxy flyers; and it found all other alleged irregularities to be factually unsupported or inconsequential. As the defendants correctly observe, these findings by the Division superseded, and thus effectively vacated, the temporary cease and desist order's prior findings. The superior court properly viewed the consent decree as incorporating the Division's formal and binding findings. Brown separately asserts that the superior court erred in excusing the defendants of fiduciary breaches even if they acted inadvertently and out of good-faith reliance. Because intentional misconduct or bad faith is unnecessary for a violation of securities laws, Brown reasons, the superior court's reliance on inadvertence and good faith erroneously required him to prove scienter. But this argument conflates proof of a violation with proof of a corporate director's or officer's individual liability for fiduciary breach: while good faith and inadvertence may be irrelevant as to the former, this is not necessarily so as to the latter. As the superior court tacitly recognized, AS 10.06.450(b) controls the issue for corporate directors, requiring directors to perform their duties in good faith . and with the care, including reasonable inquiry, that an ordinarily prudent person in a like position would use under similar' circumstances. [Except when a director knows that reliance is unwarranted], a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by . counsel, public accountants, or other persons as to matters that the director reasonably believes to be within the person's professional or expert competence.[ ] Corporate officers are governed by a similar provision set out in AS 10.06.483. The superior court thus properly took stock of inadvertence and good-faith reliance in evaluating the defendants' individual liability for fiduciary breach. Brown insists that these protections do not extend to entrenchment cases like this one, where directors have breached their fiduciary duty of loyalty by impairing the shareholders' voting rights. He cites a United States District Court case from Nevada, Shoen v. AMERCO, as a "useful model for the rule needed here in Alaska." But Brown overstates Shoen's ruling, which seems to preclude good-faith reliance on experts as a defense in shareholder voting eases only when the action in question intentionally impairs the shareholder vote: [W]hile "the reasonable exercise of good faith and due care generally validates, in equity, the exercise of legal authority even if the act" has the effect oí entrenching incumbent board members, "action designed for the primary purpose of interfering with the effectiveness of a stockholder vote" is subject to a standard of review more demanding than the business judgment rule. In such a case, the board bears "the heavy burden of demonstrating a compelling justification for such action." It is this concern "for credible corporate democracy!] [that] underlies those eases that strike down board action that sets or moves an annual meeting date upon a finding that such action was intended to thwart a shareholder group from effectively mounting an election campaign."[ ] Here, despite Brown's arguments to the contrary, the Division's finding of inadvertence precludes any contention that the proxy violations were "intended to thwart [SFS] from effectively mounting an election campaign." B. Proxy Flyers Brown briefly advances a similar claim that the "Code of Conduct" and "Know the Facts" proxy flyers violated the law by im-permissibly misleading Huna shareholders and disparaging SFS candidates. In raising this claim, Brown avoids directly addressing the superior court's decision, which concluded that neither flyer materially violated applicable regulations. Brown does not contend that the factual findings underlying these conclusions were unsupported by the evidence at trial; nor does he specify how the court's reasoning might be legally flawed. Instead, Brown simply asserts that the temporary cease and desist order's findings conclusively establish that the defendants intentionally committed multiple proxy violations. As already discussed above, however, the temporary cease and desist order's findings were superseded by the subsequent consent decree, which expressly left the proxy-flyer issues unresolved. The superior court heard evidence on these issues at trial and resolved them in its decision. Brown has failed to demonstrate that the superior court erred on this point. C. Other Alleged Violations Brown salts his brief with various allegations of additional proxy violations. He argues, for example, that Huna improperly "put its thumb on the election scales by paying for proxies." He suggests that the defendants improperly spent corporate funds and resources to influence the election. He also claims that they exacerbated the situation by delaying Huna's distribution of required proxy information. But the consent decree implicitly addressed these points by expressly providing that "all other allegations were found not to be supported by the facts or not to rise to the level of materiality required for administrative action." Given Brown's failure to appeal this finding to the superior court, it appears to control these miscellaneous points. D. Nominal Damages Last, Brown insists that the superior court erred in failing to hold the defendants liable for nominal damages, even if it properly found that their violations reflected inadvertent and good-faith reliance, and even though no actual harm was alleged or proved. According to Brown, nominal damages are appropriate and should be awarded as a matter of course for any proxy violation in a shareholder election case. Brown cites an array of Delaware cases and the United States District Court's ruling in Shoen v. AMERCO to support his proposal to adopt a per se nominal damages rule. We find Brown's argument unpersuasive, since we do not read the authorities he cites to create a blanket rule requiring courts to award nominal damages against individual directors and officers for innocent proxy violations in shareholder election contests. The defendants persuasively argue that the Delaware eases only approve nominal damages when actual economic harm is proved or apparent. Furthermore, as already indicated, Shoen suggests that director-liability in such cases for good-faith or innocent violations should be limited to violations stemming from conduct designed to restrict shareholders' voting rights. And a more recent decision by the Arizona Court of Appeals involving the same parties and controversy at issue in Shoen flatly held that nominal damages may not be awarded without proof that actual economic harm has occurred. In the present case, we see no need to define the permissible outer limits for awarding nominal damages in situations involving director entrenchment; instead, we assume for the sake of deciding the specific issue before us that the superior court had discretion to award nominal damages. Here, the court carefully considered all relevant evidence concerning the inadvertent nature of the proxy violations at issue and the defendants' good-faith reliance on competent expert advice; the court likewise considered the absence of any evidence of actual economic harm and the lack of any claim for injunctive relief. After properly taking account of Alaska's statutory business judgment provisions and thoughtfully reviewing the relevant authorities in other jurisdictions, the superior court exercised its discretion by declining to award nominal damages. Having carefully considered the totality- of the record and reviewed the cited authorities, we hold that Brown has failed to establish that the superior court abused its discretion. IV. CONCLUSION We AFFIRM the superior court's judgment. MATTHEWS, Justice, not participating. . 759 P.2d 1302, 1305 (Alaska 1988). . Id. . The procedures governing administrative appeals to the superior court from a final order of the Division are set out in AS 45.55.940 and Appellate Rules 601-612. Alaska Statute 45.55.940(a) provides, in relevant part: "A person aggrieved by a final order of the administrator may obtain a review of the order in the superior court by filing, in accordance with the Rules of Appellate Procedure, a notice of appeal." Appellate Rule 601(a) generally authorizes the superior court to hear an appeal from the decision of an administrative agency, and Appellate Rule 602(a)(2) specifies that the administrative appeal must be filed "within 30 days from the date that the decision appealed from is mailed or otherwise distributed to the appellant." . Brown secured new counsel on appeal and is not represented by the same counsel who handled his case below. . 759 P.2d 1302, 1305 (Alaska 1988). . See, e.g., Skaflestad v. Huna Totem Corp., 76 P.3d 391, 396 (Alaska 2003). . AS 10.06.450(b)(1), (c). . Cf. Shields v. Cape Fox Corp., 42 P.3d 1083, 1091-92 (Alaska 2002). . 885 F.Supp. 1332, 1340-41 (D.Nev.1994). . Id. at 1341 (quoting Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659, 661, 659 n. 2 (Del.Ch.1988)). . Id. . Brown attributes added significance to findings set out in a decision letter that the Division sent to Brown's attorney shortly before issuing the cease and desist order. But the decision letter merely advised Brown that the temporary cease and desist order was about to be issued, and reiterated the findings contained in that order. Because the findings in the letter simply mirrored those in the forthcoming order, the letter could have no independent evidentiary value. .The lack of an administrative record prevents us from confirming that these points were actually included among the "other allegations" considered by the Division. But even if they were not, these miscellaneous claims would be barred by Brown's failure to raise them as issues remaining for trial after the superior court revived the original civil action. . See, e.g., Malone v. Brincat, 722 A.2d 5, 12 (Del.1998); Loudon v. Archer-Daniels-Midland Co., 700 A.2d 135, 142 & nn. 26-27 (Del.1998). . 885 F.Supp. 1332, 1341 (D.Nev.1994). . AMERCO v. Shoen, 184 Ariz. 150, 907 P.2d 536, 540-42 (Ariz.App.1995).

10444612

Fred LARSON, Appellant, v. STATE of Alaska, Appellee

Larson v. State

1980-07-11

No. 4473

1251

1252

613 P.2d 1251

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Fred LARSON, Appellant, v. STATE of Alaska, Appellee.

Fred LARSON, Appellant, v. STATE of Alaska, Appellee. No. 4473. Supreme Court of Alaska. July 11, 1980. David C. Backstrom, Deputy Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage, for appellant. Randy M. Olsen, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

524

3188

OPINION Before RABINOWITZ, Chief Justice, CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. PER CURIAM. Fred Larson was convicted by a jury in Fairbanks of burglary not in a dwelling and attempted petty larceny. The convictions arose from an incident that took place in the late evening of July 5, 1978, at a store and gas station at Mile 75 of the Elliott Highway, near Livengood, Alaska. The burglary conviction resulted from Larson's breaking into a cabin for storage and removing an old gas lantern. The attempted petty larceny conviction was the product of Larson's efforts at siphoning gas out of the store owners' truck. He was sentenced to five years on the burglary charge, with half of that time suspended, and to six months on the petty larceny charge. The two sentences were made to run concurrently, but consecutively to those imposed in any other case involving Larson. Larson has appealed his conviction on the grounds that the trial court erred in denying his motion for acquittal on the petty larceny charge, that an instruction on aiding and abetting was too broad, and that testimony of a state trooper should not have been admitted because of Miranda vio lations. We have carefully examined these contentions in the light of the entire record and find no merit to any of them. Larson also appealed his sentence on the ground that it is too severe. The trial judge, in sentencing Larson, recognized that the burglary here, was not a "worst offense in the category." He nevertheless imposed a sentence of five years with two and one-half years suspended because of Larson's criminal record, his perceived bad attitude, and the need to protect the public. The judge stated his belief that if Larson were released, he would soon be back before the court on another charge, because of his lack of respect for the property of others. In these circumstances, we cannot hold that the judge was clearly mistaken in imposing the sentence he did. The sentence is AFFIRMED. BOOCHEVER, J., not participating. . The probation officer's report does not clearly set out Larson's criminal record. It appears that Larson has three misdemeanor convictions as an adult: two for joyriding, and one for defrauding an innkeeper. Larson was adjudicated a delinquent minor in 1971 and again, apparently, in 1973. We take this occasion to urge that probation reports set out the defendant's prior record with greater clarity. We suggest the prior offenses be listed in order, beginning with the most recent. The nature of the offense should be listed together with the statute under which the defendant was charged. The disposition of the offense and the sentence imposed should follow. Any discussion by the probation officer may follow the orderly listing of the prior offenses. . State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

10444446

Loren R. COUSINEAU and Marilyn J. Cousineau, Wayne F. Cousineau and Diane B. Cousineau, Curtis E. Dahl and Bonnie L. Dahl, Appellants, v. Devon A. WALKER and Joan Walker, Appellees

Cousineau v. Walker

1980-06-27

No. 4551

608

616

613 P.2d 608

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Loren R. COUSINEAU and Marilyn J. Cousineau, Wayne F. Cousineau and Diane B. Cousineau, Curtis E. Dahl and Bonnie L. Dahl, Appellants, v. Devon A. WALKER and Joan Walker, Appellees.

Loren R. COUSINEAU and Marilyn J. Cousineau, Wayne F. Cousineau and Diane B. Cousineau, Curtis E. Dahl and Bonnie L. Dahl, Appellants, v. Devon A. WALKER and Joan Walker, Appellees. No. 4551. Supreme Court of Alaska. June 27, 1980. Dennis M. Mestas, Mestas & Schneider, Anchorage, for appellants. John W. Sivertsen, Jr., and Terry C. Aglietti, Aglietti, Offret & Pennington, Anchorage, for appellees. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

4837

30041

OPINION BOOCHEVER, Justice. The question in this case is whether the appellants are entitled to rescission of a land sale contract because of false statements made by the sellers. The superior court concluded that the buyers did not rely on any misrepresentations made by the sellers, that the misrepresentations were not material to the transaction, and that reliance by the buyers was not justified. Restitution of money paid under the contract was denied. We reverse and remand the case to the superior court to determine the amount of damages owed the appellants. In 1975, Devon Walker and his wife purchased 9.1 acres of land in Eagle River, Alaska, known as Lot 1, Cross Estates. They paid $140,000.00 for it. A little over a year later, in October, 1976, they signed a multiple listing agreement with Pat Davis, an Anchorage realtor. The listing stated that the property had 580 feet of highway frontage on the Old Glenn Highway and that "ENGINEER REPORT SAYS OVER 1 MILLION IN GRAVEL ON PROP." The asking price was $245,000.00. When the multiple listing expired, Walker signed a new agreement to retain Davis as an exclusive agent. In the broker's contract, the property was again described as having 580 feet of highway frontage, but the gravel content was listed as "minimum 80,000 cubic yds of gravel." The agreement also stated that 2.6 acres on the front of the parcel had been proposed for B-3 zoning (a commercial use), and the asking price was raised to $470,000.00. An appraisal was prepared to determine the property's value as of December 31, 1976. Walker specifically instructed the appraiser not to include the value of gravel in the appraisal. A rough draft of the appraisal and the appraiser's notes were introduced at trial. Under the heading, "Assumptions and Limiting Conditions," the report stated' the appraisal "does not take into account any gravel . . . ." But later in the report the ground was described as "all good gravel base . . . covered with birch and spruce trees." The report did not mention the highway footage of the lot. Wayne Cousineau, a contractor who was also in the gravel extraction business, became aware of the property when he saw the multiple listing. He consulted Camille Davis, another Anchorage realtor, to see if the property was available. In January, Cousineau and Camille Davis visited the property and discussed gravel extraction with Walker, although according to Walker's testimony commercial extraction was not considered. About this time Cousineau offered Walker $360,000.00 for the property. Cousineau tendered a proposed sales agreement which stated that all gravel rights would be granted to the purchaser at closing. Sometime after his first offer, Cousineau attempted to determine the lot's road frontage. The property was covered with snow, and he found only one boundary marker. At trial the appraiser testified he could not find any markers. Cousineau testified that he went to the borough office to determine if any regulations prevented gravel extraction. Despite Walker's reference to an "Engineer Report" allegedly showing "over 1 million in gravel," Walker admitted at trial that he had never seen a copy of the report. According to Walker's agent, Pat Davis, Camille Davis was told that if either she or Cousineau wanted the report they would have to pay for it themselves. It was undisputed that Cousineau never obtained the report. In February, 1977, the parties agreed on a purchase price of $385,000.00 and signed an earnest money agreement. The sale was contingent upon approval of the zoning change of the front portion of the lot to commercial use. The amount of highway frontage was not included in the agreement. Paragraph 4(e) of the agreement conditionally granted gravel rights to Cous-ineau. According to the agreement, Cousi-neau would be entitled to remove only so much gravel as was necessary to establish a construction grade on the commercial portion of the property. To remove additional gravel, Cousineau would be required to pay releases on those portions of ground where gravel was removed. This language was used to prevent Walker's security interest in the property from being impaired before he was fully paid. Soon after the earnest money agreement was signed, the front portion of the property was rezoned and a month later the parties closed the sale. There is no reference to the amount of highway frontage in the final purchase agreement. An addendum to a third deed of trust incorporates essentially the same language as the earnest money agreement with regard to the release of gravel rights. After closing, Cousineau and his partners began developing the commercial portion of the property. They bought a gravel scale for $12,000.00 and used two of Cousineau's trucks and a loader. The partners contracted with South Construction to remove the gravel. According to Cousineau's testimony, he first learned of discrepancies in the real estate listing which described the lot when a neighbor threatened to sue Cousi-neau because he was removing gravel from the neighbor's adjacent lot. A recent survey shows that there is 415 feet of highway frontage on the property — not 580 feet, as advertised. At the same time Cousineau discovered the shortage in highway frontage, South Construction ran out of gravel. They had removed 6,000 cubic yards. To determine if there was any more gravel on the property, a South Construction employee bulldozed a trench about fifty feet long and twenty feet deep. There was no gravel. A soils report prepared in 1978 confirmed that there were no gravel deposits on the property. After December, 1977, Cousineau and his partners stopped making monthly payments. At that time they had paid a total of $99,000.00 for the property, including a down payment and monthly installments. In March, 1978, they informed Walker of their intention to rescind the contract. A deed of trust foreclosure sale was held in the fall of 1978, and Walker reacquired the property. At a bench trial in December, Cousineau and his partners were denied rescission and restitution. Among his written findings of fact, the trial judge found: At some point in time, between October 24, 1976, and January 11, 1977, there existed a multiple listing advertisement which included information relating to gravel as well as road frontage, said information subsequently determined to be incorrect. He further found: The plaintiffs did not rely on any misinformation or misrepresentations of defendants. The claimed misinformation about gravel on the property and the road frontage was not a material element of the parties' negotiations, and these pieces of information did not appear in the February 16, 1977 purchase agreement document prepared by attorney Harland Davis, attorney for the plaintiffs and signed by the parties. In part, based on these findings, the court adopted the following conclusions of law: The plaintiffs are not entitled to rescission of the contract of sale or restitution as they were not entitled to rely on the alleged misrepresentation. The information which allegedly formed the basis of the misrepresentation was not material in the instant transaction, the agreement reached by the parties was valid and does not suffer any taint or defect of misrepresentation. I. RESCISSION OF THE CONTRACT Numerous cases hold and the Restatement provides that an innocent misrepresentation may be the basis for rescinding a contract. There is no question, as the trial judge's findings of fact state, that the statements made by Walker and his real estate agent in the multiple listing were false. Three questions must be resolved, however, to determine whether Cousineau is entitled to rescission and restitution of the amount paid for the property on the basis of the misrepresentations. First, it must be determined whether Cousineau in fact relied on the statements. Second, it must be determined whether the statements were material to the transaction— that is, objectively, whether a reasonable person would have considered the statements important in deciding whether to purchase the property. Finally, assuming that Cousineau relied on the statements and that they were material, it must be determined whether his reliance was justified. A. Reliance on the False Statements As quoted above, in his findings of fact, the trial judge stated, "The plaintiffs did not rely on any misinformation or misrepresentations of defendants." Because this case was decided by a judge without a jury, our standard of review of factual findings is the "clearly erroneous" standard. Alaska R.Civ.P. 52(a). When a finding leaves the court with the definite and firm conviction on the entire record that a mistake has been made, it is clearly erroneous. Lewis v. Anchorage Asphalt Paving Co., 579 P.2d 532, 534 (Alaska 1978). In our opinion, the trial judge's finding that Cousineau and his partners did not rely on the statements made by Walker is clearly erroneous. Regardless of the credibility of some witnesses, the uncontroverted facts are that Wayne Cousineau was in the gravel extraction business. He first became aware of the property through a multiple listing that said "1 MILLION IN GRAVEL." The subsequent listing stated that there were 80,000 cubic yards of gravel. Even if Walker might have taken the position that the sale was based on the appraisal, rather than the listings, the appraisal does not disclaim the earlier statements regarding the amount of highway frontage and the existence of gravel. In fact, the appraisal might well reaffirm a buyer's belief that gravel existed, since it stated there was a good gravel base. All the documents prepared regarding the sale from the first offer through the final deed of trust make provisions for the transfer of gravel rights. Cousineau ⅛ first act upon acquiring the property was to contract with South Construction for gravel removal, and to purchase gravel scales for $12,000.00. We conclude that the court erred in finding that Cousineau did not rely on Walker's statement that there was gravel on the property. We are also convinced that the trial court's finding that Cousineau did not rely on Walker's statement regarding the amount of highway frontage was clearly erroneous. The Cousineaus were experienced and knowledgeable in real estate matters. In determining whether to purchase the property, they would certainly have considered the amount of highway frontage to be of importance. Despite Walker's insistence that Cousineau knew the location of the boundary markers, neither Cousineau nor the appraiser ever found them. It is improbable that Cousi-neau would have started removing gravel from a neighbor's property had he known the correct location of his boundary line. B. Materiality of the Statements Materiality is a mixed question of law and fact. A material fact is one "to which a reasonable man might be expected to attach importance in making his choice of action." W. Prosser, Law of Torts § 108, at 719 (4th ed. 1971). It is a fact which could reasonably be expected to influence someone's judgment or conduct concerning a transaction. HomeLite v. Trywilk Realty Co., 272 F.2d 688, 691 (4th Cir. 1959); Nader v. Allegheny Airlines, Inc., 445 F.Supp. 168, 174 (D.D.C.1978); Restatement of Restitution § 8(2) (1937). Under § 306 of the tentative draft of the Restatement (Second) of Contracts, a misrepresentation may be grounds for voiding a contract if it is either fraudulent or material. Restatement (Second) of Contracts § 306 (Tent. Draft No. 11, 1976). The reason behind the rule requiring proof of materiality is to encourage stability in contractual relations. The rule prevents parties who later become disappointed at the outcome of their bargain from capitalizing on any insignificant discrepancy to void the contract. We conclude as a matter of law that the statements regarding highway frontage and gravel content were material. A reasonable person would be likely to consider the existence of gravel deposits an important consideration in developing a piece of property. Even if not valuable for commercial extraction, a gravel base would save the cost of obtaining suitable fill from other sources. Walker's real estate agent testified that the statements regarding gravel were placed in the listings because gravel would be among the property's "best points" and a "selling point." It seems obvious that the sellers themselves thought a buyer would consider gravel content important. The buyers received less than three-fourths of the highway frontage described in the listings. Certainly the amount of highway frontage on a commercial tract would be considered important. Numerous cases from other jurisdictions have held discrepancies to be material which were similar in magnitude to those here. C. , Justifiable Reliance The trial judge concluded as a matter of law that the plaintiffs "were not entitled to rely on the alleged misrepresentation." The bulk of the appellee's brief is devoted to the argument that Cousineau's unquestioning reliance on Walker and his real estate agent was imprudent and unreasonable. Cousineau failed to obtain and review the engineer's report. He failed to obtain a survey or examine the plat available at the recorder's office. He failed to make calculations that would have revealed the true frontage of the lot. Although the property was covered with snow, the plaintiffs, according to Walker, had ample time to inspect it. The plaintiffs were experienced businessmen who frequently bought and sold real estate. Discrepancies existed in the various property descriptions which should have alerted Cousineau. and his partners to potential problems. In short, the appellees urge that the doctrine of caveat emptor precludes recovery. In fashioning an appropriate rule for land sale contracts, we note initially that, in the area of commercial and consumer goods, the doctrine of caveat emptor has been nearly abolished by the Uniform Commercial Code and imposition of strict products liability. In real property transactions, the doctrine is also rapidly receding. Alaska has passed the Uniform Land Sales Practices Act, AS 34.55.004-.046, which imposes numerous restrictions on vendors of subdivided property. Criminal penalties may be imposed for violations. The Uniform Residential Landlord and Tenant Act, AS 34.03.010-.380, has greatly altered the common law of landlord and tenant in favor of tenants. Many states now imply warranties of merchantability in new home sales. Wyoming has recently extended this warranty beyond the initial purchaser to subsequent buyers. Moxley v. Laramie Builders, Inc., 600 P.2d 733, 735-36 (Wyo.1979). There is a split of authority regarding a buyer's duty to investigate a vendor's fraudulent statements, but the prevailing trend is toward placing a minimal duty on a buyer. Recently, a Florida appellate court reversed long-standing precedent which held that a buyer must use due diligence to protect his interest, regardless of fraud, if the means for acquiring knowledge concerning the transaction were open and available. In the context of a building sale the court concluded: A person guilty of fraudulent misrepresentation should not be permitted to hide behind the doctrine of caveat emptor. Upledger v. Vilanor, Inc., 369 So.2d 427, 430 (Fla.App.), cert. denied, 378 So.2d 350 (Fla.1979). The Supreme Court of Maine has also recently reversed a line of its prior cases, concluding that a defense based upon lack of due care should not be allowed in land sales contracts where a reckless or knowing misrepresentation has been made. Letellier v. Small, 400 A.2d 371, 375 (Me.1979). This is also the prevailing view in California, Idaho, Kansas, Massachusetts, and Oregon. On the other hand, some jurisdictions have reaffirmed the doctrine of caveat emptor, but as noted in Williston on Contracts, [t]he growing trend and tendency of the courts will continue to move toward the doctrine that negligence in trusting in a misrepresentation will not excuse positive willful fraud or deprive the defrauded person of his remedy. W. Jaeger, Williston on Contracts § 1515B at 487 (3d ed. 1970). There is also authority for not applying the doctrine of caveat emptor even though the misrepresentation is innocent. The Restatements, case law, and a ready analogy to express warranties in the sale of goods support this view. The recent draft of the Restatement of Contracts allows rescission for an innocent material misrepresentation unless a buyer's fault was so negligent as to amount to "a failure to act in good faith and in accord- anee with reasonable standards of fair dealing." Restatement (Second) of Contracts § 314, Comment b (Tent. Draft, no. 11, 1976). In Van Meter v. Bent Construction Co., 46 Cal.2d 588, 297 P.2d 644 (1956), the city of San Diego failed to properly mark the area of a reservoir that needed to be cleared of brush. A lower court concluded that the city's failure to mark the area properly was an innocent mistake, and that a bidder's actions in failing to discover the true area to be cleared was negligent. Recovery was denied because the city's misrepresentation was not willful. The California Supreme Court reversed, first noting that a party's negligence does not bar rescission for mutual mistake, and then concluding: There is even more reason for not barring a plaintiff from equitable relief where his negligence is due in part to his reliance in good faith upon the false representations of a defendant, although the statements were not made with intent to deceive. A defendant who misrepresents the facts and induces the plaintiff to rely on his statements should not be heard in an equitable action to assert that the reliance was negligent unless plaintiff's conduct, in the light of his intelligence and information, is preposterous or irrational. Id. 297 P.2d at 648 (citations omitted). The Massachusetts Supreme Judicial Court has expressed a similar view in Yorke v. Taylor, 332 Mass. 368, 124 N.E.2d 912, 916 (1955). We do not contend that real property transactions are the same as those involving sales of goods. Nevertheless, an analogy to the applicability of the doctrine of caveat emptor under the Uniform Commercial Code is helpful. Under the Code, factual statements regarding the sale of goods constitute an express warranty. AS 45.05.094. The official comment to section 2-316 of the Code (codified as AS 45.05.100), dealing with disclaimers of warranties, states: Application of the doctrine of "caveat emptor" in all cases where the buyer examines the goods regardless of statements made by the seller is, however, rejected by this Article. Thus, if the offer of examination is accompanied by words as to their merchantability or specific attributes and the buyer indicates clearly that he is relying on those words rather than on his examination, they give rise to an "express" warranty. Numerous cases have concluded that a buyer is entitled to rely on an express warranty, regardless of an inadequate examination of the goods. Furthermore, the protections of the Code extend to highly sophisticated buyers in arms length transactions as well as to household consumers. Other than tradition, no reason exists for treating land sales differently from the sale of commercial goods insofar as application of the doctrine of caveat emptor is involved. We conclude that a purchaser of land may rely on material representations made by the seller and is not obligated to ascertain whether such representations are truthful. A buyer of land, relying on an innocent misrepresentation, is barred from recovery only if the buyer's acts in failing to discover defects were wholly irrational, preposterous, or in bad faith. Although Cousineau's actions may well have exhibited poor judgment for an experienced businessman, they were not so unreasonable or preposterous in view of Walker's description of the property that recovery should be denied. Consequently, we reverse the judgment of the superior court. II. RESTITUTION Walker received a total of $99,-000.00 from Cousineau and his partners, but the appellants are not entitled to restitution of this amount. Cousineau apparently caused extensive damage to one building on the property, and he removed 6,000 cubic yards of gravel. Walker should be allowed some recoupment for these items, plus an amount for the fair rental value of the property less reasonable costs of rental. It is necessary to remand this case to the trial court to determine the correct amount of damages. REVERSED and REMANDED. . Paragraph IX of the judge's factual findings states that there was no mention of the amount of gravel or road frontage in the purchase agreement. This statement is correct insofar as the agreement did not mention specific amounts of gravel or frontage, but the agreement plainly does provide for the transfer of gravel rights. . In the context of land sale contracts, see Osborne v. Cal-Am Financial Corp., 80 Cal.App.3d 259, 145 Cal.Rptr. 584, 588 (1978), and Halpert v. Rosenthal, 267 A.2d 730, 733 (R.I.1970). See Restatement of Contracts § 476, Comment b (1932); Restatement of Restitution § 9(2) (1937); Restatement (Second) of Torts § 552C (1977). . We decline to consider whether Walker's statements amounted to fraudulent or negligent misrepresentations. The trial judge made no findings on the question and our resolution . makes it unnecessary to consider it. It is apparent, however, that Walker had little basis for making statements regarding gravel content. For example, the basis for the statement in the first listing, "over 1 million in gravel," was Walker's neighbor, Riley Curtis, not the "Engineer Report." Walker claimed that Curtis told him an engineering firm had dug core samples on the property and had prepared a report which estimated the amount of gravel. At trial, Curtis denied telling Walker that there was gravel on the property. He testified that he told Walker there was over one million in material, not gravel. As discussed in the text, Walker never actually saw the report. Moreover, Pat Davis, Walker's real estate agent, was aware of these facts, but included the statement on the listing anyway. .The statements made regarding highway frontage and gravel content in the two listing agreements cannot be characterized as "puffing." They were positive statements "susceptible of exact knowledge" at the time they were made. Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 521 P.2d 281, 290 (1974). Although not applicable to real property sales, it is revealing that under the Uniform Commercial Code, where it is frequently necessary to distin guish "sales talk" from those statements which create express warranties, such definite statements as those made in the listing agreements would most probably be construed as creating an express warranty. See Annot., 94 A.L.R.3d 729 (1979). ^ . Restatement (Second) of Contracts § 306, comment (a), (Tent. Draft no. 11, 1976) states: A misrepresentation may make a contract voidable under the rule stated in this Section, even though it does not prevent the formation of a contract under the rule stated in the previous section. Three requirements must be met in addition to the requirement that there must have been a misrepresentation. First, the misrepresentation must have been either fraudulent or material. Second, the misrepresentation must have induced the recipient to make the contract. Third, the recipient must have been justified in relying on the misrepresentation. . The judge's findings state that the testimony of Camille Davis was "not credible on those key issues wherein it conflicted with evidence produced by the defendants." There are discrepancies in the record as to whether Camille received a copy of the appraisal, whether she or Pat Davis was to obtain a copy of the "Engineer Report," or whether she saw the discrepancies between the first and second listing regarding the amount of gravel. Camille stated at numerous points in her testimony that Cous-ineau was primarily interested in the property because of its gravel content, while the defendants, as might be expected, took the position that gravel was an insignificant part of the transaction. In view of the trial court's findings, we have resolved any conflicts in Camille's testimony in favor of Walker. . Walker testified that gravel was not a "selling point." This testimony obviously conflicts with the testimony of his real estate agent, who thought the information was of some importance. A person experienced in real estate sales would seem to be in a better position to evaluate what a buyer would be likely to consider important. . Piazzini v. Jessup, 152 Cal.App. 58, 314 P.2d 196 (1957) (misrepresentation as to boundary line and existence of termites); Richard v. Baker, 141 Cal.App.2d 857, 297 P.2d 674 (1956) (misrepresentation as to boundary location); Sorenson v. Adams, 98 Idaho 708, 571 P.2d 769 (1977) (discrepancy as to amount of tillable acreage); Bennett v. Finley, 54 N.M. 139, 215 P.2d 1013 (1950) (misrepresentation as to amount of farmland); Heverly v. Kirkendall, 257 Or. 232, 478 P.2d 381 (1970) (existence of encroachment); Dreifus Lumber Co. v. Werner, 221 Or. 467, 351 P.2d 684 (1960) (misrepresentation as to boundary line and amount of timber); Annot., 33 A.L.R. 853 § 48-51 (1924). . See, e. g., Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399, 402 (1964); Theis v. Heuer, 280 N.E.2d 300, 303-06 (Ind.1972); Humber v. Morton, 426 S.W.2d 554, 557-62 (Tex.1968). . Accord, Barnes v. MacBrown & Co., Inc., 342 N.E.2d 611 (Ind.1976). See Note, Builders Liability for Latent Defects in Used Homes, 32 Stan.L.Rev. 607 (1980). . Piazzini v. Jessup, 152 Cal.App.58, 314 P.2d 196, 198 (1957); Sorenson v. Adams, 98 Idaho 708, 571 P.2d 769, 776 (1977); Fox v. Wilson, 211 Kan. 563, 507 P.2d 252, 266 (1973); Kannavos v. Annino, 356 Mass. 42, 247 N.E.2d 708, 712 (1969); Heverly v. Kirkendall, 257 Or. 232, 478 P.2d 381, 383 (1970). . Recent decisions in Georgia, Illinois and North Carolina are illustrative. P.B.R. Enterprises, Inc. v. Perren, 243 Ga. 280, 253 S.E.2d 765, 767 (1979); Bezin v. Ginsberg, 59 Ill.App.3d 429, 16 Ill.Dec. 595, 603, 375 N.E.2d 468, 476 (1978) ("Nowhere in the law is the rule of caveat emptor more strictly followed than in the arms length transaction involving an interest in real property"); Odom v. Little Rock & 1-85 Corp., 40 N.C.App. 242, 252 S.E.2d 217, 219 (1979). . As an illustration of "fair dealing," the proposed Restatement suggests the following example: A, seeking to induce B to make a contract to buy land, tells B that the land is free from encumbrances. Unknown to either A or B, C holds a recorded and unsatisfied mortgage on the land. B could easily learn this by walking across the street to the register of deeds in the courthouse but does not do so. B is induced by A's statement to make the contract. B's reliance is justified since his fault does not amount to a failure to act in good faith and in accordance,with reasonable standards of fair dealing, and the contract is voidable by B. Restatement (Second) of Contracts § 314, Comment b, Illustration 2 (Tent. Draft no. 11, 1976). . See also Sorenson v. Adams, 98 Idaho 708, 571 P.2d 769, 776 (1977), in which the tillable acreage sold was misrepresented by reference to an erroneous form prepared by the Department of Agriculture. The buyers sought damages for the shortage, and the Supreme Court of Idaho reversed a judgment of nonsuit, stating: In short, the general rule is that "a vendor may be liable in tort for misrepresentations as to the area of land conveyed, notwithstanding such misrepresentations were made without actual knowledge of their falsity." The reason, of course, is that the parties to a real estate transaction do not deal on equal terms. An owner is presumed to know the boundaries of his own land, the quantity of his acreage, and the amount of water available. If he does not know the correct information, he must find out or refrain from making representations to unsuspecting strangers. "Even honesty in making a mistake is no defense as it is incumbent upon the vendor to know the facts." Id. 571 P.2d at 776 (citations omitted). In addition, the sellers argued that the buyers had no right to rely on the A.S.C. figures, since they could have checked the figures themselves or conducted their own survey. In rejecting this argument, the court stated: "False statements found . to have been made and relied on cannot be avoided by the appellants by the contention that the respondents could have, by independent investigation, ascertained the truth. "The appellants having stated what was untrue cannot now complain because respondents believed what they were told. Lack of caution on the part of respondents because they so believed, and the contention that respondents could have made an independent investigation and determined the true facts, is no defense to the action." Weitzel v. Jukich, 73 Idaho 301, 305, 251 P.2d 542, 544 (1953). And see, Lanning v. Sprague, [71 Idaho. 138, 227 P.2d 347] supra. Id. .We also looked to the Uniform Commercial Code in Rego v. Decker, 482 P.2d 834, 838 (Alaska 1971), to decide analogous questions in the law of the land sale contracts. . See, e. g., United States v. Aerodox, Inc., 469 F.2d 1003 (5th Cir. 1972); General Electric Co. v. U. S. Dynamics, Inc., 403 F.2d 933 (1st Cir. 1968); City of Paragould v. Int'l Power Machinery Co., 233 Ark. 872, 349 S.W.2d 332 (1961).

10444447

B-C CABLE COMPANY, INC., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee

B-C Cable Co. v. City & Borough of Juneau

1980-06-27

No. 4587

616

619

613 P.2d 616

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

B-C CABLE COMPANY, INC., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee.

B-C CABLE COMPANY, INC., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee. No. 4587 Supreme Court of Alaska. June 27, 1980. Allan A. Engstrom, Juneau, for appellant. Donna F. Page, Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

1760

10990

OPINION CONNOR, Justice. The sole issue in this case is whether certain municipal franchises granted to a cable television company were superceded by state legislation which purportedly preempts the field of public utilities regulation. The three franchises in question, each of which requires payment of a 3% franchise tax, were granted to appellant, B-C Cable, between 1965 and 1967 by the City of Juneau, the City of Douglas and the Greater Juneau Borough. In 1970, these three entities merged to form one home rule municipality, the City and Borough of Juneau, appellee in this case. It is undisputed that prior to the 1970 merger all three franchises were valid. Nor is it disputed that, as a result of the merger, appellee became the successor in interest to all obligations owed to and by appellant. At all times relevant to this case, B-C Cable has continued to use the public streets and rights of way granted by the franchises, but, pursuant to its contention that the franchises have been rendered invalid by superceding legislation, discontinued payment of the 3% franchise tax in mid-1975. The city then commenced suit to collect the unpaid franchise fees from mid-1975 to 1977. From summary judgment in favor of the city, B-C Cable appeals. Before 1970, the cable television industry was not regulated by the State of Alaska. Consequently, Alaska cities and boroughs had total jurisdiction and control over the activities of the industry. In 1970, the legislature adopted as Title 42, the Alaska Public Utilities Commission Act. The APUC Act expressly includes the cable television industry within its scope and contains two sections directed specifically to municipal regulation of a public utility: "Sec. 42.05.251. Use of streets in cities and boroughs. Public utilities have the right to permit to use public streets, alleys and other public ways of a city or borough, whether home rule or otherwise, upon payment of a reasonable permit fee and on reasonable terms and conditions and with reasonable exceptions the city or borough requires. A dispute as to whether fees, terms, conditions or exceptions are reasonable shall be decided by the commission. The commission may require a utility to add the amount of any permit fee paid as a pro rata surcharge to its bills for service rendered at locations within the boundaries of any city or borough which requires payment of a permit fee. Sec. 42.05.641. Regulations by municipality. The commission's jurisdiction and authority extend to public utilities operating within a city or borough, whether home rule or otherwise. In the event of a conflict between a certificate, order, decision or regulation of the commission and a charter, permit, franchise, ordinance, rule or regulation of such a local governmental entity, the certificate, order, decision or regulation of the commission shall prevail." Appellant maintains that the APUC Act is complete and comprehensive in its regulation of public utilities and leaves nothing for a city to regulate except its public streets. Accordingly, appellant argues that the passage of the APUC Act had the effect of voiding all existing municipal franchises to public utilities regulated under the Act. Further, argues appellant, until the city establishes a reasonable permit fee for the use of its public streets, as it may do pursuant to AS 42.05.251, appellant is not liable for any tax. We do not agree. While the APUC Act pre-empts a large portion of the regulatory authority of municipalities over utility companies, it does not pre-empt all such authority. .For example, AS 42.05.641, quoted above, states that "in the event of a conflict between a certificate, order, decision or regulation of the commission" and, inter alia, a municipal "franchise," the former shall prevail. Had the legislature intended to void all municipal franchises by passage of the APUC Act, there would have been no need to provide for the supremacy of the Act over a conflicting municipal franchise provision. Moreover, inasmuch as AS 42.05.641 recognizes existing franchises, we think it unreasonable to presume that the legislature intended, by AS 42.05.251, that communities throughout the state issue new permits to utilities within their boundaries when existing franchises already adequately cover the subject. As we read AS 42.05.251 and AS 42.05.641, provisions of a municipal franchise not in actual conflict with APUC regulatory activity remain in force. Appellant maintains, however, that state preemption of the municipal franchises was confirmed by the legislature with the adoption of the new Municipal Code in 1972. Appellant specifically directs our attention to AS 29.13.100 entitled "Limitation on home rule powers": "[The following provisions] supercede existing and prohibit future home rule enactments which provide otherwise: (17) AS 29.48.040-29.48.100 (Utilities)" AS 29.48.050(1), adopted in 1970 as an amendment to the APUC Act, provides: "Franchises and permits, (a) The assembly, acting for areas outside [the] cities and the council acting for the area within a city may grant franchises, including exclusive franchise privileges, for the construction, operation or maintenance of bus transportation systems and public utilities not regulated under AS 42.05 and may permit them the use of streets and other public places under regulations prescribed by ordinance." Appellant argues that, taken together, AS 29.13.100 and AS 29.48.050(1) void existing municipal franchises to public utilities regulated under AS 42.05. Again, we are unpersuaded. First, AS 29.13.100 applies only to home rule enactments. It is generally recognized that, regardless of the method by which a franchise comes into being, once it is granted it is a contract binding upon both parties. City of Owensboro v. Top Vision Cable Co. of Kentucky, 487 S.W.2d 283, 287 (Ky. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1926, 36 L.Ed.2d 410 (1973); City of Summerville v. Georgia Power Co., 205 Ga. 83, 55 S.E.2d 540, 542 (1949); City of Baker v. Montana Petroleum Corp., 99 Mont. 465, 44 P.2d 735, 737 (1935); 3 C. Antieau, Municipal Corporation Law § 29.08 (1979). Thus, although all three of the franchise agreements before us originated in the form of municipal ordinances, they are in fact contracts. As such, the franchises were not "enactments" within the meaning of AS 29.13.100 and are thus unaffected by that statute. Second, in our opinion, the state's general saving clause, AS 01.10.100, precludes a finding that the municipal franchises in question have been superceded. In Alaska Public Utilities Commission v. Chugach Electric Association, 580 P.2d 687, 692 (Alaska 1978), (quoting Territory of Alaska v. American Can Co., 137 F.Supp. 181, 183 (D.C.Alaska 1956)), we said: "It is a fundamental rule of statutory construction that a general saving clause or statute preserves rights and liabilities which have accrued under the act repealed and that they operate to make applicable in designated situations the law as it existed before the repeal, unless such application is negatived by the express terms or clear implication of a particular repealing act, or where not otherwise provided by the repealing act." [emphasis in original], In the present case, the rights and liabilities of the parties respecting the use of public streets and rights of way were determined under the municipal franchise agreements. Since neither the Municipal Code (Title 29), nor the APUC Act (Title 42), either expressly or by clear implication nullify the rights and liabilities of the parties under the franchise agreements, we conclude that the saving statute operates to keep these agreements in force. On the basis of the foregoing analysis, we hold that the franchises in question were not rendered void by subsequent legislation. We express no opinion, however, on the reasonableness of the 3% franchise tax. That question is within the original jurisdiction of the Alaska Public Utilities Commission. AS 42.05.251. If, after this appeal, appellant still wishes to challenge the reasonableness of the tax, it may do so by bringing an appropriate proceeding before the APUC. The judgment is AFFIRMED. . On July 19, 1965, the City of Juneau passed ordinance No. 517 granting a twenty year franchise for cable television service to B-C Cable Company. The ordinance was accepted by B-C Cable on July 20, 1965 and approved by the voters of the municipality on August 3, 1965. A similar procedure was followed in 1966 by the Greater Juneau Borough and resulted in a twenty year franchise agreement substantially similar to the agreement with the City. On March 14, 1967, B-C Cable entered into a five year utility permit agreement. At the end of the five year period, appellant held over and thus continued to operate under the same terms and conditions as before termination. At the time the above franchises were granted, Alaska cities and boroughs were authorized to grant such utility franchises or permits by AS 29.10.141(a) (cities) and AS 07.15.-170 (boroughs). . Section 16.2 of the Juneau city charter states: "(a) The municipality shall succeed to all assets and liabilities of the local government unified." . AS 42.05.701(2), (8). . Appellant argues that the 3% fee may not be carried forward so as to constitute the "reasonable fee" contemplated by AS 42.05.251. That fee was originally designed to compensate the city for the use of municipal streets and for the cost of municipal supervision and regulation. Since the latter services have now been assumed by the APUC, appellant argues that the reasonableness of the fee is subject to doubt. . See note 1, supra. As to the third agreement, it is generally held that a utility permit granting a public service company the right to use the public streets is a franchise. Griffin v. Oklahoma Natural Gas Corp., 37 F.2d 545, 548 (10th Cir. 1930); Kornegay v. City of Raleigh, 296 N.C. 155, 152 S.E.2d 186 (1967). If that franchise expires but the utility continues to use the public streets and rights of way to maintain its facilities, an implied contract arises under the same terms and conditions as the expired grant. Village of Lapwai v. Alligier, 69 Idaho 397, 207 P.2d 1025, 1027 (1949). . AS 01.10.100 provides: "Effect of repeals or amendments, (a) The repeal or amendment of any law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under such law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability."

10444309

Ronald A. OWENS, Appellant, v. STATE of Alaska, Appellee

Owens v. State

1980-06-20

No. 4331

259

263

613 P.2d 259

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Ronald A. OWENS, Appellant, v. STATE of Alaska, Appellee.

Ronald A. OWENS, Appellant, v. STATE of Alaska, Appellee. No. 4331. Supreme Court of Alaska. June 20, 1980. Richard G. Lindsley, Asst. Public Defender, Juneau, Brian Shortell, Public Defender, .Anchorage, for appellant. James L. Hanley, Asst. Dist. Atty., Patrick J. Gullufsen, Asst. Atty. Gen., and Av-rum M. Gross, Atty. Gen., Juneau, for ap-pellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

2408

14506

OPINION RABINOWITZ, Chief Justice. Ronald Owens was convicted of burglary in a dwelling and grand larceny. On appeal, he claims that he was prejudiced by jury exposure during his trial to evidence previously ruled inadmissible by the trial judge. We find that Owens waived his right to object to this error. Therefore, his conviction is Affirmed. On January 10, 1978, John Brookman reported a burglary to the Sitka police. The following day the Sitka newspaper reported the burglary and listed the items stolen. The next morning the police received a telephone call from an anonymous woman, who said that Owens had offered to sell her some equipment which she thought might be the same as that listed in the paper. Using the tape recording of this call, the police obtained a warrant to search Owens' residence, where they found many of the stolen items. After waiving indictment, Owens was charged by information with burglary and grand larceny. Prior to trial, Owens moved to suppress any testimony about the anonymous phone call. The superior court granted his motion, but advised that the state could raise the question again if the police source of information about Owens' involvement in the burglary became an issue at trial. The state believed that this issue did indeed arise at trial, so it again moved for permission to introduce testimony about the call. Again, however, the superior court ruled for the defense. In order to have the evidence admitted, the prosecution made one last effort to find the anonymous caller, so that she might testify. On the second day of trial, the police had the following message broadcast over Sitka's only radio station: On January 12, 1978, a person anonymously called the Sitka Police Department to report the possible location of a color TV and stereo equipment which had been taken from the John Brookman residence. It would now be appreciated if that person would again call the police department and talk with Sergeant Thornton or Assistant District Attorney Jim Hanley. The prosecutor expressed his intent that the message be broadcast only when the jury was in court. But neither he nor the police made sure that the broadcast was so limited, and in fact the radio station aired the message at a morning hour before the jurors were due to report for the trial proceedings. Owens brought the message to the attention of the court the following day. He requested no relief at that time other than that the state be enjoined from any further communication of this sort, but also went on to "reserve the right to ask for a mistrial" at the conclusion of the case should a guilty verdict be returned. The state responded with the suggestion that the court make a general inquiry of the jurors to see if any of them had heard anything about the case outside the courtroom. But Owens opposed any inquiry, even a general inquiry of the jurors. The court stated that it would respect Owens' request not to have the jury queried in a general manner, but pointed out that Owens, by his tactical decision, was depriving the court of the ability to take any actions necessary to cure the harm caused by jury exposure to the inadmissible evidence. Since the court found nothing in the broadcast too prejudicial for action by the court to cure, it indicated that it considered Owens to be waiving the jury exposure issue by objecting to a general inquiry of the jurors. Following the verdict of guilty on both counts, the superior court, at Owens' re quest, asked the jurors whether they had knowledge of the radio broadcast. This inquiry showed that one juror had actually heard the radio message, and that she had discussed it with a few of the other jurors. The discussion lasted at most five minutes. No juror stated that the broadcast had any influence on his or her decision. Owens moved for a new trial on the ground of jury exposure to the broadcast. The superior court denied Owens' motion. This appeal followed. In Mares v. United States, 383 F.2d 805 (10th Cir. 1967), opinion after remand, 409 F.2d 1083 (10th Cir. 1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969), the court said: An accused may not withhold an objection to publicity occurring during a trial until an adverse verdict has been returned. This procedure would permit him to take a gambler's risk and complain only if the cards fell the wrong way. If the trial judge becomes aware of the publicity and orders a mistrial sua sponte, the hazard exists of a claim of double jeopardy on a retrial. Id. at 808 (footnote omitted). See also Hall v. United States, 396 F.2d 428, 429 (10th Cir.), cert. denied, 393 U.S. 986, 89 S.Ct. 462, 21 L.Ed.2d 447 (1968); State v. Collins, 150 N.W.2d 850, 861-62 (Minn.1967), cert. denied, 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968); State v. Palmigiano, 115 R.I.166, 341 A.2d 742, 743 (1975). Some action by the defense, either a mistrial motion or a request for examination of the jury, is necessary in order to allow the trial judge to consider whether a declaration of mistrial is in fact appropriate, or whether a cautionary instruction to the jury will suffice to counteract its exposure to the out-of-court publicity or information. Ordinarily the absence of such action by the defense will waive the defendant's right to assert the error on appeal. There are, of course, certain situations in which the defense may not be obligated to take action, because the jury's exposure to out-of-court information constitutes plain error. For example, in People v. Moreland, 12 Mich.App. 483, 163 N.W.2d 257 (1968), a newspaper story was published during trial detailing Moreland's extensive prior criminal record. He moved at that time to poll the jurors after the verdict to determine whether any of them had read the article and been influenced by it. When his motion was denied, he explicitly declined to move for a mistrial. After trial, Moreland's attorney was contacted by two jurors, who said that the jury had discussed the article's contents. Based on their affidavits, he moved for a new trial, which motion the trial court denied. The Michigan Court of Appeals reversed: While we are in full agreement with the propriety of the rule that questions will not be heard on appeal unless first presented for the trial court's determination, we note that an exception exists when to apply the rule would result in "fundamental injustice." In our opinion this case comes within the exception. The story relates the fact of at least one prior conviction and supports a clear inference that defendant had been convict ed of crime on two additional occasions. Evidence of such convictions would normally have been admissible at trial only if defendant had testified in his own behalf, and then for the limited purpose of impeachment. Defendant, however, did not take the stand. Since the newspaper article's existence and contents had not been brought out before the jury in open court, there was no charge given as to the narrow purposes for which the contents could have been considered, even if the contents were proper matter for disclosure in this case. It was therefore a matter of fundamental injustice to defendant that the jury, in weighing guilt, discussed and considered his prior convictions. Id. 163 N.W.2d at 259 (citation and footnote omitted). Owens argues that the same rationale should apply here. We cannot agree. This case is clearly distinguishable from Moreland because of the nature of the information that reached the jury. That the police learned about Owens through an anonymous telephone call is a fact unlikely to have any real bearing on the jury's deliberations, as opposed to Moreland's revelation of prior convictions. We conclude that the trial court here could have cured any possible prejudice with an instruction to the jury that they were to determine guilt or innocence solely on the basis of the evidence admitted at trial. Because Owens objected to this procedure, he has waived his right to raise on appeal this issue. We also do not believe that reversal of Owens' conviction is warranted simply because of the prosecution's involvement with the broadcast. The broadcast was certainly misconduct on the part of the prosecutor. ABA Standards on Fair Trial and Free Press 8-1.1 (2d ed. tentative draft 1978) provides in part: (a) A lawyer shall not release or authorize the release of information or opinion for dissemination by any means of public communication if such dissemination would pose a clear and present danger to the fairness of the trial. (b) Subject to paragraph (a), from the commencement of the investigation of a criminal matter until the completion of trial or disposition without trial, a lawyer may be subject to disciplinary action with respect to extrajudicial statements concerning the following matters: (vi) information which the lawyer knows or has reason to know would be inadmissible as evidence in a trial. See also ABA Code of Professional Responsibility DR 7 — 107(B) & (D) (1969). The court having ruled that evidence of the anonymous phone call was inadmissible, the prosecution had an obligation not to disseminate this information. The prosecution's purpose was seemingly an appropriate one of requesting assistance in obtaining evidence. However, once the court had ruled this topic inadmissible, a public broadcast of this type made during trial was clearly in violation of the prosecutor's duty as an officer of the court to guarantee all criminal defendants their constitutional rights to a fair trial. But the fact that the jury exposure to inadmissible evidence was the result of prosecutorial misconduct does not change our analysis of it as error. As we noted in Alexander v. State, 611 P.2d 469, at 478 (Alaska, May 2,1980), plain error analysis is appropriate when failure to object to the misconduct in a timely fashion precludes the trial court from an ability to correct the error. In this case, Owens objected to the prosecutor's action but further objected to the court making the kind of inquiry necessary to determine what correctional action to take. Thus, having found the issue waived and no plain error appearing, the judgment of the superior court is AFFIRMED. BOOCHEVER, J., not participating. . Contrary to Owens' contention, we are convinced after examining the record that he made no motion for a mistrial at this point in the trial. More particularly, at one point in the colloquy between counsel and judge, Owens' attorney said, "[I]n order not to prejudice the defendant my motion for a mistrial will follow the verdict." (emphasis added) . Alaska R.Crim.P. 33. This rule grants a trial judge the authority to order a new trial "if required in the interest of justice." . Mares involved the more usual situation of jury exposure to a prejudicial newspaper article, for which the prosecution is in no way responsible. But the logic of Mares nevertheless applies here. . The effectiveness of such a cautionary instruction should not be minimized. See People v. Rivera, 26 N.Y.2d 304, 310 N.Y.S.2d 287, 290, 258 N.E.2d 699, 701 (N.Y.1970) (citation omitted): "[A]n admonition to the jurors that they should consider only the proof adduced 'serve[s] a real purpose in drawing their attention to the unfairness of their considering anything but the record evidence.' " We recently approved the giving of this type of instruction as an acceptable alternative to questioning the jury about a newspaper article containing inaccuracies that appeared during trial. Brown v. State, 601 P.2d 221, 232-33 (Alaska 1979). .Alaska R.Crim.P. 47(b) provides: Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. . As noted, all the jurors who heard or heard about the broadcast stated they were not influenced by the broadcast. Some admitted their curiosity was satisfied by learning how the police had determined to issue a search warrant for Owens' trailer, but otherwise it had no influence on their determination. We have also independently assessed the possible prejudice of the jury exposure to the anonymous call, rather than relying on the jurors' statements that the information about the call did not influence their deliberations. We agree with those courts that have found jurors' own assessments to be unreliable. See, e. g., State v. Williams, 230 S.E.2d 742, 747 (W.Va. 1976) (citations omitted): In many instances, jurors may not be sufficient judges of their own bias when they have been exposed to extrajudicial material during the trial of a case. Thus, this Court has previously stated that specific questions should be asked in order to determine whether a juror, even without his own knowledge, may be biased or prejudiced. See also Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam); Briggs v. State, 207 Tenn. 253, 338 S.W.2d 625 (1960). We may properly consider, however, and have considered, the brevity of the jury's discussion of the anonymous call. . Owens contends that a general inquiry of the jury would be prejudicial, as it would cause the jurors to believe the case was controversial, which belief might color their deliberations. He also argues that a general inquiry could not be specific enough; i. e., that the jury would not associate a general question about publicity with the broadcast at issue. We find no merit to either contention. . ABA Standards on Fair Trial and Free Press 8-1.1(c) (2d ed. tentative draft 1978) provides in pertinent part: It shall be appropriate for the lawyer, in discharge of official or professional obligations, . to request assistance in obtaining evidence; . See also ABA Code of Professional Responsibility DR 7-107(A)(4) and (C)(3) (1969). . See also Randall v. State, 583 P.2d 196, 200 (Alaska 1978); McMaster v. State, 512 P.2d 879, 884 (Alaska 1973); Howard v. State, 491 P.2d 154, 156 (Alaska 1971); Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969); Sidney v. State, 408 P.2d 858, 862 (Alaska 1965).

10444311

Kenneth R. ROUSE and Darrel L. Daley, on behalf of themselves and all others similarly situated, Appellants, v. ANCHORAGE SCHOOL DISTRICT, Appellee

Rouse v. Anchorage School District

1980-06-20

No. 4715

263

267

613 P.2d 263

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Kenneth R. ROUSE and Darrel L. Daley, on behalf of themselves and all others similarly situated, Appellants, v. ANCHORAGE SCHOOL DISTRICT, Appellee.

Kenneth R. ROUSE and Darrel L. Daley, on behalf of themselves and all others similarly situated, Appellants, v. ANCHORAGE SCHOOL DISTRICT, Appellee. No. 4715. Supreme Court of Alaska. June 20, 1980. Charles E. Tulin, Anchorage, for appellants. Peter C. Partnow, Hellen & Partnow, Anchorage, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE, and MATTHEWS, JJ., and DIMOND, Senior Justice.

2593

16234

OPINION RABINOWITZ, Chief Justice. Two teachers employed by the Anchorage School District appeal a superior court decision which dismissed, under Civil Rule 12(b)(6), their complaint against the School District for denial of a salary increase allegedly due them, for failure to state a claim upon which relief can be granted. The teachers also appeal the award of attorney's fees to the School District by the superior court. We affirm the superior court on both issues. The dispute centers on the salary provisions of 'two contractual agreements negotiated between the School District and the Anchorage Education Association, authorized collective bargaining representative for all teachers employed by the School District. These agreements covered consecutive periods of time. The first was negotiated to be in force from July 1, 1975, to June 30, 1977, and provided that a three percent "longevity pay" salary increase would be provided to each teacher upon completion of fifteen full years of service with the District. The second agreement was negotiated in June, 1977, to be in effect from July 1, 1977, to June 30, 1979. This second agreement terminated provisions for longevity pay for all teachers except those who had completed fifteen years of service in the District prior to the 1976-77 school term, but provided for an overall salary increase for all teachers. The two teachers in this appeal both completed fifteen years of employment with the District at the end of the 1976 — 77 school term. Thus, the second contract, negotiated subsequent to the time these teachers had completed the service which would entitle them to a salary increase under the first agreement, eliminated that right to an increase as part of a negotiation for salary increases for all teachers represented by the union. The teachers' argument on appeal is that the provision in the first contract for longevity pay increases became a vested right upon completion of the specified term of service and therefore could not be bargained away in subsequent contractual negotiations between the District and the teachers' Union. We disagree. The teachers do not dispute that the Anchorage Education Association was authorized to act as their bargaining agent in the 1977 contract negotiations, and the scope of bargaining power delegated to the teachers' union is not limited by the terms of either agreement. This court has held previously that the salary of teachers is a proper subject of collective bargaining under Alaska's statutes. Kenai Peninsula Borough School District v. Kenai Peninsula Education Assoc., 572 P.2d 416, 422 (Alaska 1977). The longevity pay provision in the 1975-77 agreement was but one component of the basic salary schedule for teachers contained in that contract. In fact, longevity pay was reduced in the 1975-77 agreement to three per cent from a five per cent rate specified in a previous contract. The complaining teachers, along with all other teachers in the district, received for the 1977-78 school year an overall raise in salary under the new agreement for 1977-79 greater than what teachers received for the 1976-77 year under the old agreement. Authority in other jurisdictions supports the conclusion that privileges bargained for in agreements between an employer and a labor union may be subsequently given up in negotiations for a new contract, even for such items as seniority rights for which certain employees have already completed the performance which entitled them to the privilege under the old contract. As stated in International Longshoremen's & Warehousemen's Union v. Kuntz, 334 F.2d 165, 171 (9th Cir. 1964): The settlement of a labor dispute, whether accomplished by amendment of the contract or by resort to an already existing contract provision, may affect rights which in other fields are regarded as vested and in a manner which would be deemed "ex post facto." But where the power to bargain is not limited by the contract and since "[cjompromises on a temporary basis, with a view to long range advantages, are natural incidents of negotiation", [Ford Motor Co. v. Huffman, 345 U.S. at 338, 73 S.Ct. at 686] we believe that when "vested rights" are impaired or extinguished in the course of the bargaining, any recourse by the person affected must then depend upon "a bad faith motive, an intent to hostilely discriminate" on the part of the bargaining representative. No bad faith or discriminatory intent has been alleged against the union in this case. In Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), cited in the above case, the United States Supreme Court held that accrued seniority rights were within the scope of bargaining authority delegated to union representation under a federal statute, observing: Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. 345 U.S. at 338, 73 S.Ct. at 686, 97 L.Ed. at 1058. The cases relied upon by the teachers in their argument do not support their position to any great degree. These cases for the most part concern removal of accrued contract rights unilaterally by an employer rather than renegotiation of rights through the collective bargaining process. Some of these cases explicitly recognize that "vesting" of salary rights does not prohibit their alteration through later contractual agreement. The single case cited which has held against alteration of accrued rights by subsequent agreement between union and employer, Kolcum v. Board of Education of Woodbridge School District, 335 A.2d 618 (Del.Super.1975), is distinguishable from this case in that it concerned a situation where teachers had actually accepted a contract and expended their own money in reliance upon a contractual agreement with the school district. The term in these teachers' employment contracts which the court held it was improper to alter by subsequent negotiation with the union was the district's promise to pay the third of three yearly installments for reimbursement for moving expenses incurred when the teachers began employment. Id. at 623. Since we conclude that the change in these teachers' salaries brought about by the contract renegotiation in this case did not abuse any "vested" rights entitled to judicial protection, we believe the superior court's dismissal of the complaint for failure to state a claim for which relief can be granted was proper. Our disposition of this issue renders it unnecessary to consider the District's assertions that the teachers failed to exhaust available administrative remedies prior to bringing this lawsuit, and that judicial review of this dispute should be limited because it is subject to a contractual requirement of arbitration. Regarding attorney's fees, we cannot agree with the teachers that the superi- or court abused its discretion in awarding the amount of attorney's fees which it did to the School District. In our opinion, the teachers do not meet the criteria for the "public .interest" exception to the normal rule permitting the discretionary award of attorney's fees to the prevailing party under Civil Rule 82(a). Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974). At stake in this case were the rights of a few individuals to monetary benefits. These are not the type of interests which present a question of genuine public interest, litigation of which would be unduly discouraged by an award of attorney's fees to the prevailing party. Since only about one-half of the attorney's fees requested by the District were awarded by the superior court in this case, it is distinguishable from Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973) which held that an award of all attorney's fees requested by the prevailing party, including those incurred in pursuing unsuccessful claims, was an abuse of discretion in a case with public interest aspects. Id. at 587-88. See also Juneau Education Ass'n v. City & Borough of Juneau, 539 P.2d 704, 708-09 (Alaska 1975). This case can also be distinguished from Crisp v. Kenai Peninsula Borough School District, 587 P.2d 1168 (Alaska 1978), in which this court held it to be an abuse of discretion to award any attorney's fees against a tenured teacher who appealed his dismissal from employment. That opinion emphasized that a tenured teacher has a statutorily guaranteed right to contest his dismissal in the courts, and noted that if a lesser interest than continued employment were at stake an award of attorney's fees .might be justified. Id. at 1170 n.7. Salary benefits are not specifically protected by a statutory right to judicial review, and the three percent increase in salary sought here does not compare with the right to employment itself. The judgment of the superior court is Affirmed. BOOCHEVER, J., not participating. . AS 14.20.550 provides: Negotiation with certificated employees. Each city, borough and regional school board, shall negotiate with its certificated employees in good faith on matters pertaining to their employment and the fulfillment of their professional duties. AS 14.20.560(a) authorizes the delegation of bargaining power over employment and professional duty matters to a union representative: When a majority of the certificated employees in a school district have designated an educational organization of their own choosing to bargain for them, the organization shall be recognized by the school board as the bargaining agent for all the certificated staff, except superintendents of schools. The membership of any such recognized educational organization shall be composed principally of those employed in the teaching profession in Alaska. . See Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Aeronautical Indus. Dist. Lodge 727 v. Campbell, 337 U.S. 521. 526. 69 S.Ct. 1287. 1289. 93 L.Ed. 1513, 1518 (1949); Trailmobiie Co. v. Whirls, 331 U.S. 40, 53 n.21, 67 S.Ct. 982, 988, n.21, 91 L.Ed. 1328, 1337 n.21 (1947); Local 1251 Int'l Union of United Auto. Workers v. Robert Shaw Controls Co., 405 F.2d 29 (2d Cir.1968); International Longshoremen's & Warehousemen's Union v. Kuntz, 334 F.2d 165, 171 (9th Cir. 1964); Colbert v. Broth. of R. R. Trainmen, 206 F.2d 9 (9th Cir. 1953), cert. denied, 346 U.S. 931, 74 S.Ct. 320, 98 L.Ed. 422 (1954); Starke v. New York, C. & St. L. R. Co., 180 F.2d 569 (7th Cir. 1950); Wheeler v. Brotherhood of Locomotive Firemen and Enginemen, 324 F.Supp. 818, 824 (D.S.C.1971). . See Zdanok v. Glidden Co., 288 F.2d 99 (2d Cir. 1961) (employees' rights to reinstatement continued after expiration of collective bargaining agreement because they vested during the term of the agreement; employer cannot unilaterally annul these rights); Carlson v. School District No. 6 of Maricopa County, 12 Ariz.App. 179, 468 P.2d 944 (1970) (school district cannot unilaterally reduce teacher's compensation to meet a budget limitation when to do so violates the terms of an existing contract); A.B.C. Fed'n of Teachers v. A.B.C. Unified School Dist., 75 Cal.App.3d 332, 142 Cal.Rptr. 111 (1977) (school board cannot unilaterally delete an "extra pay" provision in a contract after teachers have signed the contract for the coming school year); Richards v. Board of Educ., 21 Ill.2d 104, 171 N.E.2d 37 (1961) (same effect as to constitutional prohibitions against arbitrary reduction of salaries; school board can require continued education of teacher as condition precedent to salary increase); Hardway v. Board of Educ. of Lawrenceville Township High School, 1 Ill.App. 298, 274 N.E.2d 213 (1971) (school board has discretionary control over teachers' salaries, subject only to express limits in statute and constitutional prohibitions against arbitrary, discriminatory, or unreasonable action; school board misinterpreted statute requiring credit to be given to teachers for experience in other school districts, so the question of vested rights was not reached); Madison County Bd. of Educ. v. Miles, 173 So.2d 425 (Miss.1965) (a teacher or principal has a valuable right in a contract duly approved by school authorities; dismissal of principal by school board reversed because no "good cause" for removal provided for under statutes was shown); Weber v. Board of Educ. of City of Trenton, 127 N.J.L. 279, 21 A.2d 808 (1941) (under terms of statute granting a school board the power to make rules and regulations governing teacher employment, the board cannot unilaterally deny, in response to a financial crisis, scheduled increases in teachers' salaries, negotiated as part of an operative contract); Frank v. Day's, Inc., 13 Wash.App. 401, 535 P.2d 479 (1975) (A right to payment of pension vests when contractual conditions for payment set out in agreement have been met under the terms of the contract, employer could not deny the pension after firing the employee for dishonesty); Fox v. Board of Educ. of Doodridge County, 236 S.E.2d 243 (W.Va.1977) (A teacher may not be lightly shorn of privileges for which he contracted; dismissal of teacher under statutory provision reversed). . In Zdanok v. Glidden Co., 288 F.2d 99, 103 (2d Cir. 1961), the court stated: Of course, the employee owning the right, or his authorized union agent, could bargain away the employee's right. In Richards v. Board of Educ., 21 Ill.2d 104, 171 N.E.2d 37, 42 (1961), cited by Rouse for the contention that a school board's control over salaries is subject to constitutional prohibitions against arbitrary, discriminatory, or unreasonable action, the court observed: [Pjermancy of tenure given by the legislature to teachers carries with it no assurance against changes in salary, [citations omitted] . . [TJenure status does not prevent a reduction in salary, provided reductions are uniform, or based upon some reasonable classification. .Alaska R.Civ.P. 82(a) provides: (a) Allowance to Prevailing Party as Costs. (1)Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. (2)In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. (3)The allowance of attorney's fees by the court in conformance with the foregoing schedule is not to be construed as fixing the fees between attorney and client. . In Anchorage v. McCabe, 568 P.2d 986, 991 (Alaska 1977), this court adopted general criteria indicative of whether a plaintiff has presented a question of genuine public interest: (1) the effectuation of strong public policies; (2) the fact that numerous people received ' benefits from plaintiffs' litigation success; (3) the fact that only a private party could have been expected to bring this action. Although this lawsuit was nominally a class action, there is no evidence that more than a few teachers similarly situated to the appellants would have benefited if the lawsuit had succeeded. . A total of $1500 in attorney's fees were eventually awarded against the two teachers compared to $2960 requested by the District.

10444307

STATE of Alaska, Petitioner, v. Michael SALIT, Respondent

State v. Salit

1980-06-06

No. 4456

245

259

613 P.2d 245

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Michael SALIT, Respondent.

STATE of Alaska, Petitioner, v. Michael SALIT, Respondent. No. 4456. Supreme Court of Alaska. June 6, 1980. Stephen E. Branchflower, Charles William Cohen, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner. M. Gregory Oczkus, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for respondent. Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

7930

47970

OPINION BOOCHEVER, Justice. Michael Salit was indicted for possession of a narcotic drug, cocaine, in violation of AS 17.10.010. The state has petitioned for review of the trial court's order suppressing the results of a search of Salit's garment bag which he gave an airline employee during a pre-flight hijacking screening and a search of a hotel room where he had been staying. The garment bag contained eight or nine ounces of cocaine, a large amount of cash, and narcotics paraphernalia. Items of contraband were found in the hotel room. Because the order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate and present review of the order may materially advance the ultimate termination of the litigation, we have granted review. I. FACTS Michael Salit presented a handbag and a corduroy garment bag to Barbara Lohr for X-ray examination before boarding a plane departing from Anchorage International Airport. Lohr was an employee of Smith Loomis Corporation, a private security company employed by the airlines to conduct the screening required by federal regulations. She put Salit's bags on the conveyor belt running through a machine which X-rays for the presence of weapons or explosives. The garment bag passed through without incident. The handbag, however, was too dense to be X-rayed. As a result, Mr. Sobers, operator of the X-ray machine, indicated that a hand search was in order. Mr. Flechsing, who was standing at the end of the conveyor belt and removing the already X-rayed items, asked Salit whether the handbag was his. Salit said it was, and Flechsing requested permission to search the bag, which Salit granted. Flechsing unzipped the bag, and observed numerous small zipped bags. When Flechsing asked permission to open the smaller bags, Salit nodded his head. Flechsing then opened two of the smaller bags. He thought that the items contained in the bags might be related to narcotics, and called Officer Marsh, a law enforcement officer stationed nearby. Marsh looked into the bags and saw a small bottle containing a white powdery substance and narcotics paraphernalia. Marsh placed the handbag on a podium in the screening area and had another officer who had been summoned watch Salit and the bag while he notified the airport security police. Airport security officer Leger arrived. Looking inside the handbag, he recognized the contents as drug paraphernalia. Leger asked Salit to come with him, and began to escort Salit to the airport first aid room, when Leger noticed the garment bag laying over a chair. Leger was informed by Lohr that the bag belonged to Salit. All the other passengers had boarded, but the plane had not left. Leger asked Salit if the bag belonged to him, and Salit said no. Leger opened the outside compartment. He testified to two reasons for doing so: (1) to make sure that the bag did not contain explosives or other material hazardous to persons or property in the area; and (2) to find out who owned the bag and possibly return the bag to its proper owner, assuming that person was on the aircraft about to depart. Leger testified that this course of action was in accordance with written department procedures for lost and found items. Leger opened a zippered side compartment and pulled out a magazine. Inside the magazine was an unsealed Manila envelope. He opened the envelope and found a clear plastic bag containing a white powder. He thought that the white substance was cocaine. The search was discontinued, and Salit was escorted to the first aid room where he was advised of his Miranda rights. After entering the first aid station, Leger took out the contents of the handbag. This search revealed a large amount of cash, approximately $108,000.00, and a large amount of paraphernalia. Officer Carter, an Anchorage police officer, arrived and tested the contents of the plastic bag. The test indicated that the contents were cocaine. Salit was formally placed under arrest. Subsequently, an investigator from the Metropolitan Drug Enforcement Unit arrived and requested Sal-it's consent to search the garment bag. Salit said yes and signed a written waiver form. The investigator went into the garment bag and found another Manila envelope between two magazines. Inside the envelope, there was another plastic bag containing a white powder which he removed. Salit was taken to jail. By this time, Salit had made incriminating statements. At the jail, Salit threw a paper bag with the telephone number of the Captain Cook Hotel written on it into a trash can. The jailer retrieved that bag and gave it to Officer Carter. Carter and another officer went to the hotel and informed the manager that Salit, still a registered guest, had been arrested for drug offenses. The manager went to Salit's room to see if in fact Salit had absconded owing a $600 hotel bill. The officer went with him and observed narcotics paraphernalia and a white powdery residue on the furniture and the rug. The room was sealed at Officer Carter's request while he obtained a search warrant. The subsequent search of the room yielded several items of contraband. The defendant moved to suppress: (1) the contents of the handbag; (2) the contents of the garment bag (the cocaine); (3) ad missions made to police officers; and (4) the fruits of the hotel room search. The court granted part of the motion and denied part. It suppressed the contents of the garment bag because the search of the garment bag did not fit within any of the warrant exceptions: In my judgment, exigent circumstances are inappropriate as the bag was in the possession of the police. There's no possibility of its loss or destruction. I also feel that the abandonment doctrine does not fit the situation. You normally think of the free and voluntary selection to forego your ownership . Regarding the hotel room search, the court found that the search resulted from Salit's arrest, and the arrest was illegal since it resulted from the warrantless search of the garment bag. II. ISSUES There is no dispute that the search of Salit's handbag did not violate his right to be free from unreasonable searches and seizures. While Salit's possession of the narcotics paraphernalia discovered in the handbag may be of evidentiary value, it was not illegal, per se, and cannot constitute probable cause for his arrest. The incriminating evidence which could justify an arrest was discovered in the garment bag. We must determine whether the search of that bag comes within an exception to the requirement that a search warrant be obtained to validate a search. Salit does not question the constitutionality of the Air Transportation Security Act of 1974, and both parties seem to agree generally that the warrantless searches authorized by the Act fall within the administrative search exception to the warrant requirement. The state contends that: 1. The search of the garment bag was authorized by the Air Transportation Security Act; 2. Salit impliedly consented to the search; 3. Salit abandoned the garment bag; and 4. Salit may not contest the search of the hotel room since he had abandoned all rights to the contents of the room. We have concluded that the search of the garment bag was not not necessary to accomplish the purposes of the Act, and that Salit did not consent to the search. We also conclude, however, that the officer was justified in believing the garment bag to be "abandoned" so as to permit its search. Discovery of the fact that Salit had been lodged at the Captain Cook Hotel arose out of his incarceration. Since the validity of Salit's incarceration depends upon there being probable cause for Salit's arrest, which in turn is based on the validity of the garment bag search, evidence obtained from the hotel search is not tainted if the earlier garment bag search is legal. Under the circumstances, the police had the right to accompany the hotel manager, with his permission, when the abandoned room was inspected, resulting in information on the basis of which the search warrant was secured. The evidence thus obtained should not have been suppressed. The focal issue for us to determine is whether the search of the garment bag was valid. III. SEARCHES UNDER THE AIR TRANSPORTATION SECURITY ACT During the late 1960's, hijacking of airplanes increased dramatically. Commencing in 1968, the Federal Aviation Administration developed airport screening systems to prevent hijacking. Congress responded to the problem by enacting the Air Transportation Security Act of 1974. Requiring a search, both of persons and their luggage, as a condition of boarding a plane is an extraordinary response to an extraordinary situation. Though courts disagree over the theoretical justification for these searches and over important details of the screening program, all courts have upheld the essentials of the anti-hijacking program, as required by the Act, and previous federal regulations. The reason is that the fourth amendment permits necessary responses to new dangers, and the special features of hijacking (the grave danger to life, hijackers' lack of concern with witnesses to their crime, the short time of observation of passengers in the boarding area, and the inability of the police to do anything once the plane is in the air) required a unique response. The Act requires screening by "weapon-detecting procedures." 49 U.S.C. 1356(a). The only legitimate purpose of the screening program is to prevent weapons, including explosives, from being brought into boarding areas and onto planes. As the court stated in United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973): [Screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. Depriving passengers of weapons is critical because it is only through possession of a weapon on board a plane in flight that a person can be a hijacker and literally turn the plane itself into a weapon, threatening not only those within it, but those on the ground as well. In short, the plane may become a weapon of mass destruction that no ordinary person would have any way of obtaining except through a hijacking. United States v. Albarado, 495 F.2d 799, 805 (2d Cir.1974). We believe that searches by means of airport screening come under the administrative search exception of the warrant requirement discussed in Woods & Rohde, Inc. v. State, Department of Labor, 565 P.2d 138 (Alaska 1977). The United States Supreme Court has applied the rationale in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970), in upholding a statutory requirement that operators of liquor establish ments permit inspections or be subject to a fine. The Court stated: We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the Supreme Court upheld inspection of a pawn shop whose owner was licensed to deal in sporting weapons, stating: Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible. The Court concluded: We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute. The air travel industry is highly regulated, and though the inspection here is of the property of the passengers rather than of the airplane company itself, the reasons justifying the invasion are the same. Where the searches are in furtherance of an administrative purpose and not to discover contraband unrelated to that purpose or evidence of unrelated crimes, it is permissible under the fourth amendment and article I, section 14, of Alaska's constitution. As in other exceptions to the search warrant requirement, however, the screening program must not turn into a vehicle for warrantless searches for evidence of crime. "The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, 904 (1968). Thus, it is, and indeed for preservation of a free society must be, a constitutional requirement that to be reasonable the [hijacking] search must be as limited as possible commensurate with the performance of its functions. United States v. Albarado, 495 F.2d at 806 (emphasis in original). When the hijacking danger is not present and motivating the police officers, the usual fourth amendment rules apply: a search for evidence of a crime must be supported by probable cause; and, subject to well-delineated exceptions, police officers must obtain a warrant to conduct a search. See, e. g., Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-1731, 18 L.Ed.2d 930, 935 (1967); Erickson v. State, 507 P.2d 508, 514-15 (Alaska 1973). With these considerations in mind, we shall examine the search of Salit's garment bag. IV. WAS THE SEARCH JUSTIFIED AS AN ADMINISTRATIVE SEARCH The purpose of searches under the Air Transportation Security Act of 1974 is to prevent weapons from being brought upon planes for hijacking purposes and to discourage such conduct. The search must be as limited as possible to accomplish that purpose. Here, the garment bag had been subjected to an X-ray search. Unlike the handbag, the contents were observable by this means, and no evidence of weapons or explosives was discovered. Aside from the fact that no one claimed ownership of the bag, nothing justified a more intensive search than in the case of the bags of the other passengers. A search of the contents in an effort to discover drugs was certainly not authorized under this exception to the warrant requirement. Officer Leger testified that one reason he opened the garment bag was to make sure that it contained no weapons or explosives. The state argues that there could have been weapons or explosives not revealed by the X-ray, hidden perhaps in a fountain pen or other innocuous object. E. g., United States v. Moreno, 475 F.2d 44, 49 (5th Cir.1971), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973), which stated: [Mjodern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube. A detonator planted in a fountain pen is all that is required to set it off. The garment bag had been searched once by the X-ray machine; that search revealed no explosives or weapons. Thus, the first question is whether generally the possibility of undetected explosives or weapons is a sufficient government need to justify the further intrusion. The need to conduct these sorts of intensive searches is not great. Although court decisions and marshals who have found drugs during airport searches refer to the danger of unconventional weapons and powder explosives, "the hijackers themselves do not seem to be using these weapons and generally restrict themselves to the more conventional tools of destruction." Airport Search, supra note 14 at 316. Among the digests of well over 100 American hijackings, none was achieved by futuristic weapons. Id. at 316 n. 59. The court in United States v. Kroli, 481 F.2d 884 (8th Cir. 1973), rejected the fear of miniature explosives as a basis for opening a business envelope in a briefcase. The circuit court, however, limited its holding by quoting the district court: [This opinion is based on] the present state of the art of miniaturization. . [T]hat miniaturization of explosives of sufficient force to constitute a threat to an aircraft could, in the future, be developed to a degree that [might] invalidate the principles expressed [in its opinion]." Id. at 887 n. 4. The authorized screening procedures, directed toward discovery of conventional weapons, seem to have caused a decrease in hijackings. From a high of forty hijackings in 1969, there were two in 1973 and two in 1974. Airport Search, supra note 14 at 307 n. 1. If unconventional weapons do become a problem and require different screening procedures, such as intensive searches of random passengers or passengers who have certain characteristics, that conclusion should be made through authorized procedures, not by individual officers acting in the field. The Air Transportation Security Act and federal regulations expressly provide procedures to respond to new hijacking dangers, and the system can respond deci sively when there is a need. Thus, generally, the possibility of explosives or weapons undetectable by X-ray will not justify a warrantless search. Particular circumstances, such as when a bomb threat is received, may justify a search of bags that have successfully passed X-ray. The state argues there were particular facts to suspect explosives in Salit's garment bag: his other bag had a torch, persons who use drugs are dangerous, and Salit denied owning the bag. The basic requirement is still, however, that the officer must have been looking for instrumentalities of hijacking, not drugs. Officer Leger did not X-ray the garment bag again, and he opened the bag in the middle of the airport, rather than in an isolated, closed room. The trial court did not err in finding that there was no exigency justifying the search. As to the state's specific facts, the torch was a small butane torch, and Leger apparently correctly identified the contents of the handbag as narcotics paraphernalia, not hijacking tools. The presumption that persons who use drugs are more likely to hijack planes is not supported by any psychological literature on hijackers brought to our attention and is similar to the premise this court has rejected, namely, that people who use narcotics are unreliable witnesses, e. g., Morrell v. State, 575 P.2d 1200, 1204 (Alaska 1978). We conclude that the search was not justified under the general administrative search rationale for inspecting hand-carried bags of airline passengers. V. WAS THERE IMPLIED CONSENT TO THE SEARCH? One of the well delineated exceptions to the warrant requirement is consent searches. Erickson v. State, 507 P.2d 508, 515 (Alaska 1973). According to the state, the posted notices and the widespread knowledge about screening informed airline passengers, including Salit, that their bags might be opened. Therefore, the state argues that Salit consented to the search by handing the garment bag to Lohr. United States v. Doran, 482 F.2d 929, 932 (9th Cir.1973); United States v. Williams, 516 F.2d 11, 12 (2d Cir.1975) (per curiam ) We find this analysis slightly askew. Although the notices and foreknowledge of the passengers are relevant to the reasonableness of the search, they do not make this, or any other hijacking search, a consent search. [CJonsent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress and coercion, and is not to be lightly inferred. Erickson v. State, 507 P.2d at 515 (footnote omitted). It is clear that Salit did not expressly consent to the search of the garment bag in the way that a person who says, "Officer, you may search my home," consents to a search. What the state means is that the law should imply Salit's consent to search the garment bag from his prior act of giving the bag to the airlines. But the mere fact that persons are on notice that they may be searched cannot, by itself, be the basis for implying consent: This [would] mean that any kind of governmental intrusion is permissible if it has occurred often enough. The government could not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines would be tapped, or that all homes would be searched. United States v. Davis, 482 F.2d 893, 905 (9th Cir. 1973). See also United States v. Albarado, 495 F.2d 799, 807 n.14 (2d Cir. 1974). Assuming that on the basis of the posted notices Salit gave implied consent to X-ray his bag, it cannot be inferred that he gave implied consent to allow the opening and searching of his bag. Although the notice provided that carry-on luggage "is being inspected by X-ray," it stated "Physical inspection may be requested," and "Inspection may be refused." The notice thus indicates that before a physical inspection, there would be a request and a right to refuse the request, which would result in the passenger not being permitted "to pass the inspection point." Under these circumstances, we cannot say that the government has borne its burden of proof that Salit knowingly gave implied consent to open and search his bag. See United States v. Davis, 482 F.2d 893, 913-15 (9th Cir. 1973). As we have explained in the preceding section, the further search of the garment bag cannot be justified as an administrative search for the purpose of deterring hijacking by discovering weapons or explosives. Therefore, it exceeded the bounds of any implied consent to such an administrative search. The search cannot be justified as based on implied consent. VI. WAS THE GARMENT BAG ABANDONED SO AS TO BE SUBJECT TO SEARCH? As we have indicated in the presentation of facts, after all the other passengers had boarded the plane but before its departure, Leger began to escort Salit, who had been frisked, to the first aid room. At that .time, Leger observed the garment bag and was informed by Lohr that it was the bag Salit had handed her. Leger asked Salit if the bag was his, and Salit said no. One relinquishes the right of privacy to property by abandoning it. As a result, the protections of the fourth amendment do not extend to abandoned property. Additionally, the state argues that a defendant who has abandoned property sometimes lacks standing to raise fourth amendment issues arising out of the search of that property. However, where posses-sory offenses are involved, as is the case here, we find the state's argument as to standing untenable. It would be a completely anomalous result to allow the government to argue that the alleged contraband belonged to Salit for purposes of conviction, but that it did not belong to him for purposes of standing. As Justice Frankfurter wrote in Jones v. United States, 362 U.S. 257, 263-64, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, 704 (1960): Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e). Furthermore, this is not a case where Salit is asserting the rights of third parties in the property. The real issue here is not standing, but whether there was such an abandonment as to terminate Salit's reasonable expectations of privacy in the bag. When property is abandoned, it no longer is subject to the protection of the fourth amendment. Thus, in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), when prohibition agents found a jug and bottle dropped or thrown away by two men who were running away from them, it was held that there was no seizure in the sense of the law, as the items had been abandoned. Similarly, in Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687 (1960), appropriation of the con tents of a wastepaper basket found in a hotel room from which the defendant had checked out was held to be lawful because of abandonment. Closer to the facts presented to us are those of Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970). Police arrested three individuals at the Los Angeles airport and, by use of their claim checks, secured seven pieces of baggage. After being transported to the police station, the three that were arrested identified each item of luggage except one suitcase. They denied knowledge of ownership of the suitcase. The court held: The appellants disclaimed any proprietary or possessory interest in the incriminating evidence and by so doing abandoned whatever interest they might have had in the property from possession of the claim check. In United States v. Colbert, 474 F.2d 174 (5th Cir. 1974) (en banc), two men carrying briefcases set them on the sidewalk when approached by officers. When the men began to walk away, leaving the briefcases behind, they were stopped again and subsequently arrested for failure to carry Selective Service registration certificates. They were taken to a patrol car and again denied knowing anything about the briefcases. An officer opened the briefcases and found illegal sawed-off shotguns inside. The court held: The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d [749] at 753 [5th Cir.]; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The facts of this case show conclusively that Colbert and Reese abandoned their briefcases before the searches took place. In response to police questions they both disclaimed any interest in the briefcases and began to walk away from them. The police officers in no way compelled these actions. Under these circumstances appellants could entertain no reasonable expectation of privacy in them. In United States v. Jackson, 544 F.2d 407 (9th Cir. 1976), Jackson, suspected of dealing in narcotics, dropped a suitcase when approached by a federal narcotics agent and a policeman. He was arrested after taking about three steps, and was taken to a police car. After being warned of his rights, he agreed to talk, but denied dropping the suitcase, saying that he had never seen it before. The court found that there was abandonment, not in the property-right sense, but by relinquishment of Jackson's interest in the property to such an extent that he no longer retained a reasonable expectation of privacy in it at the time of the search. Jackson presented a question as to whether the arrest was illegal so that the acts taken to establish the abandonment were brought about by unlawful police conduct. If so tainted, the court would not consider the suitcase as abandoned. A majority of the court found that the arrest was legal. Here, Salit's denial of ownership of the garment bag at a time when the other passengers had departed the area justified Leger in treating the bag as abandoned, unless Salit's denial was attributable to unlawful police conduct. We must therefore determine whether Salit's denial of ownership was so tainted. Salit had not been given a Miranda warning at the time he was asked whether he owned the bag. If the question constituted custodial interrogation, such a warning was required. In determining whether interrogation is custodial, the place of interrogation may be significant. Salit was still in a public area and had not been placed under arrest or told that he could not leave. The signs pertaining to inspection of baggage indicated that inspection could be refused, in which event the person would not be permitted to pass the inspection point. The officer had merely requested Salit to accompany him to the first aid room. We have adopted an objective reasonable person test, that is, whether a reasonable person would have thought he was in custody, and we have rejected a subjective test based on the thoughts of the police officer or defendant. Hunter v. State, 590 P.2d 888, 894-95 (Alaska 1979). Leger was questioned: Q. But you did say, please come with me. A. Yes, sir. Nevertheless, at the time of the question, Salit was surrounded by several officers. Under the totality of the circumstances, a close question is presented as to whether a reasonable person would feel free to leave and break off police questioning. We need not decide that issue because this was not custodial interrogation. The question addressed to Salit also appears to come within an exception specifically mentioned in the Miranda decision: General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966). Additionally, "interrogation" within the meaning of Miranda has been defined as "police questioning that is, likely or expected to elicit a confession or other incriminating statements." Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63, 70 (1978). There is no basis for believing that Leger's question was for the purpose of eliciting an incriminating statement. He did not know the contents of the bag, and it was logical to make the inquiry so that Salit could have the bag taken with him to the first aid room. We do not believe that this single inquiry constituted interrogation. Nor do we believe that Salit was coerced by being given a Hobson's choice when asked as to his ownership of the garment bag. Previously, his handbag had been opened only after he had granted permission to open it pursuant to a request. The additional closed containers within it also were not opened until he consented. Further, as mentioned previously, the posters indicated that inspection could be refused. He thus was not led to believe that if he admitted ownership the bag would automatically be searched. His denial of ownership of the bag, when all other passengers had departed the area, justified Leger in considering it to be abandoned. Under those circumstances, the opening of the bag did not violate Salit's reasonable expectations of privacy. As we indicated previously, the validity of the hotel room search is dependent on the validity of the arrest. There were ample grounds for the arrest resulting from the search of the garment bag, and, accordingly, the evidence obtained from the hotel room search should not have been suppressed. The order of the superior court, to the extent that it suppressed the results of the search of the garment bag and the hotel room, is REVERSED. MATTHEWS, J., joined by BURKE, J., concurs. RABINOWITZ, C. J., not participating. . Appellate Rule 23(d) authorizes such review. . Among the items that he found in the bags were: several small ampules, a hand-rolled cigarette, a small pipe, a lighter, a butane torch with a red cap, a glass tube, a small pipe screen, one razor, several pieces of glass, the tip of a small brush, three butane bottles (one with a torch hooked up to it), a small spoon, a Bayer aspirin container, an eyedropper, a pipe and some small bottles. . Marsh frisked Salit when he took him and the handbag over to the podium. . It is unclear from the record whether Leger discovered the garment bag inadvertently or whether Lohr brought it to his attention. . Salit chose to remain silent at that time. . The state does not make any argument about the effect of this consent to a second search. This consent and the search were the result of Salit's arrest; the arrest was the result of the search of the garment bag. Thus, if the garment bag search was illegal, this consent is invalid as the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). .The state did not charge the defendant with any separate offenses from the hotel room search. It wants, however, to use the results of the search as evidence. . U.S.Const., Amend. IV; Alaska Const., Art. I, § 14. . Erickson v. State, 507 P.2d 508, 514 (Alaska1973). . This statute enacted 49 U.S.C. § 1356, 1357 and 1516 and amended 49 U.S.C. § 1301, 1472 and 1511 (1976). It is discussed in Part III of this opinion. . The state also suggests that the initial opening of the handbag, and therefore the discovery of the paraphernalia, was not state action because Lohr and Flechsing are employees of a private corporation. The government does not seriously advance this claim, and it is without merit. Every court that has examined the screening program has examined it as state action. Screening of carry-on luggage is required by law. At no time since late 1968 could activities of this kind at the nation's airports have been described accurately as "an independent investigation by the carrier for its own purposes," and thus beyond the reach of the Fourth Amendment. It makes no difference that the act of opening appellant's briefcase was accomplished by a "private" airline employee rather than a "public" official. The search was part of the overall, nationwide anti-hijacking efforts, and constituted "state action" for purposes of the Fourth Amendment. United States v. Davis, 482 F.2d 893, 897, 904 (9th Cir.1973) (citation omitted). . Weinstock, The Airport Search and the Fourth Amendment: Reconciling the Theories and Practices, 7 U.C.L.A.-Alaska L.Rev. 307 (1978) (hereinafter cited as Airport Search), states: Between 1961 and 1967 there were only 14 hijackings of American airplanes, an average of two per year. But in 1968 there were 22 hijackings and in 1969 there were a total of 40. As it turns out, this,was the high water mark for American airplane hijacking as the numbers dropped off thereafter: 1970-27, 1971-27, 1972-29, 1973-2, 1974-2. Brodsky, Terry and the Pirates: Constitutionality of Airport Searches and Seizures, 62 Ky.L.J. 623, 624 (1974). Id. at 307 n. 1. . See United States v. Albarado, 495 F.2d 799, 804-05 (2d Cir.1974); United States v. Davis, 482 F.2d 893, 913 (9th Cir.1973); United States v. Lopez, 328 F.Supp. 1077, 1082-83 (E.D.N.Y.1971); People v. Hyde, 12 Cal.3d 158, 115 Cal.Rptr. 358, 364, 524 P.2d 830, 836 (1974); S.Rep. No. 93-13, 93d Cong., 1st Sess. at 10 (1973). . The Court, however, found that the use of force to secure entry was not authorized by the statute. . 397 U.S. at 77, 90 S.Ct. at 777, 25 L.Ed.2d at 65. . 406 U.S. at 316, 92 S.Ct. at 1596, 32 L.Ed.2d at 92. . Id. at 317, 92 S.Ct. at 1597, 32 L.Ed.2d at 93. . United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973); People v. Hyde, 12 Cal.3d 158, 115 Cal.Rptr. 358, 362, 524 P.2d 830, 834 (1974); Airport Search, supra note 14 at 324-27. . This fact is dependent on the significance to be placed on Salit's denial of ownership. . As found by the trial court, there was no exigency. A different situation would be presented in the face of a specific bomb threat. . The Act provides for research (including behavioral research) and development as [the Federal Aviation Administrator] may deem appropriate to develop, modify, test and evaluate systems, procedures, facilities, and devices to protect persons and property aboard aircraft against . aircraft piracy. 49 U.S.C. § 1357(d)(1). The Federal Aviation Administrator must submit semi-annual reports concerning the effectiveness of the program, and he may amend the procedures on thirty days' notice to Congress. If emergency situations call for immediate implementation of the changes, the thirty-day waiting period is not necessary. 49 U.S.C. § 1356(a). Aircraft carriers may also petition the Federal Aviation Administration to change their airport security plan. 14 C.F.R. 107.5 (1971). In any event, the procedures followed here did not give the passenger notice that his baggage could be opened and searched. See discussion infra at 254, 255. . Early in the screening program, the FAA had relied on the carriers' voluntary cooperation, but in February, 1972, the FAA required carriers to adopt and put into use within 72 hours an acceptable screening system. Initially, only persons who fit a hijacker profile and activated the magnetometer were further searched. Convinced that some potential hijackers did not meet the profile, the President ordered the screening of all luggage carried on to shuttle flights in July, 1972, and the FAA ordered screening of carry-on luggage for all flights in December, 1972. United States v. Davis, 482 F.2d 893, 900-01 (9th Cir.1973). . Here we are not stating that the airport personnel may not request permission to open and search a bag that has passed through X-ray. Such a search, however, may not be made without permission of the passenger, in the absence of probable cause to believe that an effort is being made to take weapons or explosives aboard the plane. When there is probable cause to believe that a passenger is seeking to bring weapons or explosives aboard a plane, an exigency is created justifying an immediate search. In the absence of such probable cause the passenger must be afforded the choice of permitting the search or being refused passage aboard the plane. This is specifically what the posted notices concerning baggage inspection provide. For the text of the notices, see note 25 supra. . United States v. Kroll, 481 F.2d 884, 887 (8th Cir.1973) (citation omitted), states: If [the officer], in fact, seriously believed that weapons or explosives were in the envelope, it is likely that he would have cleared the area of other persons, or have taken the [brief] case and envelope to an area away from the people. . There were two signs posted at Gate 19 which read: X-RAY BAGGAGE INSPECTION * Carry-on luggage is being inspected by X-ray * Inspections will not affect ordinary undeveloped film * Remove all X-ray and scientific film from luggage * Physical inspection may be requested Federal Aviation Administration U.S. Dept, of Transportation * It is a crime to carry a concealed weapon aboard aircraft * Federal safety rules require inspection of persons and hand carried articles passing an inspection point * Inspection may be refused * Persons refusing inspection will not be permitted to pass the inspection point U.S. Govt. Printing Office: 1974 528-756 . The court in Williams stated: [T]here was implied consent to search the carry-on baggage by virtue of the fact baggage which one does not want to have searched may be consigned to the baggage compartment. United States v. Williams, 516 F.2d 11, 12 (2d Cir.1975). The court also stated there was evidence of express consent. Id. . Airport Search, supra note 12, states: One of the most hotly debated practical problems in the area of airport searches has been whether and until what point a prospective passenger has the right to avoid the screening searches by leaving. Id. at 320 (footnote omitted). Compare, e. g., United States v. De Angelo, 584 F.2d 46, 48 (4th Cir. 1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 493 (1979), with United States v. Homburg, 546 F.2d 1350, 1352 (9th Cir. 1976). We are not confronted with this problem in this appeal. . It may be argued that the consent of airline passengers is not voluntary because it results from the choice: one must be searched without a warrant and without probable cause or one cannot fly. The court in United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), pointed out: Compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion; the government cannot be said to have established that the defendant freely and voluntarily consented to the search when to do otherwise would have meant foregoing the constitutional right to travel. The Second Circuit agreed: To make one choose between flying to one's destination and exercising one's constitutional right appears to us, as to the Eighth Circuit, United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), in many situations a form of coercion, however subtle. United States v. Albarado, 495 F.2d 799, 806-07 (2d Cir. 1974) (citation omitted). The California Supreme Court has also cited the reasoning in Kroll with approval. People v. Hyde, 12 Cal.3d 158, 115 Cal.Rptr. 358, 360, 524 P.2d 830, 832 n.2 (1974). The argument, however, is more persuasive as applied to the search of the person of an airline passenger than to his hand carried bag. The passenger has the choice of checking the baggage for shipment rather than hand carrying it. Checked baggage is not subject to the inspection procedures authorized by the Air Transportation Security Act of 1974. . Smith v. State, 510 P.2d 793, 795 (Alaska 1973); 1 W. LaFave, Search & Seizure § 2.6(b) at 366-67 (1978). . 1 W. LaFave, Search & Seizure § 2.6(b) at 367 (1978). . 431 F.2d at 333. The court in Lurie, however, based its holding on lack of standing. . 474 F.2d at 176-77. . Other cases similarly hold that abandonment may arise out of disclaimer of ownership in answer to police questioning. United States v. Anderson, 500 F.2d 1311, 1317 (5th Cir. 1974) (rhg. en banc); United States v. Berkowitz, 429 F.2d 921 at 925 (1st Cir. 1970); State v. Walker, 119 Ariz. 121, 579 P.2d 1091 (1978); State v. Brown, 45 Ohio App.2d 76, 341 N.E.2d 325 (1975). . In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966), the Supreme Court required that, prior to custodial interrogation, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. . 4 C. Torcia, Wharton's Criminal Evidence § 717 at 25-30 (13th ed. 1973) (footnotes omitted), states: With respect to interrogation by law enforcement officers, the Miranda warnings must ordinarily be given where the defendant is interrogated in'a police station, police vehicle, prison, or his home; but, absent unusual circumstances, the warnings need not be given where the interrogation takes place on the street, at his place of employment or business, or in a hospital. . The officer did indicate, however, that if Salit sought to leave the airport he would have asked him to stay. Even assuming the officer had an unexpressed intent not to allow Salit to leave, custody is not determined by what the officer thinks. Lowe v. United States, 407 F.2d 1391, 1397 (9th Cir. 1969). . See Hunter v. State, 590 P.2d 888 (Alaska 1979), for a discussion of the test for custodial interrogation. See also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). . We have previously referred to this exception in two cases involving violent crimes: Ripley v. State, 590 P.2d 48, 50 (Alaska 1979), and Pope v. State, 478 P.2d 801, 804 (Alaska 1970). The exception is not limited to violent crimes. See cases cited in 4 C. Torcia, Wharton's Criminal Evidence § 717, at 22 n.42; Annot., 31 A.L.R.3d 565 (1970). . See also United States v. Lewis, 425 F.Supp. 1166, 1176 (D.Conn.1977); Application of Santos, 400 F.Supp. 784, 795 (M.D.Pa.1975); Eben v. State, 599 P.2d 700, 708 (Alaska 1979); Soolook v. State, 447 P.2d 55, 59 (Alaska 1968), cert. denied, 396 U.S. 850, 90 S.Ct. 107, 24 L.Ed.2d 99 (1969). . The facts with reference to the issue of custodial interrogation are not in dispute. Our decision depends on the legal analysis of those facts. We are therefore not bound by the trial court's view and do not apply the clearly erroneous standard. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833-34 (Alaska 1974).

10444613

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

Ahvik v. State

1980-07-11

No. 4556

1252

1255

613 P.2d 1252

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

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

Herbert AHVIK, Appellant, v. STATE of Alaska, Appellee. No. 4556. Supreme Court of Alaska. July 11, 1980. Dennis D. Kelso, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Sue Delbert, Asst. Dist. Atty., Harry L. Davis,.Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

1513

9155

OPINION BOOCHEVER, Justice. Herbert Ahvik appeals his sentence for forcibly raping his 15-year-old niece in violation of AS 11.15.120(a). The rape occurred during the afternoon of July 21, 1978, in Barrow, Alaska. The defendant walked unannounced into a house belonging to his half-sister, Mary. He woke up Mary's daughter, C., and asked her if she wanted to get "stoned." C. refused, and Ahvik then told her he was going to rape her. Ahvik himself had been either drinking or smoking marijuana. He pulled her hair, slapped her several times, and ordered her to take off her pants. was frightened and did as she was told. Ahvik raped her. When he was done he said he was sorry, but told her he would beat her up if she told anyone. Ahvik is an Eskimo laborer with a seventh-grade education. He has difficulty speaking English. At the time of the crime he was eighteen and unemployed. Ahvik was abandoned by his mother, and his father died when he was fourteen. Both parents were alcoholics. He was raised by various relatives, including a sister in Anak-tuvuk Pass and his grandparents. The probation officer's report indicates that he had some problems as a minor in need of supervision, but that there is no record of prior offenses. He has had some involvement with alcohol and drugs. He has never been married or in the military. Dr. Harold Smith, a psychiatrist, interviewed Ahvik and concluded that he appeared "uneducated, untrained, [and] unso-cialized." He stated: Generally speaking, I feel that his prognosis might be somewhat better than the average man his age convicted of a similar offense, if only for the reason that the average offender would be more likely to have had the advantages of a less deprived background, a more normal upbringing, opportunities for social learning, education, etc. We have emphasized in our prior decisions that rape is among the most serious felonies. It amounts to "a desecration of the victim's person which is a vital part of her sanctity and dignity as a human being." Newsom v. State, 533 P.2d 904, 911 (Alaska 1975). Nevertheless, while conceding the seriousness of the crime, we conclude that under the circumstances the trial court's imposition of a five-year sentence was excessive and failed to adequately consider the goal of rehabilitation of the offender. This is not a case in which an offender has assaulted an unknown victim. While we in no way condone Ahvik's conduct, it was not of the brutal type likely to result in severe psychological or physical aftereffects, and, in fact, the victim has not shown such results from the rape. With regard to rehabilitation, the trial court said only that "it may be a little early to tell in your case . . . whether or not you are going to rehabilitate yourself into a successful member of society." We have reversed or remanded several cases in which the trial court did not adequately consider the possibility that an offender might be rehabilitated. Ahvik is a youthful offender with no prior criminal record. He comes from a disadvantaged background with a history of alcoholism. He apparently accepts responsibility for his crime and seems presently to be making efforts to improve himself by, among other things, attempting to complete a high school equivalency program. The psychiatrist's report indicates that Ahvik's prognosis for rehabilitation is good. As one commentator has noted, "The possibility of significant character and behavioral changes in young adults from ages 18 to 25 is a recognized phenomenon." We do not believe Ahvik should be placed with hardened criminals, as this is likely to reinforce any criminal tendencies he may already have. We believe that the sentence should include a recommendation that Ahvik be placed in a facility such as the Palmer Correctional Center, where there is an emphasis on rehabilitation programs. The classification requirements issued by the Alaska Department of Health and Social Services, Division of Corrections, for placement in the Palmer facility specify: "Due to the uniqueness of the facility, prisoners must be within three years of their mandatory release date." Our conclusion is that Ahvik should not receive a sentence of more than five years with two suspended. This case is accordingly REMANDED for resentencing. BURKE, J., joined by MATTHEWS, J., dissents. . At the time of the offense, AS 11.15.120(a) provided: Rape, (a) A person who (1) has carnal knowledge of another person, forcibly and against the will of the other person, or (2) being 16 years of age or older, carnally knows and abuses a person under 16 years of age, is guilty of rape. . See Holden v. State, 602 P.2d 452, 459 (Alaska 1979); State v. Wassilie, 578 P.2d 971, 973-74 (Alaska 1978); Bordewick v. State, 569 P.2d 184, 186 (Alaska 1977). . In fact, the victim's family apparently does not bear any ill will toward Ahvik, and the victim's mother has indicated that Ahvik would be allowed to visit her home, . Husted v. State, 608 P.2d 298 (Alaska 1980); Padie v. State, 594 P.2d 50 (Alaska 1979); Andrews v. State, 552 P.2d 150 (Alaska 1976); Christian v. State, 513 P.2d 664 (Alaska 1973); Mattern v. State, 500 P.2d 228 (Alaska 1972). . Erwin, Five Years of Sentence Review in Alaska, 5 U.C.L.A.-Alaska L.Rev. 1, 18 (1975). . Alaska Department of Health & Social Services, Division of Corrections, Classification Requirements for SCC/Palmer Population, Section # 410, page 3.

9024283

Robert R. HAMMOND, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Appellees

Hammond v. State, Department of Transportation & Public Facilities

2005-02-25

No. S-10448

871

884

107 P.3d 871

107

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Robert R. HAMMOND, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Appellees.

Robert R. HAMMOND, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Appellees. No. S-10448. Supreme Court of Alaska. Feb. 25, 2005. Robert R. Hammond, pro se, Chugiak. Marjorie L. Vandor, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

7829

50874

OPINION CARPENETI, Justice. I. INTRODUCTION Robert Hammond was terminated from his job with the Department of Transportation and Public Facilities. He contested his termination by pursuing the grievance-arbitration mandated by his collective bargaining agreement. While his grievance was being contested, Hammond simultaneously pursued statutory whistleblower claims in state court against the Department of Transportation and Public Facilities and fellow employees David Eberle, Richard Briggs, and Gordon Keith. His grievance was ultimately dismissed after arbitration. The superior court then gave res judicata effect to the arbitral decision to grant summary judgment for the defendants. Hammond appeals. We hold that Hammond is not precluded from pursuing his independent statutory claims in state court because he did not clearly and unmistakably agree to submit those claims to arbitration. We therefore reverse the superior court's grant of summary judgment. II. FACTS AND PROCEEDINGS A. Facts Robert Hammond was an employee of the Alaska Department of Transportation and Public Facilities (DOTPF) for approximately twenty years. In August 1994 he was assigned to DOTPF's Homer Gravel Roads Project. While working on the project, Hammond concluded that the rock being used by the contractor violated the DOTPF contract specification that established maximum rock size. Hammond made a series of complaints to the contractor, throughout the DOTPF chain of command, and to the Federal Highway Administration (FHWA) about what he believed to be a violation of contract specifications. In October Hammond complained to DOTPF's Director of Design and Construction, Dean Reddick, about the project's management and about the contractor's failure to follow contract specifications. At that meeting Hammond requested that he be transferred from the project; Reddick complied. After being transferred from the project Hammond made repeated allegations of DOTPF mismanagement. Some of these allegations were extremely serious and charged DOTPF and its personnel with corruption, fraud, and incompetence. In June 1995 Hammond received performance evaluations from his supervisor on the Homer Gravel Roads project and from Richard Briggs, his regular supervisor, stating that his performance was "mid-level acceptable." In July 1995 Hammond filed charges with FHWA alleging criminal violations of 18 USC § 1020 by DOTPF management. As a result of these charges, Hammond was placed on paid, off-site status, which subjected him to a reduction in wages. After investigation, FHWA concluded that Hammond's charges were without merit. A separate investigation into Hammond's allegations was conducted by the state, which hired an independent investigator, Richard Kerns, to investigate the Homer Gravel Roads Project and another project. Kerns's investigation found no violations of 18 USC § 1020 or the Alaska Whistleblower Act. Kerns also concluded that Hammond had no reasonable basis to make his allegations and that the allegations were not made in good faith. David Eberle, Director of Design and Construction for the Central Region of DOTPF, terminated Hammond's employment with DOTPF on July 31, 1996, relying primarily upon the Kerns report and the recommendations of Briggs and DOTPF Regional Construction Engineer Gordon Keith. Eberle cited Hammond's "unfounded attacks impugning the integrity and competence of department staff and Federal Highway Administration personnel, threatening behavior, and refusal to follow the directions of management" as the reasons for termination. B. Proceedings On August 7, 1996 Hammond brought a grievance under his union's collective bargaining agreement (CBA), alleging that DOTPF violated the CBA by discharging him without "just cause." The parties were unable to resolve the grievance and they submitted the dispute to arbitration as mandated by the CBA. On December 21, 1996 Hammond also filed suit in superior court against DOTPF, Eberle, Keith, and Briggs, alleging violation of the Alaska Whistleblower Act and seeking compensatory and punitive damages and reinstatement to his former position. After a hearing, the arbitrator held that Hammond's discharge was for "just cause" and therefore did not violate the CBA. The arbitrator denied Hammond's grievance based on her finding that Hammond's accusations — that DOTPF management acted dishonestly, engaged in unethical behavior, allowed contractors to cheat, falsified documents, gave away state property, and was incompetent — "stepped over the bounds of reason" and justified termination because they were not "made in good faith; that is, with a reasonable basis for believing them to be true." The arbitrator also stated that Hammond was not entitled to protection under the Alaska Whistleblower Act because the allegations for which he was terminated were not made in good faith. After the unfavorable arbitration decision, Hammond pursued his superior court whis-tleblower action. In his state court action, Hammond relied upon a report on the Homer Gravel Roads project by the Alaska Division of Legislative Audit released after the arbitrator's decision. The report found that Hammond's claims had merit and that DOTPF's selection of Kerns to investigate Hammond's allegations against DOTPF was flawed; it also called Kerns's independence into question. In February 2001 Superior Court Judge Dan A. Hensley granted DOTPF's motion for summary judgment based on the arbitrator's decision. The superior court held that Hammond was precluded from litigating his whis-tleblower claim in superior court because the parties understood that the arbitrator would have to address whistleblowing issues in her decision and because the arbitrator did decide the whistleblowing claim. Hammond appeals. III. STANDARD OF REVIEW "We review a trial court's grant of summary judgment rife novo and affirm its ruling if the record presents no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law." We draw all reasonable factual inferences in favor of the non-moving party. Finally, "[t]he applicability of estoppel principles to a particular set of facts is a legal question over which we exercise independent review." IV. DISCUSSION A. The Arbitrator's Decision in Hammond's State Court Whistleblower Action Was Not Entitled to Preclu-sive Effect. 1. Hammond has a right to a fully independent judicial determination of his statutory whistleblower action unless he submitted that claim to arbitration. Hammond argues that the arbitrator exceeded the scope of her authority by resolving or attempting to resolve his state court whistleblower claim. He contends that the arbitrator's decision should not be granted preclusive effect because the only question the parties submitted to arbitration was whether Hammond was terminated for "just cause." Thus, Hammond argues, the arbitrator lacked the authority to decide his whistleblower claim. DOTPF responds that the arbitrator's decision should have preclu-sive effect because (1) Hammond submitted his whistleblower claim to arbitration and (2) Hammond's CBA-based arbitration claim that he was not terminated for just cause was so connected to his statutory whistle-blower claim that "[i]t simply was not possible for the arbitrator to reach a conclusion on just cause without deciding the validity of Hammond's whistleblower claims." Because we have not yet decided the precise issue before us today, we first look to federal law for guidance in determining whether Hammond's statutory claim was precluded by his arbitration of a similar claim under the CBA. We have previously found federal precedent to be persuasive in interpreting the preclusive effects of arbitration decisions under Alaska law. In Alexander v. Gardner-Denver Co., the United States Supreme Court held that an arbitrator's decision pursuant to a CBA should not have preclusive effect in a subsequent lawsuit asserting rights guaranteed by statute. The Court held that an employee's submission of a claim that his termination violated his CBA's nondiscrimination clause did not foreclose his right to a trial on whether his discharge violated Title VII of the Civil Rights Act of 1964. Gardner-Denver recognized that Title VII demonstrated a congressional "intent to accord parallel or overlapping remedies against discrimination," suggesting "that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." The Supreme Court went on to state that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII. The federal court should consider the employee's claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems necessary.[ ] Gardner-Denver⅛ protection of an employee's right to fully and independently pursue both a grievance based upon the CBA and a lawsuit based upon the violation of statutory rights has been qualified, but preserved, by subsequent cases. In Gilmer v. Interstate/Johnson Lane Corp., the United States Supreme Court held that a claim under the Age Discrimination in Employment Act of 1967 "can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application." In Gilmer the employee had agreed to arbitrate his statutory claims and the Court held that this prior agreement required that preclusive effect be given to the arbitrator's decision on the statutory claims. Gilmer distinguished Gardner-Denver because in Gardner-Denver "the employees . had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, [so] the arbitration . understandably was held not to preclude subsequent statutory actions." Significantly, Gilmer recognized that "because the arbitration in [the Gardner-Denver line of] eases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to [Gilmer's claim]." The United States Supreme Court recently-recognized the tension between Gardner-Denver and Gilmer in Wright v. Universal Maritime Service Corp., a ease in which the Court held that the CBA did not waive the employee's right to bring statutory employment discrimination claims in court. Wright recognized that Gilmer supported the proposition that "federal forum rights cannot be waived in union-negotiated CBA's even if they can be waived in individually executed contracts" while also noting that the growing acceptance of arbitration has undermined Gardner-Denver's prohibition on union waiver of an employee's right to a judicial forum. Wright eventually declined to resolve this tension, instead finding that if a union has the right to waive its members' statutory rights, "such a waiver must be clear and unmistakable" and concluding that the CBA in that case did not meet this standard. We have previously addressed the effect of arbitration on subsequent statutorily based claims in three cases. In Public Safety Employees Ass'n v. State, (PSEA I) we held that a union member's right to sue as a tenant under the Uniform Residential Landlord Tenant Act (URLTA) "cannot be prospectively bargained away." Though that decision was predicated in part on the URL-TA's explicit non-waiver provision, we later stated in Public Safety Employees Ass'n v. State (PSEA II) that PSEA I "rejected the argument that the availability of arbitration precludes statutory remedies." However, PSEA I and PSEA II did not address the question whether a party can trigger preclusion of statutory claims by submitting that claim, or a similar claim involving common issues, to arbitration. This question was also left unresolved by Bamica v. Kenai Peninsula Borough School District, in which four members of this court were equally divided on the question whether a CBA that mandated arbitration of discrimination claims could prevent an employee who did not use the arbitration procedure from bringing a statutory discrimination claim in court. Two members of the court relied on Gilmer in concluding that "a claim subject to an agreement to arbitrate for which an independent statutory judicial remedy is also available must be arbitrated, unless the history and structure of the statute in question indicate that the legislature intended to preclude waiver of the judicial remedy in favor of the arbitral forum." Under this approach, arbitration of such a claim would have preclu-sive effect on a subsequent state court claim. Two other members disagreed, citing Gardner-Denver's unequivocal holding that "a CBA could not collectively bargain away a worker's individual right to a statutory judicial remedy" and noting that at least some of this protection survived Gilmer. They focused on Wright, which held that a CBA must incorporate a "clear and unmistakable" waiver of a statutory claim in order to preclude an employee from bringing a statutory claim in state court. Implicit in this approach is the idea that, absent a clear waiver, an employee has a right both to arbitrate a claim under a CBA and to litigate a related, independent statutory claim in state court. We now adopt this approach and hold that an employee's exercise of the right to arbitrate under a CBA does not preclude subsequent litigation of related statutory claims in state court unless the employee clearly and unmistakably submits the statutory claims to arbitration. An employee is not required to choose between the rights provided by a CBA and the rights provided by statutes such as the Alaska Whistleblower Act; ab sent a clear and unmistakable waiver, the employee is entitled to both. Therefore, Hammond may pursue his statutory claims in state court unless he clearly and unmistakably waived those claims. We now must determine whether Hammond clearly and unmistakably waived his right to pursue these claims. 2. Hammond did not submit his Alaska whistleblower claims to arbitration. Hammond argues that he did not knowingly, explicitly, and voluntarily submit his whistleblower claims to arbitration. Hammond notes that the arbitrator's authority was limited by the CBA to a determination of whether Hammond was fired for just cause, and he emphasizes that the arbitrator characterized the issue before her as whether "the employer violate[d] the Collective Bargaining Agreement in its dismissal of Mr. Hammond." Hammond also contends that his union did not give him notice that he would lose his right to pursue his statutory claim and that in any case the union did not have the authority to waive his right to pursue statutory claims in court. DOTPF responds that Hammond submitted to arbitration his statutory whistleblower claims as a necessary part of his CBA-based claim that he was not terminated for "just cause." DOTPF generally alleges that Hammond's handling of his arbitration claim amounted to a voluntary submission to arbitration of his statutory whistleblower claims because it was necessary for the arbitrator to determine whether Hammond's accusations were made in "good faith" in order to determine whether DOTPF terminated him for "just cause." DOTPF also notes Hammond's own acknowledgment that this case involves the same facts, or issues, as the previous arbitration. Finally, as proof that Hammond explicitly submitted his statutory claims to arbitration, DOTPF points to the arbitrator's statement that the parties stipulated both that she had jurisdiction and that there were no issues about what was arbitrable. There are three possible ways in which Hammond could have clearly and voluntarily submitted to arbitration so as to preclude subsequent litigation of his statutory whistle-blower claims in court. It is possible that (1) the CBA's mandatory arbitration procedure governing grievances concerning dismissal clearly and unmistakably submitted his statutory claims to arbitration, (2) Hammond voluntarily submitted his whistleblower claims to arbitration even though he was not bound to do so by the CBA, or (3) Hammond voluntarily submitted to arbitration the issues common to both his CBA and his statutory claims and is thus precluded from relit-igating the issues. We hold that Hammond did not' clearly and unmistakably submit his whistleblower claims to arbitration either through his CBA or through a separate agreement and we reject the idea that independent statutory claims can be precluded when an employee exercises his right to contest a necessary issue through CBA-mandated arbitration. a. The CBA's arbitration provisions did not waive Hammond's right to bring independent statutory whis-tleblower claims in court. We accept the principle that an employee can waive at least some of the employee's rights to an independent trial of statutory claims in a judicial forum by working under a CBA that requires those rights to be resolved through arbitration. The question before us is whether the arbitration provisions of the CBA waived Hammond's right to bring an independent statutory whistleblower claim in court. We adopt Wright's "clear and unmistakable" standard in making this determination. Four federal circuits have addressed the issue of what constitutes clear waiver of statutory rights in a CBA. The Second and Fourth Circuits have held that in order to clearly and unmistakably waive an employee's statutory rights a CBA must either (1) contain an arbitration clause including "a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration" or (2) contain "an explicit incorporation of the statutory anti-discrimination requirements in addition to a broad and general arbitration clause." The Sixth Circuit, echoing the First Circuit, has afforded even more protection to employees, holding that "a statute must specifically be mentioned in a CBA for it to even approach Wright's 'clear and unmistakable' standard." We adopt the less demanding test employed by the Second and Fourth Circuits. Hammond's CBA does not manifest a clear and unmistakable waiver of his statutory claims. Instead, it explicitly limits the grievance-arbitration procedure to "any controversy or dispute involving the application or interpretation of the terms of this Agreement arising between the Union or an employee or employees and the Employer." Though the CBA goes on to provide that "[questions of arbitrability shall be decided by the arbitrator," granting to the arbitrator the power to decide questions of arbitrability does not approach the clear and unmistakable waiver standard. No portion of the CBA's grievance-arbitration section provided Hammond with any indication that he would forfeit his right to pursue statutory remedies in state court. Because Hammond's CBA did not contain a clear and unmistakable waiver of his statutory claims, his unsuccessful arbitration does not preclude him from litigating these claims in state court. We need not decide whether a union-negotiated CBA can waive an employee's right to an independent determination of claims under the Alaska Whistleblower Act in state court because DOTPF presents no evidence that the CBA at issue in this case contained language clearly and unmistakably waiving such a right. b. Hammond did not voluntarily submit his statutory whistleblower claims to arbitration. We next consider DOTPF's argument that Hammond voluntarily submitted his statutory whistleblower claims to arbitration by the manner in which he handled the arbitration. DOTPF relies heavily upon Nghiem v. NEC Electronic, in which the Ninth Circuit held that an employee who had submitted wrongful termination, race discrimination, and antitrust claims against his former employer to arbitration was precluded from pursuing similar statutory claims in federal court. In rejecting the employee's claim to a separate statutory action, Nghiem stated that "[o]nce a claimant submits to the authority of the arbitrator and pursues arbitration, he cannot suddenly change his mind and assert lack of authority." DOTPF relies on Nghiem to support its assertion that "one who voluntarily submits a claim to an arbitrator with binding and final authority waives any right to then challenge the authority of the arbitrator to act on a statutory claim after receiving an unfavorable result." We agree with DOTPF that an employee who voluntarily submits claims to arbitration, although not required to do so by the CBA, would be precluded from bringing a subsequent statutory claim in court. This is so because an employee can voluntarily agree with his or her employer to resolve a statutory claim through arbitration, as "arbitration is 'essentially a creature of contract . in which the parties themselves charter a private tribunal for the resolution of their disputes.' " Moreover, voluntary submission of a statutory claim to arbitration can be inferred when employees are in full control of their representation. But a different result obtains when an employee does not voluntarily submit a claim to arbitration. When an employee is required to submit a claim to arbitration pursuant to a CBA, the employee's intent to preclude subsequent statutory claims in state court cannot be inferred from such mandatory submission alone. And when arbitration is controlled by the union as a result of the CBA, the employee's submission to arbitration must be "clear and unmistakable." As a review of the facts discloses, no such "clear and unmistakable" agreement to arbitrate Hammond's statutory claims occurred in this case. Hammond's references to the statutory protection provided by the Alaska Whistle-blower Act were insufficient to submit his statutory claims to arbitration and thus preclude his right to litigate those claims in state court. To the contrary, Hammond clearly did not intend to submit his statutory whistleblower claim to arbitration. Hammond's union representative understood that he was not arbitrating Hammond's statutory claims, as he stated in his affidavit that the union was limited in its approach and would not be representing Mr. Hammond in bringing any whistleblower action.... The whistleblower issue was not tried in the arbitration.... At all times I made it clear that we were only arbitrating Mr. Hammond's rights arising under the Collective Bargaining Agreement.... It came as a complete surprise to me that the arbitrator did not limit her decision to her jurisdiction; i.e., just cause under the CBA, but that she instead attempted to make whistleblower findings. The union representative's understanding of the scope of the arbitration is supported by the arbitrator's statement, made at the start of the proceeding, that the parties "stipulated that the issue before the Arbitrator was ['D]id the employer violate the Collective Bargaining Agreement[?'] Additionally, though DOTPF is correct that the affidavit of Hammond's former attorney provides evidence that Hammond was aware that arbitration might impact his statutory claims, the affidavit does not demonstrate that Hammond had any idea that his arbitration would preclude his statutory claims. The affidavit indicates only that Hammond and his attorney discussed the potential implications of arbitration on Hammond's subsequent testimony and his potential recovery for the statutory claim; it does not demonstrate that Hammond intended the arbitration to have preclusive effect on his statutory claim. Hammond did not clearly and unmistakably submit his statutory claims to arbitration by the manner in which he presented his CBA-based termination claim to arbitration. c. Hammond's statutory whistle-blower claim are not precluded by resolution of common issues in the arbitration of his termination claim under the CBA's mandatory arbitration provision. Finally, DOTPF argues that Hammond's statutory whistleblower action is precluded because, in the words of the superior court, "Hammond raised the whistleblower claim at the arbitration and, by framing his claim as retaliation, required the arbitrator to rule on the whistleblowing issue." DOTPF is correct that Hammond understood that the whistleblower issue would be part of the arbitration because his grievance stated that "[tjermination of employment was without just cause. Grievant was denied overtime in retaliation for 'blowing the whistle' and exercising rights as otherwise specified in law." In his briefing to this court, Hammond acknowledges that the arbitration proceedings and whistleblower action involved the same underlying facts. But while Hammond clearly and unmistakably submitted to arbitration issues that were essential to his statutory action, he is not precluded from relitigating these issues in a subsequent statutory action because he did not submit his statutory claims to arbitration. Hammond's arbitration was conducted pursuant to his CBA. This fact is particularly significant in light of federal precedent on this subject. Gardner-Denver established that the CBA determines the preclusive effects of arbitration when it noted that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under title VII. The federal court should consider the employee's claim de novo.[ ] In distinguishing Gardner-Denver, Gilmer held that preclusion can only be triggered by the submission of a statutory claim to arbitration, and not by the submission of a CBA-based claim that merely has an issue in common with a statutory claim. In Gilmer, the Court stated: Since the employees [in the Gardner-Denver line of cases] had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions.[ ] The Sixth Circuit reached a similar conclusion in Kennedy v. Superior Printing Co., holding that an employee was not precluded from bringing statutory discrimination claims in state court by an arbitrator's dismissal of his CBA-based discrimination claim. In that case the employee claimed in arbitration that the employer had violated the statutory protections of the Americans with Disabilities Act (ADA) as well as his CBA's anti-discrimination provision. The Sixth Circuit held that the employee's statutory claims were not precluded by his arbitration of common issues: The burden was on Superior to show that Kennedy waived his statutory rights, not merely that he arbitrated a discrimination claim under a collective bargaining agreement that also had a basis in federal law. Superior has not met this burden. There was no written agreement providing that Kennedy would submit his ADA statutory claims to binding arbitration. Just as it was "not at all unreasonable or surprising that Kennedy and the arbitrator would discuss the ADA in the context of arbitrating a dispute involving a claim that the company violated the anti-discrimination clause of the [CBA] prohibiting disability discrimination," it is not unreasonable that Hammond would refer to the protection of the Alaska Whistleblower Act when contesting whether he was terminated for "just cause" under a CBA that did not define that phrase. Federal protection of an employee's right to litigate statutory claims in court despite the unfavorable resolution of common issues in arbitration is a persuasive model for Alaska. While we recognize that, similar to the federal policy favoring arbitration, "[t]he common law and statutes of Alaska evince 'a strong public policy in favor of arbitration,' " this policy does not outweigh Alaska's strong public policy against allowing anyone but the employee to waive the employee's right to statutory protections. A statutory grant of rights provides an employee with the right to fully litigate claims based upon those rights. Granting preclusive effect to arbitration proceedings mandated by a CBA and negotiated by the employee's union — rather than the employee — would, in the absence of a clear and unmistakable submission of the statutory claim to arbitration, unacceptably diminish these statutory rights. Accordingly, we preserve the distinct statutory remedies to which an employee is entitled under Alaska law by denying preclusive effect to a prior CBA-based arbitration involving similar issues unless the employee clearly and unmistakably submits his or her statutory claims to arbitration. Because Hammond did not submit his statutory whistleblower claims to arbitration, he may litigate all aspects of those claims in state court free of any preclusive effect of the arbitrator's decision and regardless of whether his CBA-based grievance implicated whis-tleblower issues. B. Summary Judgment Was Not Appropriate, Despite the Arbitration's Significant Evidentiary Value, Because Hammond Presented Sufficient Evidence that His Firing Was Retaliatory To Meet the Low Summary Judgment Threshold. DOTPF contends that the superi- or court's decision "could readily have been made in reliance on the arbitrator's decision as establishing the absence of any genuine dispute as to the facts material to Hammond's termination." We agree with DOTPF that an arbitrator's decision can be admitted as evidence in a subsequent proceeding. Nonetheless, even if the arbitrator's decision is accorded great weight, the presence of strong evidence is an insufficient basis upon which to grant summary judgment if the party opposing the motion has presented a genuine issue of material fact. It is well established that "the evidentiary threshold necessary to preclude an entry of summary judgment is low." Hammond presented sufficient evidence to meet this low threshold. This burden is met by Hammond's testimony concerning his various complaints about the Homer Gravel Roads Project and Project Engineer Duane Paynter's testimony that he was livid that Hammond complained outside of the chain of command. Additionally, the Division of Legislative Audit (DLA) released a report after the arbitrator's decision which may be admissible as evidence in Hammond's statutory whistleblower action. The DLA report found that Hammond's claims had merit, and it called into question the independence of Richard Kerns, who was selected by DOTPF to investigate Hammond's allegations. When taken together, this evidence presents genuine issues of material fact as to whether Hammond was fired for protected whistle-blowing activities. We conclude that summary judgment should not have been granted to DOTPF. V. CONCLUSION The arbitrator's decision should not have been given preclusive effect and summary judgment should not have been granted against Robert Hammond because Hammond did not clearly and unmistakably submit his statutory whistleblower claims to arbitration. Accordingly, we REVERSE the superior court's decision and REMAND so that Hammond may litigate his statutory whistleblower claims. . The parties dispute the nature of Hammond's complaints and the response to those complaints by DOTPF employees. . 18 USC § 1020 (West 2000) imposes a fine or imprisonment, or both, upon a person who knowingly makes false statements or false representations, concerning any federally-funded highway project, about "the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed." . AS 39.90.100-39.90.150. . This opinion refers to the defendants collectively as "DOTPF." . AS 39.90.100(a) provides in relevant part that: [a] public employer may not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because (1) the employee . reports to a public body or is about to report to a public body on a matter of public concern; or (2) the employee participates in a court action, an investigation, a hearing, or an inquiry held by a public body on a matter of public concern. We have held that AS 39.90.100(a) " 'protects public employees who report to public bodies on matters of public concern from retaliation by their employers.' " Lincoln v. Interior Reg'l Hons. Auth., 30 P.3d 582, 586 (Alaska 2001) (quoting Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1121 (Alaska 1997)). In order to bring suit under the Alaska Whistleblower Act "an employee must show that (1) she has engaged in protected activity and (2) the activity was a 'substantial' or 'motivating factor' in her termination. An employer may rebut a prima facie case by demonstrating that the employee would have been discharged even had she not engaged in the protected activity." Id. (internal citations omitted). . The arbitrator stated that "[t]he essential elements of proof in a just cause case are: 1) whether the employee committed the offenses charged; 2) whether the employee was afforded due process; and 3) whether the penalty was appropriate under the facts and circumstances of the case, including the employee's record of employment." . AS 39.90.110(a) provides in relevant part: [a] person is not entitled to the protections under AS 39.90.100-39.90.150 unless the person (1) reasonably believes that the information reported is or is about to become a matter of public concern; and (2) reports the information in good faith. . Spindle v. Sisters of Providence in Washington, 61 P.3d 431, 436 (Alaska 2002). . Id. . Powers v. United Servs. Auto. Ass'n., 6 P.3d 294, 297 (Alaska 2000). . See Barnica v. Kertai Peninsula Borough Sch. Dist., 46 P.3d 974 (Alaska 2002); Anchorage Police Dep't Employees Ass'n v. Feichtinger, 994 P.2d 376 (Alaska 1999). . 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). . Id. at 38, 94 S.Ct. 1011 (citing 42 USC § 2000e, et seg.). . Id. at 47, 49, 94 S.Ct. 1011. . Id. at 59-60, 94 S.Ct. 1011. . 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). . Id. at 23, 111 S.Ct. 1647. . Id. at 35, 111 S.Ct. 1647. . Id. . 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998). . Id. at 77, 119 S.Ct. 391. . Id. at 80, 119 S.Ct. 391. . 658 P.2d 769, 774-75 (Alaska 1983). . AS 34.03. . 658 P.2d at 774-75. . AS 34.03.040(a). . 799 P.2d 315 (Alaska 1990). . Id. at 323. . 46 P.3d 974 (Alaska 2002). . Id. at 977. . Id. at 983. . Id. . Id. at 984. . Rogers v. New York Univ., 220 F.3d 73, 76 (2d Cir.2000). See Carson v. Giant Food, Inc., 175 F.3d 325, 331-32 (4th Cir.1999). . Bratten v. SSI Services, Inc., 185 F.3d 625, 631 (6th Cir.1999). See Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir.1999). . See Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (stating that "we find it unnecessary to resolve the question of the validity of a union-negotiated waiver, since it is apparent to us, on the facts and arguments presented here, that no such waiver has occurred"). Cf. Norcon, Inc. v. Kotowski, 971 P.2d 158, 165 (Alaska 1999) (holding that "[t]he right to a non-discriminatory workplace conferred . by AS 18.80.220 could not be waived by any contrary contractual provision"). . 25 F.3d 1437 (9th Cir.1994). . Id. at 1439. . Id. at 1440. . Ahtna, Inc. v. Ebasco Constmctors, Inc., 894 P.2d 657, 660 (Alaska 1995) (quoting Nizinski v. Golden Valley Elec. Ass'n, 509 P.2d 280, 283 (Alaska 1973)). . See Nghiem, 25 F.3d at 1440. . Given that a union's waiver of independent judicial determination of statutory rights must be explicit in a CBA, Wright, 525 U.S. at 80, 119 S.Ct. 391, an employee's subsequent waiver of those rights through union representation in CBA-mandated arbitration of contractual grievances must be equally explicit. In this case, Hammond's CBA provided that the union, rather than the employee, controls the arbitration of the employee's claim. Accordingly, in asserting preclusion, DOTPF has the burden of proving that the employee, rather than the union, made a clear and unmistakable waiver of his own statutory rights. . The narrow scope of this stipulation cannot support DOTPF's contention that Hammond submitted his statutory claim to arbitration. The agreement that there were no arbitrability issues was predicated on the earlier agreement that the arbitrator was only deciding whether DOTPF had violated the CBA. . Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (noting that arbitral decision may be admitted as evidence and given whatever weight court finds appropriate). . Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). . 215 F.3d 650 (6th Cir.2000). . Id. at 655. . The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1994 ed. and Supp. V). . Kennedy, 215 F.3d at 655. . Id. . Id. . Dep't of Pub. Safety v. Pub. Safety Employees Ass'n, 732 P.2d 1090, 1093 (Alaska 1987) (quoting Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)). . We note that this establishes a somewhat different analytical framework than the traditional doctrines of res judicata and collateral estoppel, which the superior court relied upon in dismissing Hammond's statutory claims. The traditional notions of res judicata, or claim preclusion, and collateral estoppel, or issue preclusion, are inapplicable to this case. Instead, the key inquiry is whether the statutory claim was submitted to arbitration, because granting any preclusive effect to the arbitration in the absence of Hammond's clear and unmistakable waiver of his statutory claim would deny Hammond the full protection of his two distinct remedies. . See Alexander v. Gardner-Denver, 415 U.S. 36, 60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (stating that "the federal court should consider the employee's claim de novo" despite previous unfavorable arbitral decision, but that "[t]he arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate"). . John's Heating Serv. v. Lamb, 46 P.3d 1024, 1032-33 (Alaska 2002). See also Bell v. Conopeo, 186 F.3d 1099, 1102 (8th Cir.1999) (employee's "evidence, even if weak, must be viewed in a light most favorable to [the employee].... The [arbitral] decision may be received at trial, a jury may give it great weight. But in summary judgment proceedings, neither the district court nor we may place the parties' competing evidence in a balance scale when deciding whether to grant summary judgment."). . John's Heating, 46 P.3d at 1032. See also Meyer v. State, Dep't of Revenue, Child Support Enforcement Div. ex rel. N.G.T., 994 P.2d 365 (Alaska 1999) (holding that putative father's affidavit that he had not had intercourse with mother at probable time of conception was sufficient to create question of fact as to whether DNA test indicating 99.98% probability of paternity was accurate). . Kerns's report takes on added significance because the DLA report found that the arbitrator "relied heavily on the findings of Mr. Kerns." . Because we are reversing the superior court's dismissal of Hammond's statutory whistleblower action, we do not need to reach Hammond's other arguments.

9020128

Joel Morris KENISON, Appellant, v. STATE of Alaska, Appellee

Kenison v. State

2005-02-11

No. A-8567

335

349

107 P.3d 335

107

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Joel Morris KENISON, Appellant, v. STATE of Alaska, Appellee.

Joel Morris KENISON, Appellant, v. STATE of Alaska, Appellee. No. A-8567. Court of Appeals of Alaska. Feb. 11, 2005. Rex Lamont Butler, Anchorage, for the Appellant. Nancy R. Simel, 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.

8732

53283

OPINION MANNHEIMER, Judge. Joel Morris Kenison appeals his conviction for first-degree stalking. He contends that the State presented insufficient evidence to the grand jury to support his indictment. Kenison further contends that his trial judge committed error by allowing the State to introduce evidence of various instances of Kenison's past conduct toward the victim, his estranged wife. Kenison also argues that the trial judge should not have allowed the State to amend the indictment at the close of the trial, altering the dates of the stalking to conform to the evidence presented at trial. In addition, Kenison argues that the trial judge should have declared a mistrial based on statements made by the prosecutor during the government's summation to the jury. Finally, Kenison asserts that the trial judge should have given the jury a special instruction on the meaning of the term "fear". For the reasons explained here, we reject each of Kenisoris assertions of error, and we accordingly affirm his conviction. Underlying facts Joel and Mary Ann Kenison married in 1989. They separated in August 1998, and they formally divorced two years later. Following the couple's separation in August 1998, Joel Kenison repeatedly sought a reconciliation with his estranged wife. Keni-son also began to harass and threaten Mary Ann, focusing particularly on her relationships with other men. Mary Ann obtained several protective orders (at various times) against Kenison. But despite these protective orders, Kenison's harassing and threatening behavior did not cease; it continued until Kenison's arrest in December 2001. (a) The couple's separation, and the events leading up to the first protective order (November 1998) Mary Ann testified that the Kenisons' marriage had been in trouble for several years when she finally moved out of the marital home in August 1998. Mary Atm stated that she did not inform Kenison of her new address because she was afraid of him. Immediately after the separation, Kenison made repeated attempts to reconcile with Mary Ann, but she remained adamant in her desire to separate from him. During this period, Kenison made many telephone calls to Mary Ann. Kenison sometimes placed these calls at all hours of the day; Mary Ann testified that, at times, her phone continued to ring after midnight. In these calls, Kenison repeatedly accused her of leaving him for another man. Kenison went so far as to threaten to kill one of Mary Ann's co-workers (because Kenison suspected that Mary Ann was dating this co-worker). Kenison also threatened to stop all involvement with the couple's two children if Mary Atm continued to see other men, and he threatened to burn down the marital home. And, on occasion, Kenison threatened to commit suicide if Mary Ann did not come back to him. Mary Ann testified that she was scared by the number and the content of Kenison's telephone calls, especially his repeated threats of violence. She stated that "[she] had no idea what he might do." For this reason, Mary Ann began to tape record Ken-ison's calls. Kenison's harassment of Mary Ann was not limited to telephone calls. Kenison drove by Mary Ann's residence twice when Mary Ann was entertaining a friend for dinner one evening. On another occasion, during a period when Kenison was repeatedly calling her house, Mary Ann saw someone running out of her yard and down the street. When she went out to check, she observed footprints leading up to her window. On November 7, 1998, Kenison drove by Mary Ann's residence when she was entertaining a guest, and then he telephoned her and made threats to harm her guest. Mary Ann called the police that night. She testified that "[she] was very scared that [Keni-son] was going to come over to [her] residence and hurt [her]." Ten days later, on November 17th, Mary Ann petitioned the court for a 20-day protective order against Kenison. The order was granted, and Kenison was served with this protective order on December 3rd. When this protective order expired on December 7th, Mary Ann did not seek a six-month order. She explained that she "just wanted to get [Kenison's] attention . so that he [w]ould realize that his behavior was harmful and inappropriate." (b) The events leading up to the second set of protective orders (June and July 1999) While the November 1998 protective order was in effect, Kenison abided by its terms. But when the protective order expired, Keni-son again began to call Mary Ann and to write her letters. Mary Ann responded by trying to limit her communication with Keni-son to a minimum. She did not return his phone calls, and she ignored his letters. She also arranged child visitation schedules so that she would not have to meet with Keni-son face-to-face. This policy apparently worked for several months. But in May 1999, Mary Ann started dating another man, G.N. Kenison called Mary Ann and left angry messages regarding this relationship. As before, Kenison threatened to hurt or kill Mary Ann's male friends (both G.N. and one of Mary Ann's coworkers). He also threatened to refuse to be involved with the children if she continued to date G.N. And Kenison threatened to com mit suicide if Mary Aun did not return to him. Kenison also began driving by Mary Ann's residence for no apparent reason, often with their children in the car. Kenison also targeted G.N. for harassing phone calls. On three occasions, G.N. answered the phone at his house only to be greeted by an open, silent line. Two of these calls occurred when Mary Ann was visiting G.N.'s house. As a result of Kenison's harassing and threatening conduct, Mary Ann sought and obtained another 20-day protective order on June 18, 1999. The order was served on Kenison two days later. Mary Ann testified that Kenison violated the "no communication" provision of this protective order on two occasions. Once, Keni-son telephoned Mary Ann, ostensibly to check on their children's welfare. And once, Kenison sent a letter to Mary Ann, seeking reconciliation with her. This time, when the 20-day protective order expired, Mary Ann sought and obtained a six-month protective order. This order was signed on July 6,1999. Under the terms of the six-month order, Kenison was prohibited from visiting Mary Ann's house and her place of employment. Further, all of Keni-son's communications with Mary Ann — including any communications involving their children — -were to be conducted through an intermediary, Mary Ann's brother. According to Mary Ann, Kenison generally conformed his behavior to the terms of this six-month protective order. The harassing telephone calls stopped while the order was in effect — although Mary Ann suspected that Kenison continued to drive past her residence. (Apparently, their son later confirmed Mary Ann's suspicion.) (c) The events leading up to the third set of protective orders (October 2000) In August 2000, Mary Ann started seeing another man. This event prompted Kenison to resume his campaign of harassment and threats. Mary Ann happened to meet this man shortly before she was to go on a three-week vacation. Kenison apparently did not view this timing as coincidental. He telephoned Mary Ann on the day that she was scheduled to leave on her trip. Screaming and yelling, Kenison threatened that he would refuse to take care of theft children while she was away. He accused Mary Ann of running off to get married. Shortly after she returned from this vacation, Mary Ann invited her new boyfriend over for dinner. According to her testimony, as soon as the man arrived at her house, her telephone began ringing "off the hook": it was Kenison. Kenison demanded to know what Mary Ann was doing with a man in her house. Mary Ann hung up, but the calls continued until she unplugged her phone. Later, when the man was getting ready to leave Mary Ann's home, he discovered that his vehicle had a flat tire. After this incident, Kenison continued to make harassing phone calls to Mary Ann. Kenison's phone calls were so relentless that Mary Ann was forced to unplug her telephone in the evening so that she could get a good night's sleep. Mary Ann testified that Kenison's possessiveness and his jealousy were "very . scary and very threatening." On October 1, 2000, Mary Ann obtained a 20-day protective order against Kenison. (This order was served on Kenison three days later.) Eighteen days later, Mary Ann obtained a six-month protective order against Kenison. (d) The events leading up to the fourth, set of protective orders (May and June 2001) Despite this third set of protective orders, Mary Ann continued to receive numerous hang-up telephone calls, both at home and at her work. These calls were now coming from unidentified numbers. When Mary Ann sought advice from local agencies who assist domestic violence victims, the agencies told her to write down whatever information about these calls was displayed on her caller-ID screen. Mary Ann did so, and she discovered that many of the calls were originating from pay phones in her neighborhood. In March 2001, Mary Ann wrote a letter to Kenison in which she confronted him with this information. Kenison denied that he was the one calling her. The calls continued. Also in March 2001, Mary Ann started dating A.B. In April, she made plans to celebrate her birthday by going out to dinner with A.B. As Mary Ann drove to meet A.B., she noticed that Kenison was driving next to her, waving at her. Mary Ann tried to lose Kenison by exiting the freeway, but Kenison followed her, even though he had to cross multiple lanes of traffic to do so. Mary Ann eventually had to pull over and stop — at which point, Kenison drove away. A.B. also became a target of Kenison's harassment. A.B. began to receive harassing telephone calls on both his business and his personal phone lines at his home. A.B. testified that, when he answered these calls, there would be silence on the other end of the line. The calls would usually come in spurts. In addition, the tires of A.B.'s vehicle were slashed on two occasions that spring. One of these occasions was on the morning after A.B. and Mary Ann went on a date. On the second occasion, the slashing occurred while Mary Ann's vehicle was also parked at A.B.'s residence, and her vehicle also suffered two flat tires. (The other three cars in the same parking lot sustained no tire damage.) Mary Ann reported this incident to the police on May 25, 2001. That same day, Mary Ann obtained yet another protective order against Kenison. This order was served on Kenison on May 31, 2001. Four days later (June 4th), Kenison violated this order by writing a letter to Mary Ann. On June 11th, the court granted Mary Ann a six-month protective order. Like the previous orders, this one prohibited Kenison from having any contact with Mary Ann, with the exception of written communications involving their children. In addition Kenison was prohibited from visiting Mary Ann's residence and A.B.'s residence. (e) The events leading up to Kenison's arrest on the evening of December 7-8, 2001 During the summer of 2001, Kenison engaged in multiple contacts with Mary Ann. She began receiving hang-up calls from pay phones in the area. She also received a note from Kenison in which he expressed anger that she had (purportedly) amended the child custody schedule to accommodate her social life. In July 2001, when Mary Ann went to the day care center to pick up their daughter, she found that Kenison was behind her. Kenison attempted to engage her in conversation. Later that same month, Mary Ann encountered Kenison when she went to pick up their son from a basketball camp. And on August 17th, while Mary Ann was hosting a dinner party at her house, A.B. looked out the window and saw Kenison slowly driving down the cul-de-sac. In late September, Mary Ann went to hear A.B. play music. While she was there, she was paged two or three times. She also continued to receive hang-up telephone calls. In late October 2001, Mary Ann went to breakfast with A.B. and a third person. When Mary Ann left the restaurant, she saw Kenison across the street, waving at her. Mary Ann ignored him and got into her car. Kenison, with their children in the ear, followed her. As they drove, Kenison pulled up beside her and shouted obscenities at her. On December 1, 2001, A.B. suffered a third tire slashing. He filed a police report concerning this incident on December 3rd. In the week that followed, A.B. received more harassing phone calls than ever before. Also in early December, Mary Ann became concerned because Kenison had failed to drive their children to school. When Mary Ann telephoned Kenison to cheek on the children, Kenison told her that the children were fine, and then he began to question her about A.B. On the night of December 7, 2001, Mary Ann visited A.B.'s residence. Shortly after she and A.B. entered the residence, the two telephone lines began "ringing off the hook". After answering two or three calls, and being met with silence on the other end of the line, A.B. called the police. While Mary Ann and A.B. waited for the police to arrive, the phone continued to ring. When A.B. answered the phone, Kenison spoke to him — although he identified himself as "Bill Clinton". With anger in his voice, Kenison demanded to talk to Mary Ann, but she refused to speak with him. The police arrived around eleven o'clock. By that time, Mary Ann was frightened, tired, and upset; she estimated that Kenison had called the house a total of twenty times. By tracing another call that Kenison made shortly thereafter, the police were able to discover the number of the originating telephone. Mary Ann identified this number as belonging to Kenison's cell phone. After the police confirmed that there was an outstanding protective order that prohibited Kenison from contacting Mary Ann, they arrested Kenison (either later that night or early the next morning). Kenison was charged with violating the protective order, and he was also charged with first-degree stalking. Following a jury trial, Kenison was found guilty of both charges. Kenison's attacks on his indictment Before trial, Kenison filed a motion to dismiss his indictment; he argued that the evidence presented to the grand jury was insufficient to establish that he had committed the crime of first-degree stalking. The basic crime of stalking (second-degree stalking) is defined in AS 11.41.270. Under subsection (a) of this statute, the crime consists of "knowingly engaging] in a course of conduct that recklessly places another person in fear of death or physical injury, or in fear of the death or physical injury of a family member". The phrase "course of conduct" is defined in subsection (b) of the statute. It means "repeated acts of noneonsensual contact involving the victim or a family member" — with the proviso that "family member" includes any person who "is or has been in a dating, courtship, or engagement relationship with the victim". The term "noneonsensual contact" is defined as "any contact with another person that is initiated or continued without that person's consent, [or] that is beyond the scope of the consent provided by that person, or that is in disregard of that person's expressed desire that the contact be avoided or discontinued". It includes such types of contact as following the person, or approaching or confronting the person, or appearing at the person's residence or workplace, or contacting the person by telephone, by mail, or by electronic communication. In Kenison's case, the State alleged that his offense was aggravated to first-degree stalking under AS 11.41.260(a)(1), a provision that elevates the degree of the offense when "the actions constituting the offense are in violation of [a protective or restraining] order issued under AS 18.66.100-18.66.180". The indictment returned against Kenison tracked the language of the pertinent statutes. The indictment charged that "on or about December 7, 2001, . Kenison knowingly engaged in a course of conduct that recklessly placed another [person] in fear of death or physical injury, or in fear of the death or physical injury of a family member[,] and the conduct was in violation of an order issued under AS 18.66.100-18.66.180...." Kenison argues that the indictment is deficient on its face because he did not commit a "course of conduct" on December 7, 2001. He concedes that the State presented evidence that he engaged in non-consensual contact with Mary Ann and A.B. on the evening of December 7th, but he argues that this conduct was a single act, not a "course of conduct". We conclude, for three reasons, that the indictment was not limited to the events of December 7th. First, the indictment did not specify that Kenison's offense occurred precisely on December 7th. Rather, the indictment charged that Kenison's offense occurred "on or about" December 7th. Second, because the crime of stalking requires proof of a course of conduct, the crime will necessarily consist of a series of acts committed over time. See our discussion of this issue in Cook v. State, 36 P.3d 710, 720-22 (Alaska App.2001). When Kenison's indictment is read in a common-sense manner, in light of the evidence presented to the grand jury (which we describe below), the indictment charges that Kenison engaged in a lengthy series of harassment and threats that culminated on December 7, 2001. Third, and most important, as we recently explained in Larkin v. State, 88 P.3d 153 (Alaska App.2004), the date of the offense is normally not a material element of the State's proof. A deficiency or inaccuracy in an indictment's specification of the date of the offense is generally immaterial, so long as the State's evidence reveals that the offense occurred (1) before the indictment was returned and (2) within the applicable statute of limitations. The problem is somewhat different in Ken-ison's case, because he was charged with first-degree stalking under the theory that his conduct violated a protective order. This means that the timing of Kenison's acts of non-consensual contact was potentially material. Even though Mary Ann obtained several protective orders against Kenison during the three years between their separation (in August 1998) and Kenison's arrest (in December 2001), there were significant periods of time during this three-year span when no protective order was in place. To the extent that Kenison engaged in acts of non-consensual contact with Mary Ann or the men she was dating during the times when there was no protective order, this conduct could not form the basis for a charge of first-degree stalking. We acknowledge that the superior court interpreted the first-degree stalking statute differently. The superior court held that Kenison could properly be convicted of first-degree stalking if any one of his acts of non-consensual contact violated a protective order. We disagree. The crime of stalking requires proof of a "course of conduct" — that is, proof of "repeated acts of nonconsensual contact". And the pertinent clause of the first-degree stalking statute, AS 11.41.260(a)(1), requires proof that "the actions constituting the offense [were] in violation of [a protective] order". (Emphasis added.) Reading these two statutes together, we conclude that the State was required -to prove that Kenison engaged in a course of conduct whose constituent acts of non-eon-sensual contact violated one or more of the protective orders issued in this case. Nevertheless, the evidence presented to the grand jury, was sufficient to establish that Kenison engaged in a series of non-consensual contacts with Mary Ann and the man she was dating, A.B., between May 25, 2001 (the date when the fourth set of protective orders first took effect) and the evening of December 7-8, 2001 (the date of Kenison's arrest, when that fourth set of protective orders was still in effect). Mary Ann was the principal witness at the grand jury. She chronicled Kenison's threatening and harassing behavior over the course of more than three years. She also explained that she obtained several protective orders against Kenison because his actions frightened her, and because she feared that he would harm her or the men she was dating. The final set of protective orders was issued in May and June 2001. (As explained above, Mary Ann obtained the initial 20-day protective order on May 25, 2001, followed by the six-month protective order issued on June 11, 2001.) At the grand jury, Mary Ann detailed Kenison's many violations of these protective orders. Kenison made numerous hang-up telephone calls to A.B., he paged Mary Ann when she attended one of A.B.'s musical performances, he followed Mary Ann (and cursed at her) after she had breakfast with A.B. on October 28th, he slashed A.B.'s tire on December 1st, and he made the telephone calls to A.B.'s residence on the evening of December 7th — the contact that ultimately resulted in his arrest. This evidence was sufficient to support a finding that, in the months leading up to December 2001, while the fourth set of protective orders were continuously in place, Kenison engaged in repeated acts of non-consensual contact with Mary Ann and A.B. (the man she was dating), and that this course of conduct ended with Kenison's arrest on the evening of December 7th-8th. In other words, this evidence was sufficient to support Kenison's indictment for first-degree stalking, even if we leave aside all of Keni-son's conduct before May 25, 2001 (when the fourth set of protective orders took effect). Kenison further attacks the sufficiency of the grand jury evidence on the basis that Mary Ann never expressly stated that Keni-son's words and actions made her fearful. But when the stalking statute speaks of a course of conduct that places another person in "fear" of death or physical injury (or the infliction of death or injury on a family member), the statute is not referring to the victim's subjective feelings of fright or intimidation. Rather, the statute requires proof that the victim reasonably perceived or apprehended the threat of death or physical injury. We explained this legal concept (in the context of Alaska's assault statutes) in Hughes v. State, 56 P.3d 1088 (Alaska App.2002): It is true that the third-degree assault statute requires proof that the defendant "place[d] another person in fear of imminent serious physical injury". But, as used in this statute, the word "fear" does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is "placed in fear" of imminent injury if the person reasonably perceives or understands a threat of imminent injury. The victim's subjective reaction to this perception is irrelevant. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat. Hughes, 56 P.3d at 1090 (footnote omitted). This same rule applies to the crime of stalking. The State was not obliged to prove that Kenison's conduct made Mary Ann feel frightened or intimidated. Rather, the State was obliged to prove that Kenison's conduct caused Mary Ann to reasonably perceive or understand a threat of death or injury to herself or a family member. The evidence presented to the grand jury was sufficient to establish this element of the offense. For these reasons, we conclude that the superior court properly rejected Kenison's challenges to the grand jury indictment. The trial judge's decision to allow the State to introduce evidence of Kenison's entire course of non-consensual contact unth Mary Ann and her male friends, from the marital separation in August 1998 to the time of Kenison's arrest in December 2001 At Kenison's trial, Mary Ann was allowed to explain the course of her relationship with Kenison from the summer of 1998 (when the couple separated) to the events leading to Kenison's arrest on the evening of December 7-8, 2001. In particular, Mary Ann described Kenison's many acts of non-consensual contact and his repeated harassment and threats during this period of more than three years. Kenison's attorney objected to the introduction of any evidence concerning Kenison's conduct before 2000. The defense attorney contended that this pre-2000 conduct was irrelevant to the stalking charge. The attorney's argument was based on the assertion that a charge of stalking requires proof of an uninterrupted course of conduct. The defense attorney pointed out that, according to Mary Ann's testimony, Kenison stopped harassing and threatening her after she obtained the third set of protective orders in June and July 1999. Mary Ann testified that Kenison did not resume his pattern of harassment and threats until a year later, in August 2000, when she started dating another man. Based on this interruption in Kenison's pattern of harassment and threats, the defense attorney argued that Kenison had actually committed two separate "courses of conduct" — two separate series of non-consensual contacts. According to the defense attorney, Kenison had been indicted solely for the course of conduct that began in August 2000 and culminated in December 2001. Thus, the defense attorney contended, evidence of Ken-ison's conduct prior to the summer of August 2000 was irrelevant to the issues being litigated at Kenison's trial. The trial judge, Superior Court Judge Michael L. Wolverton, rejected this argument and allowed Mary Ann to testify about all of the events described earlier in this opinion. Kenison now challenges this ruling on appeal. Indeed, Kenison argues that the scope of admissible evidence may have been even naiTower than suggested in the preceding discussion. Kenison points out that he was indicted for first-degree stalking under the theory that his conduct violated a protective order "on or about December 7, 2001". Based on this, Kenison asserts that evidence of his prior acts was relevant only if that evidence related to his conduct during the time when the fourth set of protective orders was in effect — i.e., on or after May 25, 2001. We addressed and rejected similar contentions in Petersen v. State, 930 P.2d 414 (Alaska App.1996), and Cook v. State, 36 P.3d 710 (Alaska App.2001). In both Petersen and Cook, we upheld trial court rulings that allowed the State to introduce evidence of the defendant's acts of non-consensual contact with the victim even though these acts were committed outside the range of time specified in the indictment. In Petersen, the State introduced evidence detailing the defendant's interactions with the victim during the 4-year period from 1989 until the defendant's arrest on July 18, 1993, even though stalking did not become a crime under Alaska law until May 28, 1993 (the effective date of our two stalking statutes, AS 11.41.260 and 270). Petersen argued that all of his contacts with the victim prior to May 28, 1993 were irrelevant to the crime charged in the indictment, and that this evidence served only to suggest that he was a person of bad character. Petersen therefore contended that this evidence should have been excluded under Alaska Evidence Rules 403 and 404(b)(1). We rejected Petersen's contention that this evidence was irrelevant, or that it was relevant only to prove his bad character: The State was obliged to prove that Petersen knowingly engaged in nonconsen-sual contact with R.H. Obviously, R.H.'s reaction to Petersen's pre-May 1993 contacts (in particular, her explicit directions to Petersen that he stay away from her) were relevant to prove that Petersen was aware that R.H. did not consent to his post-May 1993 contacts with her. Additionally, the State was obliged to prove that R.H. was placed in fear of injury or death by Petersen's post-May 1993 contacts. Clearly, evidence of Petersen's long-standing course of conduct toward R.H. — his persistent refusal to stay away from her, his repeated presence at her workplace, his middle-of-the-night trespass at her home in January 1992, and his attempt to ram R.H.'s car in January 1993 — was relevant to establish that R.H. feared injury or death at Petersen's hands. Finally, the State was obliged to prove that Petersen recklessly disregarded a substantial and unjustifiable risk that his conduct would cause R.H. to fear injury or death. Again, Petersen's pre-May 1993 conduct was relevant to prove this element of the offense. Petersen, 930 P.2d at 432. Based on this reasoning, we concluded that evidence of Petersen's pre-May 1993 contacts with the victim R.H. was relevant for non-propensity purposes, and that the evidence was therefore not barred by Evidence Rule 404(b)(1). We addressed the converse problem in Cook. The defendant in Cook was charged with first-degree stalking for engaging in a series of non-consensual contacts with the victim in violation of a protective order. The indictment charged Cook with a course of conduct committed between late October 1998 (when the protective order was issued) and late December 1998 (when Cook was arrested). The trial judge allowed the State to introduce evidence that two months later, in February 1999, while Cook was in jail awaiting trial, Cook sent another letter to the victim in violation of the protective order. On appeal, Cook argued that this letter was irrelevant to the charge against him, since.Cook did not send this letter until two months after the time period specified in the indictment. He further argued that "[t]he only impact [of] this letter . was to suggest to the jury that [he] had a propensity to engage in unwanted contact with [the victim]." We concluded that "[t]his is precisely why the letter was relevant and properly admitted": [The letter] tended to show Cook's continuing attitude toward [the victim], his attitude toward the protective order, and his continuing perception of his relationship with [the victim] — thus tending to prove Cook's state of mind from late October to late December 1998, when he committed the acts of non-consensual contact with which he was charged. Cook, 36 P.3d at 723-24. For the reasons explained in Petersen and Cook, we conclude that the disputed evidence in Kenison's case — i.e., evidence of Kenison's deteriorating relationship with Mary Ann, and evidence of Kenison's series of non-consensual contacts with Mary Ann and her male friends, starting from the time of the marital separation in August 1998 — was relevant to the stalking charge against Kenison, even if that charge is confined to Kenison's conduct between May and December 2001 (when the fourth set of protective orders was in effect). Because this evidence was relevant for non-propensity purposes, it was not barred by Evidence Rule 404(b)(1). Kenison alternatively argues that, even if this evidence was admissible for non-propensity purposes, Judge Wolverton erred by not evaluating the various portions of the evidence under Evidence Rule 403 — i.e., balancing the probative value of each portion against its potential for unfair prejudice. Kenison claims that Judge Wolverton utterly failed to assess the admissibility of any of the evidence under Rule 403. The record does not bear out this claim. Instead, the record shows that Judge Wol-verton repeatedly engaged in a Rule 403 balancing process before deciding whether to allow the State to introduce various portions of this evidence. Moreover, Kenison's assertion of unfair prejudice is basically a reiteration of his claim that the evidence was irrelevant. As we have explained here, the evidence was in fact relevant. Kenison has made no effort to identify individual portions of this evidence and show that these particular portions posed a specific danger of unfair prejudice. We accordingly conclude that Kenison has failed to demonstrate that he was unfairly prejudiced by this evidence. Finally, Kenison argues that the admissibility of the disputed evidence should be evaluated by retroactively applying the standards we recently announced in Bingaman v. State, 76 P.3d 398 (Alaska App.2003). But Bingaman is not pertinent to the issue presented here. In Bingaman, we examined and construed Alaska Evidence Rule 404(b)(4), a rule that applies to prosecutions for domestic violence and that allows the State to introduce "propensity" evidence that would otherwise be barred by Evidence Rule 404(b)(1). But, as we have just explained, the evidence of Keni-son's relationship with Mary Ann, and the evidence of his prior acts of non-consensual contact with her and her male friends, was not "propensity" evidence. This evidence was relevant for purposes other than to prove Kenison's character, and it was therefore not barred by Evidence Rule 404(b)(1). Bingaman addresses the scope of the exceptions to Evidence Rule 404(b)(1) — primarily, the exception codified in Evidence Rule 404(b)(4) and, to a lesser extent, the exceptions codified in Evidence Rules 404(b)(2), and (b)(3). The disputed evidence in Keni-son's case was admissible without regard to any of these exceptions to Rule 404(b)(1). Thus, Bingaman is not pertinent to Keni-son's case. The superior court's decision to allow the State to amend the stalking charge at the close of Kenison's trial Under Alaska Criminal Rule 7(e), a trial judge has the authority to allow the State to amend the indictment at any time before the jury returns its verdict, so long as the amendment does not alter the indictment to charge an additional or different offense, and so long as the amendment does not prejudice the substantial rights of the defendant. As discussed earlier, Kenison's indictment charged him with engaging in a course of conduct "on or about December 7, 2001". Toward the end of Kenison's trial, after the State had introduced the evidence discussed in the preceding section of this opinion (ie., the history of Kenison's acts of harassment and threats against Mary Ann and her male friends, beginning in August 1998), Judge Wolverton permitted the State to amend the indictment so that it charged Kenison with engaging in a course of conduct "between 1998 and December 7, 2001". Kenison's attorney objected to this amendment. The defense attorney noted that Ken-ison was charged with first-degree stalking under the theory that Kenison's course of conduct violated a protective order. The defense attorney further noted that, if the indictment was amended to describe the time period as "between 1998 to December 7, 2001", the jury might convict Kenison for engaging in acts of non-eonsensual contact during periods of time when there was no protective order in effect. Judge Wolverton rejected the defense attorney's argument, concluding that it was premised on a misunderstanding of the law. As we explained earlier, Judge Wolverton construed the first-degree stalking statute as requiring the State to prove that at least one of Kenison's acts of non-consensual contact violated a protective order. The judge therefore stated that he would allow the indictment to be amended so that it charged Keni-son with engaging in a course of conduct "between 1998 and December 7, 2001". Despite this ruling, the indictment itself was never amended. The State did not issue an amended indictment (ie., a new charging document); indeed, when Judge Wolverton gave the jurors the instruction that recapitulated the indictment, the judge tracked the original languagé of the indictment: "that on or about December 7, 2001, at or near Anchorage, in the Third Judicial District, Joel Morris Kenison knowingly engaged in a course of conduct that recklessly placed another in fear of death or physical injury, or in fear of the death or physical injury of a family member, and the conduct was in violation of [a protective] order". Rather, Judge Wolverton implemented his ruling by altering the wording of the jury instruction that listed the elements of first-degree stalking. In this instruction, Judge Wolverton told the jurors that the State was obliged to prove: First, that the event in question occurred on or about December 7, 2001, at or near Anchorage, Aaska; Second, that Joel Morris Kenison knowingly engaged in a course of conduct between 1998 and December 7, 2001; Third, that this course of conduct recklessly placed another person, [Mary Ann Kenison], in actual fear of death or physical injury, or in actual fear of death or physical injury of a family member; and Fourth, that Joel Morris Kenison recklessly violated a protective order issued under AS 18.66.100 through 18.66.180. (Added emphasis in the second paragraph.) (In various conversations with the attorneys, Judge Wolverton explained that he intended this instruction to communicate to the jurors that the State was obliged to prove (1) that on December 7, 2001, Kenison caused Mary Ann to fear death or physical injury, either for herself or a family member, and (2) that Mary Ann's fear on that day was based on Kenison's course of conduct between 1998 and December 7, 2001.) On appeal, Kenison again challenges Judge Wolverton's decision to allow this amendment of the charge. However, Kenison does not renew the objection that he raised in the superior court — the objection that, if the time span was broadened to include all of Keni-son's conduct between 1998 and December 2001, the jury might convict Kenison based on acts that were not committed while a protective order was in effect. Instead, Ken-ison now argues that Judge Wolverton's ruling prejudiced his rights under Evidence Rule 404(b). Specifically, Kenison asserts that Judge Wolverton's ruling undercut the defense position that all evidence of Kenison's acts prior to May 2001 was irrelevant and unfairly prejudicial. According to Kenison's appellate brief, "[Judge Wolverton's] decision . transformed [this] evidence from irrelevant to the corpus of the charge", thus "nul-lif[ying] the entire defense argument that all these other instances [of Kenison's behavior] were inadmissible Rule 404(b) material". Kenison's argument ignores the fact that Judge Wolverton made this ruling long after he ruled that the State could present the disputed evidence of Kenison's harassment and threats beginning in August 1998. In other words, Judge Wolverton did not amend the wording of the charge in an effort to justify a planned decision about the admissibility of this evidence. Rather, he amended the charge so that it would conform to the evidence that he had earlier admitted. Moreover, as we explained in the preceding section of this opinion, Judge Wolverton's previous rulings concerning this evidence were correct. The disputed evidence was relevant for non-propensity purposes, and it was therefore not barred by Evidence Rule 404(b)(1). This would remain true even if Judge Wolverton had refused to allow amendment of the indictment, or if the judge had amended the indictment to include only the time period from May 25, 2001 (when the fourth set of protective orders took effect) to December 7, 2001 (Kenison's last acts of non-consensual contact before his arrest). That being said, we believe that Kenison's original objection to Judge Wolverton's ruling was well-founded. Because the jury was told that Kenison's course of conduct could include any acts he committed "between 1998 and December 7, 2001", there was a danger that the jury might convict Kenison based on acts that were committed when there was no protective order in effect. As we explained earlier, the State was required to prove that all of the acts of non-consensual contact comprising Kenison's "course of conduct" were committed in violation of a protective order. However, Kenison does not pursue this argument on appeal. Moreover, even if he had pursued this argument, we would conclude that the error was harmless under the facts of this case. Although the State presented evidence of Kenison's pattern of harassment and threatening behavior beginning in August 1998, a substantial portion of the State's case focused on Kenison's conduct following the issuance of the fourth set of protective orders on May 25, 2001. Moreover, Kenison's defense at trial was not based on any purported distinction between his pre-May 2001 conduct and his post-May 2001 conduct, nor was it based on the assertion that Kenison was innocent of any of this conduct. Rather, the defense attorney argued that even though Kenison may have engaged in a lengthy series of non-consensual contacts with Mary Ann and A.B., this conduct did not cause either Mary Ann or A.B. to fear death or physical injury. The defense attorney told the jury, "Joel Kenison was a nuisance, and nothing more. And [Mary Ann] knew it. [And A.B.] knew it." The defense attorney suggested that Mary Ann and A.B. had become frustrated and fed up with Kenison's behavior, to the point where they decided to press charges and assert — falsely—that Kenison's conduct had caused them to fear death or injury. Kenison does not suggest, nor is there any indication in the record, that Kenison would have pursued a different defense to the stalking charge if Judge Wolverton had accepted the defense attorney's argument. That is, there is nothing to suggest that Kenison's defense would have been any different if Judge Wolverton had agreed with Kenison that the time period should extend no farther back than May 25, 2001 (the date on which the fourth set of protective orders took effect). Accordingly, even if Judge Wolverton should have defined the relevant time period as "between May 25, 1991 and December 7, 2001", Kenison was not harmed by this error. The trial judge's refusal to declare a mistrial after the prosecutor argued to the jury that Kenison might be convicted of stalking if his conduct caused Mary Ann to fear that Kenison might commit suicide During her summation to the jury, the prosecutor addressed the State's need to prove that Kenison's conduct caused Mary Ann to' fear death or physical injury to herself, or to fear death or physical injury to a "family member". The prosecutor noted that the statutory definition of "family member" was quite broad — that this definition included the people that the victim was dating, and even the victim's former spouse. The prosecutor then suggested to the jury that, in Kenison's case, this element could be satisfied by proof that Mary Ann was afraid that Kenison might kill himself. (There was evidence that, in the months following their breakup in August 1998, Kenison had threatened to commit suicide.) Kenison's defense attorney immediately objected, arguing that the prosecutor was wrong as a matter of law — and that even if the prosecutor was conceivably correct on this point of law, Kenison had never before received notice that the State was pursuing Kenison's case on this theory. The defense attorney told Judge Wolverton, Defense Attorney: If [that theory of the offense is] going to be [presented to the jury], I ask for a mistrial so we can be prepared to meet that [theory] as well. Because we didn't even question [Mary Ann] about her [potential] concern about [Kenison], because that was never an issue in this trial. It cannot be an issue now. Judge Wolverton, too, expressed surprise that the prosecutor was arguing this theory of the law. The judge instructed the prosecutor not to address that point again in front of the jury, and the judge announced that the matter would be taken up at the next break. The prosecutor then proceeded with her argument. She never mentioned this theory again, either in the remainder of her initial summation or in her rebuttal — although she did suggest to the jurors that Kenison's threats of suicide were relevant to the extent that they could explain the reasonableness of Mary Ann's fear that Kenison was becoming unpredictable and that he might hurt her, or then.' children, or the men she was dating. When the prosecutor finished her initial summation, Judge Wolverton called a recess, and the parties discussed the issue of whether the offense of stalking might be proved by showing that the perpetrator's course of conduct caused the victim to fear that the perpetrator might commit suicide or otherwise harm themself. Kenison's attorney renewed his objections (1) that the statute did not cover such a situation, and (2) that Kenison had received no notice that the State would be pursuing this theory. The prosecutor argued that the statute could reasonably be interpreted to cover Kenison's threats of suicide (since he was the victim's former spouse), but the prosecutor stated that she was "willing to not make that argument again". Judge Wolverton replied that he thought the statute could be read as the prosecutor suggested, but Judge Wolver-ton also ruled that, under the indictment, the issue was Mary Ann's state of mind on December 7, 2001 — i.e., whether Mary Ann thought that Kenison was threatening to commit suicide that night. The judge noted that there was uncontro-verted testimony that Kenison had threatened suicide three years before {i.e., shortly after the marital breakup, in the fall of 1998). But when Judge Wolverton wondered aloud whether the prosecutor was going to assert that, on the evening of December 7, 2001, Mary Ann feared that Kenison was going to commit suicide, the prosecutor responded, "that's not my argument for that day". The defense attorney then asked Judge Wolverton to instruct the jury that they could not consider Kenison's earlier threat to commit suicide as proof of the "fear of death or injury" element of the offense. Judge Wolverton replied, "You can make your argument [to the jury], and I don't think [that] the State is going to rebut your argu-ment_ [A]s a matter of law, [Kenison's suicide threat] could be [the basis for a fear of death or injury to a family member]. [But] it's a matter of whether [that theory] was factually proved, and the State isn't even asserting that [it was]." After further comments from the attorneys, Judge Wolverton decided that the matter should be resolved by letting the parties clarify the issue in argument: The Court: I'm going to leave it to argument. [The prosecutor] is indicating that she's not asserting that that was [Mary Ann's] concern on December 7th. And you the defense attorney] can make that clear in your argument. And, apparently, it's not going to be rebutted. On appeal, Kenison renews his argument that Judge Wolverton should have declared a mistrial after the prosecutor argued that Kenison's threat of suicide could form the basis for Mary Ann's fear of injury or death to a "family member". Kenison notes that, even after the bench conference we have described, the prosecutor told the jury two more times that Kenison's threat to commit suicide was one of the factors that might reasonably have caused Mary Ann to fear that Kenison was acting unpredictably or uncontrollably. This is true, but the prosecutor's comments were proper. The transcript reveals that the prosecutor never again argued that Kenison might be convicted based on proof that Mary Ann feared for Kenison's safety on December 7, 2001. Rather, the prosecutor argued that on the evening of December 7, 2001, Mary Ann feared that Kenison might injure her or might injure the man she was dating, A.B. The prosecutor further argued that Mary Ann's fear was reasonable, based on the whole history of her dealings with Kenison since the marital breakup — including his threat of suicide in 1998. We conclude that Kenison's threat of suicide was in fact relevant to evaluating the reasonableness of Mary Ann's fear, since it was one factor (among many) indicating that Kenison was distraught over the marital breakup, that he was acting unpredictably or uncontrollably in matters concerning Mary Ann, and that, because of his emotional state, he might hurt her, or their children, or the men she was dating. This is not to say that we endorse the State's position that a person can be convicted of stalking based on proof that the person's conduct caused them former spouse to fear that they might commit suicide. It is true, as the State notes, that the statutory definition of "family member" includes former spouses. However, as we explained in Petersen v. State, the gist of the offense of stalking is assaultive behavior. We have substantial doubts whether the legislature, when enacting the stalking statutes, intended to have people convicted of this crime based on someone else's fear that they might do violence solely to themselves. But we need not resolve this issue in Keni-son's case. As explained above, after the defense attorney objected to the prosecutor's argument that fear for the safety of a family member might include fear that a former spouse would commit suicide, the prosecutor promised not to repeat that argument — and she kept that promise. All of the prosecutor's ensuing arguments on this topic focused on the assertion that, on December 7, 2001, Mary Ann reasonably feared that Kenison might harm her or that he might harm her boyfriend, A.B. The prosecutor did not return to the contested argument that Kenison could be convicted if Mary Ann feared for Kenison's safety. The defense attorney's arguments to the jury likewise focused on Mary Ann's alleged fear that Kenison would either hurt her or would hurt A.B. As we explained in the preceding section of this opinion, the defense attorney argued that Mary Ann was trying to use the judicial process for fraudulent purposes. The defense attorney suggested that Mary Ann did not actually fear that Kenison would hurt anyone — and that she was falsely saying that she feared for her safety so that she could be rid of Kenison and his annoying behavior. Given this record, we conclude that Judge Wolverton did not abuse his discretion when he denied the defense attorney's request for a mistrial. In the alternative, we conclude that Kenison has failed to show that he was prejudiced by Judge Wolverton's failure to declare a mistrial. The trial judge's refusal to give the jury an instruction further explaining the meaning of "fear" During the jury's deliberations, the jurors asked for a definition of the term "fear". After consulting the parties, Judge Wolverton told the jurors: Because there is no legal definition of the word "fear" in our statutes, you as a jury are to assign the meaning you collectively believe should be assigned [to this word] according to what you determine to be the common experience of mankind. Although there is no indication in the record that Kenison's attorney objected to Judge Wolverton's answer to the jury, Keni-son now claims that Judge Wolverton should have answered differently — that the judge should have instructed the jurors on the meaning of "fear", and that this instruction should have expressly stated (1) that the victim must actually feel fear, and (2) that this fear must be reasonable. Because Kenison's claim is raised for the first time on appeal, he must show plain error. Judge Wolverton's answer to the jurors was in fact erroneous, but we conclude that this error did not amount to "plain error". That is, the error did not manifestly prejudice the fairness of the proceedings. As we explained earlier in this opinion, the stalking statute does not use the word "fear" in its everyday sense. Rather, the statutory phrase "fear of death or physical injury" means that the State must prove that the victim reasonably understood or perceived a threat of death or physical injury. However, the error in Judge Wolverton's answer favored Kenison. If the jurors employed the everyday definition of fear — i.e., if they required the State to prove that Mary Ann experienced actual "anxiety and agitation caused by the presence or nearness of danger", or "dread", or "terror", or "fright" — this would have put the State to a higher burden of proof than the law actually requires. We accordingly conclude that the error was harmless. Conclusion The judgement of the superior court is AFFIRMED. . AS 11.41.260(a). . AS 11.41.270(b)(1). . AS 11.41.270(b)(2). . AS 11.41.270(b)(3). . Id. . Larkin, 88 P.3d at 156-57. . AS 11.41.270(b)(1). . Petersen, 930 P.2d at 420-21 & 432. . Id. . Cook, 36 P.3d at 714-15 & 723. . Id. at 723. . We have previously criticized the wording used in this third paragraph; see Cook v. State, 36 P.3d at 718. However, Kenison does not challenge this portion of the instruction. . See Houston v. Anchorage, 59 P.3d 773, 777-78 (Alaska App.2002), and Hosier v. State, 1 P.3d 107, 109 (Alaska App.2000), where we upheld trial judges' decisions to amend charging documents under Criminal Rule 7(e), in large measure because we were convinced that the amendments had no effect on the defendants' litigation of their cases. . AS 11.41.270(b)(2)(D). . Petersen, 930 P.2d at 431. . Webster's New World Dictionary of American English (Third College Edition, 1988), p. 495.

10380473

Mac E. ROCK, Appellant, v. STATE of Alaska, Appellee

Rock v. State

1990-12-14

No. A-3389

998

999

802 P.2d 998

802

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:35:05.118996+00:00

CAP

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

Mac E. ROCK, Appellant, v. STATE of Alaska, Appellee.

Mac E. ROCK, Appellant, v. STATE of Alaska, Appellee. No. A-3389. Court of Appeals of Alaska. Dec. 14, 1990. Rebecca Wright, Asst. Public Defender, Barrow, and John B. Salemi, Public Defender, Anchorage, for appellant. Marlin D. Smith, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Douglas B. Baily, Atty. Gen., Juneau, for appel-lee. Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

845

4996

OPINION BRYNER, Chief Judge. Mac E. Rock pled no contest to the charge of driving while license suspended (DWLS), AS 28.15.291(a), preserving his right to appeal the district court's denial of his motion to suppress evidence obtained as a result of a traffic stop. Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Rock argues on appeal that the stop of his car was not supported by a reasonable suspicion of imminent public danger. We affirm. While stopped at an intersection at approximately 11:00 p.m. on July 16, 1989, Barrow Public Safety Officer Kevin Heath saw a car pass through the intersection. As the ear passed Heath, "the driver turned and looked at [Heath] in a suspicious manner." The driver of the car was a man. A woman sat beside him in the passenger's seat, and two children were also in the car. Heath followed the car. When the car turned right on Kongasak Street, Heath lost sight of it momentarily. When Heath turned onto Kongasak, he saw the car pulling out from the shoulder of the street back into the lane of traffic. Heath saw that the man and the woman had switched places in the front seat of the car, and that the man was in the process of passing a baseball cap he had been wearing to the woman. She then attempted to put the cap on her head. Heath was concerned that the man who had originally been driving was intoxicated or should not have been driving for some other reason, so he pulled the car over. Heath recognized the man in the car as Mac Rock. Rock told Heath that he no longer had a driver's license, which Heath confirmed by contacting the police dispatcher. Rock admitted that he had been driving and then switched places with his wife. Rock moved to suppress all evidence obtained as a result of the stop, arguing that the "suspicious" look he gave Heath, and the fact that he and his passenger switched places, did not create a reasonable suspicion to justify the stop. Magistrate Alice R. Robertson denied the motion to dismiss, ruling that the suspicious look from the driver, the switching places by the driver and the passenger, and the exchange of the baseball cap all combined to create a reasonable suspicion justifying the stop. In Alaska, an investigative stop must be supported by a reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); State v. G.B., 769 P.2d 452, 454-55 (Alaska App. 1989). A reasonable suspicion that a driver is intoxicated meets the Coleman standard. Ebona v. State, 577 P.2d 698, 701 (Alaska 1978); State v. Moran, 667 P.2d 734, 735 (Alaska App.1983). A suspicion that the driver's license is suspended or revoked is also sufficient to support a traffic stop. Smith v. State, 756 P.2d 913, 915-16 (Alaska App.1988). Rock argues that a suspicious look and a change of drivers, when unaccompanied by any bad driving, are insufficient to justify a traffic stop. We agree with Rock that an officer's observation of a "suspicious look" from a passing driver is too subjective and ambiguous a factor to be given much weight in the reasonable suspicion determination. However, we believe that Rock's conduct in suddenly stopping his car and changing places and apparel with a passenger was sufficiently unusual to arouse a reasonable suspicion that the person originally driving had been doing so illegally. "[Djeliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea." Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968). In this case, Rock's furtive actions after he saw Heath are strangely indicative of a driving violation. Heath observed Rock engaging in a legally regulated activity — driving a car. Driving is an activity that is legally open to some people — licensed drivers who are not under the influence of intoxicants — and closed to others. Viewed in this context, Rock's conduct in switching places with another person, in an apparent attempt to conceal the fact that he had been in the driver's seat, was suspicious. Actions that appear to be calculated to mislead a police officer as to which person was driving are immediately suggestive of illegal driving. Given the circumstances of this case, we find that the stop was adequately supported by a reasonable suspicion of imminent public danger. The judgment of the district court is AFFIRMED.

10436830

Melody PRESTON, Petitioner, v. STATE of Alaska, Respondent

Preston v. State

1981-10-09

No. 5844

550

554

634 P.2d 550

634

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Melody PRESTON, Petitioner, v. STATE of Alaska, Respondent.

Melody PRESTON, Petitioner, v. STATE of Alaska, Respondent. No. 5844. Supreme Court of Alaska. Oct. 9, 1981. Jane F. Kauvar, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for petitioner. Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for respondent. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2135

13101

OPINION DIMOND, Senior Justice. Melody Preston was convicted of burglary in a dwelling, and was sentenced to eight years' imprisonment with three years suspended. On appeal, this court held that the five years' imprisonment she would be obliged to serve under the superior court's sentence was not warranted. In our opinion, Preston should not be sentenced to imprisonment for more than three years, followed by a period of five years' probation. The case was remanded to the superior court "for resentencing consistent with this opinion," with a mandate to resentence Preston in conformity with our opinion. The sentencing judge disregarded our mandate. He resentenced Preston to four and one-half years' imprisonment and three and one-half years of probation. This action took place on November 19,1980. Preston did not take a sentence appeal within the thirty-day time period required by Appellate Rule 215(b). Instead, in March, 1981, she filed with this court a petition for a writ of mandamus, which we shall treat as an original application for relief pursuant to Appellate Rule 405, Preston asks for an order directing the superior court to follow the sentencing instructions set forth in the opinion in this case. The state contends that, because the decision did not expressly state that the sentencing judge was "clearly mistaken," the sentencing judge properly interpreted the Preston instructions as an advisory opinion. The standard of review in sentence appeals requires a finding that the sentencing judge was clearly mistaken. However, the clear import of this court's decision in Preston was that Preston's eight-year sentence should be no more than three years' imprisonment and five years' probation. The judge had sentenced Preston to serve five years in prison and three years' probation. It is difficult to see how he could have avoided the conclusion that he was found "clearly mistaken." In fact, it appears from the transcript of the sentencing hearing that the judge recognized that "the fair import" of this court's decision was that he was "clearly erroneous." His refusal to carry out the sentencing as directed was based simply upon the belief that his own judgment was correct, not upon any ambiguity in the standard of review applied by this court. The state contends that the sentencing judge was justified in ignoring the mandate because he believed that the original opinion overlooked facts pertinent to Preston's sentencing. In reviewing the record of the resentencing procedure, however, we do not find that the judge took any new or additional facts into account. The resentence merely restated and amplified some of the reasons for the initial sentence. Despite the excuses proffered by the state, it is apparent that the judge was simply dissatisfied with the decision and chose to ignore it. His opposition to the opinion was made clear in the resentencing proceeding on November 6, 1980: I have absolutely no intention in the world of changing that sentence. . . . You want another judge to sentence it, you get another judge. . I'm not going to change the sentence. In imposing a sentence contrary to that ordered by this court, the judge acted beyond the scope of his authority. Alaska case law has consistently held that "upon remand of the case by this court it becomes the duty of the lower court to obey the mandate and render judgment in conformity." State v. Salinas, 362 P.2d 298, 301 (Alaska 1961). Vetter v. Wagner, 576 P.2d 979, 981 (Alaska 1978); State v. Kaatz, 572 P.2d 775, 775-76 (Alaska 1977); Cleary v. State, 564 P.2d 374, 377 (Alaska 1977). The state also opposes Preston's application for relief on procedural grounds. The state first contends that because Preston is free on parole the case has become moot. The primary issue before us is the superior court's contravention of the resen-tencing order. Preston's parole does not alter the fact that she has been given a sentence in excess of that directed by this court. As long as the sentence remains outstanding, the threat of excessive imprisonment persists. If for any reason Preston is held to be in violation of parole, the excessive sentence could be reinstated. Thus,, the fact that Preston has been paroled does not render this case moot. Under Appellate Rule 404(a)(2), applications for original relief "shall be directed to the appellate court which would have jurisdiction over an appeal from the final judgment of the trial court in that action or proceeding." The court of appeals has immediate appellate jurisdiction over the superior court in criminal matters, and has authority under AS 22.07.020(a) and (f) to hear and decide sentence appeals and to issue "writs and all other process necessary for the complete exercise of its jurisdiction." The state therefore argues that Preston's original application for relief in the nature of a petition for writ of mandamus can only have been brought before the court of appeals, and not to the supreme court. This argument is without merit. This court's mandate, issued August 18, 1980, dealt with a criminal matter that had been appealed to the supreme court prior to the creation of the court of appeals. What is most important here is that the sentencing judge failed to comply with an order of the supreme court, not an order of the court of appeals. The supreme court has jurisdic tion to enforce its own mandate. As stated in United States v. United States District Court, 334 U.S. 258, 264, 68 S.Ct. 1035, 1038, 92 L.Ed. 1351, 1355 (1948), "A high function of mandamus [is] to keep a lower tribunal from interposing unauthorized obstructions to enforcement of a judgment of a higher court. That function may be as important in protecting a past exercise of jurisdiction as in safeguarding a present or future one." The state contends that Appellate Rule 404 requires Preston to first exhaust other procedures for appellate review, such as filing a petition for review of the judge's resentencing on remand, or by taking an appeal from that action before seeking review by way of original application. A petition for review is a procedure for seeking review from an appellate court where the matter sought to be heard is not a final judgment. The trial judge's action in resentencing Preston was a final judgment because it disposed of Preston's case in its entirety, leaving no further action for him. A petition for review, therefore, would not be the proper procedure to seek relief from an appellate court. The supreme court may issue injunctions, writs and all other process necessary to the complete exercise of its jurisdiction. The other general method of obtaining judicial review is by an appeal from a final judgment. Appellate Rule 202. Appellate Rule 215 specifically provides for sentence appeals, and this procedure is one which Preston might have utilized had her appeal been timely. However, subdivision (b) of that rule requires a sentence appeal to be taken "not later than 30 days after sentence was imposed." In this case, the resentencing following our original decision took place on November 19, 1980. There was no appeal taken within thirty days, or thereafter. Instead, Preston chose to have the resentencing reviewed as an original application for relief (referred to as a petition for writ of mandamus) filed March 11, 1981, approximately four months following the resentencing. Despite the method Preston has selected to obtain relief from this court, and our discussion of the subject of mandamus, we shall treat Preston's application as a belated appeal rather than as an original application for relief (mandamus) by invoking our discretionary authority under Appellate Rule 521 to relax or dispense with the thirty-day requirement. We do this because a strict adherence to that requirement would work injustice in this case. The injustice is the action of the superior court in imposing a heavier sentence on Preston than that which we called for in our opinion in Preston, 615 P.2d at 604-05. The resentencing order of the superior court is reversed. That court is expressly directed to resentence Preston in accordance with the opinion and mandate previously rendered by this court. REVERSED and REMANDED. COMPTON, J., not participating. . Preston v. State, 615 P.2d 594, 604 (Alaska 1980). . Id at 605. . Appellate Rule 405 states in part: (a) Relief Available. Relief in the nature of writs of review, mandamus, prohibition, cer-tiorari, or other writs, shall be sought by petition for review under Rule 402 or original application under Rule 404, as may be appropriate. Because a petition for review, which is interlocutory in character, would not be appropriate, we shall regard Preston's petition as an original application for relief. Cf. Civil Rule 91(b), which provides: The writ of mandamus is abolished. Relief heretofore available by mandamus as prescribed by statutes may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules. . Notes 1 and 2, supra. . See Fields v. State, 629 P.2d 46, 53 (Alaska 1981); McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). . It is contemptuous for a judge to disobey a lawful judgment, order or process of a higher court. Davis v. Hallett, 630 P.2d 1, 2, n.5 (Alaska, 1981). AS 09.50.010 specifically provides that "disobedience by an inferior court, judge, magistrate, referee, master or officer of the lawful judgment, order or process of a higher court" constitutes contempt of "the authority of the court." . Furthermore, this court has previously held that the legislative policy behind sentence appeals comes within the public interest exception to the mootness doctrine. Galaktionoff v. State, 486 P.2d 919, 921 n.3 (Alaska 1971). "The 1969 sentence appeal legislation manifests the legislature's concern with deficient sentencing practices throughout Alaska's entire court system and with the necessity of developing appropriate sentencing criteria." Id., citing State v. Chaney, 477 P.2d 441, 443 (Alaska 1970). Our ability to carry out the express will of the legislature, which has authorized supreme court review of criminal sentences, is seriously undermined when our sentencing mandates are simply disregarded by the trial courts. With so much at stake, this case can hardly be considered moot. .The Alaska Court of Appeals came into existence by legislative act in March, 1980 (ch. 12, SLA 1980), and commenced operation on September 18, 1980. Supreme Court Order No. 430, dated September 18, 1980. . AS 22.05.010(e) provides: . Appellate Rule 404(a)(1) provides: An original application for relief may be filed with the appellate court or a judge or justice thereof in any matter within its jurisdiction, whenever relief is not available from any other court and cannot be obtained through the process of appeal or petition for review. Grant of the application is not a matter of right but of sound discretion sparingly exercised. Appellate Rule 404(b)(1) provides: There must be filed with the clerk of the appellate courts an original and five legible copies of the application, together with such portion of the record and proceedings of the court below as is needed for the purpose of determining whether the relief sought will be granted. The application must state the precise nature of the relief sought, and why that relief is not available in any other court, or by petition for review or by appeal. . Appellate Rule 402(a) provides in part: (1) An aggrieved party, including the State of Alaska, may petition the appellate court as provided in Rule 403 to review any order or decision of the trial court, not appealable under Rule 202, in any action or proceeding, civil or criminal. . Appellate Rule 202 provides in part: (a) An appeal may be taken to the supreme court from a final judgment entered by the superior court, in the circumstances specified in AS 22.05.010. [Emphasis added.] (b) An appeal may be taken to the court of appeals from a final judgment entered by the superior court or the district court, in the circumstances specified in AS 22.07.020. [Emphasis added.] . Appellate Rule 215(b) provides in part: Written notice of appeal from a sentence by the state, or by a defendant appealing solely on the ground that the sentence is excessive, shall be filed with the clerk of the court which imposed the sentence not later than 30 days after sentence was imposed. . In the interest of expedition, an order directing the superior court to resentence the petitioner was issued prior to the publication of this opinion.

10435614

HAWES FIREARMS COMPANY, a California Corporation; Martha F. Hawes, an individual; Hawes National Corporation; and Gemini Investment Corporation, Petitioners, v. Paul A. EDWARDS, Respondent

Hawes Firearms Co. v. Edwards

1981-10-09

No. 5577

377

380

634 P.2d 377

634

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

HAWES FIREARMS COMPANY, a California Corporation; Martha F. Hawes, an individual; Hawes National Corporation; and Gemini Investment Corporation, Petitioners, v. Paul A. EDWARDS, Respondent.

HAWES FIREARMS COMPANY, a California Corporation; Martha F. Hawes, an individual; Hawes National Corporation; and Gemini Investment Corporation, Petitioners, v. Paul A. EDWARDS, Respondent. No. 5577. Supreme Court of Alaska. Oct. 9, 1981. Edward A. Merdes, Merdes, Schaible, Sta-ley & DeLisio, Inc., Anchorage, for petitioners. H. Bixler Whiting, Whiting & Rosie, Fairbanks, for respondent. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

2003

12624

OPINION MATTHEWS, Justice. Until recently, Hawes Firearms Company and Gemini Investment Corporation, respectively, imported and distributed handguns manufactured by J. P. Sauer & Sohn, a West German manufacturer. The handguns were sold in the United States exclusively under Hawes' name. Respondent Paul A. Edwards was injured when a Hawes revolver accidently discharged. Edwards sued Hawes, Gemini, and others, claiming that the handgun was defective. In the course of pretrial discovery Edwards served Hawes with sixty-nine interrogatories pursuant to Alaska Civil Rule 33, and requested the production of various items pursuant to Alaska Civil Rule 34. The interrogatories and requests for production were served in April of 1979. Hawes answered some of the interrogatories and produced some of the material requested and objected to the remainder of the interrogatories and requests. On November 30, 1979, Edwards filed a Rule 37(a) motion for an order compelling discovery. This motion was granted on January 11, 1980. By the terms of the court's order, answers to certain designated interrogatories were to be made no later than February 21, 1980, and complete production was to be accomplished by that date. On July 2,1980, Edwards moved to strike Hawes' defenses pursuant to Civil Rule 37(b)(2)(C), claiming that Hawes had willfully failed to comply with the January 11 order. This motion was granted and the court entered an order striking the defenses of Hawes and requiring the trial, as to Hawes, to be conducted on the question of damages only. Rule 37(b) sanctions are necessary for trial judges to enforce their discovery orders. "[T]he rule . . . invests the trial judge with broad discretion as to the choice of sanction in a given situation." Oaks v. Rojcewicz, 409 P.2d 839, 844 (Alaska 1966). We will not set aside an ordered sanction unless we are convinced that the court below has exceeded that discretion. Id. Willfulness, in the sense of a conscious intent to impede discovery, and not mere delay, inability or good faith resistance, must be demonstrated before sanctions may be imposed. See Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095-96, 2 L.Ed.2d 1255, 1267 (1958); Continental Insurance Company v. Bayless & Roberts, Inc., 548 P.2d 398, 404 (Alaska 1976); Ketchikan Cold Storage Company v. State, 491 P.2d 143, 148 (Alaska 1971); Hart v. Wolff, 489 P.2d 114, 118 (Alaska 1971); Oaks v. Rojcewicz, 409 P.2d at 840. Non-compliance cannot be found to be willful where the information sought is not within the party's "possession, custody or control." See 4A Moore's Federal Practice, ¶ 34.17 (2d ed. 1980). In the present case the court implicitly, but unmistakably, found that Hawes had willfully failed to make discovery in many respects. Our review of the record has not convinced us that this finding was erroneous or that the sanctions employed were an abuse of discretion. Accordingly, we affirm. Among the interrogatories of particular concern to the trial court were those concerning insurance. Interrogatory No. 9 asks: Please state whether there is any insurance, either liability or otherwise, available to the Defendants to cover this cause of action. Hawes responded that its liability policy was cancelled prior to the accident and that no policy was obtained thereafter. Edwards pointed out in his motion to compel that he had not asked what insurance Hawes Firearms alone had, rather what insurance covered his claim. The court ordered an answer to this interrogatory and to interrogatories contingent upon an affirmative answer to it. In response, Hawes stated: This information was requested from West Germany and no answer received yet; when received and before trial, it will be provided to counsel. No further answer was made as of July 2, 1980, when Edwards moved to strike Hawes' defenses. It subsequently became clear that the law firm of Merdes, Schaible, Staley & DeLisio, Inc., which was defending Hawes, had been retained to conduct Hawes' defense by the New York attorney for J. P. Sauer & Sohn and Sauer's insurance company. Sauer had agreed to indemnify Hawes in this action, and Sauer's insurance company insured the indemnity agreement. The Merdes firm reported to New York counsel for Sauer and its insurer as to developments in the conduct of Hawes' defense. It is difficult to believe that Martha F. Hawes, who answered the interrogatories for Hawes concerning insurance, did not know that Sauer's insurance company was involved in the defense of this litigation. Nevertheless, her ignorance of that fact would not justify withholding the truth, where it was known to her attorney. Moreover, the insurance company which, along with Sauer, was financing and controlling the defense of this case plainly had a duty to reveal the existence and the details of its policy. In our view the trial court was therefore justified in concluding that its order compelling answers to the interrogatories concerning insurance had been willfully disobeyed. Request for Production No. 2 asked for "each piece of advertisement which has been used to advertise the Hawes and/or its predecessor single action revolvers in the United States or abroad." The answer given initially was: "These Defendants have not advertised for years, but copies of all catalogues that are relevant to this particular pistol are available for inspection and copying in the office of MERDES, SCHAI-BLE, STALEY & DELISIO, INC. ." Nothing further was produced prior to the motion to strike defenses, despite the court's order of January 11, 1980, compelling full compliance with all requests for production. In his motion to strike the plaintiff pointed out that he had requested all advertisements and catalogues which related to any Hawes single action revolver, not merely the particular pistol which injured the plaintiff. Attached to the motion were several unproduced Hawes advertisements which plaintiff had obtained from other attorneys prosecuting products liability cases against Hawes. Here again, we believe that the court was justified in concluding that nonproduction of the advertisements was willful. Similarly, Edwards' Request for Production No. 4 demanded "[cjopies of complaints, products liability logs or other evidence maintained by Hawes, J. P. Sauer or any other company manufacturing or distributing Hawes single action revolvers evidencing reports of accidents or injuries occurring with the Hawes single action revolver or its predecessors." Interrogatories 55, 56, and 57 also sought reports of other accidental injuries caused by Hawes products, along with the captions, including the jurisdiction and the name and address of the plaintiff's attorney, of all lawsuits against Hawes. Hawes responded to these various requests with a list, allegedly acquired from Hawes' former insurance broker, containing little more than the names of 37 complainants and the dates of their complaints. Despite the order, Hawes provided no further identifying information until after the court ordered its defenses stricken. At that time it produced a more complete list of complainants, supplied by J. P. Sauer. Hawes' only excuse for its failure to obey the court's order was that it had passed the information on to Sauer and to its former insurer. There can be no doubt, however, that Hawes had access at least to that information pertaining to the various lawsuits in which it was a named defendant. In each of the examples we have given, adequate disclosure of the requested information was eventually accomplished after entry of the order striking Hawes' defenses. This, however, does not mean that the order may not stand: Final production is not determinative. The rule permits a sanction when a party "fails to obey an order." . . . The ultimate, and reluctant, production of documents, more than a year after a legitimate request does not absolve [a party] of the charge that it willfully failed to obey a valid court order. State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th Cir. 1977), cert. denied, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978). Although the trial judge relied on other instances of non-compliance in addition to those we have described, the above suffice to persuade us that the court did not err or abuse its discretion in entering the order which it did. Accordingly, the order is AFFIRMED. . Included among the defendants were petitioners Hawes National Corporation, and Martha F. Hawes, whose functions with respect to the Hawes handguns were not differentiated in the complaint from those of Hawes Firearms Company and Gemini Investment Corporation. In this opinion we shall refer to all of the petitioners as Hawes. . The court did not use the word "willful," as such. Instead the court found that certain information and documents were available to Hawes, and were withheld from discovery without justification. Thus, in effect, the court placed the burden of showing that non-compliance was not willful on the party from whom discovery was sought. In our view, this was the proper approach, for the reasons expressed in Frates v. Treder, 249 Cal.App.2d 199, 57 Cal.Rptr. 383 (1967): We do not agree with appellants' basic premise, that the burden rests upon the pro-pounder of the interrogatories to proceed to prove wilfulness. If that were the requirement, then the moving party would have a limitless number of questions to answer, for there are an infinite number of possible reasons why one may not have answered, most of them dependent upon the facts not at all within the ken of one's opponent. id. 57 Cal.Rptr. at 387 [emphasis in original]; Deyo v. Kilbourne, 84 Cal.App.3d 771, 149 Cal.Rptr. 499, 512 (1978). . Interrogatory No. 10, which was never answered, asked: If so, state the name of the insurance company, the policy term, the policy limits, and the policy number. If there are umbrella policies involved, state all of the policy limits. . Naismith v. PGA, 85 F.R.D. 552, 565 (N.D.Ga.1979); Shires v. Magnavox Co., 74 F.R.D. 373, 376 (E.D.Tenn.1977); Pilling v. General Motors Corp., 45 F.R.D. 366, 369 (D.Utah 1966); Steelman v. United States Fidelity and Guaranty Co., 35 F.R.D. 120, 121 (W.D.Mo.1964); Wycoff v. Nichols, 32 F.R.D. 370, 372 (W.D.Mo.1963); 4A Moore's Federal Practice ¶ 33.26 (2d ed. 1980); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2177, at 562 (1970) ("A party must disclose facts in his attorney's possession even though the facts have not been transmitted to the party"). . See Bingle v. Liggett Drug, 11 F.R.D. 593, 594 (D.Mass.1951) (in personal injury action where defendant's attorney also represented defendant's insurer, statements in possession of non-party insurer held discoverable); Simper v. Trimble, 9 F.R.D. 598, 599-600 (W.D.Mo.1949) (where insurance company conducted defense of personal injury action, the court held that photographs in possession of the non-party insurer were discoverable, stating, "It would be idle to say that an insurer thus obligated and in complete control and direction of the defense might be able to claim immunity from the usual obligations resting upon a litigant. For all practical purposes it is performing the exact functions and playing the precise role of an actual party to the litigation. That being true, it should be subject to the usual and reasonable rules of procedure, and especially with respect to discovery"); State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671, 675-76 (1965); Moore's Federal Practice, supra n.4, ¶ 34.17. . The fact that these materials may have been in the possession of its advertising agency does not negate the fact that Hawes had "control" of the items, within the meaning of Rule 34. See In re Folding Carton Anti-Trust Litigation, 76 F.R.D. 420, 423 (N.D.Ill.1977); Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P.2d 248, 252 (1970). . Although evidence of other complaints may or may not be admissible at trial, Edwards was certainly entitled to its discovery insofar as it could lead to the discovery of admissible evidence. See Annot., 20 A.L.R.3d 1430, 1430-33 (1968).

6872093

Michael Louis WAGNER, Petitioner, v. STATE of Alaska, Respondent

Wagner v. State

2015-04-24

No. S-15419

109

116

347 P.3d 109

347

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Michael Louis WAGNER, Petitioner, v. STATE of Alaska, Respondent.

Michael Louis WAGNER, Petitioner, v. STATE of Alaska, Respondent. No. S-15419. Supreme Court of Alaska. April 24, 2015. Marjorie Mock, Contract Attorney for the Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Respondent. Before: FABE, Chief Justice, STOWERS, MAASSEN, and BOLGER, Justices.

4647

28511

OPINION BOLGER, Justice. I. INTRODUCTION The superior court ruled that the prosecution could use Michael Wagner's police interview to impeach him if he took the stand at his murder trial. Wagner contends that the police violated his right to remain silent and that the court's ruling prevented him from testifying. But on this record, it is impossible to tell whether the court's ruling affected Wagner's decision not to testify, whether the prosecution would have impeached him with his police statement, or whether this evidence would have affected the jury. We conclude that Wagner has not preserved his Miranda claim for appellate review. II. FACTS Michael Wagner shot and killed his landlord, Steven Key, in October 2006. Wagner was living in the mother-in-law unit behind Key's house, and Key's body was found in that unit. Wagner has never denied responsibility for Key's death but has consistently claimed that the shooting was an accident. On the night of the shooting, Wagner called Key reporting the smell of gas in the mother-in-law unit. Key walked over to the unit and stayed for about 13 minutes. Wagner called Key again about an hour later, and Key returned to the mother-in-law unit. Within seconds of his arrival, Key was shot once through the head. Wagner called 911 almost immediately. He told the dispatcher that Key had been shot, and he claimed that the shooting "was aln] accident. [I was] showing the gentleman a pistol and it went off.... He's on the ground. I can't do nothing about it. He's in the house.... I don't know what to do...." When the police arrived at Wagner's mother-in-law unit, they found Key's body on the ground by the door and Wagner sitting on a couch. An officer arrested Wagner, placed him in the back of a patrol car, and drove him to the police station. At the station, Wagner was taken to an interview room. About an hour later, two homicide detectives arrived to question Wagner. The detectives read Wagner his Miranda rights, and Wagner indicated that he understood each right. The detectives then asked whether Wagner wished to talk to them, and Wagner responded: Well, it sounds like if I do that you're gonna already make up a decision. I'm gonna need a lawyer then. I mean, if I say a bunch of stuff, I mean, if I don't know what I'm talking about or whatever, then I'm in a-I mean, it was a pure accident. You know, I mean, I-I just serewed up. I just bought the gun, blah, blah. Shortly thereafter, Wagner stated: I'd rather have a lawyer, 'cause that would be I think the only way, 'cause otherwise, 'cause-I'm not there and if I say something, so-about-if I do, I don't know. I mean, it was [a] pure accident, man. The detectives asked whether Wagner had an. attorney or wanted a phone book to try to contact one. Wagner responded: "Uh, [what did] you mean, [if] I don't have [an] attorney, then one will be appointed?" The detectives answered: "No. What [will] happen is only if you're charged with a crime and then once you appear in court, you can request one or they'll appoint one for you. Right now, somebody's not charged with anything. There's nothing in the system that appoints you one." Upon learning he had not yet been charged, Wagner stated, "Oh, well, then I'll tell you the whole thing, 'cause I'm not-I thought you had to-I thought you were already doing something, 'cause there's no problem for me.... It was a[n] accident." The detectives left the room for a few minutes and consulted with a prosecutor. When they returned, the detectives reiterated that no one had been charged, and that "until somebody is actually charged the court doesn't appoint an attorney." They also repeated that "it's still important that you understand that you do have the right to have an attorney present." Finally, they asked Wagner, "Would you like to contact [an] attorney or would you like to talk to us about what occurred?" Wagner replied: "I need no attorney. Just ask me your questions." The detectives then interrogated Wagner for the next hour and a half. III. PROCEEDINGS A grand jury indicted Wagner for first-degree murder, second-degree murder, and manslaughter. The indictment was later dismissed when the superior court ruled that Wagner had invoked his Fifth Amendment right to counsel before speaking to the detectives, that his statement was obtained after this invocation and in violation of Miranda, and that the indictment was based at least in part on this statement. Following this dismissal, a second grand jury indicted Wagner on the same charges without being presented with Wagner's statement to police. Before trial, Wagner moved in limine to suppress the use of his statement for impeachment purposes if he chose to testify at trial, The superior court denied the motion, citing State v. Batts. The superior court held a jury trial, and the jury convicted Wagner of first-degree murder. Wagner did not take the stand at trial, but he later testified and was cross-examined at his sentencing hearing about the cireumstances of the shooting. Wagner appealed his conviction, claiming the superior court erred by denying his suppression motion. The court of appeals affirmed the conviction, concluding that Wagner had failed to preserve his claim by declining to testify. Wagner filed a petition for hearing in this court, urging us to reject the court of appeals preservation holding. He further argues that article I, section 9 of the Alaska Constitution prohibits the use of his statement for impeachment. We granted the petition in whole. IV. DISCUSSION The court of appeals declined to consider Wagner's claim that the superior court erred by ruling that the State could use his statement to impeach his testimony. The court of appeals concluded that, under the preservation rule of Luce v. United States and State v. Wickham, Wagner waived this claim by failing to testify. Wagner argues that the Luce/Wickhaom preservation rule should not have been applied to his case. A. The Preservation Rule Of Luce v. United States And State v. Wickham In Luce, the U.S. Supreme Court held, as a matter of federal procedural law, that "to raise and preserve for review the claim of improper impeachment with a prior convietion, a defendant must testify." The Court was concerned about the amount of speculation required to review an in limine ruling on the admissibility of impeachment evidence that is never introduced because the defendant declines to take the stand. And the Court articulated four specific reasons why reviewing such rulings would require an inappropriate degree of speculation. First, in limine rulings are preliminary and "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer." The Court noted that this concern is particularly true regarding evidence of a criminal conviction because Federal Rule of Evidence 609(2)(1)(B) places a heightened burden on the prosecution, which must show that the probative value of the conviction outweighs its prejudicial effect. Because it is difficult for a court to evaluate both the probative value and the prejudicial effect of proposed evidence in a factual vacuum, a preliminary ruling under Rule 609(a2)(1)(B) is particularly likely to be reconsidered at trial. Second, "an accused's decision whether to testify 'seldom turns on the resolution of one factor, [and] a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify." Though acknowledging that a defendant might make a commitment to testify in an offer of proof, the Court noted that "such a commitment is virtually risk free because of the difficulty of enforcing it." Third, a "reviewing court . has no way of knowing whether the Government would have sought to impeach with the prior convietion." The Court noted that, particularly in cases where the Government's evidence is strong and where impeachment can be accomplished by other means, the prosecution may decide not to use contested evidence because of the increased risk of reversal on appeal. Finally, "(elven if these difficulties could be surmounted, the reviewing court would still face the question of harmless error." The Court noted that if in limine rulings on the admissibility of prior conviction evidence for impeachment were reviewable on appeal, then "almost any error would result in the windfall of automatic reversal; the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying." The Court feared that in the absence of its preservation rule, defendants would introduce in limine motions "solely to 'plant' reversible error in the event of conviction." While Luce was decided on federal procedural grounds and was not binding on the states, we concluded in Wickham that "the justifications underlying the Luce rule apply with equal force to Alaska criminal practice." We were further persuaded by the unanimity of the Luce decision and by the fact that a majority of state courts that subsequently addressed the issue adopted the Luce holding. B. Application Of The Luce/Wickham Rule In The Present Case Although the holdings of Luce and Wickham were limited to preliminary rulings regarding evidence of a prior conviction, we conclude that the concerns articulated in Luce and Wickham apply in the present case. First, as in Luce and Wickham, the contested ruling here was preliminary, and the superior court could have revisited its decision if the State had moved to introduce Wagner's statement at trial While we acknowledge that evidence of a prior inconsistent statement is not subjected to the heightened admissibility burden for evidence of a criminal conviction, all evidence must pass Alaska Evidence Rule 4038's probative/prejudicial balancing test. Thus, at the time of the superior court's ruling, there remained a reasonable possibility that other evidence (such as Wagner's 911 call) could have been presented at trial and rendered Wagner's statement less probative than unfairly prejudicial. Indeed, such possibility is more likely in Alaska courts than in federal courts, because the burden for admitting evidence is heavier under Alaska Evidence Rule 403 than its federal counterpart. Second, there is no way to determine whether Wagner would have testified if the superior court had granted his suppression motion. Wagner's suppression motion made no such indication, admitting that "[i]t is not known whether Mr. Wagner will choose to testify at trial." Wagner never filed an affidavit or other offer of proof asserting an intent to testify. And in his briefing to this court, Wagner does not suggest that he would testify at a retrial if we were to reverse his conviction. We also find it significant that Wagner failed to mention the suppression motion during the two LaVigne inquiries the superior court held. During these inquiries, Wagner indicated that he had no questions for the court about testifying or not testifying. And at the end of the second inquiry, Wagner said he wished to waive his -right to testify and that his waiver was not the result of any threat or promise. Wagner's failure to mention the in limine ruling at the LaVigne inquiries is far from conclusive evidence that the ruling had no effect on his decision not to testify. However, these inquiries presented obvious opportunities for Wagner to state on the record that he would have testified in the absence of the threat of impeachment. Third, we have no way to determine whether the State could or would have chosen to impeach Wagner with the contested statement if he had taken the stand. Wagner claimed in his motion to suppress that "there is little chance that Mr. Wagner will change his statement at trial." If this claim were true, then the State could not have used the contested statement for impeachment because there would have been no inconsistencies to impeach. And if Wagner's testimony at trial would have differed from his account on the night of murder, then the State would have been able to impeach Wagner's trial testimony using his 911 call instead of his statement to police." Because this evidence was available for impeachment, the State might have declined to use the contested statement and reduced its risk of reversal on appeal. Finally, conducting a harmless error analysis in this case would be impossible. Even if we were to conclude that the trial court's in limine ruling was erroneous, we could only speculate whether Wagner would have testified absent that ruling, how he would have testified, whether the State would have impeached that testimony, and what effect that impeachment 'would have had. If Wagner would not have testified regardless, or if the State would not have used the contested statement, there could be no harm. Even if we assume that Wagner would have testified, we do not know the substance of his testimony. So even if he could have been impeached with the contested statement, we cannot know whether that impeachment would have affected the jury. For these reasons, we conclude that the concerns articulated in Luce and Wickham are present in this case. Nevertheless, Wagner presents several arguments why we should reach the merits of his underlying claim without regard to the speculation required in doing so. We find these arguments unpersuasive. First, Wagner argues that the constitutionality of impeaching a defendant's testimony using statements obtained in violation of Miranda is a purely legal issue. Wagner is correct to the extent that it is a pure question of law whether the Alaska Constitution ever permits the State to impeach a defendant's testimony using evidence obtained in violation of Miranda. But even if we were to reach this issue and decide it in Wagner's favor, the Luce/Wickham concerns would remain in full effect, and each of these concerns involves highly factual determinations. We would have no way to determine whether Wagner would have testified, whether the State could or would have impeached Wagner's testimony with the contested statement, and whether the impeachment would have been prejudicial. We do not rush forward to decide even purely legal issues in the abstract when it is impossible to determine whether a party suffered any actual harm. Next, Wagner argues that the superi- or court's in limine ruling threatened his constitutional right to testify. But although the right to testify is an important constitutional guarantee, that right is little more threatened in the present case than it is in other impeachment contexts. As the Michigan Supreme Court noted when it applied the Luce rule to a case also involving a Miranda claim, [TJhe constitutional implications present in Luce . [are present in] every case in which a defendant alleges that a trial court's ruling effectively prevented him from testifying.... Any ruling, even if on a mere evidentiary issue, necessarily affects a defendant's constitutional rights if it has a chilling effect on the exercise of the right to testify.[ ] The court concluded, however, that this concern was outweighed by the Luce concern that appellate review not be based on hypothetical injuries and speculative harm. Similarly, in Wickham, we "recognize[d] that [the Luce] rule puts added pressure on the defendant to testify before a potentially prejudiced jury; the alternative being to [forgo] appeal of an in limine ruling which may be However, we noted that "the Luce rule hald] not been held to be violative of the federal constitutional right against self-incrimination, and we perceive[d] no conflict with the Alaska Constitution." In addition to his right to testify argument, Wagner claims that the police interrogation in this case violated his right to due process and the privilege against self-incrimination. He contends that, absent the ability to appeal, he "loses all hope of vindicating [these] claim{s]." But this argument ignores two judicial safeguards already provided to Wagner as well as an additional safeguard he declined to seek. First, the superior court dismissed the initial grand jury indictment against Wagner, which the State had obtained using the contested statement. The State was therefore required to seek a new indictment without the use of the contested evidence. Second, the superior court prohibited the State from introducing Wagner's statement to the jury at trial in its case in chief, so the jury never heard the statement. And third, nothing prevented Wagner from filing a petition for interlocutory review to the court of appeals after the superior court denied his suppression motion. Though interlocutory review is "not a matter of right, such review is particularly appropriate in a case such as this, involving constitutional issues that would otherwise evade review." Because these judicial safeguards were present, we disagree that Wagner was precluded from vindicating his constitutional claims. Finally, Wagner argues that his testimony could have made a difference because the evidence at trial did not "overwhelmingly" prove his guilt. But this argument assumes not only that Wagner would have testified, but also that his testimony would have helped his case. We cannot possibly determine the validity of these assumptions on appeal, especially because Wagner has provided conflicting indications of how he might have testified. In the memorandum accompanying his suppression motion, Wagner claimed that there was "little chance" his testimony at trial-if he were to testify-would be inconsistent with his statement to the police. However, Wagner's testimony at his sentencing hearing was markedly different from the contested statement." Because we cannot know how Wagner would have testified at trial we cannot evaluate whether his possible testimony would have made any difference. And we decline to speculate about these issues in a factual vacuum. On this record, we conclude that, by declining to testify, Wagner failed to preserve his Miranda claim for appellate review. v. CONCLUSION We ' therefore AFFIRM the court of appeals' decision affirming Wagner's conviction. WINFREE, Justice, not participating. . The duration of Key's visit was recorded by a video camera Wagner had installed outside the mother-in-law unit. In conjunction with Wagner's phone records, this video recording provided a timeline of the events leading up to the shooting. . See Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . 195 P.3d 144 (Alaska App.2008). . Wagner v. State, Mem. Op. & J. No. 6008, 2013 WL 6576741 (Alaska App.2013). . 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). . 796 P.2d 1354, 1357 (Alaska 1990). . Whether a claim has been preserved for appeal is a question of law, which we review de novo. Cf. Wilkerson v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1021 (Alaska 1999) ("We apply our independent judgment when reviewing an intermediate appellate court's finding of waiver due to inadequate briefing."). i . 469 U.S. at 43, 105 S.Ct. 460; see also Fed. R.Evid. 609(a). , Luce, 469 U.S. at 41-43, 105 S.Ct. 460. . Id. . Id. at 41, 105 S.Ct. 460. . Id.; compare Fed.R.Evid. 609(a)(1) ("[Flor a crime that . was punishable by death or by imprisonment for more than one year, the evidence [of conviction] . must be admitted [for impeachment use] in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant ."), with Fed.R.Evid. 403 ("'The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . unfair prejudice...."). In other words, under the Federal Rules of Evidence, any evidence may be excluded if its prejudicial effect substantially outweighs its probative value, but prior conviction evidence to impeach a defendant's credibility may be excluded if its prejudicial effect equals or slightly outweighs its probative value. . Luce, 469 U.S. at 41-42, 105 S.Ct. 460. . Id. at 42, 105 S.Ct. 460 (quoting New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissenting)). . Id.; see also U.S. Const. amend. V ("No person . shall be compelled in any criminal case to be a witness against himself. ."). . Luce, 469 U.S. at 42, 105 S.Ct. 460. . Id. . Id. . Id. . Id. . State v. Wickham, 796 P.2d 1354, 1357 (Alaska 1990). . Id. Indeed, at least 27 other states and the District of Columbia have similarly adopted either Luce's basic holding or an expanded version. See State v. Allie, 147 Ariz. 320, 710 P.2d 430, 437 (1985) (en banc); Smith v. State, 300 Ark. 330, 778 S.W.2d 947, 950 (1989); People v. Collins, 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, 176-78 (1986) (en banc); State v. Harrell, 199 Conn. 255, 506 A.2d 1041, 1046 (1986); Walker v. State, 790 A.2d 1214, 1217-18 (Del. 2002); Bailey v. United States, 699 A.2d 392, 399-401 (D.C.1997); State v. Raydo, 713 So.2d 996, 997-1000 (Fla.1998); Warbington v. State, 316 Ga.App. 614, 730 S.E.2d 90, 91-94 (2012); State v. Garza, 109 Idaho 40, 704 P.2d 944, 948-49 (App.1985); People v. Patrick, 233 Ill.2d 62, 330 Ill.Dec. 149, 908 N.E.2d 1, 10-11 (2009); State v. Derby, 800 N.W.2d 52, 53-56 (Iowa 2011); State v. Richmond, 289 Kan. 419, 212 P.3d 165, 175-77 (2009); Hayes v. Commonwealth, 58 S.W.3d 879, 881-82 (Ky.2001); State v. Gray, 755 A.2d 540, 545 (Me.2000); Jordan v. State, 323 Md. 151, 591 A.2d 875, 877-79 (1991); People v. Boyd, 470 Mich. 363, 682 N.W.2d 459, 461-66 (2004); State v. Bruneau, 131 N.H. 104, 552 A.2d 585, 592 (1988); State v. Brown, No.2091, 1992 WL 227940, at *1-2 (Ohio App. Sept. 16, 1992); State v. Silvia, 898 A.2d 707, 718-20 (R.L.2006); State v. Glenn, 285 S.C. 384, 330 S.E.2d 285, 285-86 (1985); State v. Means, 363 N.W.2d 565, 569 (S.D.1985); Jackson v. State, 992 S.W.2d 469, 479-80 (Tex.Crim.App. 1999) (en banc); State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987); Reed v. Commonwealth, 6 Va.App. 65, 366 S.E.2d 274, 276-77 (1988); State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, 1022-25 (1989) (en banc); State v. Honaker, 193 W.Va. 51, 454 S.E.2d 96, 107-08 (1994); State v. Frank, 250 Wis.2d 95, 640 N.W.2d 198, 202-04 (App.2001); Vaupel v. State, 708 P.2d 1248, 1249-50 (Wyo.1985). We are aware of only eight states that have rejected Luce's holding. See Commonwealth v. Crouse, 447 Mass. 558, 855 N.E.2d 391, 397 (2006) ("presum{ing] . that a defendant who has not testified at trial may still challenge the denial of a motion to exclude evidence of a prior conviction" and declining to adopt Luce); State v. Swanson, 707 N.W.2d 645, 654 (Minn.2006); Warren v. State, 121 Nev. 886, 124 P.3d 522, 526-28 (2005); State v. Whitehead, 104 N.J. 353, 517 A.2d 373, 374-377 (1986); People v. Moore, 156 A.D.2d 394, 548 N.Y.S.2d 344, 346 (1989); State v. McClure, 298 Or. 336, 692 P.2d 579, 584 n. 4 (1984) (en banc); Commonwealth v. Richardson, 347 Pa.Super. 564, 500 A.2d 1200, 1203-04 (1985); State v. Galmore, 994 S.W.2d 120, 122-23 (Tenn.1999). . Compare Alaska R. Evid. 613(a), with Fed. R.Evid. 609(a), and Alaska R. Evid. 609(c). . Compare Alaska R. Evid. 403 ("[RJelevant[] evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice ." (emphasis added)), with Fed.R.Evid. 403 ("'The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . unfair prejudice ." (emphasis added)). . Instead, Wagner argues that it is "entirely 'reasonable to presume' that a defendant who asks for an advance ruling in order to preclude the admission of the statement for impeachment purposes would have testified if his motion had been granted." We do not need to decide whether to adopt such a presumption, because Wagner equivocated in his suppression motion about whether he would testify. Thus even if we were to adopt this presumption, it would have been overcome here. . See LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) ("To avoid future cases such as La-Vigne's, we believe that trial judges should take steps to insure that a criminal defendant's failure to take the stand in his or her own defense was the result of a knowing and voluntary decision made by the defendant. To accomplish this, we believe judges should make an on-the-record inquiry after the close of the defendant's case, although out of the jury's hearing, into whether a nontestifying defendant understands and voluntarily waives his right. Such action insures a valid waiver of the defendant's right. It will also assist in any subsequent appellate review of a defendant's claim to the contrary."). . At Wagner's sentencing hearing, the State used Wagner's 911 call for impeachment in addition to his statement to police. . Under the court of appeals' holding in State v. Batts, however, it is a mixed question of law and fact whether evidence obtained in violation of Miranda may be used for impeachment purposes in a particular case. See 195 P.3d 144, 158 (Alaska App.2008) (prohibiting on constitutional grounds the impeachment use of statements obtained by "intentional" or "egregious" violations of Miranda). Unless we were to overturn Batts, 'our review of Wagner's claim would necessarily involve factual as well as legal questions. . Cf. Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097-98 (Alaska 1988) ("[WJhile Alaska's standing rules are liberal this court should not issue advisory opinions or resolve abstract questions of law."). . See Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). . People v. Boyd, 470 Mich. 363, 682 N.W.2d 459, 464 (2004). . See id. at 465-66. In addition to Michigan, at least four other jurisdictions have expressly extended Luce's holding to claims involving impeachment evidence obtained in violation of Miranda. See State v. Conner, 163 Ariz. 97, 786 P.2d 948, 953-54 (1990) (en banc); Bailey v. United States, 699 A.2d 392, 401-02 (D.C.1997); Jordan v. State, 323 Md. 151, 591 A.2d 875, 877-79 (1991); State v. Bruneau, 131 N.H. 104, 552 A.2d 585, 592-93 (1988). In contrast, three states that have adopted Luce have expressly rejected its extension to this context. See State v. Cherry, 139 Idaho 579, 83 P.3d 123, 126 (App. 2003); People v. Easley, 148 Ill.2d 281, 170 IIl. Dec. 356, 592 N.E.2d 1036, 1048-49 (1992); State v. Brings Plenty, 459 N.W.2d 390, 394-95 (S.D.1990). . 796 P.2d 1354, 1358 n. 6 (Alaska 1990). . Id. . See Alaska R.App. P. 402. . Alaska R.App. P. 402(b). . See Alaska R.App. P. 402(b)(4) ("Review . will be granted . where . [t]he issue is one that might otherwise evade review, and an immediate decision by the appellate court is needed for guidance or is otherwise in the public interest."); see also Wickham, 796 P.2d at 1358 n. 6 (noting that in this situation "the defendant's apparent predicament is, to at least some extent, ameliorated by the availability of a petition for review of the in limine ruling in the court of appeals"). . Indeed, Wagner's testimony at his sentencing hearing was more consistent with the prosecution's narrative of events at trial than his trial argument in several key respects. Wagner conceded that an undated video of him standing outside Key's residence holding a gun was taken the day before the shooting and showed him holding the same gun used in the shooting. At trial, the defense had argued that the video was taken weeks before the shooting. Wagner also conceded that the audio from the videotape from the night of the shooting revealed that he had shown Key the handgun during his first visit to the mother-in-law unit. The defense had argued that the noises in the recording were inconclusive. And Wagner conceded that he shot Key as soon as Key entered the mother-in-law unit. In contrast, the defense repeatedly emphasized at trial that there might have been as many as 17 seconds between Key's arrival and the shooting.

6872146

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC ASSISTANCE, Petitioner, v. Lester GROSS, Respondent

State, Department of Health & Social Services, Division of Public Assistance v. Gross

2015-04-24

No. S-15339

116

126

347 P.3d 116

347

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC ASSISTANCE, Petitioner, v. Lester GROSS, Respondent.

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC ASSISTANCE, Petitioner, v. Lester GROSS, Respondent. No. S-15339. Supreme Court of Alaska. April 24, 2015. Kathryn R. Vogel, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Petitioner. Mark Regan, Disability Law Center of Alaska, Anchorage, for Respondent. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

5496

35698

OPINION MAASSEN, Justice. I. INTRODUCTION An applicant for federal disability benefits applied for state benefits that are intended to provide basic assistance while the federal application is pending. The Division of Pub-lie Assistance-the division of the Alaska Department of Health and Social Services that administers the state program -denied these interim benefits, relying on a subset of the criteria that the Social Security Administration uses to determine eligibility for federal benefits. The superior court reversed this decision, holding that Alaska law required the Department to apply the same federal substantive criteria and procedural requirements to its determination of eligibility for state interim benefits. The Department petitioned for review, and we granted the petition. We conclude that, while state law does not require the Department to track the federal analysis exactly when it assesses eligibility for state interim benefits, the Department's application of the law erroneously excludes a category of applicants who will be found to be disabled for purposes of federal benefits and who therefore should be entitled to interim assistance. We therefore affirm the superior court's decision in part, reverse it in part, and remand for further proceedings. II. FACTS AND PROCEEDINGS A. Facts Certain persons who are disabled and unable to work are entitled to federal Supplemental Security Income (SSI) benefits administered by the United States Social Security Administration. In determining whether an applicant is "disabled" and therefore entitled to SSI benefits, the Social Security Administration uses a five-step process outlined in federal regulations. Steps one and two are satisfied if the Administration finds first that the applicant is not currently engaged in "substantial gainful activity" and second that the applicant has a "determinable physical or mental impairment" lasting at least one year or likely to result in death, significantly limiting the applicant's "physical or- mental ability to do basic work activities." If these first two steps are satisfied, an individual may qualify for SSI benefits at step three, where the Administration considers whether the medical severity of the applicant's impairment "meets or equals" a disability listed in federal regulations. Individuals who satisfy the first two steps but do not qualify for SSI benefits at step three may nonetheless qualify through steps four and five. At step four, the Social Seeu-rity Administration considers whether the applicant, despite his or her impairment, can perform work he or she has done in the past; if so, the applicant is not disabled and not entitled to SSI benefits. If the applicant cannot perform past work, however, the analysis proceeds to step five. At step five the Social Security Administration considers the applicant's ability to do other work in the national economy; if the applicant can perform other work, he or she is not disabled and not entitled to SSI benefits. The burden shifts at this step of the federal analysis, and the Administration, rather than the applicant, is "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that [the applicant] can do, given [the applicant's] residual functional capacity and vocational factors." Burden-shifting requires that the Administration present the testimony of a vocational expert when other methods of proof are insufficient. If the Administration fails to carry its burden, the applicant is considered disabled and entitled to SSI benefits. Determining eligibility for SSI can be a time-consuming process, lasting many months. To help alleviate hardship duringxx the long application period, state interim assistance programs pay "assistance financed from State or local funds . furnished for meeting basic needs" of SSI applicants while their eligibility for federal benefits is being determined. The federal government reimburses Alaska for the interim assistance payments the State makes to individuals who are ultimately found to be entitled to SSI, but the State is responsible for determining the parameters of its interim assistance program, including the requirements for eligibility. Alaska's interim assistance program is governed by AS 47.25.455, which provides: "The department shall pay at least $280 a month to a person eligible for assistance under this chapter while the eligibility of the person for benefits under [the SSI Program] is being determined." A regulation, 7 AAC 40.180, provides that the Department will determine whether an applicant is eligible for interim assistance based on "whether the applicant is likely to be found disabled by the Social Security Administration, including whether the applicant's impairment meets . (the] Social Security Administration disability criteria for the listings of impairments described in 20 C.F.R. 404, subpart P, appendix 1." The regulation further specifies that, "[iln determining whether an applicant's disability meets [these] criteria," the Department will consider, among other things, whether the "impairment affects the applicant's activities of daily living" and whether "the applicant can perform any other work, including sedentary work." B. Proceedings Lester Gross applied for federal SSI benefits and state interim assistance benefits in December 2011. He claimed eligibility for both based on a serious mental disorder. The Department denied Gross's application for interim assistance. Based on information that Gross provided and using the five-step SSI analysis, the Department's disability adjudicator determined at step five that Gross was not likely to be found eligible for SSI because there was "other work in the national economy" that he could perform, and that he was therefore not eligible for interim assistance. Gross requested a hearing, which was held in March 2012. The Department presented testimony from its disability adjudicator but not from a vocational expert,. The hearing officer, interpreting 7 AAC 40.180 as incorporating all substantive and procedural aspects of the SSI analysis, concluded that Gross had failed to prove disability at step three. Proceeding to the remaining steps, however, the hearing officer concluded that under step five "the burden of proof shifts from the applicant to the agency" and that the Department had failed to meet its burden because it did not provide evidence that the jobs it identified for Gross actually existed in significant numbers in the national economy, nor had it provided the testimony of a vocational expert that Gross could perform those jobs. The hearing officer therefore found Gross eligible for interim assistance. After both Gross and the Department filed proposals for agency action, the Department's deputy commissioner issued a final decision." The deputy commissioner ruled that "7 AAC 40.180 incorporates only . steps 1, 2, and 3 of the SSI disability analysis" for determinations of eligibility for interim assistance, and that the regulation "does mot require the Department to follow the analyses used in steps 4 and 5 of the SSI analysis." "In particular," the deputy commissioner concluded, 7 AAC 40.180 does not require the Department to present evidence through a voeca-tional expert, and does not place any burden on the Department to provel ] (as SSA is required to do at step 5 of its analysis){ ] that there is particular work in the national economy that the applicant is able to perform. Accordingly, because the hearing officer had determined that Gross was not likely to be found disabled at step three of the SSI analysis-finding him disabled only at step five-the deputy commissioner determined that Gross was not eligible for state interim assistance. Gross appealed the deputy commissioner's decision to the superior court, which reversed it, Based on our decisions in Moore v. Beirne and State, Department of Health & Social Services v. Okuley, the superior court concluded that the Department, when determining eligibility for the state interim assistance program, must follow all five steps of the SSI analysis. The Department petitioned for review. It argued that neither AS 47.25.455 nor 7 AAC 40.180 requires it to undertake the full five-step federal analysis in evaluating eligibility for state interim assistance, and that its interpretation of the statute is otherwise permissible. The Department asked that we reverse the superior court's decision and reinstate the decision of the deputy commissioner. We granted the petition. III. STANDARDS OF REVIEW "When a superior court acts as an intermediate appellate court in an administrative matter, we review the merits of the agency's decision." The agency's decision in this case is based on its application of a regulation. When examining regulations that were properly promulgated, "[wle limit our review to 'whether the regulations are consistent with and reasonably necessary to carry out the purposes of the statutory provisions and whether the regulations are reasonable and not arbitrary. " "In making the consistency determination, we use our independent judgment unless the 'issue involves agency expertise or the determination of fundamental policy questions on subjects committed to an agency.'" "But the specific form our independent review takes is distinct from pure de novo review. We apply the substitution-of-judgment standard," by which we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy, but in doing so we give due deliberative weight 'to what the agency has done, especially where the agency interpretation is longstanding'" In this case, the Department's interpretation is due little deference based on longevity; Gross's case appears to be the first in which the Department has adopted the at isgue here, as the deputy commissioner noted in her decision. IV. DISCUSSION The Department argues that AS 47.25.455 does not require use of the full five-step SSI analysis to determine eligibility for interim assistance and that 7 AAC 40.180-which the Department interprets as requiring only the first three steps-is therefore consistent with the statute. But because this interpretation of the statute would exclude from the interim assistance program an entire category of applicants potentially eligible for SSI, we reject the Department's argument. A. Why We Apply The Substitution Of Judgment Standard Of Review The Department argues that determining eligibility for interim assistance is "a policy decision and a judgment squarely within the agency's area of expertise," which we should review only to determine whether it has a reasonable basis. We use reasonable basis review "when the interpretation at issue implicates agency expertise or the determination of fundamental policies within the scope of the agency's statutory functions." Because the question in this case is one of statutory interpretation-requiring a determination of the legislature's intent in creating the interim assistance program-we conclude that the substitution of judgment standard of review is appropriate instead. In support of its argument for reasonable basis review, the Department cites Marathon Oil Co. v. State. In that case we examined whether the Department of Natural Resources had permissibly denied a lessee's request to apply retroactively a specific methodology for calculating royalties on gas leases. We found the governing statute ambiguous as to "whether retroactive contract pricing is permitted. We applied the reasonable basis standard of review because of our recognition that "[alllowing ret-roactivity could have important consequences for how royalties are assessed and paid," consequences the agency was more qualified than the courts to weigh. We observed that "[the state royalty and audit system is complicated, and DNR has expertise in deciding when retroactive application makes sense within that system." We also noted that we were "especially inclined to defer when the agency's statutory interpretation is long-standing," as it was in Marathon Oil. The question in this case is whether the Department may, consistent with the interim assistance statute, definitionally exclude persons who are eligible for SSI from eligibility for state interim assistance. Unlike Marathon Oil, answering that question does not require the "resolution of policy questions which lie within the agency's expertise and are inseparable from the facts underlying the agency's decision." Rather, the answer depends on the legislature's intent in creating the interim assistance program. "The question whether [the Department] properly in-terpretéd the legislature's mandate . is answerable through 'statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience' Because this preliminary legal question resides within the traditional province of judicial review and involves no technical expertise," we employ the substitution of judgment standard. The Department also urges us to defer to its interpretation because the adult public assistance statutes-of which the interim assistance program is a part-generally grant it the authority to "adopt regulations, not inconsistent with law, defining need, [and] prescribing the conditions of eligibility for assistance." But the grant of regulatory authority in this case is unlike the broad grants of authority at issue in cases in which we have deferred to an agency decision. Instead, because the issue is one of statutory interpretation, we apply the substitution of judgment standard, giving little deference to the agency's new interpretation of the law, as explained above. Finally, in deciding this appeal we do not need to address whether the Department's decision of Gross's case has a reasonable basis in the regulation. For purposes of our decision we assume that the Department's application of 7 AAC 40.180 was based on a reasonable interpretation of it, leaving for our independent review only the question whether the regulation as so interpreted is consistent with the statute it was intended to implement. B. A Failure To Consider Steps Four And Five Of The SSI Analysis In Determining Eligibility For Interim Assistance Is Inconsistent With AS 47.25. 455. The Department argues that nothing in AS 47,25,455 mandates use of the complete five-step federal SSI analysis to assess eligibility for state interim assistance, and that its interpretation of 7 AAC 40.180 as incorporating only the first three steps is therefore consistent with the statute. In particular, the Department argues that it is not required, as it would be at step five of the SSI analysis, to carry the burden of proving the existence of other work in the national economy that the applicant can perform, or to present expert testimony on that subject. We agree that the Department is not required to exactly replicate all procedural aspects of the five-step analysis; however, to the extent the Department's interpretation excludes from interim assistance an entire category of disabled applicants-those who are entitled to federal benefits only because of step five-it is inconsistent with the statute. Alaska Statute 47.25.455(a) provides that "Itlhe department shall pay at least $280 a month to a person eligible for assistance under this chapter while the eligibility of the person for benefits under [the SSI program] is being determined." The Department contends that, because the statute requires that interim assistance be provided "while the eligibility of the person" for SSI is being determined, the legislature could not have intended that the Department apply the same analysis as that used by the federal government to determine SSI eligibility. It argues that the structure of the adult public assistance statutes in general supports its interpretation. "[We interpret [a] statute according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose. The language and structure of the relevant statutes do not directly answer the question whether the test for state interim assistance must be the same as that for SSI, but they do suggest that the two should closely track. Alaska Statute 47.25.455 specifies that benefits are to be paid "to a person eligible for assistance under this chapter while the eligibility of the person for benefits under [the federal SSI program] is being determined"; the adult public assistance chapter specifies that a person is eligible if he or she is disabled, and it defines "disabled" in the same way the federal SSI program defines it. The Department is correct, however, that the text of AS 47.25.455, which requires interim assistance payments "while the eligibility of the person for benefits under [SSI] is being determined" and therefore contemplates a more expedited decision, does not necessarily require that the test for interim assistance be exactly the same as the test for SSL. We directly addressed the interim assistance statute once before. In Moore v. Beirne, we held that AS 47.25.455 did not permit the Department to terminate interim assistance benefits based on the federal authorities' preliminary denial of SSI benefits, but instead that interim assistance benefits must continue until the applicant's SSI appeals had been exhausted and the Social Security Administration made a final decision on her entitlement to federal benefits." The Department argues that nothing in Moore requires it to use the full five-part SSI analysis, and that Moore supports its interpretation of the statute because we recognized in that case that applicants for interim assistance and SSI are not similarly situated for equal protection purposes. The Department is partly correct. As we noted in Moore, the legislature in creating the. interim assistance program intended to codify the Department's past practice of paying state benefits to SSI applicants while their entitlement to federal benefits was being determined. At that time, eligibility for interim assistance was assessed simply through the report of an accredited physician about the applicant's likely entitlement to federal benefits," a process far less rigorous than the current one. Nothing in Moore requires the Department to exactly replicate the SSI analysis when it assesses eligibility for interim assistance. However, as we noted in Moore, "Itlhe purpose of interim assistance is to alleviate hardship on applicants for SSI during the application period," and the history of the program confirms that the legislature intended benefits to be broadly available to meet this purpose. It was recognized during development of the program that the waiting time for a determination of SSI eligibility was growing longer, and that assistance otherwise available to meet applicants' basic needs during this period was insufficient. Furthermore, when enacting the interim assistance program into law, the legislature eliminated the availability of other benefits pending a final SSI determination-benefits for which all SSI applicants had formerly been eligible-intending that interim assistance fill the gap." And as already noted, the method of assessing eligibility at the time of the statute's passage involved a much less rigorous process; rather than satisfying the federal eligibility criteria, an applicant for interim assistance had merely to "demonstrate[] some likelihood of meeting the statutory criteria for eligibility." As the legislature intended to adopt the program currently in operation when it codified interim assistance, this again suggests a broadly available benefit. The interim assistance statute has been amended since its codification, but nothing in the later legislative history alters its broadly inclusive purpose. Also aiding our analysis is the rule "that a remedial statute is to be liberally construed to effectuate its purposes." Federal courts have recognized that the Social Security Act is remedial and must therefore be liberally construed. We recognize the same remedial purposes in Alaska's interim assistance program, which-as part of Alaska's adult public assistance statutes-is intended "to furnish financial assistance as for as practicable to needy aged, blind, and disabled persons, and to help them attain self-support and or self-care." The Department's interpretation of 7 AAC 40.180 to include only steps one, two, and three of the SSI analysis in determining eligibility for interim assistance would render an entire category of persons who are eligible for SSI-those deemed disabled at step five-ineligible for interim assistance. While the Department asserts that "[nlo argument or findings have been made in this case to support a theory that [its] interpretation of interim assistance actually results in an under-inclusive granting of interim assistance benefits to individuals later adjudicated disabled by SSI," such under-inclusion is an inevitable result of the Department's interpretation. The Department is certainly correct that it is consistent with AS 47.25.455 to limit interim assistance benefits to those "likely to be found disabled" by the Social Security Administration for purposes of SSI and that, in doing so, it need not exactly replicate the entire set of procedures the Administration employs to determine eligibility for the federal program. However, the Department may not exclude from eligibility for interim assistance the entire category of persons eligible for SSI at step five." We leave it to the Department to decide in the first instance how it will satisfy the statutory mandate. v. CONCLUSION We AFFIRM the superior court's decision in part, REVERSE it in part, and REMAND to the Department for proceedings consistent with this opinion. . See 7 Alaska Administrative Code (AAC) 40.040 (2015) ("Assistance under this chapter will be granted only upon application to the division."); 7 AAC 40.900(4) (2015) ("In this chapter, . 'division' means the division of public assistance of the Department of Health and Social Services."). . See 42 U.S.C. § 1381 20 CFR. § 416.110 (2014). (2012); . See 20 C.F.R. § 416.920(a)(4) (describing five-step process in general); Frank BrocH, Brock on Sociat Security § 3:7 (2015 ed.). . 20 C.F.R. § 416.920(a)(4)(ii), 416.920(b). . Id. § 416.920(c), 416.909. . Id. § 416.920(d). The qualifying impairments are listed at 1d. § 404, subpart P, appendix 1. Id. § 416.920(a)(4)Gii). . Id. § 416.920(f), 416.920(h), 416.960(b). . Id. § 416.920(g), 416.920(h), 416.960(c). . Id. § 416.960(c)(2). . Id. § 416.966(e); see also Broc, supra note 3, § 3:36. . See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Erickson v. Shalala, 9 F.3d 813, 816-17 (9th Cir.1993). . 42 U.S.C. § 1383(g)(3) (2012). . See id. § 416.1901(@). § 1383(g)(3)-(4); 20 CFR. . See, eg., Kraft v. Comm'r of Pub. Welfare, 398 Mass. 357, 496 N.E.2d 1379, 1383-86 (1986) (discussing the relationship of federal and state law in interim assistance and stating that the federal statute and regulations "evince an intent to delegate to the States the power to determine the amount of such assistance and eligibility guidelines [and] authorize the States to determine the appropriate methodology for calculating the amount of reimbursement due."). . AS 47.25.455(a). . 7 AAC 40.180(b)(1)(B) (2015). The regulation also requires the Department to examine "the SSI program's presumptive disability criteria under 20 CFR. 416.934," 7 AAC 40.180(b)(1)(A), but Gross has not alleged eligibility under those criteria. While 7 AAC 40.180 has been amended since the events in question in this case, that amendment simply updated references to the Code of Federal Regulations without changing the substance or structure of the regulation. Compare former 7 AAC 40.180 (am. 1/11/06), with 7 AAC 40.180 (am. 12/7/13). We therefore refer to the regulation's most recent published version here. . 7 AAC 40.180(c)(3), (4). . A proposal for action states a party's position as to whether the agency should adopt, reverse, modify, or take other action on a hearing officer's proposed decision. See AS 44.64.060(e). . See AS 44.64.060(e)(5) (stating that the agency may, "in writing, reject, modify, or amend an interpretation or application in the proposed decision of a statute or regulation directly governing the agency's actions by specifying the reasons for the rejection, modification, or amendment, and issue a final agency decision"). . Both emphases in original. . 714 P.2d 1284 (Alaska 1986). . 214 P.3d 247 (Alaska 2009). . State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 596 (Alaska 2011). . Lakosh v. Alaska Dep't of Envtl. Conservation, 49 P.3d 1111, 1114 (Alaska 2002) (alterations omitted) (quoting Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971)); accord Gruhert v. State, 109 P.3d 924, 929 (Alaska 2005); see also AS 44.62.030. . Lakosh, 49 P.3d at 1114 (quoting O'Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000)). We have explained that " 'reasonable necessity is not a requirement separate from consistency' and the scope of review should center around consistency with the authorizing statute." Bd. of Trade, Inc. v. State, Dep't of Labor, Wage & Hour Admin., 968 P.2d 86, 89 (Alaska 1998) (quoting State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531-32 (Alaska 1997)). . Heller v. State, Dep't of Revenue, 314 P.3d 69, 73 (Alaska 2013) (quoting Chugach Elec. Ass'n, Inc. v. Regulatory Comm'n of Alaska, 49 P.3d 246, 250 (Alaska 2002)). . See, eg., Totemoff v. State, 905 P.2d 954, 968 (Alaska 1995) (stating that "if agency interpretation is neither consistent nor longstanding, the degree of deference it deserves is substantially diminished" (citing Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 646 n. 34, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986))); Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 153 n. 11 (Alaska 1994) (refusing to give agency's inconsistent statutory interpretation any deference). . While the Department suggests that it has advanced this argument in prior administrative proceedings, nothing in the record on appeal shows this to be the case. In the decision on Gross's application, the deputy commissioner observed: "The Department is mindful that the ALJ's proposed decision followed the interpretation of the Interim Assistance regulations previously applied by the Department's former Office of Hearings and Appeals, and the interpretation adopted by the Director of the Division of Public Assistance in the Director's Appeal decision issued on October 7, 2011 in OHA Case No. 11-FH-188." . Marathon Oil Co. v. State, Dep't of Natural Res., 254 P.3d 1078, 1082 (Alaska 2011) (citing Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175 (Alaska 1986)). . 254 P.3d 1078 (Alaska 2011). . See id. at 1081-82. . Id. at 1085. . Id. at 1082. . Id. . Id. at 1085. . Id. (quoting Earth Res. Co. v. State, Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983)). . Lakosh v. Dep't of Envtl. Conservation, 49 P.3d 1111, 1117 (Alaska 2002) (quoting Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971)). , Heller v. State, Dep't of Revenue, 314 P.3d 69, 73 (Alaska 2013) ("Because the interpretation involves legislative intent rather than agency expertise, we apply independent review here."). . AS 47.05.010(9). . Cf. Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 903 (Alaska 1981) (reasoning that a statute allowing the Board of Fisheries to "make regulations it considers advisable" indicated "that the legislature intended to give the Board discretion to decide methods of regulation"); Kelly v. Zamarello, 486 P.2d 906, 912 (Alaska 1971) (reasoning that a statute for competitive oil and gas leasing describing "such bonus as may be accepted by the Commissioner" of DNR indicated "that the legislature intended to give the Commissioner broad authority to determine the kind of bonus he will accept"). . See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 902-04 (Alaska 1987) (''Tesoro argues that we should apply the 'reasonable basis' standard because the issues raised in these cases involve agency expertise and fundamental policy considerations in an area where the administrative agency has been granted broad regulatory authority. . . [But bJecause this case involves statutory interpretation, we conclude that the independent judgment test is the appropriate standard of review."); supra notes 27-28 & accompanying text. . Cf. Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293, 301 (Alaska 2014) ("Assuming a regulation is valid, we review whether an agency's interpretation of its regulation is plainly erroneous and inconsistent with the regulation-Lie., whether it has a reasonable basis." (citation omitted) (internal quotation marks omitted)). . The Department also argues that the "policy and purpose" of Alaska Statutes Chapter 47 generally is "to cooperate and coordinate with the United States government in administering public assistance," a purpose which is fulfilled through the reimbursement agreement between the state and federal governments, rather than through an identical definition of disability. The provisions allowing for reimbursement of interim assistance payments from the federal government, however, were not part of the initial interim assistance program, ch. 138, § 18, SLA 1982, and their subsequent addition, ch. 29, § 6, SLA 1993, did not imply a change in the overall purpose of or conditions of eligibility for the program. See, eg., 1993 House Journal 87-88 (Governor's transmittal letter); Testimony of Jan Hansen, Div. of Pub. Assistance, at 33:30-34:45, Hearing on H.B. 67 Before the House Judiciary Comm., 18th Leg., ist Sess. (Mar. 15, 1993) (discussing interim assistance). . Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014). . Compare AS 47.25.615(5) (defining "disabled" as "being unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months"), with 42 U.S.C. § 1382c(a)(3)(A) (2012) (stating that "an individual shall be considered to be disabled for purposes of [the SSI program] if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months"); see also 7 AAC 40.030 (stating that, to be eligible for adult public assistance, "(aln applicant must meet the eligibility requirements of the SSI program . and the eligibility requirements set forth in [the Adult Public Assistance] chapter"). . While the parties discuss our decision in State, Dep't of Health & Soc. Servs. v. Okuley, 214 P.3d 247 (Alaska 2009), that case does not affect our analysis here. The facts underlying Okuley related to the Department's failure to comply with the Administrative Procedure Act in enacting a prior version of 7 AAC 40.180. See id. at 249-50 & 250 n. 6. The merits of the case, however, related to attorney's fees issues raised in subsequent class-action litigation, see id. at 252-58, and did not involve the interim assistance program itself. . 714 P.2d 1284, 1287 (Alaska 1986). . See id. at 1287-88. . Id. at 1286; see also Testimony of Rod Betit, Director, Div. of Pub. Assistance, at 48:30-51:30, Hearing on C.S.H.B. 357 (Rules) Before the Sen. Health, Educ. & Soc. Servs. Comm., 13th Leg., 1st Sess. (May 5, 1982). . Moore, 714 P.2d at 1285 ("Interim assistance payments are granted after a preliminary examination of the applicant by a physician or psychiatrist." (citing prior version of 7 AAC 40.180)). . Id. . See Testimony of Rod Betit, Director, Div. of Pub. Assistance, at 48:30-51:00, Hearing on C.S.H.B. 357 (Rules) Before the Sen. Health, Educ. & Soc. Servs. Comm., 13th Leg., 1st Sess. (May 5, 1982) (discussing development of the program codified as interim assistance in AS 47.25.455). . Medicaid coverage for the interim period was eliminated as part of the package of legislation that included AS 47.25.455. Ch. 138, § 13, SLA 1982 (codified as amended at AS 47.07.020(e)); Testimony of Rod Betit, Director, Div. of Pub. Assistance, at 48:20-51:00, Hearing on C.S.HB. 357 (Rules) Before the Sen. Health, Educ. & Soc. Servs. Comm., 13th Leg., ist Sess. (May 7, 1982) (discussing genesis of program codified as Interim Assistance); Comments of Chairman Charlie Parr, at 06:30-11:00, 43:45-45:00, Hearing on C.S.H.B. 357 (Rules) Before the Sen. Health, Educ. & Soc. Servs. Comm., 13th Leg., 1st Sess. (May 7, 1982) (discussing cuts to Medicaid benefits granted to individuals prior to a full federal disability determination and proposal to increase amount of Interim Assistance granted to cover medical bills prior to final determination). . Moore, 714 P.2d at 1287. . See supra note 49. . State ex rel. Smith v. Tyonek Timber, Inc., 680 P.2d 1148, 1157 (Alaska 1984). . See Doran v. Schweiker, 681 F.2d 605, 607 (9th Cir.1982) ("The Social Security Act is remedial, to be construed liberally."); Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.1969) ("[The Social Security Act is a remedial statute, to be broadly construed and liberally applied."); see also Granberg v. Bowen, 716 F.Supp. 874, 878 (W.D.Pa.1989) (stating that the Supplemental Security Income program "is to be construed liberally to further its remedial purposes"). . AS 47.25.590(b) (emphasis added). . Counsel for the Department suggested at oral argument before us that its three-step application of 7 AAC 40.180 effectively incorporates the substance of steps four and five because subsection {c)(4) provides that "[i}n determining whether an applicant's disability meets the criteria set out in (b)(1)(B) of this section" (which is essentially step three of the SSI analysis), "the department will consider whether . the applicant can perform any other work, including sedentary work." But the SSI analysis explicitly excludes consideration of vocational factors, such as the ability to perform other work, at step three. 20 CFR. § 416.920(d) (2014) ("If you have an impairment(s) which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.") (emphasis added). Under the Depart ment's interpretation, therefore, consideration of vocational factors could only serve to exclude from state benefits those who would be entitled to federal benefits at step three. . 7 AAC 40.180. . Gross also argues that, by deciding his case based on a new interpretation of 7 AAC 40.180 imposed by the commissioner after the hearing, the Department violated his due process rights. Because we decide today that fuller consideration of Gross's case is required under AS 47.25.455, we do not reach his due process claim.

6872173

Wilburn D. JACKSON, Appellant, v. STATE of Alaska, Appellee

Jackson v. State

2015-03-01

No. A-10835

126

128

347 P.3d 126

347

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Wilburn D. JACKSON, Appellant, v. STATE of Alaska, Appellee.

Wilburn D. JACKSON, Appellant, v. STATE of Alaska, Appellee. No. A-10835. Court of Appeals of Alaska. March 1, 2015. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. . Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

1091

6669

Order The State petitions for rehearing, arguing that we overlooked controlling authority in reaching this decision. In the present case, we held that the superior court committed plain error by failing to instruct the jury that it had to reach a unanimous verdict as to the specific act that constituted the first-degree sexual assault. In the State's view, there was no plain error because Jackson's attorney had a valid tactical reason for not objecting to the superior court's failure to instruct the jury on unanimity-that is, to avoid the risk that the State might move to amend the indictment in the middle of trial to charge Jackson with two counts of sexual assault instead of one. We rejected that argument in our earlier decision because we concluded that the State would not have been permitted to amend the indictment mid-trial to add a second sexual assault count under Alaska Criminal Rule T(e) Criminal Rule 7(e) authorizes a trial court to allow the State to amend an indictment at any time before a verdiet is returned "if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." As we explained in our earlier decision, amending Jackson's indictment in the middle of trial to add a second charge of first-degree sexual assault would have violated this rule because Jackson would have faced not only a new charge, but if convicted of that second charge, a separate sentence on the new charge that would be at least partially consecutive under the applicable sentencing law. In its petition for rehearing, the State argues that our reading of Criminal Rule 7(e) is at odds with the Alaska Supreme Court's 1972 decision in Trounce v. State. In Trounce, the defendant was convicted of one count of felony assault based on evidence that he assaulted two different people. On appeal, Trounce argued that the superior court should have granted his motion to dismiss the duplicitous assault The supreme court concluded that, even assuming the assault count was duplicitous, reversal was not required because there was no reasonable possibility the jury's verdict lacked unanimity. But the court also stated, in dicta, that dismissal was not the appropriate remedy for a duplicitous count in any event because counsel could, inter alia, "move to amend the indictment as suggested by Criminal Rule 7(e)." Based on this dicta in Trownce, the State argues Criminal Rule 7(e) would not have barred the State from amending Jackson's indictment mid-trial to charge two separate acts of sexual penetration, and thus Jackson's attorney did have a legitimate tactical reason for not objecting to the court's failure to instruct the jury on unanimity. We disagree with the State's reading of Trounce. As we already explained, Criminal Rule 7(e) allows an indictment to be amended mid-trial only if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. In Trownce, the supreme court did not explain how allowing the State to amend an indictment mid-trial to add an additional charge would comport with the requirements of this criminal rule or with due process. Moreover, the authority the supreme court relied on, the 1969 edition of Professor Wright's treatise Federal Practice and Pro cedure, does not support the State's interpretation of Trounce. That treatise states that the appropriate remedy for a duplicitous indictment is to require the State to elect to proceed on just one of the duplicitous charges. The current edition of Professor Wright's treatise adds the option of instructing the jury that it must find the defendant guilty of one distinct act as an alternative to curing a duplicitous count through prosecuto-rial election. Professor LaFave's treatise on criminal procedure takes this same view, as do the federal courts. Given this authority, we do not believe the Trounce court meant to suggest that a felony indictment could be amended mid-trial to add a new charge (and thereby increase the defendant's criminal liability). We think it more likely that the court was referring to separating the duplicitous count into different "counts" for purposes of the jury's verdict forms, but otherwise allowing only the original number of convictions. In any event, the primary point the Alaska Supreme Court was making in Trownce was that a duplicitous count is not necessarily a fatal defect, and that a dismissal is therefore not the appropriate remedy-a point that is entirely compatible with the authority the Trounce court relied on and with our reasoning in the present case. We therefore conclude that the State's reliance on Trownce is misplaced and that the State's position on a mid-trial indictment to add new charges is without merit. Accordingly, the State's petition for rehearing is DENIED. Entered at the direction of the court. . See Alaska R.App. P. 506(a)(1). . Jackson v. State, 342 P.3d 1254, 1259-60 (Alaska App.2014). . Jackson, 342 P.3d at 1258-60. . Id. at 1258. AS 12.55.127(c)(2)(B) requires at least one-fourth of the presumptive term specified for first-degree sexual assault to be served consecutively when a defendant is sentenced for two or more crimes against a person. . 498 P.2d 106 (Alaska 1972). . Id. at 107. . Id. . Id. at1ii-12. . Id. at 111. When Trounce was decided, Crim- * inal Rule 7(e) already contained language limiting pre-verdict amendment of the indictment to situations where "no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." Trounce, 498 P.2d at 111 n. 9 (quoting Rule 7(e)). . 1 Charles Alan Wright, Federal Practice and Procedure § 145, at 335 (1969). . 1A Charles Alan Wright & Andrew D. Liepold, Federal Practice and Procedure § 145 at 94-95 (4th ed.2008). . 5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 19.3(c), at 286-87 (3d ed.2007). . See, eg., United States v. Lloyd, 462 F.3d 510, 514-15 (6th Cir.2006); United States v. Hughes, 310 F.3d 557, 561 (7th Cir.2002); United States v. Ramirez-Martines, 273 F.3d 903, 915 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir.2007); United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994). . See Trounce, 498 P.2d at 111-12; 1 Charles Alan Wright, Federal Practice and Procedure § 145, at 335 (1969).

6873982

CASTLE PROPERTIES, INC., Appellant, v. WASILLA LAKE CHURCH OF THE NAZARENE, Appellee

Castle Properties, Inc. v. Wasilla Lake Church of the Nazarene

2015-04-10

No. S-15381

990

999

347 P.3d 990

347

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

CASTLE PROPERTIES, INC., Appellant, v. WASILLA LAKE CHURCH OF THE NAZARENE, Appellee.

CASTLE PROPERTIES, INC., Appellant, v. WASILLA LAKE CHURCH OF THE NAZARENE, Appellee. No. S-15381. Supreme Court of Alaska. April 10, 2015. Kenneth D. Albertsen, Palmer, for Appellant. Ronald L. Baird, Office of Ronald L. Baird, Anchorage, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

5665

35171

OPINION BOLGER, Justice. I. INTRODUCTION Castle Properties, Inc. held a right of first refusal on approximately 2.4 acres of unimproved land owned by the Wasilla Lake Church of the Nazarene (Church). The City of Wasilla (City) offered the Church another parcel of approximately 17 acres in exchange for this property. Having learned of the City's offer, Castle Properties requested a copy of the purchase and sale agreement memorializing the exchange. The Church, apparently unaware of the right of first refusal, denied this request. Castle Properties then informed the Church that it was exercising its right of first refusal and submitted a cash offer, which the Church rejected. Castle Properties filed suit, and the superi- or court found that Castle Properties received adequate notice when it obtained the city ordinance approving the City's offer and that the Church acted reasonably in rejecting Castle Properties' competing cash offer. We conclude that the superior court did not clearly err in finding that Castle Properties received adequate notice, that Castle Properties exercised its rights by making a competing offer, and that the Chureh's response did not violate the covenant of good faith and fair dealing. II. FACTS AND PROCEEDINGS The property underlying this dispute is located in the Lakebrook Subdivision in Was-illa, near the Cottonwood Creek Mall. Castle Properties seeks to purchase the southern portion of Tracts 3 and 4 (Property), bounded by the Palmer-Wasilla Highway to the north and Cottonwood Creek to the south. In 1984 the Baugh Construction and Engineering Profit Sharing Trust (Trust) began acquiring property in the Lakebrook Subdivision. Gary Baugh, the trustee, believed that if the Trust could acquire contiguous properties across Tracts 1 through 5, they would present "an attractive piece of real estate for a developer." The Trust first acquired the southern portions of Tracts 1 and 2 and then set its sights on the southern portions of Tracts 8, 4, and 5. At this time, title to Tracts 3 and 4 was held by the "Alaska District, Church of the Nazarene." But the church association that would eventually become the Wasilla Lake Church of the Nazarene negotiated with the Trust and executed the relevant transaction. Tract 5 was owned by the Church's pastor, John Vaughn, and his wife. Vaughn wanted the Church to purchase the northern portion of Tract 5. And according to Baugh, the Trust was interested in acquiring the southern portion, contingent on the possibility of someday acquiring the adjacent portions of Tracts 3 and 4. The parties therefore crafted the following exchange. The Trust purchased the entirety of Tract 5 from the Vaughns for $310,000. The Trust then kept the southern portion for itself, but sold the northern portion to the Church, in exchange for $100,000 and a right of first refusal to purchase the southern portions of Tracts 3 and 4-the Property. The end result was as follows: the Vaughns sold Tract 5 for $810,000; the Church acquired the northern portion of Tract 5; and the Trust,- in essence, paid $210,000 for the southern portion of Tract 5 plus the opportunity to purchase the adjoining Property at some point in the future. The document memorializing the right of first refusal stated that the Church "grant[ed] the . Trust First Right of Refusal on any future sale" of the Property. There is no evidence that the parties agreed to more detailed terms regarding the duties owed by either party pursuant to this right. The Trust recorded this document in 1996. In 2002 Castle Properties purchased all of the Trust's interests in Tracts 1 through 5-including the right of first refusal to purchase the Property. As early as 2004 the Church's board began discussing the shortcomings of the Chureh's facilities and the need to relocate to a larger and more suitable site. The Church decided to sell the Property as part of this relocation strategy, and in 2010 the Church listed the Property for $600,000. Gary Lundgren, Castle Properties' owner, submitted two cash offers for the Property through his agent, Kevin Baker. These offers were made in April and July 2010 for $265,000 and $300,000, respectively. The Church rejected both offers, but the Church's real estate agent, Tammy Ervin, inquired whether Lundgren had 20 acres of land available for an exchange instead. Baker told Ervin that Lundgren was not interested in a property exchange. He did not mention Castle Properties' right of first refusal at this time. Around the same time the Church signed a non-binding letter of intent with the City to exchange the Property for approximately 20 acres of City land. On April 11, 2011, a draft ordinance ratifying this exchange was introduced. The ordinance identified the City property to be traded (City Trade Land) and its approximate acreage. The accompanying staff report specifically noted the Church's "desire to relocate onto a large parcel." And attached to the ordinance was a title report with the tax-assessed value of the parcel encompassing the City Trade Land. Castle Properties was unaware of the City's offer until April 2011, when Baker attended a City Council meeting where the exchange was discussed. Having learned of the potential conveyance to the City, Baker tried to acquire a copy of the Purchase and Sale Agreement (Purchase Agreement) between the City and the Church, but his requests were denied. Baker testified that he also attempted to set up a meeting with the Church but that the Church declined to participate. On May 18, 2011, Castle Properties recorded a document entitled "Notice of Exercise of First Right of Refusal." This notice stated that, having learned of the City's offer, Castle Properties was exercising its right to purchase the Property on "equivalent terms," which Castle Properties deemed to be $153,000. There was testimony at trial suggesting that the then-current Church leaders were unaware of Castle Properties' right of first refusal until this document was recorded. On May 27 Castle Properties' attorney sent the Church a letter reiterating Castle Properties' election to exercise its right of first refusal by purchasing the Property for $153,000, noting that "[a] real estate broker has confirmed that this is the upper end of fair market value for the [City] Trade Land." Castle Properties informed the Church that it had placed $153,000 in escrow, urged that "time [was] of the essence," and requested a closing by June 7, unless "alternative arrangements" had been made. The Church responded with a letter informing Castle Properties that its right of first refusal appeared unenforceable and that unless Castle Properties could show legal authority to the contrary, the Church intended to close the transaction with the City on August 11. Castle Properties filed suit on August 9, seeking specific performance of its right of first refusal. Castle Properties also recorded a lis pendens on the Property. The Church counter-claimed, seeking a decree quieting title to the Property and a declaratory judgment to the same effect. - In analyzing the duties owed under a right of first refusal, the superior court first noted that our decision in Roeland v. Trucano provides the relevant framework. The court found that, under Roeland, Castle Properties received "adequate notice" of the City's offer through the City ordinance outlining the proposed land exchange. Next, the superior court noted that the City Trade Land was a "unique" offer, which served as an invitation to Castle Properties to submit a "commercially equivalent offer." At trial, the Church's expert appraiser placed the value of the City Trade Land at $250,000, and Castle Properties offered no rebuttal expert. Given the Chureh's interest in "obtain[ing] an affordable parcel of land that was suitable for a new church," the superior court found that Castle Properties' $153,000 cash offer was not commercially equivalent to the City's offer. Accordingly, the court expunged the lis pendens on the Property and quieted title free of any interest related to Castle Properties' right of first refusal. Castle Properties now appeals. III. STANDARD OF REVIEW "Questions regarding the adequacy of notice are questions of fact."" "Under [Alaska] Civil Rule 52(a), factual findings shall not be set aside unless they are clearly erroneous. A finding is clearly erroneous only if the reviewing court is left with a 'definite and firm conviction that a mistake has been made.'" "When reviewing factual findings, we view the evidence in the light most favorable to the prevailing party below." "We review questions of law using our independent judgment and will adopt 'the rule of law that is most persuasive in light of precedent, reason and policy'" IV. DISCUSSION On appeal Castle Properties does not argue that the Church should have accepted its $153,000 cash offer. Rather, Castle Properties contends that it lacked adequate information to formulate an "equivalent" offer. Accordingly, Castle Properties now asks to purchase the Property either for the appraised value of the City Trade Land ($250, 000) or the "Church-determined" value of the Property ($291,000). A. Castle Properties Received Adequate Notice Of The City's Offer. Castle Properties argues that the Church failed to provide the legally required notice of the City's offer to purchase the Property. In Roeland, we outlined the duties owed under a right of first refusal: The general rule is that when an owner receives an offer to purchase an interest in a property burdened with a right of first refusal, the owner must provide adequate notice of the terms of the offer to the holder of the right. Adequate notice is notice sufficient to enable the holder of the right of first refusal (the right-holder) to decide whether to attempt to match the terms. Once the seller has made reasonable disclosure of the material terms, the right-holder has a duty to further investigate any terms that he or she finds unclear,[ ] We further stated that "[the offer's terms must be sufficiently definite to evaluate, and all essential terms in the third-party offer must be communicated to the right-holder. Generally, this means a written copy of the offer or agreed terms should be provided." Like this dispute, Roeland involved an effort to enforce a right of first refusal where the competing offer was "unique. There, the owners of the property burdened by the right received the following offer: a retailer would "purchase" 25% of the property by granting the owners a 25% interest in any stores he operated 'in the building. The property owners memorialized this offer in a memorandum of understanding (MOU) and provided the right-holders with a copy. Although the right-holders "provide[d] an extensive list of details missing from the MOU," we concluded that "the absence of these details [did] not leave the essential terms of the transaction unclear." We therefore affirmed the superior court's finding that the sellers had not breached the right of first refusal. Here, the superior court found that Castle Properties received adequate notice of the City's offer through the ordinance adopted at the Wasilla City Council meeting on April 25, 2011 (Ordinance). Although the Church refused to give Castle Properties a copy of the Purchase Agreement, the superior court concluded that the Ordinance was sufficient to inform Castle Properties of the offer's "material" terms-namely, "what land was involved." As the court reasoned, any provisions contained only in the Purchase Agreement pertained merely "to implementation and related matters." As an initial matter, the superior court was correct to note that the Church had no duty to notify Castle Properties about its negotiations with the City. Under Roe-land, the duty to provide notice arises only onee "an owner receives an offer to purchase an interest in a property burdened with a right of first refusal." Accordingly, the Church's duty to notify did not arise until April 25, 2011, when the Wasilla City Council actually approved the proposed land exchange with the Church. Castle Properties contends, however, that the Ordinance provided inadequate notice of the City's offer. Its arguments are essentially two-fold. First, Castle Properties argues that the Church should have disclosed its "criteria" for suitable trade land. Second, Castle Properties claims that it was entitled to a copy of the Purchase Agreement because the Ordinance omitted certain terms of the transaction. With regard to the Church's criteria for suitable trade land, the process Castle Properties seeks is beyond the scope of what its right of first refusal ensured. Citing testimony from Church members, Castle Properties alleges that the Church deemed 10 acres to be an agcceptable size; approved a "4-mile radius" as a relocation range; and established criteria for "items such as city water and sewer, access, price, and 'not swampland." " But it is not evident from the record that the Church ever memorialized such specific criteria for a relocation site. For instance, one Church board member described the process of finding a site for relocation as "very fluid," explaining that "as opportunities have presented themselves, [the Church has} evaluated each one on its own merits." Moreover, Castle Properties itself points out that the City Trade Land did not meet all of the "criteria" alluded to in the Church's testimony. It is true that because the City's offer of land was a "unique offer," Castle Properties was not in a position to precisely "match the [City's] terms." But we expressly addressed this issue in Roeland, noting: Where a commercial seller has received a unique offer that a right-holder could not exactly duplicate, we agree with courts characterizing the submission of the offer to the right-holder as an invitation to the right-holder to submit a commercially equivalent offer. The right-holder may propose comparable terms to the original offer which are possible for him to meet and which would meet the seller's commercial interests.[ ] The adoption of the Ordinance therefore served as an invitation to Castle Properties to propose "comparable terms." It did not obligate the Church to formulate specific eri-teria that would govern the Property's sale." Castle Properties was, however, entitled to "adequate notice" of the material terms of the City's offer. Castle Properties argues that, "(alt a minimum," this required the Church to provide Castle Properties with a copy of the Purchase Agreement. But under Roeland and other relevant authority, the Church was obligated to disclose only the "material terms" of the City's offer. Castle Properties contends that the Ordinance "omitted many relevant factors" that the Purchase Agreement contained, including the City Trade Land's "actual description," its "actual acreage," and "closing deadlines or extension thereof, allocation of closing costs, joint payment of sales commissions, and joint payment of survey fees." We conclude that some of these terms were adequately covered in the Ordinance and that the others were immaterial. With respect to the "actual descrifition" of the City Trade Land, the Ordinance admittedly characterized it only as "a portion [of] Tax Parcel A6, Section 16, Township 17 North, Range 1 West Seward Meridian, Alaska." (Emphasis added.) But an arrow on the map appended to the Ordinance identified the City Trade Land as that portion bounded by West Riley Avenue, South Center Point Drive, and the parcel's boundaries. The Ordinance thus adequately expressed the "actual description" of the City Trade Land. Similarly, Castle Properties points out that the Ordinance omitted the "actual acreage" of the City Trade Land. The Ordinance indeed described the City Trade Land as "approximately 20 acres" when its actual acreage, according to a City subdivision map, was 17.33. But neither the Ordinance nor the Purchase Agreement identified the exact acreage of the City Trade Land, and it appears that this information was publicly available. Nor does Castle Properties explain how knowing the exact acreage of the City Trade Land would have helped Castle Properties better match the City's terms. Castle Properties crafted its cash offer based on the assumption that the Church would receive "half" of a 40-acre parcel-20 acres. Accordingly, the likely effect of knowing the "actual acreage" of the City Trade Land would have been a downward adjustment in Castle Properties' valuation, and Castle Properties' offer of $153,000 already fell significantly short of the Property's appraised value. As for the remaining items Castle Properties mentions-closing deadlines and costs, payment of sales commissions, and survey fees-it was not clear error to characterize these as "pertain[ing] to implementation and related matters." Castle Properties does not develop its argument as to why these terms were material, and there is no evidence that knowledge of these terms would have helped Castle Properties decide whether to match the City's offer. It was therefore not clear error to find that the Ordinance constituted adequate notice of the City's offer to purchase the Property. B. The Church Did Not Deprive Castle Properties Of A Reasonable Opportunity To Meet The City's Offer. Castle Properties argues it should have been given a "reasonable time period" to match the City's offer." Specifically, Castle Properties contends that "time was not of the essence" because the Church had been working on relocation since 2004 and no closing deadline was stated in the Purchase Agreement. The document memorializing Castle Properties' right of first refusal was silent as to how long the right-holder would have to exercise, and we have held that where a contract does not specify a time limit for performance, a "reasonable period" may be implied. But given the course of events, we .conclude that Castle Properties had reasonable time to exercise its right of first refusal after discovering the City's offer at a City Council meeting in April 2011. The superior court found that [there is no reason why [Castle Properties] could not have testified at the City Council meeting in April, or sent a letter to the City and Church prior to that meeting that explicitly notified them of the existence of the right of first refusal.... Such a step undoubtedly would have had an impact on the Council's deliberations, and given [Castle Properties] adequate time to develop an offer. We see no clear error in the superior court's finding that Castle Properties itself could have taken steps to secure additional time. Rather than attempting to slow down the City's consideration of the proposed land exchange, Castle Properties instead took the time to craft a formal offer with a deadline. Castle Properties then submitted an offer to purchase the Property for $153,000 and unequivocally indicated that it was exercising its right of first refusal. And in its letter dated May 27, 2011, Castle Properties itself urged that "time is of the essence" and requested a closing by June 7, 2011. Accordingly, Castle Properties received a reasonable opportunity to exercise its right of first refusal. * C. The Church Did Not Breach Its Duty Of Good Faith And Fair Dealing. Under Alaska law, every contract has an implied covenant of good faith and fair dealing requiring "that neither party . do anything which will injure the right of the other to receive the benefits of the agreement." As we noted in Roeland, [blad faith in right of first refusal transactions is not found where a party undertakes an act permitted by the contract, even if the motivations are unpleasant. Rather, it is typically found where the seller does not have a legitimate interest in the terms of the third-party offer, deliberately omits terms in relaying the offer to the right-holder, or does not deal at arms length with the third-party offeror.[ ] Here, Castle Properties argues that "[elverything . [the Church] did between 2010 and the present" was either calculated toward or had the effect of depriving Castle Properties of the benefit of its right of first refusal. But Castle Properties does not appear to argue that the Church lacked a "legitimate interest" in the City Trade Land or failed to deal at arms-length with the City. Instead, Castle Properties highlights the Church's alleged failure "to provide notice of the offer" and its refusal "to provide information when requested." Castle Properties also contends that the Church acted in bad faith by denying the validity of the right of first refusal. In response to Castle Properties' "exercise" of its right of first refusal, the Church indeed expressed its opinion that the right was unenforceable, a position that the Church has maintained throughout this litigation. But Castle Properties does not further develop its argument as to why this position constitutes bad faith, And even if the Church's view informed its rejection of Castle Properties' offer, Castle Properties does not argue that the Church was obligated to accept the $153,000 that Castle Properties offered for the Property. Accordingly, Castle Properties has not shown that the Church's denial of the right's validity "injure[d] the right of the other to receive the benefits of the agreement. The superior court did not make a separate conclusion of law on Castle Properties' good faith and fair dealing claim. But the court did find that "the members of the Church hierarchy had no knowledge that the right of first refusal existed" until May 2011, when Castle Properties recorded its "Notice of Exercise." The court also credited testimony from the Chureh's real estate agent that she was unaware of Castle Properties' right of first refusal until "[ajlround the third week of May 2011." | Castle Properties characterizes the Church's asserted ignorance as "difficult to believe." As Castle Properties correctly points out, the right of first refusal was recorded in 1996. The Church also had in its files a 2006 "Property Profile" prepared by a title company, which included a copy of the right of first refusal along with several other recorded documents. But as the superior court observed, the Church's files were "a mess," a view supported by the testimony of Brian Thomas, who served as the Chureh's pastor from 2005 to 2010. Thomas testified that there was not an "organized filing system" when he arrived, and that although Church members tried to "track down stuff as best [they] could," the lack of "central record keeping . was a source of great frustration." Moreover, three witnesses who participated in Church decision-making during the relevant time period testified that they were personally unaware of the right of first refusal until Castle Properties exercised it in May 2011, Thomas testified that he first learned of the right of first refusal when contacted for this litigation. Paul Hartley served as the Church of the Nazarene's Alaska District superintendent from June 2010 onward and chaired the Church's board after Thomas resigned. Hartley testified that although he could not recall exactly when he learned of the right of first refusal, it was probably at the Church's May 22, 2011 board meeting, and that the Church's board had previously been unaware of it. Michael Messick, a Church board member serving from 2005 through the date of the trial, similarly stated that he was unaware of Castle Properties' right until the May 22, 2011 board meeting, and that it came as a "big surprise." It is true that after learning of the proposed land exchange, Baker asked to meet with the Church and requested a copy of the Purchase Agreement. But Castle Properties does not specifically allege-and there is nothing in the record to suggest-that Baker actually brought the right of first refusal to the Church's attention in making these inquiries. The superior court found that Castle Properties learned of the City's offer in April 2011, yet "chose not to bring the right of first refusal to the attention of the Church or the City until the end of May"-a point that Castle Properties does not appear to dispute. Based on this record, we see no clear error in the superior court's finding that the Church was unaware of the right of first refusal until Castle Properties attempted to exercise it in May 2011. And in light of the Church's ignorance as to Castle Properties' legal interest in the Property, we cannot say that the Church's refusal to meet with Baker or respond to his inquiries was in bad faith. Castle Properties argues that, "even assuming [the Church's] claim of earlier ignorance to be true, [the Church's] actions from May 2011 onward were not what a reasonable person would consider fair." But in light of Castle Properties' own conduct, the Church's actions were not objectively unreasonable. Castle Properties unequivocally expressed that it was exercising its right of first refusal through recorded documents and Castle Properties' May 27, 2011 letter to the Church. And all of these doeu-ments expressed Castle Properties' intent to purchase the Property for a particular cash value. It was therefore reasonable for the Church to treat these communications as an offer to purchase the Property for $153,000. At oral argument before us, Castle Properties attempted to recast its May 27 letter as an invitation for further dialogue. The letter stated: Although my client is determined to exercise its rights under the First Right of Refusal to buy the Property, it is not my client's desire to hinder the Church from acquiring the Trade Land. We believe that a win/win solution should be possible in which my client acquires the Property from the Church, the Church acquires the Trade Land from the City of Wasilla, and the City of Wasilla receives fair market value for its sale of the Trade Land to the Church. The letter then noted Baker's prior request to meet with the Church and stated that Castle Properties "remain[ed] willing to cooperate in working toward a solution that ideally would leave everyone satisfied." But Castle Properties' letter also stated that $153,000 plus elosing costs had been deposited with McKinley Title, advised that "time [was] of the essence in this matter," and requested a closing by June 7, 2011 unless "alternative arrangements [had] been made." The letter did not specifically request a meeting, further information, or more time in which to formulate an offer. Nor is there any evidence that the Church unreasonably rejected Castle Properties' "win/win solution." The Ordinance suggests that the City was interested in acquiring the Property to "provide parking and access" to a greenbelt development "located directly across Cottonwood Creek." And in a letter dated July 8, 2011, the Church informed Castle Properties that "[i]t appears that the City of Wasilla is not interested in the cash payment you proposed in your letter." Having received Castle Properties' offer, the Chureh's only remaining duty was to employ "commercially reasonable standards" in evaluating it. Roeland's requirement that sellers use "commercially reasonable standards" to evaluate unique competing offers is tied to the seller's "invitation to the right-holder to submit a commercially equivalent offer." Castle Properties represented to the Church that its offer of $153,000 was "equivalent" to the City's offer. Although Castle Properties based its offer on the land's tax-assessed value, we have previously recognized that a tax assessment is "notoriously unreliable as a criterion of true value." And Castle Properties never had the City Trade Land commercially appraised, which likely would have revealed that the Property was worth more on the open market than the tax appraisal of $153,000. Thus, Castle Properties should have known that its cash offer of $153,000 based on the tax-assessed value of the City Trade Land may not have been "commercially equivalent" to the City's offer. The Church's expert witness testified at trial that the fair market value of the City Trade Land was $250,000. And notably, Castle Properties' request for relief from this court asks for a judgment requiring the Church to sell the Property "for the appraised value of the City Land at $250,000 or for the Church-determined value of $291,000," which suggests that Castle Properties does not dispute that the market value of the City Trade Land was at least $250,000. There was also testimony suggesting that $153,000 would have been inadequate for the Church to purchase suitable relocation land. Accordingly, the superior court could reasonably conclude that the Church's rejection of Castle Properties' offer was neither unreasonable nor in bad faith. Castle Properties also appears to argue that the Church acted in bad faith by favoring a land trade over a cash offer,. Castle Properties contends this preference was motivated by the Church's "desire to avoid [] or at least indefinitely defer" paying one-half of the sale proceeds to the Ocean Park Community Church under the terms of a deed restriction negotiated with the Property's original donor. But the Church had also encountered serious problems in finding suitable property that would meet its needs. On balance, the record supports the superior court's conclusion that it was commercially reasonable for the Church to favor a land trade over eash payment, given the problems the Church had encountered in finding affordable property. v. CONCLUSION We therefore AFFIRM the superior court's judgment. . The Palmer-Wasilla Highway was relocated in the 1980s so that it laterally bisected Tracts 3 and 4, as well as adjacent Tracts 1, 2, and 5. References to the "northern" and "southern" portions of these tracts refer to the areas north and south of the Palmer-Wasilla Highway. . 214 P.3d 343 (Alaska 2009). . See id. at 348 ("'The general rule is that when an owner receives an offer to purchase an interest in a property burdened with a right of first refusal, the owner must provide adequate notice of the terms of the offer to the holder of the right."). . See id. at 349. . The superior court also considered the Church's argument that the right of first refusal was unenforceable. The Church offers this argument on appeal as an alternative basis for affirming the superior court's decision. Because we affirm the superior court's decision based on its Roeland analysis, we do not need to reach the Church's unenforceability argument. . Roeland, 214 P.3d at 348(citing Jensen v. Alaska Valuation Serv., Inc., 688 P.2d 161, 164 (Alaska 1984). . Id. at 347 (quoting Municipality of Anchorage v. Gregg, 101 P.3d 181, 186 (Alaska 2004)). . Id. . Id. at 347-48 (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Id. at 348 (citations omitted). . Id. (citations omitted). . Id. at 346, 349. . Id. at 346. . Id. . Id. at 348-49. . Id. . Id. at 348; see also H.G. Fabric Disc., Inc. v. Pomerantz, 130 A.D.2d 712, 515 N.Y.S.2d 823, 825 (App.Div.1987) (holding that a conditional offer did not trigger a right of first refusal). . See Roeland, 214 P.3d at 348-49. . Id. at 349-50 (citations omitted). . See id. at 350 ("[The owner of property subject to a right of first refusal remains master of the conditions under which he will relinquish his interest, as long as those conditions are commercially reasonable, imposed in good faith, and not specifically designed to defeat the preemptive rights.") (alteration in original) (quoting W. Tex. Transmission, LP v. Enron Corp., 907 F.2d 1554,-1566 (5th Cir.1990) (internal quotation marks omitted)). . See id. at 348. . See id. at 348-49 (concluding that the absence of certain "details [did] not leave the essential terms of the transaction unclear" (emphasis added)); see also Dyrdal v. Golden Nuggets, Inc., 672 N.W.2d 578, 584 (Minn.App.2003) ("In most cases, a copy of the purchase agreement provides reasonable notice of a bona fide offer, even if the agreement does not disclose all of the terms of the sale." (emphasis added) (citing Koch Indus. v. Sun Co., 918 F.2d 1203, 1212-13 (5th Cir. 1990))); but see Gyurkey v. Babler, 103 Idaho 663, 651 P.2d 928, 931 (1982) ("[The holder of such a right of first refusal cannot be called upon to exercise or lose that right unless the entire offer is communicated to him in such a form as to enable him to evaluate it and make a decision.") (emphasis in original). In Gyurkey, the court also appeared skeptical about the accuracy of a key material term-the sales price. Id. at 932 (noting that "it is simply impossible for a preemptive rightholder to verify the precise price . at which he is entitled to purchase the property"). . In this portion of its brief, Castle Properties also claims that the Church "refused to dialogue or communicate," "would not cooperate to enable Castle Properties to exercise its Right of First Refusal," and could have purchased suitable relocation property with the cash value of the City Trade Land. But because these arguments are more closely related to the covenant of good faith and fair dealing, we address them in Part IV.C. . See, eg., Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1089 (Alaska 1985) ("'Where no provision is made as to time of performance, a reasonable time is implied, to be determined upon consideration of the subject matter of the contract, what was contemplated at the time the contact was made, and other surrounding circumstances."); see also Firebaugh v. Whitehead, 263 Va. 398, 559 S.E.2d 611, 616 (2002) (noting that a "reasonable time" is implied in the context of a right of first refusal); see also Restatement (THieo) or Pror-erty (SErvitupss) § 4.3 cmt. c (2000) (noting that once a right of first refusal ripens into an option to purchase, the duration of the option is limited to a "reasonable time"). . Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936, 947 (Alaska 1990). . Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004) (quoting Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979) (internal quotation marks omitted)). . 214 P.3d at 351 (citations omitted). . See Jackson, 90 P.3d at 142 (internal quotation marks omitted) (citation omitted). . The implied covenant of good faith and fair dealing requires not only subjective good faith, but also that both parties "act in a way that a reasonable person would consider fair." Hawken Nw., Inc. v. State, Dep't of Admin., 76 P.3d 371, 381 (Alaska 2003). . See Roeland, 214 P.3d at 349-50 (stating that - after a right-holder submits an offer, "{tJhe seller then has a duty to use commercially reasonable standards to evaluate the two offers"). . Id. . Disotell v. Stiltner, 100 P.3d 890, 895 n. 10 (Alaska 2004) (quoting State v. 45,621 Square Feet of Land, 475 P.2d 553, 557 (Alaska 1970) (internal quotation marks omitted).

6874001

Sean WRIGHT, Appellant, v. STATE of Alaska, Appelleg

Wright v. State

2015-03-27

No. A-10587

1000

1011

347 P.3d 1000

347

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and SMITH, Superior Court Judge.

Sean WRIGHT, Appellant, v. STATE of Alaska, Appelleg.

Sean WRIGHT, Appellant, v. STATE of Alaska, Appelleg. No. A-10587. Court of Appeals of Alaska. March 27, 2015. Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for the Ap-pellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and SMITH, Superior Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

6120

37872

OPINION Judge ALLARD. Sean Wright was convieted of one count of first-degree sexual abuse of a minor and multiple counts of second-degree sexual abuse of a minor for conduct involving his stepdaughter and the daughter of a prior long-term girlfriend. In this appeal, Wright argues that his constitutional right to a speedy trial under the federal and state constitutions was violated because there was almost five years of delay between the filing of the felony information charging Wright with this conduct and Wright's ultimate arrest and subsequent indictment. We conclude that Wright's speedy trial: right claim under the federal constitution is without merit given the generally accepted rule that a felony information filed in a court without jurisdiction to try the defendant is insufficient to trigger the protections of the Sixth Amendment's speedy trial provision. Our analysis is different, however, for Wright's speedy trial claim under the Alaska Constitution. Under our precedent, the filing of a felony information triggers the protections of the state constitutional right to a speedy trial. We therefore conclude that Wright has a state constitutional speedy trial claim with regard to the pre-arrest, pre-indictment delay that occurred in his case. However, for the reasons explained in this opinion, we conclude that a remand to the superior court is needed to properly resolve this claim. On remand, the superior court must take into account not only the five years of pre-arrest delay, which (as we explain) is fully attributable to the State, but also the five years of post-arrest delay, which the State claims is primarily attributable to Wright. As a separate point on appeal in his co-counsel brief, Wright also argues that he is entitled to jail-time eredit for the time he spent on electronic monitoring pending his trial. We find no merit to this claim and affirm the decision of the superior court on this issue. Facts and procedural history Evelyn Wright had three daughters from a previous marriage when she married Sean Wright in November 1996. The family lived in Anchorage from 1996 until the summer of 1998, when they moved to Wasilla. That Halloween, the family had a big party. Before the party started, Evelyn went to look for ten-year-old KA. K.A.'s bedroom door was locked. Wright, who was inside the room, opened the door and said he locked it because K.A. was fighting with her sister. Approximately three months later, in early February 1999, after watching a video at school about pedophilia, K.A. told her mother that she was being sexually molested by Wright. She reported that Wright came into her room on Halloween, locked the door, took off his pants, and touched her vagina with his fingers and tongue. Evelyn and K.A. confronted Wright about K.A.'s allegations. Wright claimed he did not remember doing anything to K.A. Wright moved out two weeks later. The day after Wright left, Evelyn called the police. Alaska State Trooper Ruthan Josten was assigned to the case. KA. told Josten that Wright touched her breasts and vagina with his fingers and mouth and rubbed his penis against her vagina. Evelyn told Josten that Wright may have also abused the daughter of his prior long-term girlfriend, M.C. Josten contacted M.C., who told Josten that Wright sexually abused her in Anchorage from 1987-1989, and that she went to live with her biological father to get away from Wright. At trial, M.C. testified that Wright initially began by rubbing her back and fondling her breasts. Later, he grew bolder and began to touch her vagina; he would also rub his penis between her thighs without penetrating her or ejaculating. While the investigation into the sexual abuse was ongoing, Wright went to visit his brother in Arkansas. He subsequently decided to leave Alaska permanently. In June 1999, after Wright left Alaska, Josten sent a report to the Palmer District Attorney's office requesting a warrant for Wright's arrest. That request was initially declined. Five months later, on November 12, 1999, the Office of Special Prosecutions and Appeals filed a criminal information charging Wright with eleven counts of sexual abuse of a minor. An arrest warrant was issued four days later. The arrest warrant was entered into the Alaska Public Safety Information Network (APSIN), an Alaska-only database. However, even though the State was aware that Wright was living outside Alaska, the warrant did not designate Wright's offenses as extraditable, nor did the State enter the arrest warrant into the FBI's National Crime Information Center (NCIC) database. Jos-ten apparently commented at the time that the State may have had financial reasons for not making the warrant extraditable. From 2000 to 2004, Josten ran periodic searches for Wright in a national database that recorded driver's licenses, deaths, and other similar information. But Josten's searches were not comprehensive or consistent, and she failed to locate Wright. Wright continued to communicate with Evelyn by telephone and mail during this time. He also received mail from the State of Alaska on other matters, including a notice of a hearing on the dissolution of his marriage to Evelyn from the Palmer trial court, a notice regarding his overdue student loans from the court system, and a death certificate that he requested from the Alaska Department of Health and Social Services. In addition, throughout this time, Wright worked at a number of nuclear facilities that required security clearances. To obtain these clearances, Wright provided his name, address, date of birth, and social security number, along with copies of his driver's license and social security card. Had the warrant for Wright's arrest been entered into the national NCIC database, Wright's employers would have discovered the arrest warrant and the sexual abuse charges. On September 17, 2004, almost five years after the felony information was filed, Sergeant Tliodor Kozloff of the Alaska State Troopers received a voicemail inquiry about Wright from a manager at a nuclear facility in Minnesota Kozgloff ran Wright's name through the APSIN database and saw that there was a warrant for Wright's arrest. He also checked NCIC, but discovered that the warrant was not in that database. Kozloff contacted the District Attorney's office, which then made the decision to extradite Wright and to enter the warrant into NCIC. Kozloff arranged for the local sheriff's office to arrest Wright when he returned to the facility the next day. Wright waived extradition, and the Alaska State Troopers brought Wright back to Alaska, where a grand jury indicted him on eighteen counts of first- and second-degree sexual abuse of a minor for conduct involving KA., M.C., and a third girl, T.W. (The counts involving T.W. were later dismissed because the statute of limitations had already run. ) Just under a year after the grand jury issued its indictment, Wright filed a motion to dismiss the indictment, arguing that the almost five-year delay between the filing of the felony information and his arrest violated due process and his constitutional right to a speedy trial. Superior Court Judge Philip R. Volland denied Wright's motion, finding that the pre-arrest delay was partially attributable to Wright because he had failed to follow-up on the results of the investigation and because his frequent moves made him difficult to locate. Judge Volland also found that Wright had not shown that he had suffered any actual prejudice from the pre-arrest delay. Wright filed interlocutory petitions to this Court and the Alaska Supreme Court, which were. In the years following his arrest, Wright continued to litigate other pretrial issues and also changed lawyers multiple times. Wright's case finally went to trial in May 2009, almost five years after his arrest and indictment, and almost ten years after the initial filing of the felony information. Wright was out on bail on electronic monitoring for the majority of the post-arrest, post-indictment period of time. On the eve of trial, Wright filed a "renewed motion to dismiss because of prosecu-torial delay," again arguing that the pre-arrest delay violated his constitutional speedy trial rights. Wright did not make any speedy trial claims about the five-year post-arrest delay. Superior Court Judge Michael Spaan, who presided over Wright's trial, denied the renewed speedy trial motion "for the reasons given by Judge Volland." At trial, KA. testified with specificity about the incidents of sexual abuse that occurred in Anchorage and the details of the Wasilla Halloween incident. However, K.A. was unable to recall details about the other sexual abuse that was alleged to have occurred in Wasilla. Based on K.A.'s lack of recall, Judge Spaan granted Wright's motion for judgment of acquittal on those Wasilla counts. M.C. also testified at trial and was able to recall all of the alleged incidents of sexual abuse. Before the jury retired to deliberate, Wright renewed his speedy trial motion, claiming that the trial had shown that he was prejudiced by the pre-arrest delay. Judge Spaan again denied the motion, finding that the trial had not shown any prejudice to Wright's defense caused by the pre-arrest delay. - The jury convicted Wright of the eight counts of sexual abuse of a minor involving M.C. and the remaining five counts of sexual abuse involving K.A. Judge Spaan sentenced Wright to a composite term of 14 years with 2 years suspended, 12 years to serve, and 10 years of supervised probation. Wright requested jail-time credit for the years he spent on electronic monitoring prior to trial. The court denied this request, ruling that Wright was not entitled to jail-time credit for electronic monitoring. © This appeal followed. Wright's claim that he became formally "accused" for purposes of the state and federal speedy trial provisions when the State Ailed a felony information in district court The speedy trial clause of the Sixth Amendment to the United States Constitution provides, in relevant part, that "[in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." Article I, Section 11 of the Alaska Constitution contains a nearly identical provision: "In all criminal prosecutions, the accused shall have the right to a speedy and public trial...." Under both provisions, a defendant must qualify as an "accused" before the protections of the speedy trial provisions are triggered. "The general rule [is] that the speedy trial right attaches at the time of arrest or formal charge, whichever comes first. ." But the federal definition of "formal charge" differs from the definition under our state constitution. The federal courts have repeatedly held that, for purposes of the Sixth Amendment, a "formal charge" means a criminal charge that "alone gives the court jurisdiction to proceed to trial...."* Therefore, a felony information filed in an Alaska district court, which has no jurisdiction to try the defendant on felony charges, is insufficient to trigger the speedy trial protections of the Sixth Amendment. Instead, this type of pre-arrest, pre-indictment delay is evaluated only as pre-accusation delay under the due process clause of the federal constitution. And, unlike a speedy trial claim, a pre-accu-sation claim always requires proof of actual prejudice to the defense. Here, Wright makes no pre-accusation delay claim and largely concedes that he cannot meet the actual prejudice standard required for such a claim. Instead, his federal claim for relief relies on his assumption that the protections of the Sixth Amendment apply to the pre-arrest, pre-indictment delay that occurred in his case. Because that assumption is incorrect, we conclude that there is no merit to Wright's federal speedy trial claim. However, the speedy trial analysis is different under the Alaska Constitution. In State v. Mouser, this Court acknowledged the "general consensus" that speedy trial rights are triggered by the formal filing of a public charge "in a form that would vest the court in which it is filed with jurisdiction to try the accused." But we nevertheless held that the filing of a felony information in district court was still sufficient to trigger the protections of the Alaska Constitution's speedy trial clause. We based this holding, in part, on the Alaska Supreme Court's decision in Yarbor v. State. In Yoarbor, the State served a felony complaint on the defendant and subsequently indicted him." On appeal, Yarbor argued that his right to a speedy trial under the state constitution attached as soon as the State had probable cause to charge him with a crime, even if the State had not yet initiated the prosecution. The supreme court disagreed, holding instead that Yarbor's state speedy trial rights began to run on the date he became formally "accused"-which the court characterized as the date Yarbor became "the subject of a filed complaint or an arrest." The State argues that this language in Yarbor was dictum and does not bind this Court. The State further argues that Mouser was wrongly decided and should be overturned. } We recognize that there is persuasive value in the State's arguments, particularly in the context of Wright's case. Wright asserts that he was unaware of the felony charges until his arrest, which means he was able to live freely and openly during this time, unaffected by the anxiety, stress, and "public obloquy" that such charges might otherwise bring. We nevertheless decline to overrule Mouser for two reasons. First, as the State recognizes, we have no authority to overturn Yarbor, and we are not fully persuaded that Yarbor should be read as narrowly as the State suggests. The question in Yarbor was when the defendant's speedy trial rights began to run. Yarbor involved a defendant who was subject to both a felony complaint and a later indictment, and the supreme court appears to have decided that his speedy trial rights commenced upon the filing of the felony complaint. Second, we still agree with the underlying reasoning in Mouser that a felony information (even without an indictment) represents the State's decision to end the investigatory phase of a case and formally and publicly charge the suspect with a crime." Accordingly, we conclude that Mouser remains good law and that Wright became "accused" for purposes of Alaska's constitutional speedy trial protections when the felony information was filed. Why we conclude that a remand is required to resolve Wright's speedy trial claim under the Alaska Constitution Speedy trial claims under the Alaska Constitution are governed by the Mouser/Barker test, which directs courts to consider and balance four factors: (1) the length of the delay; (2) the reasons for the delay; (8) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant. None of these four factors is sufficient, on its own, to support a finding that a defendant's speedy trial right was violated. Rather, the factors "must be considered together with such other cireumstances as may be relevant." Because the ultimate inquiry is whether the delay in bringing the accused to trial was unreasonable, this analysis necessarily takes account of the total pretrial delay. As the United States Supreme Court explained in United States v. MacDonald: Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial-when prejudice can be better gauged-would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant's contention; rather, the question at stake in the motion to dismiss necessarily "remains open, unfinished [and] inconclusive" until the trial court has pronounced judgment. 1. Length of the Delay The first factor, the length of the delay "is to some extent a triggering mechanism" for the rest of the balancing test. Unless a defendant can show that the delay in his case caused actual prejudice, the defendant must show that the length of the delay was sufficient to qualify as "presumptively prejudicial." Under Alaska law, the length of delay is calculated by first excluding any periods of delay caused by the defendant. Once this delay is excluded, any unexplained delay of fourteen months or longer is generally considered presumptively prejudicial for purposes of triggering inquiry into the other Mouser/Barker factors. Here, Judge Volland found that the almost five years of pre-arrest delay qualified as presumptively prejudicial for purposes of triggering inquiry into the other Mous- . er/Barker factors. The State does not dispute this finding. 2. Reason for the Delay The second factor, the reason for the delay, is an inquiry into "whether the government or the criminal defendant is more to blame for [the] delay." Evidence that the prosecution engaged in deliberate delay to gain a tactical advantage weighs heavily against the government while more neutral reasons, such as negligence or overcrowded courts, weigh less heavily but are nonetheless relevant. Delay attributable to the defendant or to defense counsel weighs against the defendant. Here, Judge Volland found that the blame for the pre-arrest delay rested with both the State and Wright. The judge faulted the State for failing to issue an extraditable warrant, but the judge also found that Wright's departure from the state, and his frequent changes of residence, made the State's efforts to locate him more difficult and expensive and were thus "causes of delay" directly attributable to him. Wright argues that he should not be held responsible for any of the pre-arrest delay, given that he was unaware that charges had been filed, and given that none of his actions were directed at avoiding apprehension. We agree. As the State concedes in its appellate briefing, "Wright was not hiding out, and the State had avenues of locating him that likely would have produced him within a brief period." We note that although Wright moved frequently for work, he maintained an Arkansas driver's license and a physical address that other Alaska state agencies used to communicate with him. Wright also repeatedly passed intensive security clearances that would have uncovered the arrest warrant if the information had been entered into the NCIC database. Given these facts, we conclude that the trial court erred in attributing partial blame for the pre-arrest delay to Wright. However, the question of who is to blame for the lengthy post-arrest delay must be resolved by the superior court on remand. Although the State asserts that the bulk of this delay is attributable to Wright, the court made no direct findings on this issue. 3. Wright's Assertion of his Right to a Speedy Trial - The third factor is whether, and when, the defendant asserted his right to a speedy trial. A defendant's failure to assert the right to a speedy trial will generally make it difficult to prove he was denied that right. Judge Volland found that Wright failed to assert his speedy trial right as soon as he could have because Wright failed to inquire into the status of the police investigation to determine if charges had been filed. But we agree with Wright that a defendant's knowledge that he is being investigated is not the same as knowledge that he has been accused. Because Wright was unaware that charges had been filed, his failure to assert his speedy trial right prior to his arrest cannot be weighed against him." However, Wright's actions after he became aware of the charges are relevant to the superior court's assessment of this factor. As the United States Supreme Court explained in United States v. Loud Hawk, a defendant's assertion of his speedy trial right must be viewed in the context of the defen-. dant's other conduct, including the filing of frivolous, repetitive, or unsuccessful motions. Conduct suggesting that the defendant was not actually interested in a speedy trial, despite his protestations that his speedy trial rights have been violated, weigh against the defendant. Here, Judge Volland expressed concern that Wright was using various tactics to intentionally delay his trial. The State points to other instances of what appear to be delaying tactics on Wright's part, including repeatedly filing pro se motions that he had been warned would not be entertained by the court. We agree that Wright's post-arrest conduct is relevant to the superior court's determination of whether, and to what extent, this factor weighs in Wright's favor. 4. Prejudice to Wright The fourth factor, prejudice, is assessed in the light of the purposes of the speedy trial provision: (1) to prevent undue and oppressive incarceration prior to trial; (2) to minimize the anxiety and concern accompanying public accusation; and (8) to minimize delays that impair the accused's ability to defend against the charges. Because Wright was unaware that he had been charged prior to his arrest and was not incarcerated prior to his arrest, he can only claim the third type of prejudice. This third type of prejudice-damage to the defense-is the most serious and the hardest to prove. As the United States Supreme Court has noted, "what has been forgotten can rarely be shown." Therefore, when the other Mouser/Barker factors weigh heavily against the State, a showing of possible prejudice may be sufficient for the accused to prevail. Wright contends that because the pre-arrest delay in his case was so long, the court must apply an irrebuttable presumption of prejudice in his case. Although we agree with Wright that a presumption of prejudice applies to this case because of the length of the pre-arrest delay, we disagree that this presumption is irrebuttable. In Doggett v. United States, the United States Supreme Court recognized that particularly lengthy and excessive pretrial delay can compromise the reliability of a - trial in ways that "neither party can prove, or, for that matter, identify." But the Court also recognized that "presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria." Instead, presumed prejudice is "part of the mix of relevant facts and its importance increases with the length of the delay." Thus, a defendant is not entitled to relief based on excessive delay if the presumption of prejudice is "extenuated, as by the defendant's acquiesence," or if the presumption of prejudice is persuasively rebutted by the government." In this case, we have no findings on whether the lengthy post-arrest delay in this case extenuated the presumption of prejudice caused by the pre-arrest delay. Nor do we have findings on whether the State can sue-cessfully rebut the presumption of prejudice. The State urges us to find that it successfully rebutted any presumption of prejudice in Wright's case. It points out that the sexual abuse charges involving M.C. were already a decade old at the time the charges were filed against Wright and that long delays in reporting are not uncommon in sexual abuse cases." The State also points out that K.A.'s memory problems at trial ultimately prejudiced the State rather than Wright, resulting in the trial judge granting judgments of acquittal on some of the counts involving K.A. We agree that these are important factors to consider in evaluating whether the State rebutted the presumption of prejudice caused by the pre-arrest delay. But we conclude that this question is more appropriately resolved by the superior court as part of the larger remand needed in this case. We therefore direct the superior court on remand to reassess Wright's speedy trial claim under the Alaska Constitution. In assessing Wright's claims under the Mouser/Barker test, the superior court should consider the total amount of pretrial delay that occurred in this case-that is, both the pre-arrest delay (which is attributable to the State for the reasons explained in this opinion) and the post-arrest delay (which has not yet been litigated and will require additional findings). In addition, the superior court should consider (1) whether the presumed prejudice caused by the pre-arrest delay in Wright's case was extenuated by his subsequent post-arrest conduct; and, if not, (2) whether the State can successfully rebut the presumption of prejudice. Onee the superior court accords the proper weight to each of the Barker/Mouser factors, it must balance all four factors to determine whether Wright's constitutional speedy trial right under the Alaska Constitution was violated. The superior court should provide a copy of its written decision on this issue to this Court which will resume consideration of Wright's case at that time. Why we conclude that Wright is not entitled to jail-time credit for the time he spent on electronic monitoring prior to trial At sentencing, Wright requested jail-time credit for the time he spent on electronic monitoring prior to trial. The superior court denied this request. In his co-counsel brief, Wright argues that this decision was error. He acknowledges that AS 12.55.027(d) prohibits credit against a sentence of imprisonment for time spent on electronic monitoring, but he argues that the statute should not apply to him because it went into effect after he began his electronic monitoring. We rejected a similar ex post facto claim in Fungchenpen v. State. We held that the legislature's purpose in enacting AS 12.55.027 was to clarify pre-existing law and to confirm that jail-time eredit would not be given for time served on electronic monitoring; the statute did not create new law. Our decision in Fungchenpen controls Wright's claim. Wright also argues that the restrictions placed on his freedom through the electronic monitoring denied him liberty without due process of law, and that his bail conditions were excessive in violation of the Fourteenth Amendment. We find no merit to these claims. In Matthew v. State, the defendant was subject to electronic monitoring and his conditions of release required him to be at his residence, his work, or directly commuting between the two, and to not consume alcohol. We found that these conditions of release did not approximate incarceration because Matthew was unencumbered by institutional rules-as long as he was at home or at work, he could do whatever he wanted and associate with whomever he wanted. Wright's conditions of release were more lenient than Matthew's, and were likewise not excessive or a denial of due process. We therefore affirm the superior court's decision denying Wright credit for time spent under electronic monitoring. %. Conclusion We REMAND this case to the superior court for further findings consistent with this opinion. We retain jurisdiction. The superi- or court shall issue its written decision within 90 days of the issuance of this opinion. If the parties wish to respond to the findings on remand, they shall file their memoranda within 80 days thereafter. . See State v. Mouser, 806 P.2d 330, 339 (Alaska App.1991). . The counts involving TW. related to conduct alleged to have taken place in either 1979 or 1980. At that time, the statute of limitations for first- and second-degree sexual abuse of a minor was five years. See former AS 12.10.010 (1980). In 1983, the legislature extended the applicable limitations period an additional five years. Because the original statute of limitations had not yet run, this meant that the statute of limitations for the alleged conduct involving TW. expired sometime in either 1989 or 1990. See State v. Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988) (describing 1983 legislative changes and consequences for cases where the original statute of limitations had not yet expired). In 1992, the legislature abolished the statute of limitations for first and second-degree sexual abuse of a minor. See ch. 79, § 19, SLA 1992; see also ch. 86, § 2, SLA 2001. The charges involving TW. were nevertheless time-barred because the statute of limitations had already run before the legislative change went into effect. . Wright also filed a petition for habeas corpus in federal district court. The petition was dismissed without prejudice under the doctrine of federal abstention. Wright appealed this dismissal to the Ninth Circuit, which affirmed on the same procedural ground. See Wright v. Vol-land, 331 Fed.Appx. 496 (9th Cir.2009). . U.S. Const. amend. VL. , Alaska Const. art. I, § 11. . United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Mouser, 806 P.2d 330, 338 (Alaska App.1991). . 5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 18.1(c), at 110 (3d ed.2007); see Mouser, 806 P.2d at 339 (citation omitted). . 5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 18.1(c), at 111 (3d ed.2007); see United States v. Harris, 551 Fed.Appx. 699, 704 (4th Cir.2014) ("The Sixth Amendment right to a speedy trial does not apply to . pre-indictment delay, as it does not attach until the defendant has been indicted or arrested.") (internal quotation marks omitted); United States v. Madden, 682 F.3d 920, 930 (10th Cir.2012); United States v. Dowdell, 595 F.3d 50, 61 (Ist Cir.2010); United States v. Rose, 365 Fed.Appx. 384, 389 (3rd Cir.2010) (absent arrest, indictment required to trigger speedy trial right); United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir.2002); Cowart v. Hargett, 16 F.3d 642, (5th Cir.1994); Pharm v. Hatcher, 984 F.2d 783, 785-86 (7th Cir.1993) (defendants are only "accused" for purposes of the Sixth Amendment when an official charging document vesting the court with jurisdiction to try them is filed); Arnold v. McCarthy, 566 F.2d 1377, 1382 (Oth Cir.1978) (a defendant is not "accused" prior to indictment even if a felony complaint has been filed); Favors v. Eyman, 466 F.2d 1325, 1327-28 (Ith Cir.1972) (filing of :a criminal complaint does not trigger a defendant's Sixth Amendment rights); but see United States v. Terrack, 515 F.2d 558, 559 (9th Cir.1975) (noting that "the filing of a criminal complaint, or the indictment where there is no complaint, marks the inception of the speedy trial guarantee of the Sixth Amendment") (internal quotations omitted). . See People v. Martinez, 22 Cal.4th 750, 94 Cal. Rptr.2d 381, 996 P.2d 32, 35 (2000) (recognizing that filing of federal complaint in court without jurisdiction to try the defendant does riot trigger protections of Sixth Amendment but does trigger protections of speedy trial clause of the California Constitution). . See United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007). . Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (proof of actual prejudice is "a necessary but not sufficient element of a due process claim"); Gonzales, 156 P.3d at 411 ("To establish an unconstitutional pre-indictment delay, the defendant must prove both that the delay was not reasonable and that the defendant suffered actual prejudice from the delay."). . State v. Mouser, 806 P.2d 330, 339 (Alaska App.1991). . Id. . 546 P.2d 564 (Alaska 1976). . Id. at 565-66. . Id. at 566. . Id. at 567. . See State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996) (a prior decision should be overruled only if the court is clearly convinced that the precedent is erroneous or no longer sound because of changed conditions, and that more good than harm would result from overturning the case). . Yarbor, 546 P.2d at 567. . Mouser, 806 P.2d at 339. . Id. at 340 (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). . See id.; see also Barker, 407 U.S. at 533, 92 S.Ct. 2182. . Barker, 407 U.S. at 533, 92 S.Ct. 2182. . United States v. MacDonald, 435 U.S. 850, 858-59, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see In re Kashamu, 769 F.3d 490, 492 (7th Cir.2014) ("[U)ntil the [trial] court proceedings are complete, the causes and duration of the delay, the defendant's responsibility for it, and the harm to the defendant for the delay, cannot be determined."). . Mouser, 806 P.2d at 340 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). i . Springer v. State, 666 P.2d 431, 435 (Alaska App.1983) (citing Tarnef v. State, 512 P.2d 923, 933 (Alaska 1973)). . Compare Rutherford v. State, 486 P.2d 946, 947, 951-52 (Alaska 1971) (fourteen-month delay presumed prejudicial), Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970) (same), and Mouser, 806 P.2d at 339-40 (noting that "unexplained delays of fourteen months or more {are] presumptively prejudicial" and holding that approximately twenty-month delay must be deemed prejudicial), with Nickerson v. State, 492 P.2d 118, 120 (Alaska 1971) (absent actual prejudice, eight-month delay is not presumptively prejudicial). . Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). . Barker, 407 U.S. at 531, 92 S.Ct. 2182; see Doggett, 505 U.S. at 657, 112 S.Ct. 2686. . Vermont v. Brillon, 556 U.S. 81, 90, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009). . See United States v. Boone, 706 F.Supp.2d 71, 74-75 (D.D.C.2010) (defendant not to blame for delay, even though he was aware of the investigation against him, when the defendant had no knowledge of the arrest warrant and was living at a relative's house where the government had reason to believe he resided). . See United States v. Brown, 169 F.3d 344, 349 (6th Cir.1999) (defendant not to blame for delay where defendant unaware of. indictment and law enforcement did not attempt to contact defendant even though they knew they could potentially reach him through his attorney). . See Barker, 407 U.S. at 529, 532, 92 S.Ct. 2182. . See Boone, 706 F.Supp.2d at 77 ("Mere awareness that the police are looking for a person does not obligate that person to affirmatively seek out the police to find out what, if any, problem exists."); see also United States v. Molina-Solorio, 577 F.3d 300, 306 (5th Cir.2009) ("[The law does not require [a defendant] to assume the existence of, and ask for a speedy trial on, a charge he is not actually aware of."). . Doggett, 505 U.S. at 653-54, 112 S.Ct. 2686. . United States v. Loud Hawk, 474 U.S. 302, 314-15, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); see also United States v. Frye, 489 F.3d 201 (5th Cir.2007); United States v. O'Dell, 247 F.3d 655 (6th Cir.2001). . Loud Hawk, 474 U.S. at 315, 106 S.Ct. 648 (noting that the filing of "repetitive and unsuccessful motions" that serve to delay trial militates against finding that a defendant has asserted his speedy trial rights even when the defendant simultaneously moves for dismissal on speedy trial grounds); see also Frye, 489 F.3d at 211-12 (finding that motions for dismissal on speedy trial grounds do not amount to an assertion of the speedy trial right where the defendant also repeatedly sought continuances); O'Dell, 247 F.3d at 671-72 (finding that defendant did not assert his right to a speedy trial where he simultaneously filed multiple delaying motions). . State v. Mouser, 806 P.2d 330, 338 (Alaska App.1991) (citing Rutherford v. State, 486 P.2d 946, 947 (Alaska 1971)); see Doggett, 505 U.S. at 654, 112 S.Ct. 2686 (citations omitted); Barker, 407 U.S. at 532, 92 S.Ct. 2182 (citations omitted). . Doggett, 505 U.S. at 655, 112 S.Ct. 2686; Barker, 407 U.S. at 532, 92 S.Ct. 2182. . Barker, 407 U.S. at 532, 92 S.Ct. 2182. . Mouser, 806 P.2d at 342. . Doggett v. United States, 505 U.S. 647, 658, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (granting relief in case involving eight and a half years of post-indictment delay). We note that Doggett and the other federal case law cited in this opinion remain merely persuasive authority in Wright's case because Wright's claim is limited to the additional protections he has under the Alaska Constitution. See Waiste v. State, 10 P.3d 1141, 1146-47 (Alaska 2000); cf. People v. Martinez, 22 Cal.4th 750, 94 Cal. Rptr.2d 381, 996 P.2d 32, 36 (2000) (declining to adopt Doggett analysis for pre-indictment pre-arrest speedy trial claim that could only be raised under state constitution). . Doggett, 505 U.S. at 656, 112 S.Ct. 2686 (citing Loud Hawk, 474 U.S. at 315, 106 S.Ct. 648). . Doggett, 505 U.S. at 655-56, 112 S.Ct. 2686. . Id. at 658, 112 S.Ct. 2686. . Cf. Minutes of House Judiciary Committee, House Bill 396, testimony of Cindy Smith, Executive Director of Alaska Network on Domestic Violence and Sexual Assault, log no. 375 (Jan. 17, 1998) (testifying in favor of eliminating statute of limitations for certain sexual abuse offenses because many victims of child sex abuse do not come forward until years after the offense and delay is not uncommon in prosecuting these cases). . 181 P.3d 1115 (Alaska App.2008). . Id. at 1116. . Matthew v. State, 152 P.3d 469, 472 (Alaska App.2007). . Id. at 472-73.

6872048

ALASKA FISH AND WILDLIFE CONSERVATION FUND, Appellant, v. STATE of Alaska and Ahtna Tene Nene', Appellees

Alaska Fish & Wildlife Conservation Fund v. State

2015-03-27

No. S-14516

97

108

347 P.3d 97

347

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

ALASKA FISH AND WILDLIFE CONSERVATION FUND, Appellant, v. STATE of Alaska and Ahtna Tene Nene', Appellees.

ALASKA FISH AND WILDLIFE CONSERVATION FUND, Appellant, v. STATE of Alaska and Ahtna Tene Nene', Appellees. No. S-14516. Supreme Court of Alaska. March 27, 2015. Rehearing Denied May 6, 2015. Michael C. Kramer, Borgeson & Kramer, P.C., Fairbanks, for Appellant. Michael G. Mitchell, Sr. Assistant Attorney General, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for Appel-lee State of Alaska. John M. Starkey, Hobbs Straus Dean & Walker, Anchorage, for Appellee Ahtna Tene Nene'. - Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

5696

36090

OPINION MAASSEN, Justice. I. INTRODUCTION Regulations promulgated by the Alaska Board of Game establish two different systems of subsistence hunting for moose and caribou in Alaska's Copper Basin region: (1) community hunts for groups following a hunting pattern similar to the one traditionally practiced by members of the Ahtna Tene Nene' community; and (2) individual hunts. A private outdoors group, the Alaska Fish and Wildlife Conservation Fund, argues that this regulatory framework violates the equal access and equal protection clauses of the Alaska Constitution by establishing a preference for a certain user group. The Fund also argues that the regulations are not authorized by the governing statutes, that they conflict 'with other regulations, and that notice of important regulatory changes was not properly given to the public. But because we conclude that the Board's factual findings support a constitutionally valid distinction between patterns of subsistence use, and because the Board's regulations do not otherwise violate the law, we affirm the superior court's grant. of summary judgment to the State, upholding the statute and the Board regulations against the Fund's legal challenge. - II. FACTS AND PROCEEDINGS The Copper Basin Community Hunt Area, located in Southcentral Alaska, includes Game Management Units 11 and 13 and a portion of Unit 12. After public hearings, the Board made extensive findings about the area in 2006, describing the customary and traditional subsistence use of moose and caribou. The Board recognized the existence of a community-based pattern of subsistence hunting, originating with the Ahtna Athabascan communities in the region and "later adopted by other Alaska residents." This community-based pattern, the Board found, was characterized by use of the entire caribou or moose, leaving only the antlers behind, and by events of "[wlidespread community-wide sharing" after the harvest. In 2011 the Board made supplemental findings about a second subsistence hunting pattern in the Copper Basin. This pattern, according to the Board, was an individual use pattern that occurs "among households and families" but unlike the community-based pattern is not "linked to extensive networks of cooperation and sharing." The individual use pattern occurs mostly during the fall, and it centers upon areas accessible from the road system. Individual subsistence users, like community subsistence users, tend to return to their "well-known and long-established camping/hunting sites," but they tend to travel much farther to get there. The individual use pattern does not tend to use organ meat; meat sharing is "less formal"; and the "peer pressure to share is far less pronounced." Based on these two recognized patterns of subsistence hunting, the Board adopted regulations that bifurcated subsistence hunts in Unit 18 into community harvests and individual. A community harvest permit is issued to members of a group of 25 or more who agree to engage in the hunting practices described in the Board's 2006 findings, including meat sharing and organ salvage. The community moose hunt has a longer hunting season, has a larger geographic area, and is allocated up to 70 moose of any size. For caribou, the season, hunting area, and size of animal that may be hunted are the same for both the community harvest and individual permit holders, but the community hunt is allocated up to 300 caribou. (What this allocation means in practical terms is addressed later in this opinion.) These regulations were challenged in the superior court by the nonprofit Alaska Fish and Wildlife Conservation Fund. The Fund argued that the regulations violated the Administrative Procedure Act, the subsistence hunting statutes, and article VIII of the Alaska Constitution. The Fund asked the court to enjoin all community harvest hunts and to strike any statutes and regulations purporting to allow them. The Fund also asked the court to require the revisor of statutes to strike or amend statutes that Alaska's courts have ruled unconstitutional in the past. The local tribe, Ahtna Tene Nene', was granted leave to intervene as a defendant. All parties agreed that the issues before the superior court could be decided on summary judgment. - The superior court ruled in favor of the State, holding that the challenged regulation had been properly noticed; that the regulatory scheme was within the Board's statutory power because the subsistence hunting statutes allow the Board to distinguish between different subsistence uses; and that the community harvest permit system did not violate the equal access provisions of the Alaska Constitution, article VIII, because participation in a community harvest was open to all Alaska residents. The Fund now appeals. III STANDARDS OF REVIEW Summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, and we therefore review grants of summary judg ment de novo. In a review of ageney action we substitute our judgment for that of the agency when interpreting the Alaska Constitution and deciding issues of law. But "[when the interpretation of a statute or other question of law implicates 'agency expertise as to complex matters or as to the formulation of fundamental policy, we defer to the ageney's interpretation so long as it has a 'reasonable basis' in the law." If "a case may be fairly decided on statutory grounds or on an alternative basis, we will not address the constitutional issues." When a regulation is adopted in accordance with the Administrative Procedure Act and the legislature intended to give the agency discretion, our review is limited to ascertaining whether the regulation is consistent with its authorizing statutory provisions and whether it is reasonable and not arbitrary. IV. DISCUSSION A. The Community Harvest Permit System Does Not Violate Article VIII Of The Alaska Constitution. The Fund argues that the community harvest permit system is unconstitutional because it creates classifications that result in disparate treatment of Alaskans who are otherwise similarly situated. The superior court rejected this argument, reasoning that "[alny Alaskan is eligible to participate in either opportunity [i.e., the individual hunt or the community harvest] by complying with the regulatory requirements for each." We agree. Sections 3, 15, and 17 of article VIII are the equal access clauses of the Alaska Constitution; they provide the constitutional framework within which the State regulates subsistence hunting and fishing. Section 3, the common use clause, provides that "[wlherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use." Section 17, the uniform application clause, requires that "[llaws and regulations governing the use or disposal of natural resources . apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation." Section 15 provides that there shall be "[nlo exclusive right or special privilege of fishery . in the natural waters of the State"; though the clause addresses only fishing, we apply its underlying principles when interpreting see-tions 3 and 17. Together, these provisions "share at least one meaning: exclusive or special privileges to take fish and wildlife are prohibited." The equal access clauses are not implicated by a regulation that applies equally to all the State's citizens. To be invalid under these clauses, a regulation must place "limits . on the admission to resource user groups." "[Wle have consistently defined 'user groups' in terms of the nature of the resource (e., fish or wildlife) and the nature of the use (ie., commercial, sport or subsistence)." We have refused to define "user groups" based on a "particular means or method of access" to the resource, and we have declined to recognize a constitutional right to "convenient" access. Instead, we have repeatedly held that "[iInconvenience is in no sense the equivalent of a bar to eligibility for participation in subsistence hunting and fishing and does not suffice to trigger an analysis under the equal access clauses." In Alaska Fish Spotters Ass'n v. State, we reviewed a challenge to a regulation that prohibited the aerial spotting of salmon in Bristol Bay. Despite the Association's argument that the regulation "eliminated their 'historical' and 'long enjoyed' access to the fishery resource" as a unique user group, we concluded that the common use clause does not obligate the State to "guarantee access to a natural resource by a person's preferred means or method." We further explained that although "each ban directly affected only a small number of people who had previously used the banned tool" and "precluded a preferred use of the fisheries resource," the bans applied equally to all persons in the State and did not preclude all uses of the resource. We noted other ways the members of the Association could access the fishery resources besides the one they preferred: they "may access the resource in the same manner open to any other commercial fishers. They may participate in industries which support the fishery harvest. They may continue to use their planes to spot fish before an open commercial fishing period and to transport supplies and personnel for commercial fishing clients." We concluded that the regulation was "a permissible limitation on the means and methods which any person may use to take salmon in Bristol Bay" and did not violate the Constitution's common use clause. In this case, the relevant "user group" is subsistence hunters, which means all Alaskans, urban or rural. All Alaskans are eligible to receive a community harvest permit; the only requirement for obtaining one is collaboration with other resource users. Like the members of the Fish Spotters Association, hunters who choose not to join a community group have another way to access moose and caribou: they can apply for an individual hunting permit. The requirement of joining a group may well be inconvenient for those who lack a ready community; but inconvenience is not a bar to eligibility for participation, and it is therefore insufficient to raise a constitutional claim under the equal access clauses. The Fund also argues that AS 16.05.330(c) and 5 AAC 92.072(d) are facially invalid under article VIII. The superior court found that while these provisions "could be applied in a manner offensive to article VIII," they could also be applied constitutionally. "[A] party raising a constitutional challenge to a statute bears the burden of demonstrating the constitutional violation. A presumption of constitutionality applies, and doubts are resolved in favor of constitutionality." The Fund's main complaint about AS 16.05.830(c) is that it "was passed as part of a comprehensive rural preference subsistence statute intended by the Governor and legislature to cireumvent this Court's 1985 Madison decision." But we will uphold a statute against a charge that it is facially unconstitutional even if it might sometimes create problems as applied, as long as the statute "has a plainly legitimate sweep." And the Fund admits the statute can be read constitutionally: "At most, AS 16.05.830(c) gives the Boards discretion to consolidate and streamline the permitting process by issuing permits to areas, villages, communities, or groups." The Fund's facial challenge to the statute's constitutionality therefore fails." B. The Community Harvest Regulations Are Authorized By Statute. The Fund's challenge to the statutory authority for the community harvest system raises three questions: (1) whether the Board has the authority to adopt regulations that grant permits to communities; (2) whether such regulations can permissibly differentiate among various patterns of use of a subsistence resource; and (8) whether the regulations at issue here provide a "reasonable opportunity" for each subsistence use pattern. We answer all three questions in the affirmative. First, under AS 16.05.330(c) the Board "may adopt regulations providing for the issuance and expiration of subsistence permits for areas, villages, communities, groups, or individuals as needed for authorizing, regulating, and monitoring the subsistence harvest of fish and game." This plain statutory language authorizes the issuance of community permits. Second, AS 16.05.258(b)(2) not only grants the Board the authority to differentiate between subsistence uses, it requires the Board to adopt regulations that "provide a reasonable opportunity for subsistence uses" of those game populations that are "customarily and traditionally taken or used for subsistence." Here, after the Board identified the two customary and traditional subsistence use patterns of moose and caribou in the Copper Basin-the community use pattern and the individual use pattern-it was statutorily required to "provide a reasonable opportunity" for these subsistence uses of the relevant game populations. The Board's findings described two very different use patterns, with different hunting areas and seasons, different parts of the animal consumed, and different cultural and social traditions associated with the hunt. Because both patterns are "subsistence uses," the Board was required to provide "a reasonable opportunity" for each of them." The Board did so by its creation of the parallel community harvest and individual permit systems. The permit conditions for the community harvest closely track the Board's 2006 findings of customary and traditional use. The Board found that a community hunting pattern "was originally defined by the Ahtna Athabascan residents" but was "then adopted and modified by other local settlers in the early 20th century." The Board found that "[mlost of the long-term subsistence patterns in this area are community-based," and that specialized hunters tend to provide for the community at large, sometimes or often taking more than necessary for their own family's use in their capacities as community providers, and to fulfill social and cultural obligations. Community subsistence activities are then divided among members and further introduced into traditional patterns of barter and exchange. Thus, some harvest and others process, distribute, receive and utilize the results of the harvest. The community harvest permits reasonably provide for this use by allowing "a community or group of 25 or more to select, from their group members, individual harvesters who may possess particular expertise in hunting to harvest wildlife resources on behalf of the community or group." Nor was the group size of 25 chosen arbitrarily. The Board was concerned that without a minimum size, "groups of two or three people [could] come in and create a very huge administrative burden." The Board set the group membership at 25 "to ensure that it really is a communal experience, and not just two hunting buddies together, that there really is some level of interaction and sharing and that there's a genuine group." This tracks the Board's 2006 findings about the community use pattern, which showed that the community or group potentially benefit-ting from a hunt was larger than a nuclear family-it involved "all family members, elders, [and] others in need." The community use pattern also involves the "salvage and use [of] all parts of the harvested animal, in conformance with traditions prohibiting waste." Hunters retrieve "the entire carcass and all bones, hide, head, heart, liver, kidneys, stomach, and fat," leaving only the antlers behind. Permit conditions therefore require meat salvage, the taking of "[alll edible meat from the frontg-uarters, hindquarters, ribs, neck, and backbone, as well as the heart, liver, kidneys, and fat." Also involved in the community use pattern is "[wlidespread community-wide sharing." Unlike use patterns in which hunters "are completely free to share, or not to share, as they see fit," the community pattern comes with a social obligation to share the game with others. This sharing "plays a key economic role in distributing essential food supplies throughout the community." Permit conditions therefore require community harvest permit holders to participate in "at least one communal sharing event." The community harvest permit also authorizes a larger hunting area than that open to individual hunters. Community harvest permit holders are allowed to hunt moose in all of Game Management Units 11 and 13 and part of Unit 12. Individuals are limited to Unit 18. This distinction is based on the Board's 2006 and 2011 findings about the different hunting areas frequented by community and individual hunters. The Board found that community hunters in the Copper Basin have "an intimate and exclusive relationship between the user and a very particular set of places generally in close proximity to the hunter's residence." Community hunters traditionally do not travel outside the Copper Basin to hunt, even when caribou and moose are hard to find. The Board found that individual hunters, in contrast, traditionally hunt in areas reached by road from Anchorage and Fairbanks, along the Denali and Glenn Highways, both of which are mostly within Unit 13; and they tend to go where the game is." We now consider whether the Board's regulations specific to the moose hunt and those specific to the caribou hunt satisfy the "reasonable and not arbitrary" standard of review. 1. Moose hunting Community harvest hunters are permitted to hunt one bull moose of any size for each person on the community group's list, while individual hunters are limited to bull moose with spike-fork antlers, 50-inch antlers, or antlers with four or more brow tines on one side. Community harvest hunters also have a longer season: August 10 to September 20, as opposed to September 1 to September 20 for individuals. The Fund argues that this provides the community harvest hunters with "an exclusive hunting opportunity" and is therefore impermissible. We conclude, however, that the Board made findings sufficient to support some season and size differences between community and individual hunts. Simply put, the community hunts are more likely to occur close to home, where it is harder to find moose; a longer season and fewer size restrictions help counter this difficulty. During a 2011 Board of Game proceeding, a supporter of community hunts testified that the "50-inch antlered moose is . pretty searee around where I hunt and it's usually pretty warm. They're usually way up in the mountains. Having a restriction for 50-inch antlers . makes [it] a hardship for . getting a moose.... I took my daughter there last year, and . we saw a lot of bull moose, but . they aren't . 50-inch moose. All small antlers." At an earlier hearing in 2010, there was testimony that in early fall "all the moose are high during that time and the three brow tine and four brow tines are up high.... [YJou might find a spike fork near a road, but . people didn't really get any moose." The community use pattern may require a longer hunting season because community harvest hunters traditionally "keep hunting as close to home as reasonably possible," "travel[ ] shorter distances to hunt," and "still prefer to walk in to hunting areas and maintain permanent camps." If the community harvest permit holders hunt in the same areas each year and do not travel in search of better hunting opportunities, it is reasonable to conclude that they will need a longer season in order to find legal moose. In addition, the Board found in 2006 that community harvest hunters hand "down the hunting and fishing knowledge, values and skills through family oriented experiences," which require "relatively long summer and fall camping trips." Although the Board heard evidence that the individual hunt would also benefit from a longer season, we cannot say that the Board's adoption of a regulation setting a longer season and fewer size restrictions for the community hunt is arbitrary or unreasonable. 2. Caribou hunting The community harvest caribou hunt allows hunters to take one animal per group member, up to 300 caribou. Individual hunters may also take one caribou each. The Board, before adopting this regulation, discussed whether 300 caribou was a quota allocated to the community hunt, allowing the community hunters to take up to that many animals even if the individual hunt were closed; it also discussed the 800 caribou as an absolute cap on the number that community groups could harvest. In practice, the Department has not treated the number of caribou assigned to the community harvest as a quota. In 2011, the Department closed the individual hunt by emergency order, explaining that the 2011-2012 harvest quota of 2,400 caribou had nearly been reached-individual hunters had taken 1,608 caribou, community hunters had taken 82, federal subsistence hunters had taken 861, and the holders of drawing permits had taken 311. This closure left the community harvest and federal subsistence hunts open because "additional harvest [was] expected to be negligible." In 2013, both the individual and community subsistence hunts were closed on October 10, despite the fact that only 112 caribou had been harvested under the community harvest permits. Reading the regulatory language in light of the Department's. practical application of it, the grant of "up to 800 caribou" does not appear to be a quota that favors community hunters at the expense of individuals. Rather, it is an upper limit based on an estimate of the number of caribou that community hunters are expected to take each year, a number supported by the evidence before the Board. When the Board was discussing the community harvest regulations, Dr. James Fall, the statewide program manager for the State's Division of Subsistence, testified that it was difficult to determine how many people were interested in hunting caribou in Unit 13 and how many caribou were needed for subsistence, because the hunt there had been restricted for many years. Yet the Board did have evidence of the needs for community use-the Ahtna Subsistence Committee estimated this number at between 200 and 400 caribou. The Board's decision to designate "up to 800 caribou" for the community harvest was based on this evidence, which contrasts with its lack of information about how many caribou were needed for individual subsistence hunters. Given the evidence before the Board, its estimate that the community harvest permit holders could take "up to 300 caribou" is not arbitrary or unreasonable. C. The Community Harvest Regulations Do Not Conflict With Other Board Regulations. 5 AAC 92.072(d) is a fish and game regulation of statewide application, providing that the "total bag limit for a community harvest permit will be equal to the sum of the individual participants' bag limits." The Fund argues that the Board violated this regulation when it eliminated the size restrictions on moose for holders of community harvest permits in Unit 13, effectively granting them a larger bag limit. But the regulations do not conflict. A "bag limit" is defined as "the maximum number of animals of any one game species a person may take." Board regulations provide that community harvest permit holders and individual permit holders are both entitled to harvest a single caribou and a single bull moose, although the individual permit holders are limited by antler size and shape and the community harvest permit holders are not. Alaska Statutes 16.05.255(f) and 16.05.258(e) both differentiate between "bag limits" and "size limitations" when discussing the areas in which the Board may regulate. Community harvest permits do not allow permit holders to take more bulls than the individual permit holders; the Board adoption of the community harvest permit system did not violate 5 AAC 92.072(d). D. The Board's Amendment To 5 AAC 92.072(d) Was Properly Noticed. The Board amended 5 AAC 92.072(d) in July 2009 to give itself the authority to assign different season lengths to community harvest permit holders and individual permit holders. The Administrative Procedure Act requires the Board to give notice before amending a regulation. The notice must include "an informative summary of the proposed subject of agency action." When the ultimate agency action differs from that contemplated by the notice, the Administrative Procedure Act is satisfied "if the subject matter remains the same and the original notice assured reasonable notification to the public that the proposed agency action might affect its interests." The Fund argues that the March 2009 amendment is invalid because "[the Board did not provide any notice that it would be changing a regulation that required identical seasons and bag limits for community hunts to a regulation that allowed for preferential seasons and bag limits." But the superior court concluded that the notice "did contain notice of proposed changes to [U Junit 13 seasons for caribou and moose, as well as proposed changes to community subsistence harvest areas and conditions," and was thus "sufficient to comply with AS 44.62.200." We agree. According to the January 2009 notice-the one preceding the spring 2009 meeting-the Board was considering changes to 5 AAC 92, including changes to "HUNTING SEASONS AND BAG LIMITS" in Unit 13 for game including moose and caribou. Also to be considered were changes to "LICENSES, HARVEST TICKETS, HARVEST REPORTS, TAGS, FEES, AND PERMITS" in units including Unit 13, and "including, but not limited to . community subsistence harvest areas and conditions." The subject matter of the amended regulation was the relative length of the hunting seasons available to community harvest permit holders and individual hunters. The January notice covered the same subject matter and was sufficient to inform the public that their interests might be affected. The notice therefore satisfied the requirements of the Administrative Procedure Act. v. CONCLUSION We AFFIRM the superior court's grant of summary judgment to the State. . 5 Alaska Administrative Code (AAC) 85.025 (2012); 5 AAC 85.045; 5 AAC 92.050; 5 AAC 92.072. . In a recent case involving these same parties, we discussed Ahtna's and the Board's respective histories with Unit 13 moose and caribou. See Ahtna Tene Nene v. State, Dep't of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012). . The Board made these findings by considering the eight criteria described in 5 AAC 99.010(b). We upheld these eight criteria in Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, Bd. of Fisheries, 289 P.3d 903 (Alaska 2012). . Subsistence hunting statutes divide subsistence hunts into two tiers: Tier I hunts are those in which the resource is abundant enough to satisfy all subsistence uses; Tier II hunts are those in which it is not. AS 16.05.258(b)(1)-(4); see State v. Morry, 836 P.2d 358, 365-66 (Alaska 1992). . 5 AAC 85.045; 5 AAC 92.050; 5 AAC 92.072. . 5 AAC 92.072(c)(1). . Id. Individual hunters may only harvest bull moose with spike-fork, 50-inch, or 4 brow tine antlers, while community harvesters may harvest any bulls but no more than 70 that could not have been harvested by individual hunters. 5 AAC 85.045. The community harvesters' any-bull allocation increased to 100 for the 2013 season. 5 AAC 85.045 (am.7/1/13). . See 5 AAC 85.025. In testimony before the Board, a representative from the Alaska Outdoor Council, the Fund's sister organization, expressed concern that community harvest permits would be issued per person while individual permits would be issued per household. This potential inequity never occurred because by special regulation the Board limited hunters in Unit 13 to one caribou per household regardless of whether they held a community harvest permit or an individual permit. See 5 AAC 92.071(a); 5 AAC 92.072(c)(2)(A). . AS 44.62.010-.950. . Gilbert v. State, Dep't of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 394 (Alaska 1990) (citing Southeast Alaska Constr. Co. v. State, Dep't of Transp., 791 P.2d 339, 342 (Alaska 1990); Grand v. Municipality of Anchorage, 753 P.2d 141, 143 n. 3 (Alaska 1988)). . Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, Bd. of Fisheries, 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)). . Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 465 (Alaska 2008) (quoting Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982)). . Id. (citing State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d 580, 584 (Alaska 2005)). . Id. . McDowell v. State, 785 P.2d 1, 9 (Alaska 1989). . Id. at 6. . Interior Alaska Airboat Ass'n v. State, Bd. of Game, 18 P.3d 686, 695 (Alaska 2001) (citing Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798, 804 (Alaska 1992)). . Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1318 (Alaska 1994) (internal citations omitted); see also Interior Alaska Airboat Ass'n, 18 P.3d at 695. . Alaska Fish Spotters, 838 P.2d at 803. . Id. . State v. Kenaitze Indian Tribe, 894 P.2d 632, 640 (Alaska 1995). . Interior Alaska Airboat Ass'n, 18 P.3d at 695 (quoting Kenaitze Indian Tribe, 894 P.2d at 640) (internal quotation marks omitted). . 838 P.2d at 799-800. . Id. at 801. . Id. at 802. . Id. . Id. . McDowell v. State, 785 P.2d 1, 9 (Alaska 1989) (holding that admission to subsistence user groups could not be based on rural residency). . The Fund argues that the regulations are unconstitutional under our decision in Grunert v. State, 109 P.3d 924 (Alaska 2005). In Grunert we invalidated a cooperative salmon fishery, but we did so under the Limited Entry Act, not article VIII. Id. at 932-46. As the State points out in its brief, there is "no analog to the Limited Entry Act or other statutory limitation on the Board's authority to regulate in the subsistence [hunting] context." We agree with the State that Grunert does not control our decision here. . Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 388 (Alaska 2013) (alteration in original) (quoting Harrod v. State, Dep't of Revenue, 255 P.3d 991, 1000-01 (Alaska 2011)). . The reference is to Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168 (Alaska 1985), in which we held that subsistence uses could not be constitutionally limited to members of communities that had historically practiced subsistence hunting and fishing. . State v. Planned Parenthood of Alaska, 171 P.3d 577, 581 (Alaska 2007) (quoting Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 n. 14 (Alaska 2004)) (internal quotation marks omitted). . The Fund also urges us to strike several unconstitutional statutes. But the Fund does not state which statutes are unconstitutional or what authority we have to rewrite statutes. We find this issue waived as inadequately briefed and do not consider it here. See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[Where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."). . AS 16.05.258(a), (b)(2)(A). . AS 16.05.258(b)(2)(A). . AS 16.05.940(33) (Subsistence uses are the "noncommercial, customary and traditional uses of wild, renewable resources . for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft articles out of nonedible by-products of fish and wildlife resources taken for personal or family consumption."). . AS 16.05.258(b)(2)(A). We observe that the Fund's challenge is based on what it views as the Board's preferential treatment of one subsistence user group over another. It does not directly contend that holders of individual subsistence permits lacked a "reasonable opportunity," only that the opportunities in the community hunt were better. . The 2011-12 hunt conditions opened only Unit 13 to caribou hunting by community harvest permit holders, "due to conservation concerns for adjacent caribou herds." . 5 AAC 85.045. . See Unit 13: Nelchina-Upper Susitna, Auaska Department Or Fisu & Gamze (May 8, 2012), http:// www.adfg.alaska.gov/static/hunting/maps/ gmumaps/pdfs/1 3.pdf. . See Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 465 (Alaska 2008). . 5 AAC 85.045 (providing for "1 bull per harvest report by community harvest permit only £"). . 5 AAC 85.045. Community and individual subsistence hunters have the same season for caribou. 5 AAC 85.025. . For example, the 2011 Board findings describing the individual subsistence hunting pattern note that "[all hunters currently tend to focus their harvest efforts during the late summer and early fall, when caribou and moose are in their best physical condition and relatively accessible from the road system." The Board found that the individual hunting pattern also involved passing down "lore about how and where to hunt . from generation to generation." Furthermore, in the same session in which it adopted its 2011 findings, the Board rejected a proposal to allow non-community harvest members to engage in early moose hunting in Unit 13. The Board decided that even a short general hunt in August was not sustainable. . See Interior Alaska Airboat Ass'n. v. State, Bd. of Game, 18 P.3d 686, 690 (Alaska 2001) ("In determining whether a regulation is reasonable and not arbitrary courts are not to substitute their judgment for the judgment of the agency. Therefore review consists primarily of ensuring that the agency has taken a hard look at the salient problems and has genuinely engaged in reasoned decision making."). . 5 AAC 85.025(a)(8). . Id. . See Araska Der't Or Fisk & Game, EmErogncy Orper No. 04-08-11 (Dec. 2, 2011), available at http://www.adfg.alaska.govw/static/applications/ webintra/wenews/201 1/orders/04-08-1 1 .pdf. . Id. . Araska Der't Or Fise & Gamze, EmercEncy Orper No. 04-07-13 (Oct. 9, 2013), available at http:// www.adfg.alaska.gov/static/applications/ webintra/wenews/201 3/orders/04-07-1 3.pdf. . Discussing the number of available caribou, Board Chair Ted Spraker said that the Board needed more data and its members "really need to kind of step back from this and . let it go for a year"" before they could get a "pretty good idea of what's going to happen." . See 5 AAC 92.001 ("[The regulations in this chapter apply statewide to subsistence hunting."). . 5 AAC 92.990(a)(3) (emphasis added). . 5 AAC 85.025; 5 AAC 85.045. . Compare Alaska Administrative Code, Register 190, 3-511 to -512 (July 2009) (implementing current language of 5 AAC 92.072(d)), with Alaska Administrative Code, Register 182, 3-291 (July 2007) (prior language of 5 AAC 92.072(d)). . AS 44.62.200(a). . AS 44.62.200(a)(3). . Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 929 (Alaska 1983). . There is no copy of the notice in the record on appeal. The superior court cited to the notice's on-line version. The Fund does not appear to question this reliance, and the State directs us to the same source. See Araska Bo. Or Game, Notice Or Prorosep Cnancss In Recurations Or THs Araska Bo. Or Game Sprinc 2009 Meztinc (Jan. 23, 2009), available at http://aws.state.ak.us/OnlinePublic Notices/Notices/View.aspx?id=144484. . Id. . See 5 AAC 92.072(d).

6872221

David PHILLIP, Brian Ivan, Joseph Spein, Noah Okoviak, Sammy Jackson II, Kenneth Andrews, Sammy Jackson I, James Albrite, Michael M. Andrew, John I. Owens, Peter W. Hinz, Michael Frye and Patrick F. Black, Appellants/ Cross-Appellees, v. STATE of Alaska, Appellee/Cross-Appellant

Phillip v. State

2015-03-27

Nos. A-11580, A-11620, A-11581, A-11659, A-11582, A-11650, A-11583, A-11679, A-11584, A-11669, A-11585, A-11629, 11586, A-11640, A-11588, A-11619, 11594, A-11670, A-11595, A-11649, 11596, A-11630, A-11604, A-11660, 11605, A-11639

128

135

347 P.3d 128

347

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

David PHILLIP, Brian Ivan, Joseph Spein, Noah Okoviak, Sammy Jackson II, Kenneth Andrews, Sammy Jackson I, James Albrite, Michael M. Andrew, John I. Owens, Peter W. Hinz, Michael Frye and Patrick F. Black, Appellants/ Cross-Appellees, v. STATE of Alaska, Appellee/Cross-Appellant.

David PHILLIP, Brian Ivan, Joseph Spein, Noah Okoviak, Sammy Jackson II, Kenneth Andrews, Sammy Jackson I, James Albrite, Michael M. Andrew, John I. Owens, Peter W. Hinz, Michael Frye and Patrick F. Black, Appellants/ Cross-Appellees, v. STATE of Alaska, Appellee/Cross-Appellant. Nos. A-11580, A-11620, A-11581, A-11659, A-11582, A-11650, A-11583, A-11679, A-11584, A-11669, A-11585, A-11629, 11586, A-11640, A-11588, A-11619, 11594, A-11670, A-11595, A-11649, 11596, A-11630, A-11604, A-11660, 11605, A-11639. Court of Appeals of Alaska. March 27, 2015. Thomas M. Daniel and Sarah J. Fisher, Perkins Cofe, LLP, and James J. Davis Jr. and Goriune Dudukgian, Northern Justice Project, LLC, Anchorage, for the Appellants/Cross-Appellees. John M. Starkey, Law Office of John Sky Starkey, LLC, and Thomas Stenson, ACLU of Alaska Foundation, Anchorage, as amici curiae, aligned with the Appellants/Cross-Appellees. Laura Fox, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee/Cross-Appellant. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

4119

26335

OPINION ALLARD, Judge. In June 2012, the thirteen defendants in this case-all Yupik fishermen living a subsistence lifestyle-were charged with violating the Alaska Department of Fish and Game's emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution. The district court denied the motion to dismiss, holding that the religious exemption claimed by the Yupik fishers would defeat the State's compelling interest in protecting the sustainability of the species. Following this ruling, all thirteen defendants were convicted in bench trials. On appeal, the defendants renew their claim that their fishing for king salmon was protected under the free exercise clause. For the reasons explained here, we reject that claim and affirm the decision of the district court. Background The Kuskokwim River's king salmon run tends to be "boom and bust," with periods of high abundance followed by periods of low abundance, due to many variables. From 2003 until 2007, the Kuskokwim River had above average king salmon runs, but in subsequent years the numbers declined. In 2011, for the first time, the run was so low that the long-term sustainability of the king salmon population appeared threatened. Preparing for the 2012 fishing season, the Alaska Department of Fish and Game initially predicted that the king salmon run on the Kuskokwim River would number 197,000. The Department concluded that 127,000 king salmon needed to reach the spawning grounds in the Kuskokwim's various tributaries in order to protect the sustainability of the river's king salmon population. The Department's plan was supported by the Kus-kokwim River Salmon Management Working Group, a group set up to give subsistence, sport, and commercial fishers a voice in managing the river's salmon populations. However, by early June 2012, far fewer king salmon had appeared in the river than the Department's initial forecasts, and state fisheries biologists and managers realized that the run "wasn't going to come in as expected." With the support of the Working Group, the Department announced a seven-day emergency closure prohibiting hook-and-line fishing for king salmon, and limiting the use of other fishing gear that was optimal for catching kings. These were "rolling closures," meaning the location of the restrictions moved up the river along with the king salmon they were designed to protect. Five days into this emergency closure, the number of king salmon in the river remained extremely low; the Department of Fish and Game now estimated that only 30,000 king salmon would reach the spawning grounds-almost 100,000 below what the Department considered necessary to sustain the run. Faced with these projections, the Department extended the fishing gear restrictions by issuing additional emergency orders. Under the Department's emergency orders, only gillnets with four-inch or smaller mesh size and a length of no more than sixty feet were allowed. It was possible, and legal, to catch king salmon with such nets, but they were designed to catch smaller species, such as whitefish, and they were an inefficient method of catching any salmon. In late June, when the chum and sockeye salmon started up the river, the Department loosened the gear restriction to allow gillnets with a six-inch mesh size, in an attempt to minimize the king catch while allowing harvest of chum and sockeye. By the time six-inch gillnets were allowed, the main species in the river were chum and sockeye salmon, and the Department did not expect kings to be caught in significant numbers. (A larger, eight-inch net is optimal for catching kings when chum and sockeye are present.) Even with these gear restrictions, about 20,000 Kuskokwim-bound kings were caught during the 2012 fishing season. Most of this catch was incidental, occurring during the periods when four-and six-inch mesh gillnets were allowed. According to the preliminary estimates available to the district court, the total escapement for the 2012 season (that is, the estimated total number of king salmon that reached the spawning grounds) was 77,-000. About sixty people were cited for violating the June 2012 emergency orders on the Kus-kokwim River. Some of these fishers were allowed to keep one king salmon, but the rest of their illegally caught kings were donated to charity. Some of the violators pleaded guilty to the charges; others went to trial at various points between the fall of 2012 and spring of 2018, and were convicted. Among the defendants who eventually went to trial were the thirteen Yupik fishermen whose claims are at issue in this appeal. They were all charged with the offense of using gillnets that were prohibited under the emergency orders. The conduct and motivations of these fishermen varied. Some had apparently been told by their tribal offices that they could fish; others claimed to have been mistaken about the size of their nets; and still others knowingly broke the law in protest of the emergency orders. Of the thirteen fishermen involved in this appeal, some caught just a few king salmon, while others caught as many as sixty. These thirteen defendants waived any individual defenses they might have had, and instead they filed a collective brief asserting that their fishing in violation of the emergency orders was religiously based conduct that was protected under the free exercise clause of the Alaska Constitution. The district court ordered an evidentiary hearing on this claim. At the hearing, the State presented evidence that the emergency orders were justified because the projected 2012 Kuskokwim River king salmon run was so perilously small that any additional harvesting of king salmon would have jeopardized the sustainability of the run. The defendants, in turn, presented expert testimony on the central role that fishing for king salmon plays in Yupik culture and spiritual beliefs. The defense experts testified that according to traditional Yupik belief, Ellam Yua is the spirit of the universe, consisting of all things in a state of interconnectedness. El-lam Yua provides the Yupik with the resources they need to survive, and the Yupik are expected to work hard to harvest those resources. If the Yupik stop fishing for salmon, Ellam Yua will take offense, and the salmon will cease to make themselves available. The experts also testified that along the Kuskokwim River, where all of the defendants lived, king salmon is regarded as "the most important food." It is the "apex" fish, and it is irreplaceable. Other fish and other species of salmon are acceptable for eating, but they are not viewed as an adequate substitute for kings, in part because king salmon is the first salmon to return to the Kuskokwim River in the spring, and it arrives during the prime drying season. The testimony also established that king salmon play a central role in traditional Yupik fish camps, which is where Yup'ik spiritual values are taught to the next generation. * Based on this expert testimony, the district court judge found that the defendants had a religious interest in fishing for king salmon. But the judge ruled that even assuming the sincerity of each individual defendant's religious belief, the State's compelling interest in preserving the Kuskokwim River king salmon run outweighed that religious interest. - Each defendant was then convicted of violating the emergency orders. The defendants now appeal the district court's ruling that they were not entitled to a religious: exemption from the Department's gear restrictions. The State eross-appeals, arguing that the district court erred in finding that the defendants' conduct in fishing for king salmon with prohibited gear was religiously based conduct. Why we conclude that the religious exemption the defendants sought would harm a compelling state interest In Alaska, the test for whether an individual is entitled to a religious exemption from a facially neutral law is set out in the Alaska Supreme Court's decision in Frank v. State. In Frank, the defendant, an Athabascan, was convicted of transporting illegally taken game after he participated in a hunt to provide a moose for a funeral potlatch. Frank admitted that he transported the moose, but he argued that applying the state's game regulation to him abridged his freedom of religion. After an evidentiary hearing, the district court found that the funeral potlatch was an integral part of the religious beliefs of the central Alaska Athabascan Indians, and that Frank sincerely held those beliefs. The court also found that the Athabascan Indians considered moose more desirable than any other food for potlatch celebrations. But the district court nevertheless concluded that the State's game regulation had not deprived Frank of his religious freedom because, however desirable it might be to have moose at a funeral potlatch, it was not "specifically required for this ceremonial occasion." In reversing that decision, the Alaska Supreme Court announced a two-part test for assessing whether an individual is entitled to a religious exemption from a facially neutral law under the Alaska free exercise clause. The first part of the test, which assesses the validity of the individual's religions interest, comprises three inquiries: (1) whether religion was involved; (2) whether the conduct at issue was religiously based; and (8) whether the claimant is sincere in his beliefs. The second part of the test assesses whether the State can meet its burden of proving a compelling state interest that would justify curtailing the religiously based practice. Frank's claim, the supreme court concluded Applying the first part of the test to that the district court's findings supported the conclusion that the funeral potlatch was a religions ceremony, that Frank's conduct in transporting the moose was religiously based, and that his religious beliefs 'were sincere. The supreme court also concluded, however, that the district court had improperly rejected Frank's claim based on its finding that moose meat was not "essential" for the observance of a funeral potlatch. The proper question, the supreme court declared, was not whether the eating of moose at the funeral was essential, but rather whether the practice was "deeply rooted in religions belief" The court found "the evidence inescapable that the utilization of moose meat at a funeral potlatch is a practice deeply rooted in the Athabascan religion." The supreme court then turned to the second part of the test. The court found that the State had an indisputably compelling interest in maintaining a healthy moose population. But the court concluded that this was only the start of the inquiry: the State also must show that its interest "will suffer if an exemption is granted to accommodate the religious practice at issue." The court concluded that the State failed to meet this burden in Frank The court noted that the State had failed to offer any evidence that granting a religious exemption to the Athabascan Indians to obtain moose meat for funeral potlatch celebrations would jeopardize Alaska's moose populations: "We are not advised as to how many funeral potlatches are held each year, nor how many moose are legally taken, nor the level of harvest which would cause a population decline . [alll the record reveals is that there was but one funeral potlatch in Minto in 1975, and that one moose was needed for it." The court further noted that the State could adopt regulations governing the religious exemption and that such regulations could guard against abuses and also aid in record keeping so that the State could determine what impact, if any, the religious exemption might have on the moose population. The application of Frank to the present case The defendants in this case argue that Frank entitles them to a religious exemption from the gear restrictions imposed by the emergency orders. They assert that their subsistence fishing for king salmon in violation of the emergency orders was religiously based conduct and that the State failed to meet its burden to show that the Department's emergency orders were the "least restrictive means" available to preserve the health of the king salmon population. The defendants point to several alternative measures that they argue could have protected the salmon run without abridging their religious interest-closing down the Kuskokwim Bay commercial fishery, implementing Tier II subsistence allocations, or limiting the Bering Sea pollock bycatch. But the evidence presented to the district court established that these alternatives were either impractical or impossible to implement mid-season or that they would not have appreciably increased the numbers of king salmon. Moreover, the defendants' arguments misconstrue the State's evidentiary burden under Frank. Once the district court found the defendants' fishing in violation of the emer-geney orders was religiously based conduct, the burden shifted to the State to establish that its compelling interest in preserving the viability of the Kuskokwim king salmon population "will suffer if an exemption is granted to accommodate the religious practice at issue." Contrary to defendants' arguments, the State was not required to show that there were no other conceivable means to protect the salmon. Nor do we think such a test would be appropriate in these cireumstances. In Larson v. Cooper, the supreme court declined to interpret Frank as requiring the State to prove that the prison regulations that restricted prisoners' free exercise of religion were the least restrictive means available, reasoning that courts are "ill-positioned to second-guess prison administrators' judgment," and that subjecting the day-to-day decisions of prison officials to an inflexible striect-serutiny analysis "would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." The supreme court has similarly observed that courts are "singularly ill-equipped to make natural resource management decisions." Here, the State's evidence established that in-season management of salmon populations requires "rapidly evolving" responses to "day-by-day assessment{[s]." The facts of this case are illustrative: the Department of Fish and Game initially set a management objective of 127,000 king salmon, but by early June, it appeared that this objective was based on wildly optimistic forecasts and that as few as 80,000 king salmon might make it to the spawning grounds in the Kuskokwim River and its tributaries. This number was so low that the fisheries manager for the area worried that 2012 would be the year that would "wipe out the run." The State presented evidence that even a one-day general opening in June could have killed 10,000 or more king salmon, and the projections at that time showed that the population did not have 10,000 salmon to spare. Ultimately, the Department's worst fears were not realized, as an estimated 77,-000 king salmon made it up to the river's spawning grounds, and another 20,000 were harvested incidentally by subsistence users. In light of the time pressures and scientific uncertainty that accompany in-season management of salmon stocks, including the Kus-kokwim River king salmon run, we conclude that it would seriously hamper the Department's ability to manage the fishery for sustained yield if courts required the State to show that each emergency action it took was the least restrictive alternative available. We therefore reject the defendants' formulation of the State's burden in this case. Instead, we agree with the district court that the question under Fromk is whether the State can meet its burden 'of proving that its compelling interest in maintaining a healthy and sustainable king salmon population would be harmed if the court granted the religious exemption sought by the defendants. | We also agree with the district court that the State met that burden here. The district court found that "the natural consequence of allowing the unfettered taking of Chinook [king] salmon under the religious free exercise exception through subsistence harvest urged by the defendants" would be "the decimation of the species by over fishing." This finding is well-supported by the testimony of the fisheries biologists and the extensive data presented at the evidentiary hearing. The defendants argue that the district court erred in characterizing the religious exemption they sought as "unfettered fishing"; they claim that the only exemption they sought was to "briefly pursue king salmon." We disagree with the defendants' characterization of the record. In the district court, twenty-two defendants joined the motion to dismiss. Like the thirteen defendants who remain in this appeal, the conduct and motivations of these twenty-two defendants varied, as did the amount of fish they caught, the length of time they fished, and the type of prohibited gear they used. Their defense attorney, who was representing them collectively, argued that the question before the district court was whether the conduct of these twenty-two defendants jeopardized the State's compelling interest in protecting the Kuskokwim River king salmon run. The defense attorney pointed to the testimony of a State witness, a federal biologist, who testified that the sustainability of the run would not have been threatened by allowing twenty-two people to fish for a "brief period" on one day. But, as the district court recognized, this was not the correct framing of the legal question. The defendants were asking the court to recognize, as a free exercise defense to criminal charges, a religious exemption that would apply to all Yupik subsistence fishers who shared similar religious beliefs and engaged in similar conduct. The defendants did not show that they all fished for only a "brief period"; nor did they assert that their religious interest could be satisfied by fishing for a brief period of time or by harvesting only a limited number of kings. To the contrary, the defendants offered expert testimony that "having a full fish rack" of king salmon was religiously important for the Yupik. A Yupik elder testified that subsistence fishing for king salmon is sacred to all Yup'ik fishers; that the whole family participates in subsistence fishing; and that it was spiritually important to "sue-cessfully . harvest[ ] the resource." He declared that Yup'ik religious or spiritual precepts require fishers "to make an effort to catch . the king salmon . that was available on the river at that particular time." Given this record, we conclude that it was not error for -the district court to find that the defendants had essentially asserted a religious right to "unfettered" subsistence fishing. The defendants have similarly improperly framed the legal question to be answered in this appeal. They argue that, under the second part of the Frank test, the question is whether the State showed that the collective conduct of these particular defendants, standing alone, threatened the State's interest in protecting the Kuskokwim River king salmon run. But that is not the proper analysis under Frank. As the supreme court explicitly recognized in Frank, the religious exemption Frank sought would apply to all Athabascans needing moose meat for a funeral potlatch, not just to Frank personally. Likewise, the religious exemption being sought here is the right of all Yupik subsistence fishers to fish for king salmon according to their sincerely held religious beliefs without regard to emergency closures or gear restrictions. Onee this legal question is properly framed, we have little difficulty upholding the district court's finding that the State's compelling interest in preserving the viability of the Kuskokwim River king salmon run would suffer if the court were to grant the religious exemption sought by the defendants in this case. We do not address whether a more limited religious exemption might apply under certain cireumstances or for certain individuals, as that question is not before us. Nor do we find it necessary to address the claim the State raises on eross-appeal: whether the district court erred in finding that the defendants' conduct in fishing for king salmon with different types of prohibited gear was religiously based conduct. As we have just explained, even assuming the defendants met that burden, the religious right they asserted was outweighed by the State's compelling interest in maintaining the health of the Kus-kokwim River king salmon population. Conclusion We AFFIRM the judgments of the district court. . Alaska Statute 16.05.258 addresses the subsistence use and allocation of fish. That statute requires the Board of Fisheries to identify the fish stocks or portions of fish stocks that can be harvested consistently with sustained yield. See AS 16.05.258(b). If the Board determines that a fish stock can be harvested consistently with sustained yield, the Board is required to adopt regulations providing a reasonable opportunity for subsistence use. See AS 16.05.258(b)(1)-(4). However, the taking of fish authorized under this statute "are subject to regulations regarding open and closed areas, seasons, methods and means, marking and identification requirements, quotas, bag limits, harvest levels, and sex, age, and size limitations." AS 16.05.258(e). . At the subsequent trials, the defendants testified regarding the sincerity of their religious beliefs and the district court found that the defendants were sincere in their religious beliefs. . 604 P.2d 1068 (Alaska 1979); see also Swanner v. Anchorage Equal Rights Com'n, 874 P.2d 274, 282 (Alaska 1994) (reaffirming the Frank test for purposes of the Alaska Constitution and choosing not to follow federal constitutional law under Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). Under the federal constitution, the free exercise clause is not implicated by a religiously neutral and generally applicable law. See Smith, 494 U.S. at 879, 110 S.Ct. 1595. In response to the Supreme Court's decision in Smith, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the federal government from enacting a neutral and generally applicable law that substantially burdens a person's free exercise of religion unless the government can demonstrate that the law is the least restrictive means of furthering a compelling government interest. See Burwell v. Hobby Lobby Stores, Inc., - U.S. -, 134 S.Ct. 2751, 2761 n. 3, 189 LEd.2d 675 (2014) (RFRA's least restrictive means requirement provides broader protection for religious liberty than was available under the free exercise line of cases preceding Smith). RFRA, however, does not bind the states. See City of Boerne v. Flores, 521 U.S. 507, 533-34, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). . Frank, 604 P.2d at 1069. . Id. . Id. . Id. . Id. . Id. at 1071. . Id. . Id. . Id. at 1073. . Id. at 1072-73. . Id. at 1072. . Id. at 1073. . I4 . Id. . Id. at 1074. . Id. at 1075; see 5 AAC 92.019(d) (providing for an affirmative defense to prosecution for hunting or taking big game outside of season or bag-limit restrictions when the meat is used in certain religious ceremonies) (effective Aug. 8, 1987). . Under the "Tier II" permitting system, if the harvestable portion of the fish stock is not sufficient for all subsistence uses, the state may distinguish among subsistence users based on their customary dependence on the fish stock and their ability to obtain food if subsistence use is restricted or eliminated. See 5 AAC 92.062(a); see also AS 16.05.258(b)(4)(B) (authorizing the adoption of regulations distinguishing among subsistence users based on their customary and direct dependence on the fish stock as a mainstay of livelihood, the proximity of their domicile to the stock, and the ability of the subsistence user to obtain food if subsistence use is restricted or eliminated). . Frank, 604 P.2d at 1073. . Larson v. Cooper, 90 P.3d 125, 132-33 (Alaska 2004). . Native Vill. of Elim v. State, 990 P.2d 1, 8 (Alaska 1999); see Charles v. State, 232 P.3d 739, 745 (Alaska App.2010) (noting that the district court should not second-guess the wisdom or efficacy of game regulations because "[mJanag-ing game for subsistence and other competing uses is a complex task that requires considerable expertise"). . See Alaska Const. art. VIII, § 4 (providing that state fisheries "shall be utilized, developed, and maintained on the sustained yield principle"); 5 AAC 07.365 (providing guidelines for managing the Kuskokwim River salmon fisheries for sustained yield). . Frank, 604 P.2d at 1074.

6873597

Tommie PATTERSON, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee

Patterson v. Geico General Insurance Co.

2015-04-03

No. S-15265

562

577

347 P.3d 562

347

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Tommie PATTERSON, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.

Tommie PATTERSON, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. No. S-15265. Supreme Court of Alaska. April 3, 2015. Rehearing Denied June 15, 2015. Tommie Patterson, pro se, Anchorage, Appellant. Kimberlee A. Colbo, Hughes Gorski See-dorf Odsen & Tervooren, LLC, Anchorage, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

7763

49347

OPINION BOLGER, Justice. I. INTRODUCTION A driver injured in a hit-and-run accident sued his car insurance company, claiming it had breached his insurance contract by failing to reasonably compensate him for his injuries. He later moved to amend his complaint to include racketeering, embezzlement, mail fraud, and bad faith claims, but the superior court denied the motion. A jury trial was held, and the jury returned a liability verdict that was smaller than the insurance company's offer of judgment. The superior court ruled that the insurance company was the prevailing party and awarded attorney's fees and costs. The driver appeals the denial of his motion to amend, the awarding of attorney's fees and costs, and several of the court's other procedural and evidentiary rulings. Because we see no abuse of discretion in the court's rulings, we affirm the judgment. II. FACTS AND PROCEEDINGS Tommie Patterson was injured in a hit- and-run accident in December 2009. The front driver's side door of Patterson's SUV was visibly damaged by the collision, and Patterson complained of neck and shoulder pain to an examining physician. At the time of the accident, Patterson held a GEICO General Insurance Company (GEICO) automobile insurance policy that contained a provision for uninsured motorist coverage. Patterson and GEICO disputed the severity of Patterson's injuries sustained in the December accident. Patterson, initially represented by counsel, filed a complaint against GEICO alleging breach of the insurance contract. He claimed that he had "incurred medical expenses, travel expenses and general damages" for which "GEICO has refused to offer . a reasonable amount." In its answer, GEICO admitted that Patterson had a GEICO insurance policy, that he had reported a hit-and-run accident, and that he "may be entitled to some uninsured motorist benefits under [his] coverage." But GEICO also raised affirmative defenses, asserting that Patterson's "injuries . may be the result of a pre-existing or subsequently occurring condition," and that Patterson "is not entitled to recover medical expenses paid under his own Medical Payments Coverage." Patterson's attorney moved to withdraw for cause. The attorney explained: [Patterson] has refused to take my advice regarding resolution of this matter and I feel that I have done everything I can to explain to him that even though he has [$1,000,000] worth of coverage, he does not have a [$1,000,000] case and I will not present that as an offer to settle. Patterson consented to the attorney's withdrawal and notified the court that he intended to proceed pro se. He acknowledged that disagreements with his attorney over the available damages had led to the attorney's withdrawal. GEICO moved for an order in limine to manage the case as a personal injury dispute, to prevent both parties from presenting evidence or arguments about Patterson's policy limits, and to notify Patterson that his medi-eal records-including his medical history from before and after the accident-might be admissible. The superior court granted GEICO's motion. Patterson then moved to amend his complaint to include new claims, alleging racketeering, embezzlement, mail fraud, and bad faith. He claimed that GEICO refused to honor its contract with him and was thereby committing "'[flraud' by selling insurance policies[ ] knowing very well that the policies were not going to be honored." The court denied Patterson's motion to amend, finding it both untimely and futile. The court concluded: "Mr. Patterson makes no evidentiary showing to justify a late-filed [racketeering] claim. His pleadings reveal [a] lack of understanding about Gefco's contract obligations. Amendment would be futile[.]" At a pretrial status hearing, the court advised Patterson that he was not entitled to $1,000,000 for his injuries and suggested that he might be acting against his own interests by taking the case to trial. Patterson replied that he was only asking for a "fair" sum and that he was unwilling to settle for the amount GEICO had offered. GEICO's counsel informed the court that Patterson's offers of judgment were for $800,000 and $1,000,000, and he indicated that a jury trial remained necessary to resolve the parties' dispute. In December GEICO perpetuated the testimony of its expert witness, Dr. Douglas Bald, by deposing him with Patterson present. Dr. Bald testified that, after reviewing Patterson's medical records, he believed the accident had caused "very minor muscular type injuries to [Patterson's] neck, upper back, [and] chest area" and that Patterson "had effectively recovered from the injuries . as of approximately January 12, 2010, which would be a little over a month post-accident." Dr. Bald also opined that many of Patterson's claimed injuries-most notably his lower back pain-were the result of preexisting conditions. Patterson objected to Dr. Bald's qualifications, and on cross-examination he questioned Dr. Bald about four malpractice claims that had been filed against him over the course of his career. Dr. Bald acknowledged that he had settled a single, legitimate malpractice claim against him, but he testified that the remaining three claims had been dismissed. Patterson also suggested that there might have been errors in the medical records upon which Dr. Bald relied. Dr. Bald acknowledged that doctors occasionally fail to note reported symptoms in medical records. But he also testified that he had relied on multiple records and that December 2009 records consistently did not include references to Patterson's claimed lower back pain. Fifteen days before the trial was set to begin, Patterson moved to disqualify the trial judge. Patterson argued that the judge was biased and prejudiced against him. The superior court denied the motion to disqualify and the matter was assigned to another superior court judge for review, as required by AS 22.20.020(c). The reviewing court found no basis for Patterson's claims. During the week before trial, the superior court ordered a pretrial conference to determine whether Patterson was willing to follow the court's orders while in the presence of the jury. The court was concerned about statements in Patterson's trial brief asserting "a [Flirst [A}Jmendment right to speak and present all issues . on any subject[ ] matter pertaining to Geleo's embezzlement, fraud[ ], [and] refusal to honor [the] insurance policy[] limits of their contract." At the hearing the court reiterated that the case would be tried only as a personal injury dispute. The court also informed Patterson that it would dismiss the suit unless Patterson unambiguously agreed to follow the court's orders and limit his evidence and arguments to the only relevant issue: the severity of Patterson's accident-related injuries. Patterson eventually agreed, and the court ruled that his agreement was sufficient assurance to allow the trial to proceed. The superior court held a jury trial. Patterson declined to testify, and chose to rely exclusively on his evidentiary exhibits and the videotaped deposition of Dr. Bald. During Patterson's opening statement, the court sustained multiple objections when Patterson attempted to discuss facts outside his exhibits and Dr. Bald's deposition. And when Patterson tried to tell the jury that there were subjects he had been instructed not to discuss, the court ordered him to stop talking and sit down. During GEICO's opening statement, Patterson objected when his prior medical history was mentioned, but the court overruled this objection. Patterson then introduced and played Dr. Bald's videotaped deposition, which was edited to exclude portions the court had previously ruled inadmissible. Following the playback of the deposition and out of the jury's presence, Patterson rested his case, and GEICO moved for a directed verdict on Patterson's claim for future noneconomic damages. GEICO argued that the evidence Patterson presented-his medical records, which extended only through early 2010, and Dr. Bald's deposition testimony-provided no factual basis for these damages. The court granted GEICO's motion and noted that Patterson could have avoided this partial directed verdict by testifying. - The jury then returned for closing arguments. During Patterson's closing argument, the court sustained all seven of GEI-CO's objections-most of which were for stating facts not in evidence-and ultimately ordered Patterson to end his argument before his time had expired. During GEICO's closing argument, the court overruled Patterson's objection that GEICO should not have been permitted to recommend a specific pain and suffering award. And throughout Patterson's rebuttal argument, the court sustained additional objections when Patterson expressed his disagreement with the court's evidentiary rulings, mentioned his insurance policy's $1,000,000 coverage limit, and suggested that the outcome of his case would personally affect the individual members of the jury. After this final objection, the court again ordered Patterson to "have a seat." The jury deliberated for less than two hours before returning a verdict finding GEICO liable for $5,000 in past noneconomic damages and $10,000 in past medical expenses. Patterson moved for a new trial and relief from judgment under Alaska Civil Rules 59(d) and 60(b), alleging that his right to an impartial judge and jury had been violated. The superior court denied Patterson's motion. GEICO moved for a verdict reduction to reflect medical expenses already paid on Patterson's behalf, for entry of final judgment and recognition as the prevailing party, and for attorney's fees and costs under Alaska Civil Rule 68. The superior court granted these motions. The court subtracted $5,000 from the jury's verdict to reflect already reimbursed medical expenses, added $1,386 for prejudgment interest, and deducted $6,742 for GEICO's attorney's fees and $3,087.25 for GEICO's costs. The court is sued a final net judgment of $1,556.75 in favor of Patterson. Patterson appeals. III STANDARD OF REVIEW We review the denial of a motion to amend a pleading for abuse of discretion "It is within a trial court's discretion to deny such a motion where amendment would be futile because it advances a claim or defense that is legally insufficient on its face. We use our independent judgment to review a conclusion that an amendment meets that description." "We review the rejection of a motion to disqualify for abuse of discretion." We also review the superior court's application of the evidence rulese-including the court's sua sponte rulings-for abuse of discretion. But "[elrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." And unless the superior court committed plain error, we review evidentiary rulings only when a party preserves the issue through an objection or an offer of proof. "Constitutional issues are questions of law subject to independent review." We also independently review jury instructions and special verdict forms. But before we will "overturn a jury instruction or special verdict form, we must conclude not only that the instruction or special verdict form was legally erroneous, but also that the verdict would probably have been different but for the error." "Questions concerning an offer of judgment's meaning and whether the offer complies with Rule 68 raise issues of law, which we review independently." IV. DISCUSSION Patterson does not contest the jury's factual findings that he suffered $5,000 in past noneconomic damages and $10,000 in medical expenses. Instead, he claims that the superior court abused its discretion and violated his constitutional rights by ruling against him on various motions throughout the proceedings. We review each of Patterson's arguments in turn. A. The Superior Court Did Not Abuse Its Discretion By Denying Patterson's Motion To Amend His Complaint. Patterson argues that the superior court should have allowed him to amend his complaint to include racketeering, embezzlement, mail fraud, and bad faith claims. Patterson contends that the superior court, by denying his motion to amend, abused its discretion under Alaska Civil Rule 15. Under Rule 15, if a responsive pleading has been served and the action has been set for trial, a party may amend his pleading "only by leave of court or by written consent of the adverse party." But "leave shall be freely given when justice so requires." In deciding whether the superior court has abused its discretion by denying a motion to amend, we balance "the possible prejudice to [the nonmoving party] in defending [the new] claims with the potential harm caused to [the moving party] if he is preelud-ed from litigating these issues." We have recognized several reasons to uphold such a denial, including "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, ete." But even an unreasonable delay in moving to amend pleadings does not justify denying the motion absent prejudice to the nonmoving party. Here the superior court gave two reasons for denying Patterson's motion to amend his complaint: untimeliness and futility. The court noted that, at the time of the motion, the trial was "set to occur in two months." The court also concluded that Patterson made "no evidentiary showing to justify a late-filed [racketeering] claim. His pleadings reveal [a] lack of understanding about Geico's contract obligations." At a status hearing held soon after the denial of the motion, the court elaborated further: I denied [your motion} because you didn't show me any . color[able] basis.... You had to show me that GEICO did something that was legally unreasonable that would amount to bad faith. You had to show me some evidence of that, and . you did not[.] . [The essence of your beef was that GEICO wasn't paying you an astronomical amount of money.... . [There's no evidence you've presented or argument . in your motion that can tell me . what [you're] saying they did wrong.... [I)f I look at it and I say, "The gentleman doesn't understand the law [and] there's no way a jury can get there based on what he says," I'm going to deny that amendment to you or anybody else. We do not need to determine whether the superior court's untimeliness finding was erroneous, or whether that finding was sufficient to justify the denial of Patterson's motion to amend. The futility of Patterson's proposed claims provides an independent basis for denying the motion. Patterson presented no factual allegations that could support his new claims, which were all predicated on his apparent understanding that GEICO was required to pay him his $1,000,000 policy limit in the event of an accident. Patterson claimed at a pre-trial hearing that the superior court misinterpreted the legal theory behind his proposed claims, but he provided no alternative legal or factual grounds to support these claims." Most importantly, Patterson at no point alleged that his medical costs or pain and suffering damages approached a sum anywhere near the $800,000 and $1,000,000 settlement offers he made to GEICO. Because we agree with the superior court that Patterson's proposed new claims were futile, we conclude that the court did not abuse its discretion by denying Patterson's motion to amend. B. The Reviewing Court Did Not Abuse Its Discretion By Denying Patterson's Motion To Disqualify The Trial Judge. About two weeks before the trial was originally set to begin, Patterson moved to disqualify the trial judge. Patterson supported his motion for disqualification by noting that the judge had granted summary judgment against him in a separate case and had ruled against him on evidentiary motions in the present dispute. Patterson further alleged a wide-ranging conspiracy of trial fixing and attempted murder carried out by the judge, GEICO, five other judges, and three other companies. The superior court denied Patterson's motion, and the matter was assigned to another superior court judge for review. The reviewing court affirmed the denial of Patterson's motion, concluding that there was no evidence of bias or prejudice in the trial judge's evidentiary rulings nor "any basis for Mr. Patterson's multiple judge conspiracy theories." The court noted that "[gleneral dissatisfaction with a judge's ruling is not a ground for recusal or Similarly, personal bias or prejudice does not exist simply because a judge previously presided over a case involving the same party." Patterson argues that the denial of his motion to disqualify the trial judge was an abuse of discretion. He supports this argument with a number of claims, some of which he asserts for the first time on appeal. We review previously unraised issues only for plain error, which "exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted." Because we perceive no plain error, we limit our review to Patterson's original claims. The reviewing court did not abuse its discretion by denying Patterson's motion to disqualify. "There is no rule requiring recusal or disqualification of a judge who previously has presided over a case involving the party seeking disqualification or recu-sal." And we have held that "[tlo succeed on a motion to disqualify a judge for bias, the movant must show that the judge's actions were the result of personal bias developed from a nonjudicial source." We see no evidence of bias in the trial judge's evidentia-ry rulings, and Patterson has provided no evidence to substantiate his conspiracy claim. We therefore affirm the denial of Patterson's motion to disqualify the trigl judge. C. The Superior Court Did Not Abuse Its Discretion By Overruling Patterson's Objections To Dr. Bald's Deposition Testimony. Patterson contends that the superior court abused its discretion by overruling some of his objections during the deposition of Dr. Bald. Patterson claims that one of GEICO attorney's coached Dr. Bald's testimony, creating unfair prejudice. He also claims that Dr. Bald's testimony contained false statements that another GEICO attorney knowingly introduced to the jury over his objection. 1. It was not unreasonable for the superior court to overrule Patterson's witness-coaching objections. To support his claim that portions of Dr. Bald's deposition should have been excluded due to witness coaching, Patterson asserts that GEICO's attorney instructed Dr. Bald to lie at two separate points in the deposition. We disagree with Patterson's characterization of the attorney's statements and conclude that the superior court's decision to overrule Patterson's objections was reasonable. The first statement that Patterson characterizes as witness coaching occurred as GEI-CO's attorney questioned Dr. Bald about the extent of Patterson's injuries on the night of the accident. The attorney appeared surprised by one of Dr. Bald's answers, and he repeated Dr. Bald's testimony. While this statement was technically objectionable because it was not in the form of a question, Patterson fails to explain how it amounts to improper witness coaching. He also fails to explain how he was prejudiced by it. The second statement that Patterson cites arose only after Patterson instructed Dr. Bald on how to answer a question. When Dr. Bald rejected the premise of Patterson's question and began to explain why he could not answer it, Patterson told him: "I asked you a question. All you got to do is answer yes or no.... I don't want you . to explain it.... All you got to say is 'yes' or 'no.'" In response to Patterson's incorrect instruction, GEICO's attorney stated that Dr. Bald did "not need to just answer 'yes' or 'no'" if he had more to say. (Emphasis added.) The attorney was making a legal argument against Patterson's instruction and was not advising Dr. Bald to provide any particular answer. Therefore the superior court did not abuse its discretion when it overruled Patterson's improper witness coaching objection. 2. It was not unreasonable for the superior court to overrule Patterson's false-statement objections. Patterson also argues that the superior court should not have admitted a separate portion of Dr. Bald's testimony because it contained false statements. Moreover, he accuses another GEICO attorney of introducing the testimony knowing that the statement was false. Patterson's criticism of the deposition testimony focuses on two of Dr. Bald's assertions: first, that "[tJhere was no reference by the EMTs [in the Anchorage Fire Department Prehospital Care Report] that Mr. Patterson was complaining of any lower back pain," and second, that "[Patterson] was complaining off ] left shoulder pain and neck pain primarily on the left side.... [Patterson] specifically noted that there were no other injuries." Patterson argues that these statements were inconsistent with the emergency room report from the night of the accident, which noted that one of Patterson's chief complaints was "pain in neck and back." We disagree. Dr. Bald's interpretation of the emergency room report appears at least as reasonable as Patterson's. The section of the report that provides a detailed description of Patterson's symptoms contains no mention of lower back pain: "[Patterson] now has pain in his left shoulder which he has had chronically but is worse now, worse to movement. He also has pain in his neck, mostly on the left side as well, No one else was in the vehicle with him. He denies any other injury." (Emphasis added.) Thus the back pain mentioned in the report, when read in the context of the entire document, probably refers to shoulder pain, not lower back pain. But regardless of whose interpretation is correct, Patterson has not demonstrated that Dr. Bald knowingly made a false statement at his deposition, because the document can be read to support the doctor's interpretation. As a result, Patterson has likewise failed to show that GEICO's attorney offered evidence she knew to be false. For these reasons, we, conclude that the superior court's admission of this deposition testimony was not an abuse of discretion. D. The Superior Court Did Not Violate Patterson's Free Speech And Due Process Rights By Preventing Him From Discussing Subjects Outside The Scope Of The Admissible Evidence. During Patterson's opening statement and closing arguments to the jury, the superior court repeatedly sustained GEICO's objections, made its own sua sponte rulings, and ultimately ordered Patterson to conclude his opening statement and closing arguments before his time had expired. Patterson argues that these restrictions on his statements violated his constitutional free speech and due process rights. Patterson's free speech argument is entirely without merit. The U.S. Supreme Court has indicated that free speech rights are severely limited in the courtroom: "It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to 'free speech' an attorney has is extremely cireumseribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal." And we have held that "speech that affects the judicial process can be limited." The courtroom is not a public forum, and sustaining an objection does not violate a litigant's free speech right. ~ Patterson's due process claim, however, warrants more detailed discussion. We interpret this claim as an argument that Patterson's substantial rights were violated when the superior court ruled against him on evidentiary matters. But under Alaska Evidence Rule 6l1(a), a trial court has wide discretion "to control the presentation of evidence so as 'to make the interrogation and presentation effective for the ascertainment of truth'" Patterson's due process claim can have no merit if Patterson cannot even show that the court's evidentiary rulings were unfair or unreasonable, and we see no abuse of discretion in these rulings. Nearly every sustained objection was intended to prevent Patterson from discussing facts not in evidence or from making irrelevant and potentially prejudicial arguments about topics the court had explicitly ordered him not to discuss. Patterson repeatedly refused to abide by the superior court's order barring him from introducing details about his insurance policy to the jury. He tried to talk about the insurance claim process. He obliquely implied that he had car insurance while pulling an object-possibly his insurance card-out of his wallet to show to the jury. He attempted to discuss his insurance coverage limits. And he referenced his rejected insurance fraud claim. The superior court was well within its discretion to limit Patterson's statements on these matters. The superior court also prevented Patterson from arguing that Dr. Bald and Patterson's treating physicians had been sued in the past for medical malpractice. The court stopped Patterson when he began referencing multiple medical malpractice claims brought against Dr. Bald as if they were all factually supported. The court's action was reasonable because Patterson was mischarac-terizing the evidence to the jury. Dr. Bald admitted in his deposition that he had been liable for one instance of medical malpractice during his career. But he also testified that the three remaining claims had been dismissed, and Patterson presented no admissible evidence to contradict this testimony. Likewise, Patterson presented no admissible evidence to support his insinuation that his own doctors had committed malpractice. The court properly excluded all of Patterson's proposed exhibits pertaining to malpractice allegations, because the documents were hearsay and could not be authenticated. The superior court did not abuse its discretion by requiring Patterson to discuss only facts that were supported by the evidence before the jury. And the superior court acted reasonably by ordering Patterson to end his opening statement and closing arguments before his time had expired. Before ordering Patterson to finish speaking during his opening statement, the court gave Patterson many opportunities to correct his approach, advising him five times to focus his statement on the only relevant issue: the extent of his injuries as described by the admissible evidence. Despite these instructions, Patterson's narrative continued to exceed the seope of his evidence, and he ultimately suggested that the jury should consider inadmissible issues: "this matter is not all about [an] injury; it's about more that is not going to be brought out." By this point, it was not unreasonable for the court to conclude that Patterson had nothing else relevant to say. The court's decision to prematurely end Patterson's closing argument was similarly reasonable. During his argument, Patterson again ignored the court's instructions to avoid discussing his insurance details and to focus on relevant facts. Moreover, the court ordered Patterson to finish his closing argument only after Patterson attempted to improperly personalize the verdict to the jury: Ladies and gentlemen, what I'm trying to say is [that] GEICO . is hoping and trying to get not only you but me to take a knife and put it around your neck and pull it, because the decision that is made today is going to affect you, your kids, and anybody else that drive[s] out there on that road because they honestly don't have to honor their contract. Likewise, the court ordered Patterson to finish his rebuttal argument only after he returned again to this improper theme: All I'm asking you all to do is go back to that [deliberation] room and do the right thing. Do the right thing. [GEICO] wants you to do something that|'s] going to [affect] not only you, me, and everybody else. This opinion's going to be all over the country.... This gives insurance companies a chance to lowball you for your claims. That's what that's about. The superior court had a duty to ensure that the trial was fair to GEICO as well as Patterson. The court took reasonable action to control the proceedings and prevent Patterson from introducing irrelevant facts and prejudicial arguments to the jury. The court did not abuse its discretion by limiting Patterson's statements to the relevant evidence. And by providing Patterson with ample opportunity to speak to the jury about the relevant evidence, the court ensured that Patterson received the process he was due. E. Portions Of Dr. Bald's Deposition When It Was Played To The Jury. The superior court sustained objections to six segments of Dr. Bald's deposition. Patterson argues that the court abused its discretion by omitting these segments when the deposition was played to the jury. We disagree. None of the six segments contained testimony that was relevant to the jury's deliberations. One segment pertained to the discov-erability of Dr. Bald's tax documents. Three segments contained Patterson's argumentative and unsubstantiated accusations that Dr. Bald had previously committed multiple instances of medical malpractice and was lying to Patterson about them. Another segment pertained to past malpractice claims that had previously been brought against Patterson's treating physicians; Dr. Bald had no personal knowledge about the doctors or the claims. And the final segment consisted of a legal discussion between Patterson and GEICO's attorney, followed by a series of questions about the misconduct of a different Dr. Bald. Because these portions of the deposition were irrelevant to the issues at trial, the court reasonably omitted them. F. The Trial Court Did Not Err By Overruling Patterson's Objections During GEICO's Opening Statement And Closing Argument. Patterson argues that GEICO made unfairly prejudicial remarks in its opening statement and closing argument. He claims GEICO violated a superior court order by raising his prior medical history and by suggesting a specific amount for pain and suffering damages. Patterson also contends that GEICO's closing argument included a "golden rule" argument, a disclosure of the "ad damnum," and improper personal opinions. During opening statements, GEICO's attorney told the jury: | [¥Jou will see from the medical records that . Mr. Patterson has a history of prior neck problems, prior left shoulder problems, prior knee problems. He also has a history of prior low back issues. You will see . that in the month after this accident, his complaints were all about his neck and his shoulder, that there [were] no specific complaints about his low back or examination or diagnosis regarding his low back until about a month and a half after this accident occurred.... GEI-CO's position in this case will be that he did not sustain a low back injury. And during closing arguments, GEICO's attorney stated: [I]f you look through the records and you add up the medical expenses for December 2009, excluding . three items of treatment [that GEICO believes were unrelated to the car accident], the medical expenses total $6,854.61, and that's what we'd ask that you award Mr. Patterson for past medical expenses. For past general damages, this is typically a difficult area for juries to [grasp], because what the court will tell you is . there's no formula for figuring out what to award somebody for pain and suffering. And in some respects your job is more difficult here because you have no [testimonial] evidence to base an award on. All you have is what's in the medical record.... So in the absence of . testimony, we'd respectfully submit to you that, at most, what you can award is a nominal amount for past pain and suffering, and that's it because that's all the evidence supports in this case. And we'd suggest an award [of] $500 [to] $1,000 for that month of some pain. Patterson's claim that GEICO violated a eourt order by discussing his medical history is without merit. In the court order Patterson references, the superior court explicitly noted that Patterson's medical records could be relevant for determining whether his injuries stemmed from the accident, from preexisting conditioné, or from some combination of both. GEICO's attorney discussed Patterson's medical history for exactly this purpose. Patterson's argument that GEICO violated an order to avoid suggesting a specific damages award is similarly meritless. Although the court ordered both parties not to discuss the details of Patterson's insurance policy-including its coverage limits-GEI-CO remained free to suggest a damages figure to the jury based on the evidence at trial. We also reject Patterson's claim that GEICO made an improper "golden rule" argument. Golden rule arguments "implore[] the jurors to put themselves in the position of [a party], and then to ask themselves what kind of outcome they would wish under the cireumstances." Although we have held that golden rule arguments are prejudicial and should be excluded, GEICO made no such argument in its opening and closing statements. Patterson's "ad damnum" argument seems to refer to GEICO's suggestion that the jury award $500 or $1,000 for pain and suffering. An "ad damnum" is an antiquated term for the total damages claimed in a plaintiff's pleadings. But Patterson's complaint did not include an ad damnum figure, so this argument is without merit. Finally, we reject Patterson's claim that GEICO's attorney expressed an improper personal opinion. The personal opinion objection is typically found in criminal cases, when a "prosecutor . assert[s] personal opinion[s] about the culpability of the defendant." The U.S. Supreme Court has explained that such arguments are prejudicial because they "convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant." This can be particularly prejudicial because "the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." But the prohibition against personal opinions does not prevent an attorney from arguing the evidence from a client's position. Here GEICO's attorney merely summarized the evidence and argued for GEICO's preferred legal outcome. This was entirely proper, and the court did not abuse its discretion by allowing GEICO to argue its case. G. The Superior Court Did Not Misin- : struct The Jury. Patterson argues that the superior court misinstructed the jury by referring to Dr. Bald as an "examining physician" early in the trial and by drafting an incorrect special verdict form. We will overturn a jury instruction or special verdict form only if we conclude both "that the instruction or special verdict form was legally erroneous" and "that the verdict would probably have been different but for the error." Patterson correctly notes that the superior court erroneously referred to Dr. Bald as "a physician who examined Mr. Patterson" while providing the jury with an overview of the evidence they would hear at trial. But Patterson quickly brought this error to the court's attention, and the court addressed the mistake with the jury: I want to correct a misstatement I made.... I said that Dr. Bald was . an examining physician. It turns out I'm wrong.... He's a defense expert. However, he did not conduct an examination of Mr. Patterson. He merely conducted what we call a records review but not a physical examination. So I wanted to correct any misimpression. Patterson did not object to this subsequent characterization of Dr. Bald's role. Moreover, GEICO reiterated during its opening statement that "Dr. Bald conducted what's called a records review. He reviewed Mr. Patterson's records. He did not examine Mr. Patterson." (Emphasis added.) These clarifications, along with the playback of Dr. Bald's deposition to the jury, clearly and accurately described Dr. Bald's role, and Patterson has not presented any evidence that he was prejudiced by the court's initial misstatement. Patterson also argues that the superior court erred by crafting a special verdict form based on GEICO's proposed form, not his. But there were only three material differences between the court's special verdict form and Patterson's proposed form: (1) the court's form asked the jury whether it was "more likely true than not" that Patterson was injured by the December 2009 accident; (2) Patterson's form incorrectly stated that "GEICO [was] obligated to pay to Plaintiff the applicable policy limit . spelled out in the contract"; and (8) Patterson's form contained a reference to "bad faith damages." Patterson is correct that, in the absence of further instruction, asking the jury to evaluate whether he had been injured in the accident might have been prejudicial in light of GEICO's admission that he sustained at least minor injuries. Nevertheless, both the superior court and GEICO informed the jury that this issue was not contested and that the jury was required to find that the car accident resulted in personal injury to Patterson. Because the jury followed this instruction, Patterson suffered no prejudice. Patterson's remaining complaints about the court's special verdict form are entirely without merit. Neither Patterson's policy limit nor his proposed bad faith claim were relevant to the jury's deliberations, and referencing either item on the special verdict form would have caused unfair prejudice to GEICO. For these reasons, we conclude that the superior court did not misinstruct the jury. H. The Superior Court Did Not Err By Adjusting The Judgment Or Awarding Attorney's Fees And Costs To GEICO. Patterson argues that the superior court erred by adjusting the final judgment by $5,000 to account for medical expenses that GEICO had already paid. He also argues that the superior court erred by granting GEICO's request for attorney's fees and costs. Patterson claims that, by deducting $5,000 from the jury verdict, the superior court erroneously ordered him to "pay GEICO back" for the medical expenses he incurred. This is incorrect. The unadjusted jury verdict covered all of Patterson's damages, and the court's adjustment reflected GEICO's past compensation to Patterson in the form of paid medical expenses. Indeed, had the court failed to make this adjustment, Patterson would have received a double recovery. We also conclude that the superior court did not err by declaring GEICO the prevailing party and granting GEICO's request for attorney's fees and costs. Under Alaska Civil Rule 68, if a party serves an offer of judgment "more than 10 days before the trial begins" and the final judgment "is at least 5 percent less favorable to the offeree than the offer, . the offeree . shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney's fees incurred by the offeror from the date the offer was made." Rule 68(b)(2), which is applicable here, provides that "if the offer was served more than 60 days after the date established in the pretrial order for initial disclosures . but more than 90 days before the trial began, the offeree shall pay 50 percent of the offeror's reasonable actual attorney's fees." GEICO presented Patterson a valid offer of judgment for $15,001 plus prejudgment interest, "In addition to the $5,000.00 in auto medical payments benefits previously paid by Geico on plaintiff's behalf." (Emphasis added.) The superior court, after deducting $5,000 for GEICO's past medical payments from the jury verdict and adding $1,386 in prejudgment interest, determined that the final judgment for Patterson was $11,386. Because this amount was more than five percent smaller than the $15,001 plus interest that GEICO had previously offered Patterson, the court concluded that GEICO was the prevailing party and was therefore entitled to attorney's fees and costs under Rule 68. GEICO reported that it had incurred $3,087.25 in costs, and that it was eligible for a $6,742 attorney's fees award under Rule 68(b)(2). The court subtracted these expenses from Patterson's final judgment amount, which resulted in a net final judgment of $1,556.75 in favor of Patterson. We see no error in the court's calculations. v. CONCLUSION We AFFIRM the judgment of the superior court in all respects. . Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010). . Id. at 174-75 (quoting Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287 (Alaska 2004)) (internal quotation marks omitted). . Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002). . See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996). . Alaska R. Evid. 103(a). . Alaska R. Evid. 103(a), (d). . Harrod v. State, Dep't of Revenue, 255 P.3d 991, 995 (Alaska 2011) (citing Eagle v. State, Dep't of Revenue, 153 P.3d 976, 978 (Alaska 2007)). . Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005)). . Id. (citing Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)). . Jackman v. Jewel Lake Villa One, 170 P.3d 173, 177 (Alaska 2007). . In addition to the arguments discussed below, Patterson claims the superior court abused its discretion by denying his motion for a new trial in light of his allegation that several jurors lied during voir dire. But it was reasonable for the court to deny this motion, because Patterson's jury misconduct allegation was conclusory and lacked evidentiary support. Although Patterson presents this court with documents that he claims reveal inaccuracies in several jurors' statements, the documents were never presented to the superior court, have not been authenticated, and are not included in the record. We therefore decline to consider them. . Alaska R. Civ. P. 15. . Miller v. Safeway, Inc., 102 P.3d 282, 288 (Alaska 2004). . Id. at 294 (quoting Betz v. Chena Hot Springs Grp., 742 P.2d 1346, 1348 (Alaska 1987)) (internal quotation marks omitted). . Id. . See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska 2010) ("We consider with independent judgment whether a proposed amended complaint could survive dismissal; if we conclude that it could not, we will hold that the superior court did not abuse its discretion by denying the motion for leave to amend."); see also Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 283, 287-88 (Alaska 2004) (affirming denial of motion to amend because amended complaint's claims were preempted by federal law); Taylor v. Johnston, 985 P.2d 460, 464-66 (Alaska 1999) (affirming denial of motion to amend where plaintiff could not establish a tort claim). . Immediately after Patterson claimed he was not asking GEICO for $1,000,000, GEICO's attorney informed the court that, before the hearing, Patterson had made "an offer of judgment for $800,000.... It was $1,000,000 before, but now it's $800,000." Patterson did not contest this characterization of his settlement offers. . See AS 22.20.020(c) ("If a judicial officer denies disqualification the question shall be heard and determined by another judge assigned for the purpose by the presiding judge of the next higher level of courts. ."). . Specifically, Patterson claims for the first time on appeal that the trial judge was biased against African-American men, was prejudiced against pro se litigants, acted as an "advocate" for GEI-CO, and engaged in ex parte communications with GEICO's attorney. . See Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (quoting Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 276 P.3d 422, 436 (Alaska 2012)) (internal quotation marks omitted). . Patterson's new claims are both overstated and unsubstantiated. For instance, Patterson alleges that the trial judge called him a "dog" and spoke to him with "anger and hatfred] in his voice." But the trial judge did not call Patterson a dog; he merely used a variant of the idiom "barking up the wrong tree." And the courtroom audio recordings contain no evidence that the judge spoke menacingly to Patterson. Patterson also contends that the trial judge engaged in "ex parte communications" with GEICO. This contention appears to stem from a statement the judge made to GEICO's attorney off the record but in Patterson's presence. By definition, therefore, the statement was not an ex parte communication. See Brack's Law Dictionary 316 (Oth ed.2009) (defining "ex parte communication" as "lal communication between counsel and the court when opposing counsel is not present"). Patterson further asserts that the trial judge has "a history of out of court ex[] parte communications," but he points to no evidence in the record to back this allegation. . Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994) (emphasis in original). . Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quoting Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989)) (internal quotation marks omitted). . Patterson also alleges other forms of professional misconduct on the part of GEICO's attorneys, including (1) representing Patterson without permission and (2) improperly and prejudicially substituting counsel. He raises these claims for the first time on appeal; because we perceive no plain error, they are waived. . See Alaska R. Prof. Conduct 3.3(a) ("A lawyer shall not knowingly . make a false statement of fact or law to a tribunal . or . offer evidence that the lawyer knows to be false."). . Gentile v. State Bar of Nev., 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 LEd.2d 888 (1991). . Turney v. State, 936 P.2d 533, 541 (Alaska 1997) (citing Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972)) (rejecting First Amendment claim by private citizen advocating within courthouse for jury nullification). . See Zal v. Steppe, 968 F.2d 924, 932 (9th Cir.1992) ("Traditional First Amendment analysis also supports the idea that lawyers (and others) have no First Amendment right to speak freely in a courtroom: a courtroom is not a public forum. ."). . See Alaska R. Evid. 103(a). . Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (quoting 1 Joun W. Strong, Mccormick on Evinence § 55, at 225 n. 21 (4th ed.1992)). . See Alaska R. Evid. 802 (hearsay rule), 901 (authentication requirement). . Cf. State v. Raspberry, 452 S.W.2d 169, 172 (Mo.1970) (rejecting as improper an argument that jury should return guilty verdict "for the sake of your children, . for your wives, . for your families, [and] for the sake of the people of the community"). . Patterson also argues that the court violated his confrontation and due process rights by denying his request to examine Dr. Bald telephonically at trial, and he accuses one of GEICO's attorneys of making a false statement to this court by mischaracterizing Confrontation Clause doctrine. But the Confrontation Clause does not apply to civil proceedings, and GEICO's attorney's statement to that effect was both accurate and proper. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him." (emphasis added)). And the superior court generally does not have subpoena power to require out-of-state witnesses to appear. See Alaska R. Civ. P. 45(e) ("A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state." (emphasis added)). . Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978). . Id. (citing Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966)). . See, e.g., Jackson v. Leu-Pierre, 112 N.H. 406, 296 A.2d 902, 903 (1972) ("The plaintiff's original writ . contained an ad damnum in the amount of $12,000.00. By motion granted by agreement ., this was increased to $13,500.00 due to the addition of a claim for property damage."). . See Noel v. State, 754 P.2d 280, 283 (Alaska App.1988). . United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). . Id. at 18-19, 105 S.Ct. 1038. . Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)). . Patterson argues that the proper interest rate should have been 8%, not the 3.75% the'court used. But it is unclear where Patterson obtained this figure, since the statute he cites, AS 45.45.010(a), is not only irrelevant but references an interest rate of 10.5%. Regardless, the correct interest rate under AS 09.30.070 was 3.75%-that is, 3% more than the .75% U.S. Federal Reserve discount rate in effect on January 2, 2013. See U.S. Fep. Reserve, Discount anp Apvance Rates: Novemeer 19 anp Decemerr 10, 2012, at 2 (2012), available at http://www federalreserve. gov/newsevents/press/monetary/monetary 20130108a.pdf.

10435668

STATE of Alaska, Appellant, v. Miguel MICHEL, Appellee

State v. Michel

1981-10-08

No. 5381

383

386

634 P.2d 383

634

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Appellant, v. Miguel MICHEL, Appellee.

STATE of Alaska, Appellant, v. Miguel MICHEL, Appellee. No. 5381. Court of Appeals of Alaska. Oct. 8, 1981. W. H. Hawley, Jr., Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellant. James G. Robinson and Joel H. Bolger, Alaska Public Defender Agency, Kodiak, and Brian Shortell, Public Defender, Anchorage, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1695

10430

OPINION SINGLETON, Judge. Miguel Michel was indicted for the crime of assault with a dangerous weapon (former AS 11.15.220). The trial court granted a mistrial at defendant's request and, after hearing argument from the parties, found prosecutorial prejudicial misconduct and entered an order dismissing the indictment and barring retrial. The state has appealed. The relevant facts are few. During the course of trial, while cross-examining defendant's wife, who was a state's witness, counsel for the state obtained a hearing out of the jury's presence and unsuccessfully sought court permission to impeach her by showing threats by Michel to shoot police officers. The court allowed the state to make an offer of proof by voir diring Mrs. Michel, heard argument, and sustained the defendant's objection to this line of testimony. The jury was recalled and the state resumed cross-examination of Mrs. Michel, during which the state asked her if she had said (during voir dire out of the jury's presence) that she "heard him [defendant] say that he was going to blow somebody's blankety-blank head . . . . " The defense moved for a mistrial which was granted and later, arguing prosecutorial misconduct, successfully sought dismissal of the indictment on double jeopardy grounds. This appeal followed. Before proceeding to the merits, it is necessary to resolve Michel's contention that we lack jurisdiction over the state's "appeal." Michel relies on AS 22.07.020(d)(2) which provides: (d) An appeal to the court of appeals is a matter of right in all actions and proceedings within its jurisdiction except that . (2) the state has no right of appeal in criminal cases except to test the sufficiency of the indictment or information or to appeal a sentence on the ground that it is too lenient. Michel also relies on Alaska Rule of Appellate Procedure 202 which provides in relevant part: Judgments from Which Appeal May Be Taken. (c) In criminal cases, the prosecution has a right to appeal only to test the sufficiency of the indictment or on the ground that the sentence is too lenient. Michel reasons that to "test the sufficiency" of the complaint or indictment is to determine its efficacy as a charging document, i. e., does it state an offense and, by extension, was the evidence submitted to the grand jury or charging authority, resulting in the publication of the indictment or information, adequate? Michel cites cases from other jurisdictions which have strictly construed similar statutory provisions in the manner he suggests. See, e. g., State v. Garrett, 228 Or. 1, 363 P.2d 762, 763 (1961); State v. Ulmer, 351 S.W.2d 7, 10 (Mo.1961); State v. Fayle, 114 Ariz. 219, 560 P.2d 403, 403-04 (1976) (adopting the holding of State v. Lopez, 26 Ariz.App. 559, 550 P.2d 113 (1976)). We reject this interpretation, concluding, after reviewing Alaska law, that the reasons for strictly construing statutes providing for appeals by the government, i. e., to prevent harassment of a defendant by multiple prosecutions draining away his financial resources and subjecting him to the emotional strain of pending proceedings, are more than adequately answered by the liberal interpretation given the double jeopardy clause of our state constitution. We consider this case as an appeal rather than as a petition for review, State v. Browder, 486 P.2d 925 (Alaska 1971), because the judgment herein is unquestionably final, unless reversed. See Jordan v. Reed, 544 P.2d 75, 78-79 (Alaska 1975). We therefore conclude that the state may appeal to this court any adverse final judgment of a trial court in a criminal action dismissing an indictment for any reason unless retrial would be barred by the double jeopardy clauses of the state or federal constitutions. We thus construe Alaska law regarding appeals by the government as essentially the same as current federal law. See Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction § 3919 (1976 and Supp. 1980). We believe this decision is foreshadowed in a number of our supreme court's decisions. In State v. Shelton, 368 P.2d 817 (Alaska 1962) the court rejected the argument that a statute, similar to AS 22.07.-020(d)(2), preventing government appeals in criminal cases "except to test the sufficiency of the indictment or information" permitted appeals only where the face of the indictment was found defective. The court reasoned: The word "sufficient" has a larger meaning than that. It denotes the concept of adequacy and adaptation to a desired end. An indictment has a purpose — to require a defendant to stand trial for a criminal offense with which he is charged. If it is not adequate to answer the purpose for which it is intended, then it is insufficient, regardless of the fact that it may meet all the formal statutory requisites and have all the appearance of validity. When an indictment is dismissed for any reason, the question of its sufficiency may create an issue, and this court has the power of review. [Footnotes omitted.] Id. at 820. In State v. Keep, 409 P.2d 321 (Alaska 1965), aff'g, State v. Keep, 397 P.2d 973 (Alaska 1965), the court refused review of a judgment favoring the accused where the state conceded retrial was barred by double jeopardy but requested an "advisory opinion" on the law. Further, in State v. Browder, 486 P.2d 925 (Alaska 1971), the court rejected a challenge to its jurisdiction to grant petitions for review based upon Keep and AS 22.05.-010, the statute governing appeals to the supreme court, substantially identical in form to AS 22.07.020(d)(2). The supreme court reasoned: [EJrroneous rulings involving important questions of constitutional law will be made during a trial, or at the superior court appellate level, in favor of an accused. How are such mistakes to be corrected? Neither AS 22.05.010 nor Alaska's constitutional prohibition against double jeopardy requires that an erroneous non-final order or decision, favorable to the accused, must stand uncorrected.... Id. 486 P.2d at 931. Finally, in State v. Marathon Oil Co., 528 P.2d 293, 295-296 (Alaska 1974), the court permitted a further appeal to it by the state after a defendant obtained an acquittal at the intermediate appellate level, reasoning that AS 22.05.010 was intended to implement constitutional protection for double jeopardy and was not infringed by allowing a subsequent appeal by the state where the defendant prevailed on the first appeal following his conviction. Read consistently with Shelton and Keep, we believe that the supreme court in Brow-der and Marathon Oil was recognizing the fact that some erroneous final orders would bar retrial under the double jeopardy clause, but that erroneous non-final orders would not. Thus, we conclude, reading all of our supreme court cases together, that AS 22.05.010, governing appeals to the supreme court, and AS 22.07.020(d)(2), governing appeals to this court, will bar prosecution appeals only where double jeopardy would bar retrial if the appeal was successful. Unfortunately, the record is not sufficient to determine the double jeopardy issue. The parties recognize that double jeopardy normally does not preclude retrial where a mistrial is declared at defendant's request. Piesik v. State, 572 P.2d 94, 96 (Alaska 1977). They likewise agree that mere negligence on the part of the prosecutor resulting in a mistrial will not bar retrial. Muller v. State, 478 P.2d 822, 827 (Alaska 1971). Finally, they agree that where the prosecutor, motivated by a desire to avoid an acquittal in a case which is going badly, engages in purposeful misconduct forcing the defendant to move for and the court to declare a mistrial further prosecution will be barred by double jeopardy. Piesik v. State, 572 P.2d at 97; Torres v. State, 519 P.2d 788, 791 (Alaska 1974); Muller v. State, 478 P.2d at 827. The parties disagree as to whether "gross negligence" by the prosecutor, resulting in a mistrial, will bar a retrial. Michel cites United States v. Martin, 561 F.2d 135 (8th Cir. 1977), for the proposition that it should, while the state cites United States v. Leonard, 593 F.2d 951 (10th Cir. 1979), for the proposition that an intent to abort the trial is required before double jeopardy will preclude retrial. Our supreme court expressly reserved the issue in Piesik v. State, 572 P.2d at 97 n. 16. The trial court, in its written decision dismissing the indictment, found that the mistrial was a result of "prejudicial prosecutorial misconduct" barring retrial. It is not clear whether the court found the misconduct to be merely negligent, grossly negligent, or intentional, or in context, what he understood these terms to mean. Therefore, the case must be remanded for further findings of fact and conclusions of law. The judgment of the superior court is vacated and the case REMANDED for the entry of findings of fact, conclusions of law and a new judgment. . Article 1 § 9 of the state constitution states: "No person shall be put in jeopardy twice for the same offense." . The fifth amendment to the United States Constitution provides in pertinent part: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . " This provision is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). . Dismissal of a prosecution without a determination of guilt or innocence may be necessary to vindicate constitutional rights. Nevertheless, the community, apart from the state government and its prosecutors, has a substantial interest in seeing the guilty punished. Consequently, whenever a judge feels that a dismissal is required, under circumstances not determining guilt or innocence, he should make explicit findings of fact and conclusions of law to explain his decision to the parties and the public and to enable intelligent review by this court. Cf. Civil Rule 52 (findings of fact and conclusions of law required in civil cases).

10436896

John C. BELARDE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Belarde v. Municipality of Anchorage

1981-10-15

No. 5460

567

569

634 P.2d 567

634

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

John C. BELARDE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

John C. BELARDE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 5460. Court of Appeals of Alaska. Oct. 15, 1981. Alex Swiderski and Albert Z. Lewis, Jr., Anchorage, for appellant. Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

812

5000

COATS, Judge. On April 29, 1980, John Belarde pleaded no contest to one count of reckless driving, in violation of AMC 9.28.010(A). Because Belarde had been previously convicted in July, 1977, of operating a motor vehicle while intoxicated (OMVI), District Court Judge Beverly Cutler ruled that he was a second offender within the meaning of AS 28.15.181 and therefore revoked his driver's license for one year. In this appeal, Be-larde challenges this conclusion as a matter of statutory construction. We reject this challenge and affirm the finding of the district court. AS 28.15.181 reads in part as follows: Court suspensions, revocations, and limitations. (a) The following are grounds for the immediate suspension or revocation of a driver's license: (1) manslaughter or negligent homicide resulting from the driving of a motor vehicle; (2) a felony in the commission of which a motor vehicle is used; (3) failure to stop and give aid as required under the laws of this state when a motor vehicle accident results in the death or personal injury of another; (4) perjury or the making of a false affidavit or statement under oath to the department under a law relating to motor vehicles; (5) driving or operating a motor vehicle while under the influence of alcohol or another drug; (6) reckless driving; or (7) using a motor vehicle in unlawful flight to avoid arrest by a peace officer, (b) A court convicting a person of an offense under (a)(l)-(7) of this section shall revoke that person's driver's license for a period of not less than 30 days for the first conviction . Upon a subsequent conviction of a person for any offense under (a) of this section, the court shall revoke the person's license and may not grant him any limited license privileges for the following periods: (1) not less than one year for the second conviction. . . .[Emphasis supplied.] In construing this statutory language, Be-larde contends that in order to invoke the mandatory one year license revocation, the second conviction must be for the same offense as the first conviction. By contrast, Judge Cutler concluded that the one year revocation should follow as a result of a conviction for any of the seven offenses listed under part (a) of the statute, regardless of what offense the initial conviction was predicated upon. We agree with Judge Cutler's construction of the statute. In support of his argument, Be-larde invokes the ancient and oft-repeated rule of statutory construction that penal statutes are to be strictly construed. C. Sands, Sutherland Statutory Construction § 59.03, at 6-7 (4th ed. 1974). This general rule, however, is not an absolute. Strict construction does not require that statutes be given the narrowest meaning allowed by the language; rather, the language should be given "a reasonable or common sense construction, consonant with the objectives of the legislature." Id. at § 59.06, at 18-19. The intent of the legislature must govern and the policies and purposes of the statute should not be defeated. Id. See Danks v. State, 619 P.2d 720 (Alaska 1980); Carter v. State, 625 P.2d 313 (Alaska App.1981). Applying these principles of statutory construction, we conclude that Judge Cutler adopted a common sense construction of the statutory language consistent with the legislative purpose. It does not seem reasonable to us to conclude that the legislature intended to apply the enhanced punishment provision of the statute only to a person who accumulated two convictions for the same offense but not to apply these provisions to a driver who displayed more variety in his accumulation of serious motor vehicle related offenses. The judgment appealed from is AFFIRMED. . Belarde petitioned for review in the superior court, which denied the petition, and the appeal to this court followed. . Belarde claims that his two convictions are not for the same offense. However, to the extent that reckless driving is a lesser included offense of OMVI, Belarde's original OMVI conviction also encompasses a finding of guilt on the reckless driving charge and Belarde would be a second offender under AS 28.15.181 even under the interpretation of the statute which he argues. See Lupro v. State, 603 P.2d 468, 475 (Alaska 1979). . If the legislature intended to require the court to revoke an offender's driver's license for one year only if he committed the same offense twice, it could easily have drafted the statute to make that intention clear. Instead of AS 28.-15.181(b) stating "upon a subsequent conviction of a person for any offense," the statute could have read, "upon a subsequent conviction of a person for that offense."

10436876

Harry KETZLER, Appellant, v. STATE of Alaska, Appellee; Patrick MITCHELL, Appellant, v. STATE of Alaska, Appellee

Ketzler v. State

1981-10-08

Nos. 5069, 5118

561

567

634 P.2d 561

634

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Harry KETZLER, Appellant, v. STATE of Alaska, Appellee. Patrick MITCHELL, Appellant, v. STATE of Alaska, Appellee.

Harry KETZLER, Appellant, v. STATE of Alaska, Appellee. Patrick MITCHELL, Appellant, v. STATE of Alaska, Appellee. Nos. 5069, 5118. Court of Appeals of Alaska. Oct. 8, 1981. Jane Kauvar, Asst. Public Defender, Mary E. Greene, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellants. Mark I. Wood, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

2835

17462

OPINION SINGLETON, Judge. Harry Ketzler and Patrick Mitchell were convicted in separate trials of operating motor vehicles while under the influence of intoxicating liquor (OMVI) in violation of AS 28.35.030. They appealed their convictions to the superior court where the convictions were affirmed and renew their appeals in this court. Their sole contentions on appeal relate to the manner in which their juries were selected on April 6, 1979. Since the jury selection procedure was identical in both cases, we will address all of their contentions in this single opinion. On March 21, 1979, James R. Blair, Presiding Judge in the Fourth Judicial District, sent a letter to fifteen lawyers who appeared upon the records of the court as representing separate individuals whose OMVI trials were scheduled for the week of April 9 to 13, 1979. In his letter he advised counsel that he was consolidating all of the cases together solely for purposes of jury selection to be held at 9:00 a. m. on April 6, 1979, and he indicated that he would be conducting the jury voir dire but that counsel could submit questions in writing no later than April 4, 1979, which, if appropriate, would be asked. Among the fifteen cases scheduled for trial were those of Ketz-ler and Mitchell. At the time set for jury selection, Judge Blair met with counsel for all of the parties out of the presence of the jury panel, discussed the procedures to be followed, and allowed counsel to interpose objections. Judge Blair indicated that he would call all of the jury panel into the courtroom, ask the panel as a whole certain qualifying questions, and once the jury was qualified he would then voir dire the panel as a whole, putting to the panel such additional questions as had been submitted in writing in accordance with his prior letter. (Apparently, only Ms. Jane Kauvar, an attorney with the Public Defender Agency, submitted written questions). Upon completion of voir dire, thirteen jurors would randomly be selected and seated in the jury box. The cases would be ranked and each jury would be selected in turn. Judge Blair substituted a "striking" system whereby the attorney for each side would strike three potential jurors for a total of six, reducing the thirteen to seven for the customary method of jury selection. The defense would then be permitted to select one of the seven as alternate and the jury would be impaneled for that case. Another thirteen would be randomly selected, which could include some of the jurors previously selected, and the same procedure would be followed until a jury had been selected for each of the pending cases. Once jury selection was completed the jurors would be told when to report for their case and dismissed. Thus, during this single procedure Judge Blair selected juries for each of the fifteen cases to be tried during the week. Judge Blair informed counsel and the jury panel that he would not be trying the cases and that, rather, district judges would preside at each trial. He further informed counsel that they could discuss with the trial judge possible further voir dire of the jurors to determine any bias or prejudice that might have arisen between the initial selection and the time for trial and that an opportunity to challenge any juror for cause would be provided at that time. Both Ketzler and Mitchell were tried by Judge Connelly — Ketzler on April 11 and Mitchell on April 12. In both cases Judge Connelly conducted further voir dire and gave counsel the opportunity to query the jury as well. Both Ketzler's counsel and Mitchell's counsel asked the jurors if any event had occurred since initial selection which might influence their verdict. No one responded affirmatively. Counsel were also permitted to ask the jurors questions about the unusual jury selection procedure utilized the preceding Friday. The record reflects that the Ketzler jurors had not previously sat on an OMVI case prior to trying him while four of the Mitchell jurors had sat on the Ketzler case. Ketzler and Mitchell raise four points on appeal. First, that Judge Blair lacked authority as presiding judge to appoint himself as a district judge for purposes of conducting jury selection. Second, that the mass jury selection procedure which was utilized denied appellants due process of law. Third, that substituting Judge Con-nelly for Judge Blair after the jury was chosen but prior to trial constituted prejudicial error. Fourth, that utilizing one jury selection procedure for OMVI cases and another for all other cases operated to deprive appellants of the equal protection of the law in violation of the state and federal constitutions. We have carefully reviewed the record of this case and the arguments of counsel and have concluded that the superior court did not err in affirming the judgment of the district court in each ease. We will discuss appellants' contentions in order. THE PRESIDING JUDGE'S DECISION TO SELECT JURIES FOR THE DISTRICT COURT Appellants rely on art. 4, § 16 of the Alaska State Constitution which provides as follows: The chief justice of the supreme court shall be the administrative head of all the courts. He may assign judges from one court or division thereof to another for temporary service. The chief justice shall, with the approval of the supreme court, appoint an administrative director to serve at the pleasure of the supreme court and to supervise the adminstrative operations of the judicial system. Appellants contend that only the chief justice can assign a superior court judge to preside over district court matters, including the selection of a jury for a district court case. We disagree. There is nothing in the constitutional provision just cited establishing an exclusive procedure for assignments of judges within and between courts. AS 22.10.130 provides in relevant part: The presiding judge shall in addition to his regular judicial duties (1) assign the cases pending to the judges made available within the district . The supreme court has implemented this statute by adopting administrative rules. Administrative authority over both the superior and the district courts was consolidated in a single presiding judge after a thorough study of the matter in 1974. See, Supreme Court Order No. 183 cited in Jimmie et al. v. Alaska Village Electric Co-Op, Inc., 624 P.2d 1258 (Alaska 1981). Former Alaska Rule of Administrative Procedure 37(a) provided in pertinent part, until amended in July 1980: The presiding judge shall perform the duties required of him by law and shall be responsible for supervising the administration of all court units within his district. Finally, the legislature has given the presiding judge the authority to appoint acting district judges to serve at his pleasure where needed. AS 22.15.170(b). From the foregoing we conclude that the presiding judge of the integrated courts within a district, where in his opinion efficiency in the administration of justice would be advanced, may take charge of jury selection personally in the district courts. Naturally, the jury selection procedure is important and must be conducted within constitutional guidelines, but the propriety of the procedures chosen will be discussed hereafter. Suffice it to say that the presiding judge had jurisdiction to act as he did. Assuming arguendo that the presiding judge lacked authority to appoint himself as a district judge, we would conclude that such appointment was unnecessary to perform the functions questioned herein. The superior court is the court of general jurisdiction, having original jurisdiction over all civil and criminal matters arising under the laws of the State of Alaska. See AS 22.10.020. The district court, on the other hand, is a court of limited jurisdiction. See, e. g., AS 22.15.060(a). Insofar as the criminal jurisdiction of the district courts and the superior courts is the same, such jurisdiction is concurrent. AS 22.15.060(b); see Theodore v. State, 407 P.2d 182 (Alaska 1965), cert. denied, 384 U.S. 951, 86 S.Ct. 1570, 16 L.Ed.2d 547 (1966). Thus, the presiding judge can assign district court matters to superior court judges without assigning the superior court judge to the district court. Therefore, by virtue of his appointment to the superior court, Judge Blair had jurisdiction to choose juries in district court cases assigned to him. We find no error in his doing so. SUBSTITUTION OF JUDGES AFTER THE JURY WAS SWORN Appellants complain of Judge Blair's decision to turn the cases over to district court judges following his selection of the juries. They find no authority condemning this practice and the cases we have found are uniformly contrary to their position. See cases collected in Annot. 83 A.L.R.2d 1032, 1034-35 (1962) and ABA Standards For Criminal Justice, Trial By Jury, § 15-3.3, (2nd ed. 1980), the commentary to which states, at 89: When substitution occurs after selection of the jury but before any evidence is introduced, courts have taken the view that there is no problem because one judge has heard all of the evidence. We find no error in the substitution of judges. DUE PROCESS OF LAW Appellants argue that the jury selection process utilized, i. e. a striking system similar to that in vogue in the southwestern United States, failed to comply with Alaska Criminal Rule 24(d) and (e). Rule 24 provides in relevant part, (d) Peremptory Challenges. After all challenges for cause are completed, the parties shall make or waive their peremptory challenges. First the plaintiff and then the defendant may exercise one or more peremptory challenges alternately until each party successively waives further peremptory challenges or all such challenges have been exercised . A juror peremptorily challenged is excused without cause . (e) Replacement of Challenged Jurors. After a challenge for cause is sustained or a peremptory challenge exercised, another juror shall be selected and examined before further challenges are made. Such jurors shall be subject to challenge as are other jurors. While it is clear that the trial court did not follow this rule in selecting juries in this case, we do not consider that failure to constitute deprivation of due process of law. Criminal Rule 24 is subject to Rule 53 which provides, These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice. Certainly Rule 53 should be sparingly used and the court should not vary the procedures set out in Criminal Rule 24 except for good cause. Here, however, the trial court was faced with a substantial number of district court cases to be tried within a single week. Given the imperative of Criminal Rule 45 requiring speedy trials, we do not consider the trial court to have acted unreasonably in streamlining the jury selection procedure in the manner that it did. If anything, the striking procedure chosen by the trial court gave the parties greater control over jury selection than would have the procedure set out in Rule 24. In the absence of some showing of prejudice, and there is none, we find that the trial court did not abuse its discretion under Criminal Rule 53 in relaxing Rule 24(d) and (e) in the manner that it did. Next, Ketzler and Mitchell charge that they were deprived of due process because some of the jurors that sat on their cases had previously sat on other OMVI cases. While both appellants make this claim, it appears that no one on Ketzler's jury had previously served, at least during the preceding week. In Mitchell's case, four of the jurors had previously sat on the Ketzler jury. Generally, a juror is not disqualified for cause by virtue of having sat previously on a jury trying a different defendant for a like offense. See, e. g., United States v. Carranza, 583 F.2d 25 (1st Cir. 1978); Annot. 160 A.L.R. 753, 762-66 (1946). This is particularly true where, as here, defense counsel challenged no jurors for cause by virtue of interim service. See, e. g., United States v. Williams, 484 F.2d 176, 178 (8th Cir. 1973), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973). Mitchell's reliance on United States v. Price, 573 F.2d 356 (5th Cir. 1978) and United States v. Mutchler, 559 F.2d 955 (5th Cir. 1977), modified, 566 F.2d 1044 (5th Cir. 1978) appears misplaced. In those cases, the court found error in the trial courts' failure to permit additional voir dire regarding interim jury service by the defendants. Here Judge Connelly conducted such voir dire and permitted counsel to supplement his questioning. No challenges for cause were interposed. Consequently, we agree with the superior court that Mitchell has waived this objection. Mitchell argues, nevertheless, that his ability to intelligently peremptorily challenge was compromised by the interim service of four jurors making his early per-emptories meaningless. We recognize that the jury selection process took place six days prior to Mitchell's trial. While additional voir dire was permitted, the court did not expressly grant additional peremptory challenges and Rule 24 does not expressly authorize such under these circumstances. Nevertheless, case law makes it clear that additional peremptory challenges are available under Alaska practice where good cause can be shown for their allowance. See, e. g. Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 588 (Alaska 1973) (Rabinowitz, Chief Justice, concurring). Here Mitchell did not seek additional peremptory challenges from Judge Connelly, the trial judge. Nor did he alert the trial judge to any concerns he might have had about his peremptory challenges. Nor is there anything in the proceedings before the presiding judge or the trial judge which would compel the conclusion that such a request would have been fruitless. Under these circumstances, we believe Mitchell has waived any objection that his right to peremptorily challenge was unconstitutionally diluted. EQUAL PROTECTION Defendants argue that utilizing a striking system instead of a peremptory challenge system only for fifteen OMVI cases violated the equal protection clauses of the federal and state constitutions. United States Const, amend. XIV, § 1; Alaska Const, art. 1, § 1. Alaska's criminal and civil rules are respectively based upon the federal criminal and civil rules of procedure with certain modifications. Among the modifications is Alaska Criminal Rule 53, previously mentioned, which authorizes the trial court to modify the rules in the interest of justice. In evaluating a claim that a particular procedure denies a party the equal protection of the laws, the supreme court in State v. Erickson,, 574 P.2d 1, 11 (Alaska 1978), quoting Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976), established the following test, The classification "must be reasonable, not arbitrary, and must rest upon some difference having a fair and substantial relationship to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." (citation omitted; emphasis added) In the instant case, the presiding judge was faced with an unusually large number of cases to be tried within a single week. Assuming, based upon experience, that the jury selection procedure unduly increased the time required to try cases, he established the procedures criticized here to alleviate the problem. Although consolidated voir dire would undoubtedly have been possible to use in other categories of offenses, we believe that the application of this technique to OMVI cases was particularly appropriate, given the strong similarity of factual, legal, and evi-dentiary issues commonly found in OMVI cases. It is logical to assume that the conservation of time and judicial resources resulting from the use of consolidated voir dire would be maximized when the technique is applied to a class of offenses sharing the close similarity typical of OMVI cases. Here, appellants have made no showing that there existed any other category of cases pending in the district court in Fairbanks as to which consolidated voir dire could have been applied with a comparable level of effectiveness. Under the circumstances, we conclude that Judge Blair's decision to treat these fifteen cases differently was reasonable and not arbitrary, that the means he chose were reasonably related to the end he sought, and that consequently, no equal protection violation occurred. For the foregoing reasons, the judgment of the superior court affirming the decisions of the district court in the Ketzler and Mitchell cases is AFFIRMED. . In addition, appellants argue that by singling out OMVI cases for special procedures, the court intimated to the jury panel that such cases were entitled to less consideration than those involving other crimes. We find no such intimation in the record.

6874014

Margaret A. KELLEY, Appellant, v. STATE of Alaska, Appellee

Kelley v. State

2015-04-10

No. A-10882

1012

1020

347 P.3d 1012

347

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Court of Appeals Judge.

Margaret A. KELLEY, Appellant, v. STATE of Alaska, Appellee.

Margaret A. KELLEY, Appellant, v. STATE of Alaska, Appellee. No. A-10882. Court of Appeals of Alaska. April 10, 2015. Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for the Ap-pellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Court of Appeals Judge. Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

4743

29177

Judge ALLARD, writing for the Court. Shortly after midnight, acting on an anonymous tip, two Alaska state troopers drove up Margaret A. Kelley's driveway to her residence in Willow, Alaska, rolled down the windows of their idling patrol car, and sniffed the air. After detecting the odor of marijuana, the troopers obtained a warrant to search Kelley's home. During that search they discovered and seized evidence of a commercial marijuana grow. For the reasons explained here, we conclude that the troopers had no legal right to approach Kelley's home at that time of night, in the manner that they did, to gather evidence of a marijuana grow. Kelley is therefore entitled to suppression of the evidence obtained as a result of this illegal search. Facts and proceedings Margaret Kelley's home is located at mile 85.5 of the Parks Highway. The residence is rural, set back a considerable distance from the highway, and there are no neighbors close by. On June 30, 2009, at 12:30 a.m., Sergeant Robert Langendorfer and Investigator Kyle Young drove onto Kelley's property to investigate an anonymous tip that she was growing marijuana to sell. The troopers drove up the driveway and parked their patrol car directly in front of Kelley's house, leaving the engine idling for several minutes. The troopers made no effort to contact the occupants of the residence. Instead, they rolled down the windows of their patrol car and sniffed the air. According to the later search warrant application, they were able to detect the odor of growing or recently harvested marijuana. Further investigation revealed that Kelley owned the property but that her electrical usage was "unremarkable"-that is, not indicative of a commercial grow operation. Nevertheless, the troopers obtained a warrant to search the property. When they executed the warrant, they discovered numerous marijuana plants and other evidence of a commercial grow operation. Based on this evidence, the State charged Kelley with four counts of fourth-degree misconduct involving a controlled substance. Kelley moved to suppress the evidence obtained during the search of her home, arguing that the officers unlawfully intruded onto her property when they drove up her driveway after midnight to sniff for narcotics. The trial court denied the motion, ruling that the driveway to Kelley's house was impliedly open to public use because it provided public ingress to and egress from her property, and that the troopers therefore had a right to be there, even after midnight. The court reasoned that "[a] way of ingress or egress does not cease to exist after a certain time of night." Kelley was then convicted in a bench trial on stipulated facts, and she appealed her conviction to this Court. While her appeal was pending, the United States Supreme Court issued its decision in Florida v. Jar-dines. Because Jardines spoke to the pro-priecty of this type of police approach to residential premises, we directed the parties to submit supplemental briefing addressing the case. We have received that briefing, and we now resolve Kelley's appeal. Why we conclude that the troopers' conduct was unlawful and that the evidence obtained during the search of Kelley's home must be suppressed Under the Fourth Amendment to the United States Constitution and Article 1, Section 14 of the Alaska Constitution, a war-rantless search of a home is illegal in the absence of exigent cireumstances. This pro tection against unreasonable searches also extends to the curtilage of the home-those areas immediately surrounding the home in which the resident retains a reasonable expectation of privacy. However, law enforcement officers may enter an area within the curtilage of a home that is "expressly or impliedly opened to the public use." More specifically, "if police utilize normal means of access to and egress from the house for some legitimate purpose, such as to make inquiries of the occupant, . it is not a Fourth Amendment search for the police to see or hear or smell from that vantage point what is happening inside the dwelling." Thus, in Pistro #. State, our supreme court held that a police officer could lawfully drive up a driveway and observe stolen property in plain view through the window of the homeowner's garage. Until now, we have not had occasion to address whether this "public access" exception to the warrant requirement applies to a middle-of-the-night entry into the curtilage of a home. In Jardines, the United States Supreme Court recognized that a police officer has an implicit license to approach a home without a warrant and knock on the front door because this is "no more than any private citizen might do." But the Supreme Court also recognized that the scope of this implicit license is limited not only to the normal paths of ingress and egress, but also by the manner of the visit. As the Court explained, "[to find a visitor knocking on the door is routine {even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to-well, call the police." Thus, in the majority opinion in Jardines, the Supreme Court concluded that the police did not have an implicit license to walk uninvited onto the front porch of a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme Court's decision suppressing the evidence obtained as a result of that search. The case before us involves a trooper sniff," not a dog sniff, and the troopers stayed in their car rather than stepping up onto the porch. But, in another respect, the search in this case was more intrusive than the search in Jardines, because it took place after midnight. Although a late-night search was not before the Court in Jardines, both the majority and the dissent in Jardines were in agreement that there were clear temporal limits on the implied license for public access to a private residence. As Justice Alito noted in the dissent, a visitor may not "come to the front door in the middle of the night without an express invitation"; indeed, such a late-night intrusion "could be cause for great alarm." The majority referred approving ly to the dissent's "no-night-visits rule," noting that "the typical person would find it 'a cause for great alarm' (the kind of reaction the dissent quite rightly relies upon to justify its no-night-visits rule .) to find a stranger snooping about his front porch with or without a dog." Before and after Jardines, courts in other jurisdictions have similarly condemned late-night police incursions onto private property, holding that they are generally outside the seope of the implied license for public access. In State v. Ross, for example, the Washington Supreme Court held that law enforcement agents conducted an illegal search when they approached a homeowner's garage shortly after midnight "for the express, and sole, purpose of searching for evidence of a marijuana grow operation in order to obtain a search warrant." In finding the entry unlawful, the Washington Supreme Court emphasized that "[the deputies entered the property at 12:10 am., an hour when no reasonably respectful citizen would be welcome absent actual invitation or an emergen-ey." Similarly, in Commonwealth v. Ousley, the Kentucky Supreme Court held that a middle-of-the-night police intrusion onto the curti-lage of a home to search a garbage can violated the Fourth Amendment. Noting that "the time of the day of the invasion matters," the court held that "just as the police may invade the curtilage without a warrant only to the extent that the public may do so, they may also invade the curtilage only when the public may do so." Here, the record shows (and the State does not dispute), that the troopers entered the constitutionally protected curtilage of Kelley's home when they drove down her private driveway and parked their car directly in front of Kelley's home. The record also shows (and again, the State does not dispute), that the purpose of this midnight visit was to gather evidence related to the anonymous tip that Kelley was growing marijuana to sell. There is no allegation that the troopers had prearranged business with Kelley, that they were expecting or intending to have direct contact with her, or that any exigency existed that otherwise justified their conduct. Nor is there any evidence that Kelley impliedly consented to the arrival of visitors after midnight-by, for instance, operating a night-time business from her home or hosting a large, late-night social gathering. In deed, the State has articulated no reason to justify the troopers' decision to conduct this investigation after midnight instead of during the day, when the investigation would have accorded with the conduct of a respectful citizen and well-settled law. In urging us to uphold the search, the State emphasizes that, in Alaska in midsummer, it is still light out at 12:30 a.m. But the law's aversion to nighttime searches is not based on the time of sunset, which varies by season, but on the widely recognized right of the individual to privacy and repose in the home at night. We note that in deference to this right, Alaska law requires a search warrant to be executed between the hours of 7:00 am. and 10:00 p.m., regardless of the season, unless there is good cause to execute the search at some other hour. In his dissent, Senior Judge Coats observes that a number of courts have upheld late-night police approaches to residences for the purpose of conducting a "knock and talk" with the occupants. But the legal principles that govern a "knock and talk" do not apply here, because the State never asserted, and the record does not show, that the troopers approached Kelley's residence to engage in a knock and talk. As the Kentucky Supreme Court noted in Ous-ley, "[wlhere the officer seeks only to search and does not interact with the resident, he has no 'legitimate' purpose as understood in the knock-and-talk cases. We further note that the knock-and-talk cases cited by the dissent recognize that the lateness of the hour is an important factor to be considered in assessing the overall coer-civeness and lawfulness of a knock and talk. Here, we reach our conclusion that the troopers' conduct violated the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution based on all of the cireumstances of this case-including the time of night, the troopers' conduct, the State's failure to advance any reason why the troopers could not gather their evidence during the day, or to believe that Kelley impliedly consented to such a late-night visit. The dissent also suggests that our decision will hamper legitimate night-time police investigations. We disagree. Nothing in our decision bars the police from approaching a residence late at night when they have good reason to do so. Likewise, nothing in our decision-or in Jardines-bars the police from using the normal means of ingress or egress to approach a residence, even in the absence of an invitation or exigent cireum-stances, provided that the manner and time in which they do so is consistent with the: conduct of an ordinary, respectful citizen. The search warrant in this case was based almost entirely on the evidence obtained by the troopers' midnight entry onto Kelley's property. Because the troopers were not in a place where they had a legal right to be when they conducted the sniff, the search warrant they obtained is tainted by the illegal search, and the evidence obtained as a result of the warrant must be suppressed. Conclusion We REVERSE the judgment of the superior court. . The record provides no details about the nature of the tip or when it was received. . AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F) & (G); AS 11.71.040(a)(5). , - U.S. -, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). . See Ingram v. State, 703 P.2d 415, 427 n. 10 (Alaska App.1985) (citing Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). . Pistro v. State, 590 P.2d 884, 886 (Alaska 1979). . Wallace v. State, 933 P.2d 1157, 1164 (Alaska App.1997) (quoting 1 Wayne R. LaFave, Search and Seizure § 2.3(c), at 482-83 (3d ed.1996)) (internal quotation marks omitted). . Pistro, 590 P.2d at 885-88. . Jardines, 133 S.Ct. at 1416 (quoting Kentucky v. King, - U.S. -, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). . Id. . Id. at 1416-18; see also id. at 1418-20 (Ka-gan, J., joined by Ginsburg and Sotomayor, JJ., concurring). . See Wallace, 933 P.2d at 1165 (noting that there is no reasonable expectation of privacy from a trooper with "inquisitive nostrils" provided that the trooper is lawfully where he is entitled to be) (quoting 1 Wayne R. LaFave, Search and Seizure, § 2.2(a) at 403 (3d ed.1996)). . Id. at 1422 (Alito, J., joined by Roberts, C.J., and Kennedy and Breyer, JJ., dissenting) (citing State v. Cada, 129 Idaho 224, 923 P.2d 469, 478 (App.1996) ('"Furtive intrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause for great alarm")). . Id. at 1416 n. 3 (emphasis in original). . See, eg., United States v. Lundin, 47 F.Supp.3d 1003, 1012-13 (N.D.Cal.2014) ("[The implied license to visit is generally understood to extend during daylight hours."); State v. Cada, 129 Idaho 224, 923 P.2d 469, 478 (App.1996) (police officers' nighttime intrusion "exceeded the scope of any implied invitation to ordinary visitors and was not conduct to be expected of a reasonably respectful citizen"); People v. Burns, 389 Ill.Dec. 218, 25 N.E.3d 1244, 1253-54 (Ill. App.2015) (condemning warrantless use of drug-detection dog to sniff apartment front door at 3:20 a.m.); Commonwealth v. Ousley, 393 S.W.3d 15, 31 (Ky.2013) (midnight intrusion by police on homeowner's driveway unconstitutional because "[albsent an emergency, such as the need to use a phone to dial 911, no reasonable person would expect the public at his door at [that] time{ ]"); State v. Ross, 141 Wash.2d 304, 4 P.3d 130, 136 (2000) (suppressing evidence where police used driveway to enter property at 12:10 a.m. to search for evidence of marijuana grow, with no intention of contacting defendant); State v. Johnson, 75 Wash.App. 692, 879 P.2d 984, 991-93 (1994) (noting that danger of "violent confrontation" considerably heightened during 1:00 a.m. intrusion). . Ross, 4 P.3d at 136. . Id. . Ousley, 393 S.W.3d at 31. . Id.; see also id. at 30 ("Girl Scouts, pollsters, mail carriers, door-to-door salesmen just do not knock on one's door at midnight; and if they do, they are more likely to be met by an enraged (and possibly armed) resident than one with a welcoming smile."). . See Jardines, 133 S.Ct. at 1415 (defining curti-lage as area "immediately surrounding and associated with the home"). © . The dissent notes that some part of Kelley's driveway was shared with a business. This assertion appears only in the search warrant affidavit, and was never mentioned or relied on by the State in response to Kelley's motion to suppress. As we noted earlier, the State did not dispute Kelley's characterization of her home as "rural in character" and "not close to any adjacent neighbors." . See State v. Witwer, 642 P.2d 828, 833 (Alaska App.1982) (noting that a nighttime search is a "greater violation of privacy" than a daytime search). . Alaska R.Crim. P. 37(a)(3)(C). . Commonwealth v. Ousley, 393 S.W.3d 15, 30 (Ky.2013). . See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk Visits Under Fourth Amendment and State Constitutions, 15 ALR. 6th 515, § 2 (2006). . See, eg., United States v. McDowell, 713 F.3d 571, 572-74 (10th Cir.2013) (affirming denial of suppression motion based on evidence obtained from nighttime driveway sniff where police were on the property because they were attempting to locate suspect in assault investigation). . Accord Florida v. Jardines, - U.S. -, 133 S.Ct. 1409, 1415, 185 L.Ed.2d 495 (2013) ("Complying with the terms of [the implied license for public access] does not require fine-grained legal knowledge; it is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters."). . See Chandler v. State, 830 P.2d 789, 796 (Alaska App.1992).

10439109

David Edward LOVELESS, Appellant, v. STATE of Alaska, Appellee

Loveless v. State

1981-10-15

No. 4977

941

946

634 P.2d 941

634

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

David Edward LOVELESS, Appellant, v. STATE of Alaska, Appellee.

David Edward LOVELESS, Appellant, v. STATE of Alaska, Appellee. No. 4977. Court of Appeals of Alaska. Oct. 15, 1981. John R. Vacek, Asst. Public Defender, Kodiak, and Brian Shortell, Public Defender, Anchorage, for appellant. Peter A. Michalski, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

3647

22458

OPINION SINGLETON, Judge. David Loveless was indicted for the first degree murder of Allen Hanson. A jury convicted him of second degree murder and he appealed to the Alaska Supreme Court which reversed his conviction and remanded for a new trial. Loveless v. State, 592 P.2d 1206 (Alaska 1979) (Loveless I). On retrial he was convicted of involuntary manslaughter. He renews his appeal in this court claiming three errors. (1) He contends that the trial court erred in permitting Dr. Mclver, a clinical psychologist, to testify regarding a statement made by Loveless during a psychological examination conducted shortly after the homicide wherein Loveless said that the killing was an accident. (2) He contends that the court erred in permitting the case to be tried a second time in light of "prosecutorial misconduct" at the first trial which deprived him of his right under the state and feder al constitutions not to be put twice in jeopardy. A variant of this argument is Loveless' contention that permitting a witness to testify whose absence at the first trial triggered the reversal of his conviction infringed the same constitutional rights. (3) Finally, Loveless contends that certain statements that he made to Robert Henderson, the police officer who accompanied him on his return from Leavenworth, Kansas, should have been suppressed because they had been obtained in violation of the fifth and sixth amendments to the United States Constitution. We have determined that the first error requires reversal, and we remand for a new trial. Some of the other issues may recur, however, and we will discuss them as well. We will set out the facts only to the extent necessary to establish the context in which the issues arose. DR. McIVER'S TESTIMONY Hanson was shot and killed at approximately 11:00 p. m. on August 30, 1974. No one but Loveless saw the shooting, but immediately thereafter, Loveless was seen walking away, shoving a gun into his belt or pants. Loveless v. State, 592 P.2d at 1208. Loveless was taken into custody at approximately 2:00 a. m. on August 31, 1974. Fearing he was suicidal, the police had him examined by Dr. William Mclver, a clinical psychologist. The examination which was conducted in Loveless' cell lasted forty-five minutes. No Miranda warning was given. Id. Dr. Mclver testified in rebuttal at Loveless' first trial contradicting Loveless' testimony that he was intoxicated and mentally unbalanced at the time of the shooting. He also testified that Loveless feigned two epileptic seizures. On appeal in Loveless I, Loveless contended that the jail house examination absent a Miranda warning violated his fifth amendment privilege against self-inerimi-nation. The supreme court agreed that under the circumstances of the interview, Dr. Mclver was so closely related to the "police team" that any questioning he conducted concerning the crime should only have occurred after a Miranda warning and that any statement by Loveless that he was involved in the killing or that he actually entertained an intent to kill would have to be suppressed. Id. at 1209 n.7. However, since an order in limine precluded Dr. Mclver from revealing any statements made by Loveless concerning the events surrounding the crime, the supreme court found that the testimony of Mclver regarding his contact with Loveless was in the nature of "real" or nontestimonial evidence to which the right against self-incrimination does not attach. Id. at 1209. On retrial, the same order in limine was obtained, but the prosecution was allowed, after a motion and hearing out of the jury's presence, to deviate from the order in li-mine to the extent of asking Dr. Mclver to testify as follows: PROSECUTOR: We're going to depart a little bit from the ground rules, Doctor. Mr. Loveless has indicated that the incident for which he found — you found him in the jail was the result of an accident. Did he say this to you? McIVER: He did mention an accident to me. PROSECUTOR: All right. And did he do anything when he said it? . . . Did he do anything physical when he said the McIVER: Yes, sir. He put his arms around me and hugged me and moaned. PROSECUTOR: All right. And then later on, how long did this last, this indication? McIVER: This happened at least a couple of times whenever the — the issue came up, and there was a strong moan, grabbing me, then immediate letting go and shifting to — to another situation of answering a question or whatever. PROSECUTOR: Was this an indication to you of some genuine remorse? McIVER: No, again I — it just added to the — to the general feeling that it was contrived. It was just (witness snaps fingers) switched on and off. The state concedes that this line of questioning was error in light of the supreme court's earlier decision in Loveless I but contends that the error was harmless. We are unable to agree that the error conceded was harmless, and we therefore reverse. Before a constitutional error can be deemed harmless, it must be harmless beyond a reasonable doubt. Chapman v. California, 368 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710 (1967), reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977). Loveless' theory that Hanson unexpectedly grabbed the gun from him causing his own death would have supported a jury finding absolving Loveless of criminal responsibility. We are not convinced beyond a reasonable doubt that the jury's rejection of Loveless' justifiable homicide theory was not based in part on their belief that he previewed that theory to Dr. Mclver under circumstances suggesting its falsity. It was only by introducing Loveless' statement that the shooting was accidental, followed by Dr. Mclver's specific opinion as to the falsity of this statement, that the prosecution was able to directly discredit the defense theory of accident and to establish expressly that this defense had been purposefully contrived by Loveless from the very outset. This determination requires reversal and remand for new trial. DOUBLE JEOPARDY We reject Loveless' double jeopardy arguments and hold that he was properly retried and that James Evans was properly permitted to testify. Generally, a defendant waives any double jeopardy claim he might otherwise have by moving for a mistrial, Piesik v. State, 572 P.2d 94, 96-97 (Alaska 1977), or by appealing his conviction, DeSacia v. State, 469 P.2d 369, 379 n.25 (Alaska 1970). Where a defendant seeks a mistrial because of prose-cutorial misconduct, retrial may be barred. Piesik v. State, 572 P.2d at 96. Defendant suggests that the same rule should apply where "prosecutorial misconduct" prompts a successful appeal. It is unnecessary for us to decide that question because even if the rule suggested by Loveless applied it would not help him here. Piesik requires a finding that the prosecutor's conduct was designed to provoke a mistrial and preclude an acquittal where the prosecutor's case is going badly. Defendant concedes Jhat such a finding cannot be made on this record. It is unnecessary to decide whether "gross negligence," in the sense that phrase is used in United States v. Martin, 561 F.2d 135 (8th Cir. 1977), would preclude retrial because the conduct complained of by Loveless was not "gross negligence." We are unable to find that a reasonable prosecutor would have known that he was committing an error of law likely to result in reversal in proceeding as he did. At the first trial, the judge found no error at all in the state's actions and one justice on appeal agreed. See Loveless v. State, 592 P.2d at 1214 (Connor, J., dissenting in part). Finally, we do not view the question put to Dr. Mclver which causes the instant reversal as gross negligence. Though considered by the supreme court in Loveless I, the issue was decided without reference to the specific question asked upon retrial. The prosecutor was not aware of Mclver's specific knowledge of Loveless' claim of accident until the time of retrial, and accordingly, he could reasonably have believed that an exception to the supreme court's general holding could exist with respect to this particular line of questioning. The prosecutor took the matter up out of the presence of the jury, and after hearing from the defendant, the trial court permitted the question to be asked. Under these circumstances we find neither purposeful misconduct nor gross negligence. We accordingly conclude that retrial is permitted. HENDERSON'S TESTIMONY Loveless' final contention is that the trial court erred in refusing to suppress certain statements that he made to a police officer assigned to escort him back to Alaska for retrial after his conviction was reversed. Subsequent to his conviction, Loveless was transferred to a federal prison in Leavenworth, Kansas. After reversal, his attorney successfully moved to have him returned to Alaska for trial. During the trip back, Loveless made incriminating statements. Loveless contends that the use of the statements in evidence against him violated his rights under the fifth and sixth amend ments to the United States Constitution and the analogous provisions of our state constitution. At the suppression hearing, Robert Henderson testified that he was currently Chief of Police in Palmer, Alaska, and that on May 17, 1979, he travelled outside Alaska and by pre-arrangement assisted a state trooper in bringing Loveless back to Alaska. Prior to leaving, Henderson met with the district attorney who told him not to talk to Loveless about the case while they were travelling, and if Loveless tried to talk about it, to tell him not to, and if Loveless persisted, to take notes and write a report. Henderson said he followed these instructions, telling Loveless upon first meeting him at the prison who he was (at which time Henderson says Loveless recognized him) and that he (Henderson) had been involved in the initial investigation in Kodiak. Henderson said that he was in Loveless' company for approximately eighteen hours and that from the beginning Loveless tried to talk about the case despite Henderson's telling him that they should not talk about it, specifically warning Loveless that Loveless had an attorney and that anything Loveless said to Henderson would be repeated in court if Henderson were asked. Despite these warnings, Loveless told Henderson that he "hated the district attorney," that he was "framed by the district attorney," that the gun the prosecutor had wasn't the right gun, and that he had thrown the right gun into the bay. Most of this testimony was related to the jury over objection. The trial court denied the motion on the apparent ground that the statements were volunteered (/. e., that any privilege was waived) and were not the product of interrogation. Subsequent to the trial of this case, the United States Supreme Court decided Rhode Island v. Innis, 446 U.S. 291, 101 S.Ct. 1682, 64 L.Ed.2d 297 (1980), clarifying what that court means by custodial interrogation for purposes of Miranda. There the court held that interrogation includes express questioning or its functional equivalent: That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id. at 301, 100 S.Ct. at 1689, 64 L.Ed.2d at 308 (footnotes omitted). The court added, Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect. Id. at 302 n.8, 100 S.Ct. at 1690 n.8, 64 L.Ed.2d at 308. At trial, Loveless stressed his psychiatric problems as rendering him vulnerable, but he argued primarily that a defendant in custody cannot "waive" the Miranda protection in the absence of counsel, /. e., he simply cannot be interrogated. Citing People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976), and People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968). The trial court did not reach this issue since it found no interrogation took place. At oral argument, Loveless broadened his attack to allege that the state had reason to expect that Loveless would talk to Henderson more readily than another officer because Loveless had written letters to the district attorney and other state officials claiming that Henderson, who had conducted the initial investigation in Kodiak but did not testify at trial, would have exonerated Loveless had he testified. Consequently, defense counsel argued that given Loveless' psychiatric problems, the state knew or should have known that presenting Loveless with Henderson would elicit incriminating statements without regard to any cautions which Henderson would give or questions he would ask. This argument was not made at trial, and it rests on factual assertions not supported in the record. Nevertheless, this case must be remanded for retrial, and we believe that the parties and the trial court should have an opportunity to address the entire issue of fifth and sixth amendment rights under the standards established in Innis and Brewer —standards which we hereby adopt as appropriate under our state constitution as well. Consequently, we reverse and remand for a new trial and such additional pretrial proceedings as are consistent with this decision. REVERSED. . Article 1, § 9 states: "No person shall be put in jeopardy twice for the same offense." . The fifth amendment provides, in pertinent part: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . " This provision is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). . In Loveless I, the supreme court reversed on the grounds that Loveless was not given the opportunity to confront James Evans at trial. It appears that the prosecution based a damaging line of questioning on statements made by Evans before the grand jury. Loveless v. State, 592 P.2d at 1211-12. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), reh. denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). There is a full discussion of the applicability of Miranda to Mclver's testimony in Loveless I, q. v. We will not repeat that discussion here given the state's concession at the second trial that Miranda warnings were not read prior to Mclver's examination of Loveless. .Loveless wishes reconsideration of this holding, but it is binding on this court under the doctrine of the law of the case, except to the extent that it is inconsistent with Estelle v. Smith, - U.S. -, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). See Wolff v. Arctic Bowl, Inc., 560 P.2d 758 (Alaska 1977). Loveless may, if he wishes, challenge the earlier decision in a petition for hearing in the supreme court after publication of this opinion. We express no opinion regarding whether Mclver's testimony at the second trial violated the limited permission granted in Loveless I in other particulars or even whether Loveless I survives Estelle. Should the supreme court not grant a hearing, these matters may be presented to the trial court in the event that Dr. Mclver testifies on retrial. . The state argues (1) that Loveless testified that the killing was accidental and gave his explanation before Mclver testified, (2) that Chief Henderson was permitted to tell the jury that Loveless told him prior to trial that the killing was accidental, (3) that the statements regarding an accident were exculpatory at the time they were made, (4) that any suggestion that Loveless lied about the "accident" was merely redundant in light of Mclver's testimony that Loveless contrived his diminished capacity defense, i. e., that Loveless was generally a liar, and finally, (5) that the jury found Loveless guilty of manslaughter thus apparently accepting his contention that the killing was accidental, i. e., involuntary. . In Loveless I the court held that Dr. Mclver could not testify to any statements by Loveless indicating involvement in the killing. Loveless v. State, 592 P.2d at 1209 n.7. In this context, it is wise to remember the specific treatment given "exculpatory" statements in Miranda: No distinction can be drawn between statements which are direct confessions and statements which amount to "admissions" of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incrimnate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely "exculpatory." If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement." Miranda v. Arizona, 384 U.S. at 476-77, 86 S.Ct. at 1613-14, 16 L.Ed.2d at 725. . Negligence is conduct which a reasonable person would recognize as creating an unreasonable risk of harm to others. Restatement (Second) of Torts § 282. "Gross negligence" which the Restatement calls recklessness requires a substantially greater risk of harm. Id. at § 500. Here the "harm" is the defendant being put through the burden of a second trial as a result of reversal for legal error. . U.S.Const. amend. V, provides in part: "No person shall . be compelled in any criminal case to be a witness against himself This right was held enforceable against the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). A similar provision is found in Alaska Const., art. 1, § 9. .U.S.Const. amend. VI, provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . to have the assistance of counsel for his defense." A similar provision is found in Alaska Const., art. 1, § 11. The record before the trial court does not establish that the sixth amendment issue was fully raised. All parties should recognize that the fifth and sixth amendments present different issues that should be separately addressed. As the U. S. Supreme Court said in Rhode Island v. Innis, 446 U.S. 291, 300 n.4, 100 S.Ct. 1682, 1689 n.4, 64 L.Ed, 297, 307 (1980): There is language in the opinion of the Rhode Island Supreme Court in this case suggesting that the definition of "interrogation" under Miranda is informed by this Court's decision in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424. [Citation omitted.] This suggestion is erroneous. Our decision in Brewer rested solely on the Sixth and Fourteenth Amendment right to counsel. [Citation omitted.] That right, as we held in Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246, prohibits law enforcement officers from "deliberately elicitpng]" incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of "interrogation" under the Fifth and Sixth Amendments, if indeed the term "interrogation" is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional protections are quite distinct. See Kamisar, Brewer v. Williams, Massiah, Miranda: What is "Interrogation"? When Does it Matter? 67 Geo.L.J. 1, 41-55 (1978). On remand Loveless may present his sixth amendment arguments to the trial court, and if he does, we hope that court will in its finding resolve any factual disputes, address the issues presented by Innis (fifth amendment) and Brewer (sixth amendment), and make separate conclusions of law in regard to them. See also Grano, Rhode Island v. Innis: A need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am.Crim.L.Rev. 1 (1979) (pass/m). . Defendant also cited United States v. Thomas, 474 F.2d 110 (10th Cir. 1973), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973), for the proposition that questioning of a suspect by police after the suspect is represented by an attorney without the attorney's permission violates ABA Code of Professional Responsibility, DR 7-104(A)(1), which bars communication between an attorney and an opposing party represented by counsel without counsel's knowledge and precludes use of any statement elicited over objection regardless of an effective waiver of Miranda rights by the defendant. The Thomas rule was applied prospectively, and Thomas' conviction was affirmed. Assuming without deciding that the Thomas rule applies in Alaska, cf. Roberts v. State, 458 P.2d 340 (Alaska 1969) (conviction reversed where defendant charged with forgery was required to give handwriting exemplars to police despite his request that his attorney first be contacted), it would only apply to statements elicited by interrogation under the Innis test. Here the trial court found no interrogation. If this determination is sustained on remand, then ipso facto there was no ABA Code DR 7-104(A)(1) violation.

8239334

Michael D. PHILLIPS, Appellant, v. STATE of Alaska, Appellee

Phillips v. State

2008-05-02

No. A-10180

493

496

183 P.3d 493

183

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Michael D. PHILLIPS, Appellant, v. STATE of Alaska, Appellee.

Michael D. PHILLIPS, Appellant, v. STATE of Alaska, Appellee. No. A-10180. Court of Appeals of Alaska. May 2, 2008. Paul A. Maslakowski, Assistant Public Advocate, Palmer, and Rachel Levitt, Acting Public Advocate, Anchorage, for the Appellant. No appearance for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1196

7354

OPINION MANNHEIMER, Judge. The superior court denied Michael D. Phillips's request to exercise a late-filed peremptory challenge against Superior Court Judge Eric A. Aarseth, the judge assigned to pre-gide over Phillips's trial. Phillips now seeks appellate review of the superior court's decision. Phillips has filed bis appeal under Alaska Appellate Rule 216. See Washington v. State, 755 P.2d 401, 403 (Alaska App.1988) (holding that an expedited appeal under Appellate Rule 216 is the sole way a criminal defendant may seek appellate review of the denial of a peremptory challenge). When the Appellate Court Clerk's Office received Phillips's notice of appeal, a question arose as to whether Phillips was entitled to appeal the superior court's ruling at this time-since no final judgment has yet been issued in his case. Although Appellate Rule 216(a)(2) clearly states that the expedited appellate procedures described in that rule apply to "[pler-emptory challenge appeals", subsection (c) of Rule 216, entitled "Jurisdictional Limitation", declares that Rule 216 "does not permit an appeal to be taken in any cireumstances in which an appeal would not be permitted by [Appellate] Rule 202." And Appellate Rule 202(b)-the portion of Rule 202 that governs appeals to this Court-declares that "(aln appeal may be taken [only] from a final judgment entered by the superior court or the district court". Phillips's case has not yet gone to trial; no final judgment has been issued in his case. Thus, Phillips is apparently barred from pursuing an appeal under Appellate Rule 216 at this time. See Muller v. State, 478 P.2d 822, 824 (Alaska 1971), holding that the superior court's denial of the defendants' motion to dismiss the charges with prejudice "did not terminate the proceedings against [the defendants] and was in no sense a final judgment of the type contemplated by [Supreme Court] Rule 6"-the predecessor to current Appellate Rule 202. The jurisdictional limitation codified in Appellate Rule 216(c)-that is, the rule that no appeal can be pursued under Rule 216 until the trial court has issued a final judgement-has been a part of Rule 216 since it was first promulgated in 1980. See Alaska Supreme Court Order No. 489 (effective November 15, 1980) (amending and re-codifying the Alaska Rules of Appellate Procedure). When Appellate Rule 216 was first promulgated, it applied only to extradition appeals and juvenile waiver appeals. Subsection (c) of the rule was intended to make sure that no appeal could be taken until the superior court had issued its final decision regarding whether to order a defendant's extradition to another state, or had issued its final decision regarding whether to waive juvenile jurisdiction over a minor (thus allowing the minor to be tried as an adult). The denial of a defendant's request to peremptorily challenge the judge assigned to the defendant's case is not a final judgement. And, until 1981, the only way a defendant could seek interlocutory review of such a denial was to file a petition for review. In other words, a defendant whose peremptory challenge was denied could ask this Court to review the matter, but interlocutory review was discretionary, not mandatory. See Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App.1997); "The right of 'appeal' means the right to require an appellate court to review a lower court's decision. The right of 'petition', on the other hand, means the right to request an appellate court to review a lower court's decision-a request which the appellate court may grant or deny as it sees fit." (Emphasis in the original.) Then, in Morgan v. State, 635 P.2d 472 (Alaska 1981), the Alaska Supreme Court concluded that, given the "special nature of the [Judicial] disqualification right", it would be better if appellate review of the denial of a peremptory challenge in a criminal case were governed by the expedited procedures laid out in Appellate Rule 216. Id. at 480 & n. 16. The following year (1982), the supreme court amended Rule 216(a) to add peremptory challenge appeals-as defined in Rule 216(b)(2)-to the list of appeals governed by the rule. See Alaska Supreme Court Order No. 511 (effective August 18, 1982). Based on the supreme court's decision in Morgan and the court's ensuing issuance of Order No. 511, it is obvious that the supreme court intended to allow defendants in criminal cases to appeal the denial of a peremptory challenge even though the trial court had not yet issued its final judgement. Indeed, Justice Matthews dissented from the supreme court's decision to issue Order No. 511 because he concluded that it was not prudent to "make an exception to the rule of finality to allow an appeal from an order of this type." Id. But even though the supreme court amended subsection (a) of Rule 216 so that it now includes peremptory challenge appeals, the supreme court made no conforming change to subsection (ec)-the provision of Rule 216 that bars any appeal unless the trial court has issued its final judgement. True, subsection (a) of Rule 216 declares that the rule "supersedes the other appellate rules to the extent that they may be inconsistent with this rule". But the problem here is an inconsistency in the provisions of Rule 216 itself. Subsection (a) of the rule allows a defendant to immediately appeal the denial of a peremptory challenge, but subsection (c) of the rule declares that Rule 216 does not allow appeals except as permitted by Rule 202-i.e., unless the trial court has issued its final judgement. When different subsections of a statute or court rule are seemingly inconsistent with each other, an appellate court is obliged to construe the subsections so as to resolve the inconsistency-if that is possible. Anchorage v. Repasky, 34 P.3d 302, 315 (Alaska 2001). Here, it is not. Subsection (a) is irreconcilably in conflict with subsection (c). Nevertheless, from the history described above, it is apparent that the supreme court intended to allow defendants to immediately appeal the denial of a peremptory challenge-exempting these appeals from the normal rule that no appeal is allowed until the trial court has issued its final judgement. We therefore turn to another canon of statutory construction: [Ilf the literal import of the text of an act is inconsistent with the legislative meaning or intent, . courts will ordinarily modify the statute to comport with [that] legislative intent. State of Alaska v. Alaska Civil Liberties Union, 978 P.2d 597, 613 n. 101 (Alaska 1999) (quoting Norman J. Singer, Sutherland [on] Statutory _- Construction - § 46.07 _ (5th ed.1992)). The wording of Appellate Rule 216(c) can not be reconciled with the supreme court's clear intention to allow defendants to immediately appeal the denial of a peremptory challenge. Consequently, we now hold that Appellate Rule 216(c) does not apply to peremptory challenge appeals as defined in Appellate Rule 216(b)(@Q). Accordingly, Phillips's appeal is accepted for filing.

10336640

Robert D. EWERS, Appellant, v. STATE of Alaska, Appellee

Ewers v. State

1996-01-19

No. A-3547

373

376

909 P.2d 373

909

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Robert D. EWERS, Appellant, v. STATE of Alaska, Appellee.

Robert D. EWERS, Appellant, v. STATE of Alaska, Appellee. No. A-3547. Court of Appeals of Alaska. Jan. 19, 1996. James W. McGowan, Sitka, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1607

9653

OPINION BRYNER, Chief Judge. After a bench trial conducted before Superior Court Judge Thomas E. Schulz, Robert D. Ewers was convicted in May 1990 of misconduct involving weapons in the first degree (knowing possession of a concealable weapon by a felon). AS 11.61.200(a)(1). Ewers appealed, but fled the state shortly thereafter; this court dismissed his appeal in October 1990. Almost two and one-half years later, in February 1993, Ewers was arrested out of state and extradited to Alaska. Upon returning, he petitioned this court to reinstate his appeal. We ordered the appeal reinstated. We now affirm. In March 1988, Gerald O. Gwillim contacted Alaska State Trooper Richard Roberts. Gwillim said that in August of the previous year, Ewers had given Gwillim a Smith and Wesson pistol to keep for him, because, as a felon, Ewers was not allowed to have a concealable firearm. Gwillim turned the gun over to Roberts. Upon receiving the gun from Gwillim, Roberts performed a records check and learned that it had been reported stolen the previous summer. He then decided to take the gun to Ewers, who was living aboard a fishing boat. Sometime around midnight, Roberts went to the boat. He was in uniform. Roberts described the encounter as follows; I went on the boat and knocked on the door to the boat. It was dark inside. I waited for a minute or so, but no one answered. I then opened the door about inches and asked if anyone was there. I saw a man, who was awakened in a bunk near the door, and he said "yeah." I identified myself as a State Trooper and said that I need to talk. He turned on a light.... I said that I needed to talk to Bob Ewers. He called "Bob" and I heard a response of "yeah." The man in the bunk then said something like "someone here to see you, State Trooper." I stepped into the door way. The Defendant [Ewers] came up out of the bow of the boat. He says "yeah, what's up." I asked the Defendant if I could step in out of the weather. I said that Mr. Gwillim had property he wished returned to the Defendant but Mr. Gwillim did not want to face the Defendant personally. I also advised the Defendant that I was responsible for his arrest in Anchor age the year before and that I had a handgun to return to the Defendant if it belonged to him. The Defendant said, "Yeah, come in," and asked me if I wanted coffee. I declined the offer for coffee. The galley is located near the door I had just entered, and so the Defendant turned a light on over the table. He asked me to sit at the table, and so the Defendant and I then sat down. Without reading Ewers his Miranda rights, Roberts proceeded to converse with him about the gun. During the conversation, Ewers admitted he had bought the gun the previous summer, and had left it with Gwil-lim. Following this admission, Roberts arrested Ewers for being a felon in possession of a concealable firearm and for theft (for receiving the stolen gun). Before trial, Ewers moved to suppress the statements he made on the boat. Ewers argued that Roberts' warrantless entry of the boat violated the Fourth Amendment and that the officer's failure to read him the Miranda warnings violated the Fifth Amendment. Judge Schulz rejected both arguments. As to the Fourth Amendment claim, Judge Schulz concluded that, even if Roberts' warrantless entry of the boat was unlawful, the illegality "was cured when Ewers came up from the fo'c'sle and either at the table or by the back door invited the officer to sit down and have a cup of coffee and talked to him." As to the Fifth Amendment claim, the judge found that Ewers was not in custody when Roberts questioned him on the boat. The judge subsequently found Ewers guilty on the felon in possession charge; the state dismissed the theft charge. On appeal, Ewers renews the unlawful search and Miranda arguments he raised below. Neither argument requires extensive discussion. For purposes of deciding Ewers' Fourth Amendment claim, we assume, as seems to be the case, that Roberts' initial warrantless entry of the boat was unlawful. See, e.g., Milton v. State, 879 P.2d 1031, 1034 (Alaska App.1994) ("[A] warrantless entry by police into a person's house 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." (citing Harrison v. State, 860 P.2d 1280, 1283 (Alaska App.1993))). Evidence Roberts obtained as a result of his unlawful entry would thus be inadmissible unless it fell under an exception to the warrant requirement. See Milton, 879 P.2d at 1034. Here, however, the record supports the conclusion that Ewers' statements were not the fruits of Roberts' unlawful entry. As Judge Schulz correctly recognized, the taint of an unlawful entry may be dissipated by a subsequent, voluntary consent. As the Alaska Supreme Court said in Robinson v. State, 578 P.2d 141, 144 (Alaska 1978) (footnote omitted), "there are circumstances in which an authorized person's valid consent to police presence could supersede an initial" illegal entry. In the present case, Judge Schulz found that, after Roberts' initial unauthorized entry, Ewers expressly agreed to speak with Roberts and invited the officer to be seated and have some coffee. The trial court's factual findings are reversible only for clear error. Fox v. State, 825 P.2d 938, 939 (Alaska App.1992) (citing State v. Bianchi, 761 P.2d 127, 129 (Alaska App.1988)). This finding is not clearly erroneous. Judge Schulz's factual finding supports his conclusion that Ewers' consent to Roberts' presence aboard the vessel was freely and voluntarily given. We find nothing in the record suggesting that Roberts' initial unauthorized entry had any impact on the volun-tariness of Ewers' subsequent consent — indeed, when he invited Officer Roberts to sit down and have a cup of coffee, Ewers appears to have had no way of even knowing how the officer had come aboard. Given these circumstances, Judge Schulz properly found that, assuming an unlawful entry by Roberts, Ewers' statements were in no meaningful sense the product of the illegality- We next consider Ewers' Miranda argument. Miranda warnings are required only when questioning is custodial — that is, only when "police actions would lead a reasonable defendant to believe that he would not be allowed to leave or otherwise termi nate the police contact." G.R. v. State, 638 P.2d 191, 198 (Alaska App.1981) (citing Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)). Here, Judge Schulz was aware of the proper standard and of the factors relevant to a determination of custody, as set forth in Hunter. After considering the totality of the evidence, the judge found that Ewers was not in custody when interviewed aboard his vessel. Our independent review of the record convinces us that the trial court correctly determined that the interview was noncustodial and that Miranda warnings were accordingly not required. Cf. G.R. v. State, 638 P.2d at 198; Doyle v. State, 633 P.2d 306, 309-10 (Alaska App.1981). The judgment is AFFIRMED. . Our order reinstating Ewers' appeal was entered in accordance with White v. State, 514 P.2d 814 (Alaska 1973). There, White absconded from custody following his sentencing; his appeal was dismissed. The supreme court reinstated the appeal after White was returned to custody. Id. at 814-15. In so doing, the court held that the right to a criminal appeal can be lost only through knowing and voluntary waiver clearly established by the state, and cannot be forfeited. Id. at 815. The court further found that, absent a showing of prejudice to the state, the existence of potentially meritorious grounds for appeal amounted to good cause for reinstatement. Id. at 816. While acknowledging that White requires reinstatement of Ewers' right to appeal his conviction, the state urges us not to reach the merits of Ewers' claims, since they involve only the exclusionary rale and do not go to the fairness of Ewers' conviction; Given the straightforward nature of Ewers' case. Judges Coats and Mann-heimer prefer to decide this case on its merits; they express no view on the state's procedural argument. For the following reason, however, the author of this decision would affirm without deciding the merits. Implicit in the supreme court's disposition in White is its recognition that the accused may suffer substantial prejudice from an appellate court's refusal to review potentially meritorious claims implicating the fairness of a conviction or sentence. But absent exceptional circumstances, claims such as the ones Ewers asserts here— search and seizure arguments and purported Miranda violations — implicate neither the fairness of a conviction nor the fairness of a sentence. An appellate court's refusal to decide the merits of such claims based on a procedural default ordinarily poses no danger of substantial prejudice to the accused. Cf. Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978). Thus, in an appeal reinstated, pursuant to White, solely on the basis of potentially meritorious issues and an apparent absence of prejudice to the state, review on the merits should ordinarily be denied as to claims involving the exclusionary rale that have no bearing on the fairness of the conviction or sentence.

11899317

STATE of Alaska, Appellant, v. Ralph M. WINTERS, III, Appellee; STATE of Alaska, Appellant, v. David S.J. GOODMANSON, Appellee

State v. Winters

1997-08-29

Nos. A-6216, A-6263

54

56

944 P.2d 54

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.

STATE of Alaska, Appellant, v. Ralph M. WINTERS, III, Appellee. STATE of Alaska, Appellant, v. David S.J. GOODMANSON, Appellee.

STATE of Alaska, Appellant, v. Ralph M. WINTERS, III, Appellee. STATE of Alaska, Appellant, v. David S.J. GOODMANSON, Appellee. Nos. A-6216, A-6263. Court of Appeals of Alaska. Aug. 29, 1997. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appellant. Daniel Lowery, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellees. Before COATS, C.J., MANNHEIMER, J., and JOANNIDES, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1214

7699

COATS, Chief Judge. Ralph M. Winters III and David S.J. Goodmanson pleaded no contest to driving while intoxicated (DWI) in violation of AS 28.35.030 on January 24, 1996, and February 22, 1996, respectively. Winters had three prior convictions for DWI, from 1990, 1993 and 1994. Goodmanson also had three prior convictions for DWI, one in 1990 and two in 1992. At the time of Winters' and Goodmanson's 1996 convictions, AS 28.35.030(n) provided: (n) A person is guilty of a class C felony if the person is convicted of driving while intoxicated and has been previously convicted two or more times. For purposes of determining if a person has been previously convicted, the provisions of (o)(4) of this section apply, except that only convictions occurring within five years preceding the date of the present offense may be included. Upon conviction the court (1) shall impose a fine of not less than $5,000 and a minimum sentence of imprisonment of not less than (A) 120 days if the person has been previously convicted twice; (B) 240 days if the person has been previously convicted three times; (C) 360 days if the person has been previously convicted four or more times_ The parties all agree that Winters and Good-manson were guilty of a class C felony under this statute, but they disagree as to the mandatory minimum sentence the two defendants faced. Winters and Goodmanson argue that because they each had only two prior convictions occurring within the five years preceding their present offenses, their mandatory minimum sentence is 120 days. The superior court, Judge William H. Fuld, agreed with the defendants. Judge Fuld sentenced Winters to twenty months with thirteen months suspended (210 days to serve), and Goodman-son to two years with seventeen months suspended (210 days to serve). The state appeals the judgments, arguing that Winters' and Goodmanson's sentences are illegal. The state asserts that, under the statute, the mandatory minimum term for persons with three previous DWI convictions was 240 days. The state relies on paragraph (o)(4) of the statute, which includes all DWI convictions within the preceding ten years in the definition of "previously convicted." If all convictions within the preceding ten years are considered, Winters and Goodmanson have each been "previously convicted" three times of DWI. The parties' dispute centers on this provision of former AS 28.35.030(n): For purposes of determining if a person has been previously convicted, the provisions of (o)(4) of this section apply, except that only convictions occurring within five years preceding the date of the present offense may be included. The state argues that this sentence modified only the preceding sentence of the statute, which said that a person convicted of DWI is guilty of a class C felony if he or she had been "previously convicted" two or more times. Winters and Goodmanson argue that the provision in question modified all of paragraph (n) of the statute, including the succeeding provision that upon conviction the court shall impose a minimum sentence of imprisonment of not less than "120 days if the person has been previously convicted twice" and "240 days if the person has been previously convicted three times." The state construes the statute in favor of what it sees as the obvious legislative intent to subject those convicted" of felony DWI to greater penalties than those convicted of misdemeanor DWI. Winters and Goodmanson read former paragraph (n) as plainly stating that only those convictions occurring within the preceding five years are considered in determining the previous convictions of persons covered by that paragraph. The language of former AS 28.35.030(n) supports Winters and Goodman- son's position. The phrase "previously convicted" appears five times in the paragraph. The direction to consider only convictions occurring within the preceding five years in determining if a person has been previously convicted is unqualified. Nothing in the language of the paragraph suggests that this clause applies only to the single occurrence of the phrase "previously convicted" in the sentence immediately preceding it, and not to the three occurrences of "previously convicted" in the sentence immediately succeeding it. As the state points out, our reading of the former statute may result in some felony DWI offenders being subject to less severe mandatory minimum sentences than are misdemeanor offenders with the same number of prior convictions. However, the statutory provisions at issue here deal only with mandatory minimum sentences. Nothing in AS 28.35.030 prevents a sentencing judge from considering the defendant's entire record of prior convictions and imposing a sentence commensurate with the defendant's criminal history, as Judge Fuld did in Winters' and Goodmanson's eases. Regardless of whether they impact the mandatory minimum sentence, all prior convictions are relevant at sentencing, and are properly considered by the sentencing court. Burnette v. Municipality of Anchorage, 823 P.2d 10, 14 n. 4 (Alaska App.1991); Harlow v. State, 820 P.2d 307, 309 n. 2 (Alaska App.1991); Garroutte v. State, 683 P.2d 262, 269 (Alaska App.1984). To the extent that the statute may have been ambiguous, the state mistakenly construes the ambiguity against the defendants. Ambiguities in penal statutes are strictly construed against the state. Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App.1983). The superior court did not err in ruling that Winters and Goodmanson were each subject to a mandatory minimum sentence of 120 days under former AS 28.35.030(n), based on two previous convictions within the preceding five years. The judgments of the superior court against Winters and Goodmanson are AFFIRMED. . AS 28.35.030(d)(4) provides: (o) In this section, (4) "previously convicted" means having been convicted in this or another jurisdiction, within 10 years preceding the date of the present offense, of any of the following offenses; however, convictions for any of these offenses, if arising out of a single transaction and a single arrest, are considered one previous conviction: (A) operating a motor vehicle, aircraft or watercraft while intoxicated . (B) refusal to submit to a chemical test . (C) operating a commercial motor vehicle while intoxicated.... . In an amendment effective November 8, 1996, the legislature rewrote AS 28.35.030(n) to cure the potential ambiguity at issue in this case. The subsection now reads, in relevant part: (n) A person is guilty of a class C felony if the person is convicted of driving while intoxicated and has been previously convicted two or more times within the five years preceding the date of the present offense. For purposes of determining minimum sentences based on previous convictions, the provisions of (o)(4) of this section apply. The statute now makes it clear that all convictions within the preceding ten years are used in calculating the mandatory minimum sentence for felony DWI.

8904912

Lawrence DeWayne WARD, Appellant, v. STATE of Alaska, Appellee

Ward v. State

2005-09-09

No. A-8666

204

209

120 P.3d 204

120

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Lawrence DeWayne WARD, Appellant, v. STATE of Alaska, Appellee.

Lawrence DeWayne WARD, Appellant, v. STATE of Alaska, Appellee. No. A-8666. Court of Appeals of Alaska. Sept. 9, 2005. David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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.

2189

13671

OPINION STEWART, Judge. Security personnel at the Anchorage J.C. Penney store saw Lawrence DeWayne Ward conceal merchandise and leave the store without paying. The personnel contacted Ward in a stairwell of the Penney's parking garage that is connected to the store. While attempting to retain the merchandise and flee, Ward struggled with the Penney's seeu-rity personnel, inflicting injury. For this misconduct, Ward was convicted of second-degree robbery, second-degree theft, and fourth-degree assault. In the superior court, Ward argued that his indictment and conviction for second-degree robbery are flawed because his conduct does not establish that crime. We reject Ward's claim that he did not take the merchandise from the presence and control of the victim. We accept Ward's claim that the superior court improperly relied on a statutory aggravating factor. Therefore, the superior court must reconsider Ward's sentence without relying on that factor. Background facts and proceedings Donald Roberts and Juanetta Ellis, loss prevention officers at the J.C. Penney store in downtown Anchorage, saw Ward pick up three items of clothing and conceal them on his person while they watched him on a security camera. Ward left the main portion of the store and crossed the skybridge that passes over Sixth Avenue and connects with the store's parking garage. Roberts left the security camera station to intercept Ward. Roberts found Ward in the stairwell of the parking garage. Roberts contacted Ward, identified himself, and confronted Ward about the merchandise. Roberts told Ward to come with him. Ward refused and pushed Roberts in order to get past him. Roberts grabbed Ward and would not let him go. Ward shoved Roberts, and Roberts fell down the stairs, backwards and head-first, while still holding onto Ward, who was on top. Roberts sustained injuries to his left knee and hip, both arms, right hand, and his head. Ellis arrived with another loss prevention officer, Quinton Ellington. Ellis pulled Ward off Roberts, injuring her shoulder in the process. Ward was handcuffed and the police arrested him when they arrived. The grand jury indicted Ward on one count of second-degree robbery, one count of second-degree theft, and one count of second-degree assault based on the injuries Roberts received while struggling with Ward. The State filed an information charging one count of fourth-degree assault based on the injury Ellis received while pulling Ward off Roberts. Ward moved to dismiss the robbery count, arguing that the State presented insufficient evidence to the grand jury that Ward had taken "property from the immediate presence and control of another" because no one was present when Ward concealed the stolen items, or when he left the store, and that Penney's personnel saw Ward concealing items only on camera. Superior Court Judge Larry D. Card denied Ward's motion to dismiss. Ward moved the court to reconsider, arguing that because Roberts was not present or in control of the merchandise when Ward took it, Ward did not take the merchandise from Robert's "immediate presence and control." Judge Card denied Ward's motion to reconsider. At the close of the State's case, Ward moved for a judgment of acquittal on the robbery charge and on the second-degree assault charge. On the robbery charge, Ward repeated his argument that he did not take the merchandise from the immediate presence or control of another person. Judge Card denied Ward's motion for a judgment of acquittal. The jury convicted Ward of second-degree robbery, second-degree theft, and fourth-degree assault, a lesser included offense of second-degree assault. The jury acquitted Ward of the fourth-degree assault on Ellis. At sentencing, Judge Card found three statutory aggravating factors. Judge Card sentenced Ward to 10 years with 4 years suspended on the robbery conviction. On the theft conviction, Judge Card sentenced Ward to a 3-year presumptive term, to be served concurrently with the robbery. And on the assault conviction, Judge Card sentenced Ward to 1 year, also to be served concurrently. Ward was properly charged and convicted of robbery Ward argues that Judge Card erred in denying his motion to dismiss and his motion for a judgment of acquittal because he did not take property from the immediate presence and control of a person, even though Penney employees Roberts and Ellis saw Ward take the merchandise while watching Ward on the security camera. Under AS 11.41.510(a)(1), a person commits second-degree robbery if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to prevent or overcome resistance to the taking of property or the retention of the property after taking. Essentially, Ward admits that he committed theft and assault (but not robbery) because, when he took the merchandise, no one from J.C. Penney was immediately present. Thus, Ward's case requires this court to decide whether his taking of property was from "the immediate presence and control" of a store employee, when the employee was out of Ward's sight, but observing Ward via se curity camera, and when Ward did not use force against an employee until after Ward was contacted in the stairwell of the garage. Ward urges us to rely on Royal v. State, a case in which the Florida Supreme Court ruled that in order to commit robbery, a person must have used force "prior to or while taking" property. The Royal court reversed the defendant's conviction because force was not used to retain stolen merchandise until after the defendants had left the store from which they stole the merchandise. The court emphasized that the "taking" was complete once the thieves left the store. However, as the State points out, the Florida Legislature amended Florida's robbery statute to repeal the rule in Royal. The legislature repealed this rule by replacing "by force, violence, assault, or putting in fear" with the phrase "when in the course of taking there is the use of force, violence, assault, or putting in fear." The legislature then defined the phrase "in the course of the taking" to include an act that occurs " 'either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events'" Thus, the amended robbery statute reads much like the Alaska robbery statute. Royal is not persuasive authority for interpreting Florida's current robbery statute, much less our robbery statute. The question we must answer is whether the requirement of "immediate presence and control" in our robbery statute encompasses Ward's misconduct. In the commentary to AS 11.41.510, the legislature declared that the phrase "immediate presence and control" was intended to be "broad enough to cover takings directly from the person as well as takings which, though not from the person, pose identical dangers-i.e., the taking of a pocketbook placed on a park bench accomplished by threatening the owner who is sitting on the bench." This declaration reflects the legislature's policy decision to emphasize the physical danger created by a robbery over its theft aspects. It is also clear from the commentary that the legislature did not require that the property be in physical contact with the victim. > This commentary reflects the prevailing construction of the phrase in other jurisdictions. Courts generally hold that property is in a victim's "immediate presence or control" if the property is "close enough to the victim and sufficiently under his control that, had the [victim] not been subjected to violence or intimidation by the robber, he could have prevented the taking. Furthermore, even under the more restrictive requirements of common-law robbery, property did not have to be in physical contact with a victim. "[When a man's attention is directed to the need of safeguarding certain property which belongs to him and is so situated at the time that he could guard it if not prevented by violence or deterred by fearl, such] property is regarded as being under his personal protection and the wrongful taking of it by violence or intimidation is robbery." We conclude from these authorities that Ward's conduct supported a charge and conviction for second-degree robbery. Roberts, while monitoring Ward's actions in the store on the security camera, saw Ward conceal merchandise. Roberts intercepted Ward in the stairwell of the J.C.Penney parking garage where Ward used force with an intent to prevent or overcome resistance to his re tention of the merchandise. We conclude that Judge Card properly denied the motion to dismiss the indictment. We also conclude that sufficient evidence supported the robbery conviction. Why we vacate Ward's probationary sentence The State alleged that four statutory aggravating factors from AS 12.55.155 applied to Ward's robbery conviction: (c)(1) (a person, other than an accomplice, sustained physical injury as a direct result of Ward's conduct); (c)(6) (Ward's conduct created a risk of imminent physical injury to three or more persons, other than accomplices); (c)(8) (Ward's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior); and (c)(9) (Ward knew that the offense involved more than one victim). Ward did not dispute aggravator (c)(8). Judge Card found aggravators (c)(1), (c)(6), and (c)(8), but rejected aggravator (c)(9). Because second-degree robbery is a class B felony and Ward had two prior felony convictions, Ward was subject to a presumptive 6-year prison term under the former sentencing statute. Judge Card enhanced the presumptive sentence by imposing an additional 4 suspended years of imprisonment, giving greatest weight to aggravator (c)(1), giving next-greatest weight to aggravator (c)(6), and giving least weight to aggravator (c)(8). Thus, Judge Card imposed a 10-year term with 4 years suspended for Ward's robbery conviction. Ward challenges his sentence as violating his Sixth Amendment right to a jury trial as interpreted by the United States Supreme Court in Blakely v. Washington. - The Blakely Court ruled that, other than a finding of a prior conviction, a sentencing court cannot increase the statutory maximum sentence based on facts not found by a jury beyond a reasonable doubt. But Ward did not object on this ground in the superior court, so Ward would have to show plain error. We need not address Ward's Blakely claim because we conclude that the superior court mistakenly relied on aggravator (c)(1) to enhance Ward's sentence. Judge Card based his finding of this aggravator on Ward's assault on Roberts. But in Juneby v. State, we held that a sentencing court should not find an aggravating factor based on conduct for which the defendant is being separately sentenced. Ward was separately convicted and sentenced for his assault on Roberts. Thus, it was improper for Judge Card to rely on Ward's assault on Roberts to find that the State had proven aggravator (c)(1). The superior court must reconsider Ward's sentence without reliance on this aggravating factor. Because the superior court must reconsider Ward's sentence in light of this error, we need not decide Ward's other claims regarding his sentence. We note that when a defendant is sentenced for multiple offenses, the judge does not necessarily individually fashion a sentence for each count but rather may implement a sentencing plan considering all of the cireumstances and the defendant's misconduct. When the superior court reconsiders Ward's sentence, the superior court may impose a composite sentence appropriate for the totality of Ward's conduct. Therefore, we vacate that portion of Ward's sentence that imposed suspended imprisonment. . Conclusion Ward's conviction is AFFIRMED. The superior court must reconsider Ward's sentence in light of this opinion. We do not retain jurisdiction. . AS 11.41.510(a)(1), AS 11.46.130(a)(6), and AS 11.41.230(a)(1), respectively. . AS 11.41.510(a)(1), AS 11.46.130(a)(6), and AS 11.41.210(a)(2), respectively. . AS 11.41.230(a)(1). . 490 So.2d 44 (Fla.1986). . Id. at 46. . Id. at 45-46. . Id. at 46. . See Fonseca v. State, 547 So.2d 1032, 1033 (Fla.App.1989). . Id. (quoting 812.13(3)(b)). Florida - Statutes, - Section . 1978 Senate Journal 1399, Vol. 2, Supp. No. 47 (June 12th) at 27. . See Whitescarver v. State, 962 P.2d 192, 195 (Alaska App.1998). . 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(c) at 179 (2d ed.2003). . Rollin M. Perkins & Ronald N. Boyce, Criminal Law at 346 (3d ed.1982). . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal v. State, 657 P.2d 404, 405 (Alaska App.1983). . AS 11.41.510(b). . AS 12.55.125(d)(2). . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . Blakely, 542 U.S. at -, 124 S.Ct. at 2537. . See Haag v. State, 117 P.3d 775, 783 (2005). . 641 P.2d 823 (Alaska App.1982), modified and superseded on other grounds, Juneby v. State, 665 P.2d 30 (Alaska App.1983). . Juneby, 641 P.2d at 842. . See Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991).

8912933

William D. GROSSMAN, Appellant, v. STATE of Alaska, Appellee

Grossman v. State

2005-09-23

No. A-8689

1085

1091

120 P.3d 1085

120

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

William D. GROSSMAN, Appellant, v. STATE of Alaska, Appellee.

William D. GROSSMAN, Appellant, v. STATE of Alaska, Appellee. No. A-8689. Court of Appeals of Alaska. Sept. 23, 2005. Paul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2948

18512

OPINION COATS, Chief Judge. William D. Grossman appeals his conviction and sentence for murder in the second degree. He first contends that Superior Court Judge Larry D. Card erred in instructing the jury on Grossman's liability as an accomplice. We conclude that the instruction was proper. Second, Grossman argues that his 99-year sentence is illegal because Judge Card imposed a sentence beyond the benchmark range, which we first set out in Page v. State, of 20 to 80 years for second-degree murder. Grossman argues that, under the United States Supreme Court's decision in Blakely v. Washington, Judge Card could not impose a sentence in excess of the Page benchmark range without giving Grossman a jury trial on the reasons justifying the greater sentence. We conclude that even if Blakely applied to sentencing for second-degree murder, Gross-man's more than twenty prior convictions produced ample justification for his sentence. Factual background On the day of the offense, August 14, 2001, codefendants William D. Grossman and Erick David, two homeless men, were drinking vodka in an empty lot in Anchorage with three other homeless people-Larry Brown, Kevin Vanderway, and Kathy Tugatuk. Subsequent testing on all, besides Grossman (who was not located until days later), indicated that they were highly intoxicated. Tugatuk and Vanderway testified that, due to their intoxication, they had little memory of the events of that day. Vanderway claimed that while drinking with Grossman a few weeks before the incident, he had stolen a bottle of liquor from Grossman. When Grossman demanded that Vanderway replace it, he promised to do so. But, on August 14, Grossman, impatient with Vanderway's promises, hit Vanderway. Brown attempted to protect Vanderway from Grossman, and Grossman then attacked Brown. From an apartment building overlooking the empty lot, several residents witnessed the assaults. One witness, Ryan Sjostrom, saw two men, one matching Grossman's description (tattooed arms, blue vest, and dark hair), attacking a man on the ground, later identified as Brown. According to Sjostrom, Grossman was the primary aggressor. He said that Grossman beat the victim badly, stomping him and kicking him with the toes of his boots. Sjostrom testified that he called 911 but that it took nearly thirty minutes for the police to respond. Sjostrom's girlfriend, Nana Lewis, also described seeing the assault from the same vantage point. She positively identified Grossman as the assailant. She testified that she had seen Grossman one week earlier, wearing the same clothing, in the same alley, arguing with a woman. She described Grossman as straddling Brown, punching him several times. She stated that Gross-man would then get up, kick Brown, and then go back to punching him. When the ambulance arrived, Lewis saw Brown taken away by the paramedics. She testified that she was positive that the victim loaded into the ambulance was the person she had seen Grossman assaulting. Like Sjostrom, Lewis also described a see-ond assailant who attacked Brown as well as a second victim, later identified as Vander-way. She identified the second assailant, later identified as Grossman's co-defendant David, as taller than Grossman and apparently a Native. She testified that David appeared to kick Brown in the body but not the head. She stated that Grossman kicked Brown "like he hated him" but that David did not kick him as hard. A third witness, Cassia Northbird, lived in a nearby apartment. She testified that she saw two men assaulting a third man in the lot. Northbird's description of the shorter assailant matched Sjostrom's and Lewis's description of Grossman. Northbird testified she saw the shorter assailant straddling the victim and choking him. She also saw a Native man kicking the victim while he was on the ground. She testified that both the shorter assailant and the Native man kicked, punched, and stomped the victim simultaneously. But unlike Sjostrom and Lewis, Northbird testified that the man taken away by the ambulance was not the same man she saw being beaten. However, she also testified that Vanderway was not the victim either. Brown died of the injuries which he received in the beating. The State charged Grossman and David with murder in the second degree for beating Brown to death. Additionally, the State charged Grossman with one count of assault in the fourth degree for assaulting Vanderway. The two men were tried jointly in a trial conducted by Judge Card. At trial, Grossman denied ever assaulting Brown. He contended that the witnesses had seen him assault Vanderway, not Brown. The jury convicted Grossman and David for the second-degree murder of Brown. They also convicted Grossman for the fourth-degree assault on Vanderway. Judge Card sentenced Grossman to a maximum term of 99 years of imprisonment for murder in the second degree and to a l-year concurrent term for the assault. Grossman appeals his conviction and sentence. The accomplice Hability instruction A person is guilty as an accomplice if he aids another person in committing the offense "with intent to promote or facilitate the commission of the offense. In Riley v. State, we held that when a person is charged as an accomplice for a crime that requires proof of a particular result, the government must prove that the person acted with the same culpable mental state that applies to the principal. This means that to convict Grossman as an accomplice in this case, the State had to show that Grossman acted with the intent to promote or facilitate the assault on Brown, and that Grossman acted with the culpable mental state set out in the second-degree murder statute: with the intent to cause serious physical injury to Brown or with manifest extreme indifference to the value of human life. In Riley, we stated that "[when AS 11.16.110(2) speaks of a person's "intent to promote or facilitate the commission of the offense', this phrase means the accomplice must act with the intent to promote or facilitate the conduct that constitutes the actus reus of the offense." As we have stated, this means that the State had to prove that Grossman acted with the intent to promote or facilitate the assault on Brown. In the trial court, Grossman objected to the State's accomplice liability instruction because it read that to be liable the "accomplice must act with intent to promote or facilitate the act or conduct of the principal." Grossman argued that the instruction was erroneous because it substituted "act or conduct" for the single word "conduct" which we used in Riley. Grossman argues on appeal that the instruction would allow the jury to convict Grossman as an accomplice even if he abetted David in landing only a single blow. He argues that since Brown was killed from a prolonged beating, the instruction allowed the jury to convict him on an insufficient factual showing. Grossman's argument is not valid. A person can be convicted as an accomplice for engaging in a single act. To convict Gross-man as an accomplice, the State had to show that Grossman acted with the intent to promote or facilitate the beating of Brown. The State then had to prove that Crossman acted with the intent to cause serious physical injury to Brown or knowingly engaged in conduct manifesting an extreme indifference to the value of human life. The State did not have to prove that Grossman engaged in more than one act. Judge Card properly instructed the jury. Judge Card's imposition of a 99-year term of imprisonment did not violate Gross-man's Sixth Amendment right to a jury as interpreted in Blakely v. Washington In Page v. State, this court conducted a historical review of sentences for second-degree murder and, based on this review, we concluded that a defendant convicted of this crime should typically receive a sentence of 20 to 30 years to serve. This has become known as the "Page benchmark range." Relying on Page, Grossman argues that Judge Card lacked the authority to sentence him to more than 30 years to serve unless the judge found aggravating factors. And, relying on the United States Supreme Court's decision in Blakely v. Washington, Grossman argues that he had a right to trial by jury, and a right to demand proof beyond a reasonable doubt, regarding any and all factors that Judge Card might rely on as a justification for departing from the Page benchmark range. The answer to Grossman's argument is that, even if Blakely applied to the factors that justify an upward departure from the Page benchmark range, Grossman's numerous prior criminal convictions provide ample justification for a sentence above the 30-year mark. -As we recently explained in Edmonds v. State, a defendant's prior convictions constitute an exception to the Blakely rule. That is, a judge can consider and rely on a defendant's prior convictions without submitting the issue to a jury. Grossman has more than twenty prior convictions, including two felonies and eleven prior convictions for assault. We have repeatedly recognized that a defendant's prior convictions-especially felony convictions-constitute a sufficient reason to impose a sentence of more than 30 years to serve for second-degree murder. For instance, in Phillips v. State, we held that the defendant's sentence could properly exceed the Page benchmark range. We noted that Phillips was a third felony offender, and that the Page benchmark range "was intended to demarcate the range of actual imprisonment ('time to serve') that a sentencing judge should impose on a typical first felony offender convicted of a typical second-degree murder." Similarly, in Sam v. State, we held that the sentencing judge could properly impose a sentence that exceeded 30 years to serve because "the Page benchmark is meant to reflect the appropriate starting point for sentencing in second-degree murder cases involving first felony offenders," and because Sam "had already committed another felony assault, for which he was awaiting sentencing . [making him] a first felony offender only in the most technical sense." Under Alaska sentencing law, Grossman's numerous prior convictions provided ample justification for a sentence exceeding the Page benchmark range of 20 to 30 years to serve. Therefore, even if Blakely applied to second-degree murder sentencings, Grossman's sentence would be lawful. Conclusion The judgment of the superior court is AFFIRMED. . David's blood-alcohol content was .167 percent, Vanderway's .284 percent, Tugatuk's .325 percent, and Brown's .394 percent. . AS 11.41.110(a)(1) & (2). . AS 11.41.230(a)(1). . AS 11.16.110(2). . 60 P.3d 204 (Alaska App.2002). . AS 11.41.110(a)(1) & (2). . Riley, 60 P.3d at 221 (emphasis in original). . Emphasis added. . 657 P.2d 850 (Alaska App.1983). . Id. at 855. . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . 118 P.3d 17 (Alaska App.2005). . 70 P.3d 1128 (Alaska App.2003). . Id. at 1143. . 842 P.2d 596 (Alaska App.1992). . Id. at 603; see also Brown v. State, 4 P.3d 961, 962-64 (Alaska App.2000).

12002813

FAIRBANKS FIRE FIGHTERS ASSOCIATION, LOCAL 1324, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Appellant, v. CITY OF FAIRBANKS, Appellee

Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks

1997-04-11

No. S-7415

759

764

934 P.2d 759

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

FAIRBANKS FIRE FIGHTERS ASSOCIATION, LOCAL 1324, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Appellant, v. CITY OF FAIRBANKS, Appellee.

FAIRBANKS FIRE FIGHTERS ASSOCIATION, LOCAL 1324, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Appellant, v. CITY OF FAIRBANKS, Appellee. No. S-7415. Supreme Court of Alaska. April 11, 1997. Brett M. Wood, Fairbanks, for Appellant. Paul J. Ewers, Deputy City Attorney, Office of the City Attorney, Fairbanks, for Ap-pellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

2864

17788

OPINION COMPTON, Chief Justice. 1. INTRODUCTION The Fairbanks Fire Fighters Association appeals from a judgment of the superior court denying it full, reasonable attorney's fees. We affirm. II. FACTS AND PROCEEDINGS The Fairbanks Fire Fighters Association (FFFA) is a labor organization which represents the fire fighters of Fairbanks. FFFA entered into a collective bargaining agreement (CBA) with the City of Fairbanks (City). In the event of a grievance, the CBA required the parties to maintain the status quo pending resolution of the dispute. In August 1991 the City, citing "budgetary constraints," unilaterally limited the number of fire fighters who could be called in on overtime. This action reduced the minimum staffing level of each twenty-four hour shift from eight fire fighters to six. The reduction was not accompanied by any decrease in the services the fire fighters provided. FFFA immediately filed a grievance under the CBA. FFFA also sought an injunction to compel the City "to provide the funding necessary" to maintain sufficient staffing levels pending resolution of the grievance. The City opposed injunctive relief, arguing that FFFA's claim could not be litigated until arbitration required by the CBA was complete. In addition, the City Manager testified that if the court ordered a return to eight-person minimum shifts, "[the City] could not accomplish it . I'd have to close down the department." The City conceded that the decline in Fire Department funding had resulted in increased risks to the public. The superior court granted a preliminary injunction, finding that the City's action "poses the threat of grave and serious harm to the public" and to the fire fighters. The court also found that the shift reduction "is a mandatory subject of collective bargaining which may not be unilaterally imposed by the [City]." Following that decision, the City rescinded its staffing cuts. In October 1995 FFFA attempted to recover the actual costs and attorney's fees it had incurred in seeking the injunction. The superior court denied FFFA's request for actual attorney's fees on the grounds that the City had not acted in bad faith and that FFFA was not a public interest litigant. The court did award FFFA, as the prevailing party, partial attorney's fees pursuant to Civil Rule 82 as well as costs pursuant to Civil Rule 79. This appeal followed. III. DISCUSSION A. The Superior Court's Ruling Regarding Bad Faith Conduct Was Not Clearly Erroneous. The superior court concluded that "there was no vexatious conduct or bad faith by the City which would justify an award of actual attorney's fees." This court will not disturb a lower court's factual determinations unless they are "clearly erroneous." State Farm Ins. Co. v. American Mfrs. Mut. Ins. Co., 843 P.2d 1210, 1213 (Alaska 1992) (superior court's finding that there was no bad faith conduct was not error). "We deem a factual finding to be clearly erroneous when we are left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding." Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991) (citation omitted). While the record reflects conduct which the superior court might conclude was questionable, that conduct does not compel us to conclude that the superior court was mistaken in finding that the City had not acted in bad faith and had not engaged in vexatious conduct. Case law does not delineate precisely between a losing claim and a bad faith claim. Assertion of an unpersuasive defense does not constitute bad faith conduct per se. We also have been hesitant to allow excessive attorney's fee awards which might discourage meritorious litigation. See Malvo v. J.C. Penney, 512 P.2d 575, 587 (Alaska 1973) (awarding full costs in the absence of bad faith was error, and would be a "serious detriment" to the judicial system). However, when a claim lacks any legal basis, we have not hesitated to reverse a trial court's failure to find bad faith or frivolous conduct. See Crawford & Co. v. Vienna, 744 P.2d 1175, 1178 (Alaska 1987) (superior court erred in not finding a suit frivolous when that suit had no legal basis). A "design to mislead or deceive another" also may constitute bad faith conduct. The action for which FFFA seeks its actual attorney's fees arose out of a wilfid breach of the CBA by the City. In the course of that litigation, the City Manager testified that the City lacked the funds to restore overtime payments, and would have to close down the Fire Department if FFFA prevailed. The City's attorney carefully noted that the City was not "broke," but simply had not "budgeted" the necessary funds and therefore was unable to fulfill its obligations. Several days later, the City, with no apparent effort, managed to restore funding as required by the preliminary injunction. The superior court could have concluded that this conduct constituted bad faith. It is clear that the City's representation to the fire fighters, and to the court, that the City would have to close down the Department if the superior court granted the injunction was untrue. Moreover, there is evidence that the City had raised the same defense during similar labor disputes. This evidence could support a finding that the City wilfully asserted a defense it knew to be false. Such an act of deliberate deception would constitute bad faith conduct. Again, however, the evidence does not compel us to conclude that the superior court's finding that the City did not act in bad faith was clearly erroneous. It is not clear from the record what steps the City took to comply with the injunction. Arguably, City authorities allocated the funds necessary to comply with the injunction, and in the absence of that action, the Department might have been closed. If so, the City Manager's claim would have been true when made. As noted, the City's attorney stated that the City was not "broke," and argued that compliance with an injunction would be burdensome, rather than impossible. While the City's "crisis by designation" may have been a bargaining tool as FFFA argues, the record does not point only to that conclusion. Since this action never proceeded beyond the preliminary injunction stage, there is little of record to determine whose version regarding the cuts and the City's compliance with the injunction preponderates. The City Manager's statement might be viewed as less than candid. However, neither that statement, nor other evidence in the record, compels us to hold as clearly erroneous the finding that the City had not acted in bad faith. Trial courts possess substantial discretion regarding attorney's fee awards, and should exercise particular caution in granting full reasonable attorney's fees. See Malvo, 512 P.2d at 587. A finding that FFFA had not proven bad faith conduct was not clearly erroneous. Accordingly, we will not disturb the superior court's determination that FFFA is not entitled to full, reasonable attorney's fees under the bad faith exception to Civil Rule 82. B. FFFA Does Not Qualify as a Public Interest Litigant. "A prevailing public interest plaintiff is normally entitled to full reasonable attorney's fees." Hickel v. Southeast Conference, 868 P.2d 919, 923 (Alaska 1994) (citations omitted). To qualify as a public interest litigant, a party must satisfy four criteria: (1) Is the ease designed to effectuate strong public policies? (2) If the plaintiff succeeds -will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990). The superior court denied FFFA public interest litigant status on the ground that FFFA did not satisfy the fourth criterion, lack of economic incentive. We review the superior court's denial of public interest status for an abuse of discretion. Stein v. Kelso, 846 P.2d 123, 127 (Alaska 1993) (miners who claimed they were deprived of a property interest without just compensation were not public interest litigants). A public interest litigant may have some minimal or indirect personal interest in the outcome of an action, so long as that party's interest is insufficient to provide an incentive to litigate in the absence of public interest concerns. Anchorage Daily News, 803 P.2d at 404 (newspaper which brought an action to force disclosure of information required to be public by law was a public interest litigant despite its minor commercial interest in the disclosure of newsworthy information). In Municipality of Anchorage v. Citizens For Representative Governance, 880 P.2d 1058 (Alaska 1994), officials challenging a petition to recall them were public interest litigants despite the fact that their offices carried monthly stipends. Id. at 1062 (while salary is usually sufficient incentive to prompt suit, normal compensation of elective office does not bar public interest status, due to "strong public interest in fair and honest elections"). Similarly, in Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191 (Alaska 1995), a party challenging a permit allowing "exploratory" scallop fishing in an area closed to commercial fishing was a public interest litigant because it sought only injunctive relief, its members stood to collect nothing if they prevailed in the action, and the litigation would have no impact on that party's ability to fish in the closed area. Id. at 1199. Conversely, if a party has an economic interest which would be sufficient in and of itself to inspire litigation, that party cannot qualify as a public interest litigant. In Abbott v. Kodiak Island Borough Assembly, 899 P.2d 922 (Alaska 1995), homeowners who argued that a rezoning scheme would "amount to a taking without just compensation . 'had sufficient economic incentives to proceed with the litigation without the issues that were also shared by others' " and thus were not public interest litigants. Id. at 924. Similarly, in Acevedo v. City of North Pole, 672 P.2d 130, 137 (Alaska 1983), a police officer seeking reinstatement had sufficient economic incentive in regaining his job to disqualify him as a public interest litigant. FFFA's litigation was motivated at least in part by safety concerns. The City conceded that the staffing cuts adversely affected fire safety in Fairbanks. The superior court also noted that the fire fighters themselves faced increased risk as a result of the staff reduction. Moreover, restored overtime funding, the relief which FFFA sought, would address both problems squarely. However, FFFA's solution to those safety problems would result in increased overtime payments from the City directly to members of FFFA. Indeed, FFFA argued that if the City truly lacked sufficient funding to make such payments, the suit would be meaningless. If the usefulness of the suit was contingent on the ability of the City to make payments to FFFA's members, then FFFA was not economically "disinterested" in the litigation. Here, as in Abbott, the would-be public interest litigant's attempt to serve a public purpose directly furthered that party's financial interests. In the same way that the plaintiff in Acevedo had an economic incentive to regain his job, FFFA's members had an economic incentive to regain overtime payments. While FFFA can argue that such payments were required to address the safety concerns which prompted the action, the members of FFFA clearly had a direct economic stake in the action which exceeded the indirect interests of the litigants in Kodiak Seafood Processors and Anchorage Daily News. Since the relief FFFA seeks is direct payment of substantial funds to its members, FFFA would have "sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance." Anchorage Daily News, 803 P.2d at 404. Accordingly, there is ample evidence to support the superior court's finding that FFFA does not qualify as a public interest litigant even though its financial interest in this case is closely intertwined with safety concerns. We will overturn the superior court's determination only if the court abused its discretion. Stein, 846 P.2d at 127. We are unpersuaded that it did so. IV. CONCLUSION The decision of the superior court is AFFIRMED. . FFFA claimed that the fire fighters brought the suit "to assert and protect not only their private rights and interests in the preservation of their lives, health and safety, but also the preservation of the lives, health, safety and property of the public." . The City operates under a "tax cap," which both limits property tax revenue and requires the City to maintain an unencumbered reserve fund equal to its 1988 reserve. .Black's Law Dictionary includes "a design to mislead or deceive another," as well as a refusal to fulfill a contractual obligation "not prompted by an honest mistake" as to rights or duties, "but by some interested or sinister motive," within the definition of bad faith. Black's Law Dictionary 139 (6th ed. 1990). .The City was aware that its staffing cuts would trigger a grievance, as indeed they did. Moreover, the City never denied that the CBA required maintenance of the status quo pending grievance resolution. Under the CBA, "[w]hen any matter in dispute has been referred to the grievance procedure . the conditions and provisions prevailing prior to the time the dispute arose shall, insofar as it is possible and consistent with normal operations, not be changed until the decision is rendered." Thus, under the CBA, whenever arbitration was triggered, the parties were required to maintain the status quo during the proceedings. Nevertheless, the City unilaterally imposed the cuts. .FFFA initially sought to recover attorney's fees as damages for breach of the covenant of good faith and fair dealing. The court properly rejected that claim on the ground that attorney's fees are unrecoverable as damages. Ehredt v. DeHavilland Aircraft, 705 P.2d 446, 452 n. 8 (Alaska 1985) (attorney's fees are not an item of damages). . It is less clear how a senior City official, who professed detailed knowledge of the City's financial status, could be unaware that his declaration was false. . In 1989 the City claimed that it lacked the appropriated funds to pay a three percent raise agreed upon, and that FFFA would either have to abandon the raise or seven fire fighters would be laid off. FFFA refused to abandon the increase, and seven fire fighters were laid off. After arbitration on the issue began, the City "found" the funds to reinstate the laid-off workers. . A generous interpretation of the events would be that the City faced a crisis "by designation" in that it earmarked funds in such a way as to place it in a difficult situation. . Had we concluded that there was bad faith conduct on the part of the City, FFFA would be entitled to receive full or substantially full fees under Civil Rule 82. Alaska N. Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42 n. 9 (Alaska 1983), cert. denied, 464 U.S. 1041, 104 S.Ct. 706, 79 L.Ed.2d 170 (1984). The superior court held that FFFA was precluded from recovering its costs and attorney's fees as an element of damages for the alleged breach of the covenant of good faith and fair dealing. FFFA's contention that Alaska should adopt an additional "bad faith" exception to the common law bar against fee recovery lacks merit, since Alaska already possesses a mechanism for recovery of full reasonable attorney's fees in the event of bad faith on the part of the non-prevailing parly. FFFA has presented no compelling reason to create a second mechanism for recovery of attorney's fees, nor does reason suggest any benefits to be gained from doing so. See Alaska Pacific Assurance Co. v. Collins, 794 P.2d 936, 949 (Alaska 1990). . FFFA's claim satisfies the other three criteria. The City concedes that the cuts adversely affected public safety. FFFA's action is designed to "effectuate strong public policies" by redressing that danger. Moreover, numerous people threatened by increased fire danger in Fairbanks stand to benefit from FFFA's action. The City concedes that the third requirement is also satisfied. . A substantial amount of money was at stake. The City Manager testified that the City's actions had cut average overtime expenditures by $4000 per week. In addition, the superior court required FFFA to post a bond of $32,000 before granting the preliminary injunction. . FFFA argues that its pursuit of injunctive relief, rather than monetary damages, indicates that its interest in this case was safety rather than financial gain. Indeed, in Kodiak Seafood Processors, the plaintiffs' request for solely in-junctive relief cut in favor of public interest status. Kodiak Seafood Processors, 900 P.2d at 1199. However, as noted, the relief FFFA requested consists entirely of renewed payments directly to its members, in marked contrast to the plaintiffs in Kodiak Seafood Processors, who received nothing. As a result, the distinction between injunctive relief and damages has little meaning in this context, and this argument lacks merit.

12014829

Danny L. RUSSELL, Appellant, v. STATE of Alaska, Appellee

Russell v. State

1997-03-28

No. A-5709

1335

1348

934 P.2d 1335

934

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Danny L. RUSSELL, Appellant, v. STATE of Alaska, Appellee.

Danny L. RUSSELL, Appellant, v. STATE of Alaska, Appellee. No. A-5709. Court of Appeals of Alaska. March 28, 1997. Averil Lerman, Anchorage, for Appellant. Erie A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Ap peals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

6648

40762

OPINION MANNHEIMER, Judge. Danny L. Russell appeals his conviction for first-degree sexual assault, AS 11.41.410(a). Russell questions various evidentiary rulings made by the trial court, and he asserts that the trial court committed plain error in two of its jury instructions. Russell also challenges his sentence. We affirm. Russell was charged with raping his wife, T.R., from whom he was separated. Russell and T.R. married in April 1993, but they separated eleven months later (in March 1994). T.R. remained in Ketchikan, and Russell went to Prince of Wales Island. The marriage was marked by several episodes in which Russell physically abused his wife. Russell once punched his wife in the head and gave her a black eye. On a different occasion, Russell attempted to run T.R. over with a car. In August 1993, Russell attacked T.R. so brutally that she had to be medivacked to Ketchikan, where she was treated by Dr. Ernest Meloehe for head trauma as well as cervical and lumbar sprains. In January 1994, Russell was convicted of harassment based on another assault on T.R.. During the marriage, T.R. sought refuge several times at the Ketchikan's women's shelter. She also received repeated medical treatment from Dr. Meloehe. In May 1994, after the couple had been separated for two months, T.R. obtained dissolution papers, completed her portion of the papers, and sent them to Russell. Russell refused to sign the papers. T.R. also obtained a restraining order that barred Russell from contacting T.R. or her children (from a prior marriage). Russell repeatedly violated this order by telephoning T.R. and writing her letters. Over the next two months, Russell sent approximately 60 letters to T.R. (essentially, one every day). One of Russell's letters from late June contained a threat to rape T.R.. Russell wrote: Please answer [my letters]. [T.R.], do you love me or is it just for the money? You told me that you liked me to take matters into my own hands. So I guess I will even if it means raping you. I do need and want you. On July 1, 1994, unbeknown to T.R., Russell returned to Ketchikan. Wishing to see T.R., and believing that she was living at the women's shelter, Russell set up watch at a distance from the shelter. T.R. was not living at the shelter, but by coincidence she and her son happened to walk into downtown Ketchikan near the shelter that day. Russell saw them and approached T.R.. T.R. told Russell that the restraining order was still in effect, but she and her son nevertheless accompanied Russell to a nearby McDonald's restaurant. At the restaurant, Russell made physical advances toward T.R.. According to T.R.'s son, Russell "kept jerking [T.R.'s] head to kiss him"; T.R. "covered her face" to avoid the physical contact. The resulting commotion attracted the attention of another customer. Attempting to defuse the situation, T.R. gave Russell a "peek" on the cheek. She then told him that she wanted him to sign the dissolution papers. After about 20 minutes at the restaurant, T.R. told Russell that she and her son were leaving for the video store. When Russell suggested that he come along, T.R. told Russell that they did not want him to accompany them. In response, Russell told T.R. that "he intended to follow her wherever she went". Fearing that Russell would follow her home (and thus discover where she was living), T.R. offered to walk Russell back to his hotel. At the hotel, Russell invited T.R. and her son up to his room. He then gave T.R.'s son some money to play video games; the boy departed, leaving Russell and T.R. alone in Russell's room. Thereafter, Russell engaged in sexual intercourse with T.R. This act of sexual penetration formed the basis of the ensuing sexual assault charge against Russell. The State alleged that Russell had sexually assaulted T.R. In general, a charge of first-degree sexual assault requires proof of two main elements: first, that the act of sexual penetration occurred without the victim's consent, and second, that the defendant acted recklessly 'with regard to the 'victim's lack of consent. See Reynolds v. State, 664 P.2d 621 (Alaska App.1983). Russell asserted that his sexual intercourse with T.R. had occurred with her consent. At trial, T.R. testified that she repeatedly told Russell that she did not wish to have sex with him. She tried to leave the room, but Russell barred the door. T.R. stated that she repeatedly asked Russell to stop and that she cried throughout the assault. While the assault was taking place, T.R.'s son returned to Russell's hotel room and knocked on the door; T.R. attempted to speak, but Russell covered her mouth with his hand. T.R.'s account was corroborated by a card that Russell wrote to T.R. a few days later. In this card, Russell said: [TJhank you so much for seeing me. I am so sorry if you know what I mean. Honest, I told myself years ago I would never ever really force you. I'm so ashamed for what I did. Don't hate me for it. I thought maybe you might have liked it. I did. Don't hate me, please_ T.R. conceded, however, that she did not physically resist Russell. She explained that she decided not to resist because of Russell's past acts of violence. T.R. also conceded that she did not report the sexual assault for three days, and that, in the meantime, she made a payment on her wedding ring. According to Russell, T.R. was the one who suggested that she and her son walk Russell back to his hotel room. When they reached the room, Russell put his arms around T.R. and kissed her; she responded by "mov[ing] in a romantic way, . looking out the window." About this time, Russell gave T.R.'s son money to play video games, and Russell and T.R. were left alone. Russell and T.R. kissed, and then Russell placed T.R. on the bed. T.R. told Russell, "Dan, . we shouldn't be doing this . because my counselors don't want me to have any contact with you." However, according to Russell, T.R. then willingly had sexual intercourse with him. Russell conceded that T.R. began to cry afterwards, but he attributed T.R.'s reaction to remorse and embarrassment. Russell suggested that T.R. felt these emotions because she had promised her women's shelter counselors that she would build a life without Russell, but now she had just engaged in intimate relations with him again. Russell relied on a similar theory to explain his letter of apology to T.R. Russell claimed that he told T.R. he was sorry because he understood her ambivalence about having sex with him and because he was ashamed of having convinced T.R. to ignore the advice of her counselors. Before trial, Russell asked the superi- or court to bar the State from introducing evidence of Russell's physical abuse of T.R. while they were living together in 1993. Russell argued that such evidence would do nothing more than paint him as an abusive husband, and thus the evidence was barred by Alaska Evidence Rule 404(b). The State responded that Russell's assaults upon T.R. were relevant to explain T.R.'s behavior during the events being litigated — in particular, why she agreed to go to Russell's hotel room and why she did not physically resist Russell's sexual advance. Superior Court Judge Thomas M. Jahnke decided to reserve his final ruling on this issue until after he heard T.R.'s testimony. However, he did indicate that it seemed likely that evidence of Russell's prior assaults on T.R. would prove relevant in the ways the State suggested. During T.R.'s testimony, she described Russell's various physical assaults on her during their marriage. Russell did not object. On appeal, Russell argues that this evidence should not have been admitted. However, as just explained, Judge Jahnke never made a final ruling on this evidentiary question because Russell never asked for one. When Russell raised this issue (by asking for a protective order before T.R. testified), Judge Jahnke stated that he would reserve his ruling. Later, when T.R. testified about Russell's prior assaults, Russell did not object, nor did he remind Judge Jahnke that the judge had yet to rule on the motion for a protective order. Under these circumstances, Russell failed to preserve this issue for appeal. Torres v. State, 519 P.2d 788, 794-95 (Alaska 1974). Even if this issue had been preserved, we would find no error. Evidence of a defendant's prior crimes is admissible to explain the relationship between two people. See Braham v. State, 571 P.2d 631, 641 (Alaska 1977). In particular, such evidence is relevant to explain why one person might fear another person or might submit to another person's will. Dulier v. State, 511 P.2d 1058, 1061 (Alaska 1973). This same rationale is employed to admit evidence of the victim's past acts of violence when a defendant is charged with assault or homicide and defends by claiming self-defense: on the issue of whether the defendant acted reasonably in using force upon the victim, the defendant is entitled to introduce evidence that he was aware of the victim's past acts of violence. See McCracken v. State, 914 P.2d 893, 898-99 (Alaska App.1996). In the present case, the State alleged that Russell had engaged in sexual intercourse with T.R., that T.R. had not consented to this, and that Russell had recklessly disregarded T.R.'s lack of consent. Russell argued that his wife had consented to have sexual intercourse with him, or at least she never resisted or gave any other manifest indication that she did not consent. Russell's prior assaults on T.R. were relevant to the jury's evaluation of these issues. Such evidence could explain why T.R. would agree to accompany Russell to the hotel room and why she did not physically resist Russell when she was alone with him in the room. Moreover, Russell's past assaults on T.R. were also potentially relevant to the State's proof of Russell's recklessness — Russell's awareness of a substantial and unjustifiable possibility that T.R. felt coerced to engage in the act of sexual intercourse. Russell argues that, in a recent legislative amendment to Evidence Rule 404(b), the legislature indicated its intention to exclude the type of other-crimes evidence that was introduced at Russell's trial. In 1994, the legislature added subsection (b)(3) to Evidence Rule 404(b). See 1994 SLA ch. 116, § 2. Evidence Rule 404(b)(3) states: In a prosecution for a crime of sexual assault in any degree or attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent. Russell argues that, because Rule 404(b)(3) refers to evidence of a defendant's other sexual assaults, the legislature must have intended to exclude evidence of a defendant's non-sexual assaults. Russell's interpretation of subsection (b)(3) does not make sense. When the legislature enacted subsection (b)(3), its declared intent was to expand the scope of admissible evidence, not restrict it. See the declaration of purpose contained in SLA 1994, ch. 116, § 1. Evidence of Russell's physical assaults on T.R. would have been admissible under Rule 404(b) before the legislature added subsection (b)(3). We reject Russell's suggestion that subsection (b)(3) was intended to exclude evidence of a defendant's prior crimes against the victim, evidence that would have been admissible before the legislature amended the rule. Russell also argues that evidence of his prior assaults on T.R. should have been excluded because Russell's attorney was not given adequate advance notice of the State's intention to introduce this evidence. In the trial court, Russell's attorney claimed that he was surprised when the State announced that it intended to elicit testimony regarding Russell's other assaults on T.R.. The prosecutor responded that, during pre-trial discovery, the State had provided Russell's attorney with information about these prior assaults.' The prosecutor also pointed out that Russell's attorney must have known that the State would try to introduce this evidence because the defense attorney filed a pre-trial motion for a protective order, asking the superior court to exclude evidence of the prior assaults. After hearing these arguments, Judge Jahnke asked Russell's attorney if he needed a continuance to prepare for the other-crimes evidence. Russell's attorney asked to be given until noon to review the information. Later, just before T.R. testified, Judge Jahnke asked the defense attorney, "What's the situation at the defense table with regard to a request for a continuance!!?]" Russell's attorney answered, "I'm ready to go." Assuming for purposes of argument that Russell was in fact surprised by the State's intention to introduce evidence of his prior assaults on T.R., Russell's remedy was a continuance, not exclusion of the evidence. Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976). See also Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991) (when a defendant is prejudiced by a mid-trial discovery violation, the remedy is a continuance or a mistrial, not exclusion of the evidence). Judge Jahnke offered Russell's attorney a continuance, and the defense attorney declared that he did not need one. There was no error. We now turn to a separate point on appeal that is closely related to this last one. At trial, Dr. Ernest Meloche testified about the times he had treated T.R. for physical injuries. He also testified that, based on his experience with T.R., he diagnosed her as suffering from "battered woman syndrome" — a psychological condition in which a woman who is repeatedly subjected to violence at the hands of her husband or domestic partner will nevertheless stay with her abuser, being psychologically unable to sever the relationship. Russell argues on appeal that Dr. Meloche was not qualified to offer an opinion regarding whether T.R. suffered from battered woman syndrome. This argument is not preserved. Dr. Meloche testified on voir dire concerning his medical qualifications and concerning his diagnosis of battered woman syndrome. Following this voir dire examination, Russell did not question Dr. Meloche's qualifications as an expert witness on these subjects. Russell argued only that Dr. Me-loche's testimony would constitute an improper "validation" of T.R.'s testimony. By failing to object to Dr. Meloehe's qualifications following the voir dire, it appears that Russell implicitly acknowledged that Dr. Meloche was sufficiently qualified to offer an expert opinion on the subjects described in his testimony. Moreover, regardless of whether Russell's failure to object constituted an implicit acknowledgement of the doctor's qualifications, that failure to object constituted a waiver of this issue. It is true that the trial court failed to make an explicit finding that Dr. Meloche was qualified to testify concerning battered woman syndrome; however, this failure did not constitute plain error. As revealed by his testimony, Dr. Meloche is a board-certified expert in emergency medicine, and he has received extensive training in battered woman syndrome. Battered woman syndrome is often relevant to the emergency treatment of women, and this diagnosis is often made by emergency-room physicians. Dr. Meloche himself had made this diagnosis many times during his years as an emergency medicine practitioner. This testimony sufficiently established Dr. Meloche as an expert witness under the test contained in Alaska Evidence Rule 702. See Dymenstein v. State, 720 P.2d 42, 45 (Alaska App.1986) (Under Evidence Rule 702, "[t]he criterion in determining whether a person qualifies as an expert is whether the fact-finder can receive appreciable help from that person", and a trial judge has considerable discretion in deciding what expert testimony should be admitted.). See also Hilburn v. State, 765 P.2d 1382, 1385-86 (Alaska App.1988) (upholding the trial court's ruling that, based on a physician's experience in the Indian Health Service, the physician was qualified to testify as an expert on the behavioral characteristics of Eskimo women who have undergone trauma). Russell also claims that Judge Jahnke should have precluded Dr. Meloche from testifying (or, at least, from testifying as an expert -witness) because Russell did not receive pre-trial notice of this testimony. Russell relies on the current version of Alaska Criminal Rule 16(b)(1) — specifically, subsection (v)(B) — for the proposition that the State was obliged to furnish Russell with a pre-trial "written description of the substance of [Dr. Meloche's] proposed [expert] testimony". However, this version of the rule was not in effect at the time of Russell's trial. Under the version of Rule 16(b)(1) that was in effect, the State was obliged to give Russell "any reports or statements of experts made in connection with the case". The State complied with this provision by furnishing Russell with a copy of Dr. Me-loche's report. This report included Me-loche's diagnosis of T.R. as suffering from battered woman syndrome. Russell's claim of surprise is further undercut by the fact that, prior to trial, Russell filed a motion for a protective order, asking the superior court to "preclude any evidence of Dr. Meloehe's conclusions of 'battered wife syndrome' ". It appears that Russell's attorney was aware of at least a substantial possibility that the State would call Dr. Meloche as an expert witness. Finally, Russell argues that even if his procedural objections to Dr. Meloche's testimony are not well-taken, Dr. Meloche nevertheless should not have been allowed to testify about his diagnosis of T.R. as a battered woman. According to Russell, when Dr. Meloche described battered woman syndrome and diagnosed T.R. as suffering from this condition, the doctor improperly vouched for T.R.'s credibility. Russell likens Dr. Me-loche's testimony to the psychological "profile" evidence that this court rejected in such cases as Cox v. State, 805 P.2d 374, 377-79 (Alaska App.1991), and Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App.1988). Cox and Haakanson prohibit the State from introducing evidence that there is a psychological "profile" characteristic of sexual abuse or sexual assault victims to prove that the victim in a particular case fits this profile, and thus that the victim must be telling the truth when he or she claims to have been abused or assaulted. However, Dr. Meloehe's testimony did not violate this rule. Although the State can not use psychological profile evidence as an offensive weapon, the State is entitled to introduce "profile" testimony in response to a defense claim that the victim's conduct was inconsistent with a claim of sexual assault or sexual abuse. Haakanson, 760 P.2d at 1036; Rodriquez v. State, 741 P.2d 1200, 1203-05 (Alaska App.1987). Russell claimed that T.R.'s conduct before, during, and after her encounter with Russell in the hotel room was inconsistent with her allegation of rape. The State was therefore entitled to introduce evidence explaining how T.R.'s behavior was not necessarily inconsistent with the State's allegation of sexual assault. Dr. Meloche's description of battered woman syndrome and his diagnosis of T.R. as suffering from this syndrome were relevant and admissible on this issue. Russell argues that, assuming Dr. Meloche's testimony was admissible, the trial judge should have given the jury a special instruction limiting the jurors' consideration of this testimony. As Russell concedes on appeal, his trial attorney did not ask for such an instruction. Thus, Russell must establish that the failure to give a limiting instruction was plain error. To prove plain error, Russell must establish that the court's failure to act was a manifest error, obvious to any competent lawyer or judge. Massey v. State, 771 P.2d 448, 453 (Alaska App.1989); Carman v. State, 658 P.2d 131, 137 (Alaska App.1983); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App.1982). We find no such error here. The relevance of Dr. Meloche's testimony about battered woman syndrome was fairly clear; it explained why T.R. might stay in an abusive relationship and place herself in situations where she could be abused. The relevance of Russell's prior physical abuse of T.R. was also fairly clear; it explained why T.R. might not physically resist Russell's attempt to have sexual intercourse with her. Russell does not contend that the prosecution attempted to misuse this evidence by arguing pure propensity to the jury. Moreover, to prove plain error, Russell must show that there is no apparent reason for his attorney's failure to seek a limiting instruction. Massey, 771 P.2d at 453; Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.1985). In Wortham v. State, 689 P.2d 1133 (Alaska App.1984), this court rejected a similar claim of plain error based on a trial court's failure to give a limiting instruction concerning the defendant's prior criminal conviction. This court concluded that "[the defense attorney] might have felt that a limiting instruction was not necessary and would only have drawn more attention to the conviction." Wortham, 689 P.2d at 1139. The record in Russell's ease leads to the same conclusion. Russell next argues that the trial court erroneously allowed T.R.'s friend, Connie Taylor, to testify concerning T.R.'s first complaint that she had been raped. Russell concedes that hearsay evidence of a victim's first report of a sexual assault is admissible. See Greenway v. State, 626 P.2d 1060 (Alaska 1980); Nitz v. State, 720 P.2d 55, 62 (Alaska App.1986). However, Russell argues that Taylor was allowed to exceed the proper scope of this hearsay exception when she described T.R.'s report in some detail. Having examined the record, we conclude that even if Taylor's testimony exceeded the proper scope of the "first complaint" hearsay exception, the error was harmless. T.R. had already testified to all of the details mentioned by Taylor. Russell's next point on appeal is that the trial court erroneously precluded Russell from presenting the testimony of his ex-wife, Rosemary Morris. Morris was prepared to testify that, during her fourteen years of marriage to Russell, Russell never beat her. Russell argues that Morris's testimony should have been admitted under Alaska Evidence Rule 404(a)(1). Evidence Rule 404(a)(1) allows a defendant to offer evidence of "a relevant trait of character" to prove that he or she acted in conformity with that trait of character during the episode in question. Under Rule 404(a)(1), it appears that Russell was entitled to introduce evidence of his character for peacefulness or non-violence; further, Morris appears to have been qualified to offer an opinion on Russell's character. However, Russell's attorney expressly told the court that he was not offering Morris's testimony for this purpose: "I [will not be] asking for any of her opinions. I'm not [presenting] any character witnesses about Mr. Russell's — that he is, you know — I'm not having her say [that] he's not a violent person. I'm just saying that she was not beat[en] in [14] years of marriage." Thus, even though Russell argues on appeal that Morris's testimony was admissible under Evidence Rule 404(a)(1) to prove Russell's character for non-violence, the record shows that Russell's trial attorney explicitly announced that he had chosen not to offer Morris's testimony (or any other evidence) for the purpose of establishing Russell's character. That is, the argument Russell makes on appeal was not preserved in the trial court. In the trial court, Russell's sole argument in favor of Morris's testimony was that if Russell had not beaten or raped an earlier wife, he was not likely to have beaten or raped a later wife. With Russell's attorney declaring that he intended to make no assertion about Russell's character, Judge Jahnke properly rejected this offer of proof. Russell's next point on appeal concerns the jury instruction on the meaning of "recklessly". As noted above, one of the State's elements of proof was that Russell recMessly disregarded the fact that T.R. did not consent to the act of sexual intercourse. Judge Jahnke instructed the jury on the meaning of "recklessly" as follows: A person acts "recklessly" with respect to a circumstance described by the law. when the person is aware of and consciously disregards a substantial and unjustifiable risk that the circumstance exists. The risk must be of such a nature and such a 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 he or she not been intoxicated acts recklessly with respect to that risk. This language is taken from AS 11.81.900(a)(8). Russell's trial attorney made no objection to this instruction, but on appeal Russell argues that this instruction was plain error. Russell asserts that this instruction contains "convoluted clauses" and that it is "full of self-importance and devoid of clarity". We disagree. While this instruction requires a closer reading than the morning newspaper, the jurors were presumably aware of their duty to read the instructions closely. Moreover, the syntax of this instruction is more straightforward than many of the instructions commonly given to jurors. Russell argues that the instruction contains "numerous terms of art". In particular, Russell notes that the instruction does not define "unjustifiable risk", nor does it define the concept of a "gross deviation from the standard of conduct that a reasonable person would observe in the situation". While these phrases may constitute "terms of art", all the words they comprise are part of everyday English. It is true that the instruction did not provide definitive answers to the questions the jury faced: 'What standard of conduct would a reasonable person have observed in Russell's situation?", "Given that standard, did Russell take an unjustifiable risk that T.R. was not consenting to the act of sexual intercourse?", and "If Russell did deviate from a reasonable standard of conduct, was Russell's deviation from that standard of conduct minimal or gross?" These are necessarily questions of fact and of degree; they can not be answered in a jury instruction. But the challenged instruction fulfilled its function of informing the jury of the questions that needed to be asked and answered. Russell fails to suggest how the terms used in the challenged instruction might have been better defined, nor does he cite any ease law holding that it is error to instruct a jury using these terms. In fact, from perusing criminal law texts, it can readily be seen that the definitions of "recklessly" and "with criminal negligence" contained in AS 11.81.900(a)(8) and (a)(4) are far more precise than the words employed at common law to define the concept of criminal negligence to juries. See, for example, the discussion found in Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 3.7(a)-(b), Vol. 1, pp. 326-333, and the discussion found in R. Perkins & R. Boyce, Criminal Law (3rd ed.1982), p. 107-08. In sum, we find no plain error. Russell next argues that plain error occurred during the prosecutor's rebuttal summation to the jury. The issue arose in the following way: Russell took the stand at trial. During his cross-examination, he admitted (without objection) that he had read the police reports, had discussed them with his attorney, and had prepared his testimony before he took the stand. Later, during summation, Russell's attorney argued to the jury that Russell's version of events should be credited because it was consistent with the testimony given by two government witnesses: T.R.'s son and a state trooper. In rebuttal, the prosecutor argued that the consistency between Russell's testimony and the boy's testimony did not prove that Russell's testimony was believable: I want to talk to you again about Dan Russell's testimony. [Defense counsel] told you that Dan Russell's testimony was completely consistent with what [T.R.'s son] testified to, [and that] it was completely consistent with what he had told the troopers before. Of course it was consistent. Do you think Dan Russell would get on the stand and place himself in a position where he eonld be cross-examined about the statements he had made before to the troopers and make inconsistent ones? Do you think he would get on the stand and call a 12-year-old child a liar[?] Of course he's not going to do that. What he's going to do is take a look at what he can get away with. And he's going to carefully craft and tailor his testimony so that it is consistent.... Place yourself in the shoes of Mr. Russell, who has [forcibly] had sex with . his wife and has been charged with [this crime]. And in his possession [are] the testimony that [T.R.] is going to give, [the] testimony that [her son] is going to give, and [the] testimony that the trooper is going to give. How would you testify if you were going to convince a jury untruthfully that you didn't do it? Russell made no objection to this argument. However, on appeal, Russell asserts that the prosecutor's argument was plain error. Russell argues that the prosecutor's remarks constituted unfair comment on Russell's exercise of his rights to attend his trial and confront his accusers. The State responds that, once Russell chose to take the stand, the prosecutor and the jury could properly subject Russell's testimony to the same methods of evaluation used to assess the credibility of any other witness. Thus, the State argues, the jury could properly take into account the fact that Russell was able to prepare for trial knowing what the government's witnesses were likely to say, as well as the fact that Russell was able to prepare his own testimony after hearing what those witnesses in fact did say. As explained above, "plain error" exists only when the alleged error would have been obvious to any competent lawyer and judge. There is little authority in support of Russell's position. In fact, Russell cites only one case in support of his claim that the constitution bars this type of prosecutorial comment, and that case — State v. Cassidy, 236 Conn. 112, 672 A.2d 899 (1996) — was decided a year after Russell's trial. In Marrone v. State, 653 P.2d 672, 679 & 681 (Alaska App.1982), this court clarified that the asserted "plainness" of an error generally must be evaluated under the legal standards in existence at the time of the occurrence, not in light of later-decided cases. Therefore, the fact that Connecticut now outlaws this type of argument does not establish that plain error was committed in Russell's trial. Indeed, Russell's appellate counsel filed her opening brief without spotting this ostensibly obvious error; she sought special permission to file a supplemental brief raising this issue after she read the Connecticut court's decision in Cassidy. This sequence of events provides additional support for the conclusion that, if the prosecutor's argument was error, the error was not plain. Moreover, even after Cassidy, there are apparently only two jurisdictions that find a constitutional flaw in this type of prosecution argument: Connecticut and the District of Columbia. See Dyson v. United States, 418 A.2d 127, 131 (D.C.App.1980). While we respect the decisions of these courts, "one swallow does not make a summer" , nor can a claim of plain error be predicated on a constitutional interpretation adopted by two jurisdictions out of fifty-one. Finally, whatever might be the merit of a rule prohibiting this type of argument as an offensive weapon, we would still find that the prosecutor's argument was not plain error in Russell's case. In Russell's case, the prosecutor used the argument defensively in response to a claim made by Russell's attorney. The defense attorney opened up this issue by explicitly arguing that Russell's version of events should be believed because it was consistent with the testimony given by two other witnesses. In response, the prosecutor pointed out that this testimonial consistency did not necessarily prove Russell's credibility. Compare Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App.1988), and Rodriquez v. State, 741 P.2d 1200, 1203-05 (Alaska App. 1987) (although the State can not use psychological profile evidence as an offensive weapon, the State is entitled to introduce profile evidence in response to a defense claim that the victim's conduct was inconsistent with a claim of sexual assault or sexual abuse). We now turn to Russell's sentencing issues. Russell was a first felony offender convicted of first-degree sexual assault. Russell did not use a weapon or cause serious injury to his victim. He therefore faced a presumptive term of 8 years' imprisonment. See AS 11.41.410(b) and AS 12.55.125(i)(l). Judge Jahnke found two aggravating factors under AS 12.55.155(c): (c)(18)(A) — that Russell's crime was committed against his spouse, and (e)(8) — that Russell had a criminal history of repeated or aggravated instances of assaul-tive behavior. On appeal, Russell challenges ag-gravator (c)(8). He notes that a grand jury refused to indict him for the acts of abuse that resulted in T.R.'s hospitalization in 1993. In fact, Russell had previously been convicted only once for abusing T.R., and that was a misdemeanor. Russell's argument, however, appears to be based on a misunderstanding of the aggravator. When aggravator (e)(8) speaks of a defendant's "criminal history", this includes incidents that were not prosecuted or that otherwise did not result in convictions. Fagan v. State, 779 P.2d 1258, 1260 (Alaska App.1989). Russell also argues that, if aggravator (e)(8) was proved, application of this ag-gravator to his case would violate "double jeopardy". Russell perceives a double jeopardy violation because one element of his offense was recklessly disregarding T.R.'s lack of consent to an act of sexual intercourse. Russell asserts that the evidence of his prior physical abuse of T.R. was the only evidence to support a finding of recklessness, and thus it would be a second jeopardy to use this same evidence to prove aggravator (c)(8). Russell cites no cases to support his assertion that this dual use of the evidence violates the constitution, and we are aware of no such cases. We conclude that Russell's double jeopardy argument is meritless. Russell also relies on AS 12.55.155(e). This statute declares that an aggravating factor may not be used to enhance a defendant's sentence if that factor is a necessary element of the offense for which the defendant was convicted, or if that factor by itself requires imposition of a higher presumptive term. Russell is incorrect when he asserts that, apart from his prior physical abuse of T.R., there was no evidence that he recklessly disregarded her lack of consent. T.R. testified that she repeatedly told Russell to stop — that she did not want to have sex with him. More important, Russell's basic legal premise is incorrect. It does not violate AS 12.55.155(e) for the State to rely on the same evidence to prove both the charged offense and an applicable aggravating factor. AS 12.55.155(e) speaks only to those cases in which the aggravating factor is a necessary element of the offense. To prove that Russell committed first-degree sexual assault, it was not necessary for the State to prove that Russell had previously engaged in repeated or aggravated assault on T.R. Evidence of these prior assaults was relevant, but the State did not have to prove this aggravator in order to convict Russell. Thus, AS 12.55.155(e) was not violated. See Krasovich v. State, 731 P.2d 598, 600 (Alaska App.1987) (holding that, because negligent homicide is not invariably committed by use of a dangerous instrument, AS 12.55.155(e) does not bar the application of aggravator (e)(4) to negligent homicide cases). Russell next argues that Judge Jahnke should have found mitigator AS 12.55.155(d)(9) — that Russell's offense was among the least serious within its class. Russell suggests that, because his sexual assault upon T.R. "arose in a marital relationship", this may have "created confusion about intent"; Russell asserts that there was "significant evidence that Russell believed . his wife desired intimacy with him". Whatever the evidence on this point, the jury found beyond a reasonable doubt that Rus sell was not confused about T.R.'s state of mind. Russell points out that he used no weapon. However, we can not view the lack of a weapon as a mitigator: if Russell had used a weapon, he would have faced a higher presumptive term. See AS 12.55.125(0(2). Russell asserts that he did not act with "malicious intent" or with intent to harm his wife. Russell does not define what he means by "malicious intent", but we assume he is referring to some mental state more blameworthy than the recklessness required to prove first-degree sexual assault. Because proof of recklessness suffices, the fact that Russell acted without "malicious intent" does not establish his crime as being among the least serious within the definition of first-degree sexual assault. Similarly, the fact that Russell did not intend to physically harm T.R. does not establish the mitigated nature of his offense. If Russell had injured T.R., his offense would be aggravated. Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983). For these reasons, we uphold Judge Jahnke's rejection of mitigator (d)(9). Russell next argues that Judge Jahnke should have referred his case to the three-judge sentencing panel under AS 12.55.165 because imposition of the 8-year presumptive term constituted manifest injustice. He points out that he had a lengthy, non-violent marriage to Rosemary Morris and that he "lived for most of his adult life as a productive [citizen]". However, Russell had a history of violence toward T.R. Judge Jahnke believed that Russell was obsessed with T.R. at the time of the rape, and he further believed that this obsession potentially continued to control Russell's thoughts even at sentencing. Judge Jahnke concluded that Russell's outlook for rehabilitation was "at best guarded", and that Russell had yet to accept responsibility for his crime. Given this record, Judge Jahnke did not abuse his discretion when he declined to send Russell's case to the three-judge panel. Finally, Russell argues that even if both aggravators were proved, even if the miti-gator was not proved, and even if Judge Jahnke properly declined to refer Russell's ease to the three-judge sentencing panel, it was still unfair to "increase Mr. Russell's sentence by a factor of fifty percent" based on the aggravating factors. Judge Jahnke did not increase the 8-year presumptive term by fifty percent. He added 4 years, but he suspended them. Thus, Russell was sentenced to serve only the 8-year presumptive term mandated by statute for his crime. He faces additional jail time only if he violates the terms of his probation. The judgement of the superior court is AFFIRMED. . Under AS 11.41.470(8)(A), an act of sexual penetration or sexual contact occurs without the victim's consent when the victim, "with or without resisting, is coerced by the use of force . or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone". . We again note that, even assuming the State had violated its duty of pre-trial disclosure, the remedy would have been a continuance of Russell's trial, not preclusion of Dr. Meloche's testimony. Des Jardins, 551 P.2d at 187. . In two conclusoiy sentences, Russell argues that testimony about battered woman syndrome does not meet the Frye test for admissibility of scientific evidence. Frye v. United States, 293 F. 1013 (D.C.Cir.1923); Contreras v. State, 718 P.2d 129 (Alaska 1986). This sort of briefing is not adequate to preserve an issue, Petersen v. Mutual Life Insurance Co. of New York, 803 P.2d 406, 410 (Alaska 1990), particularly an issue that was not raised in the trial court. . Aristotle, Nicomachean Ethics, book 1, chapter 7, quoted in Barlett's "Familiar Quotations" (Emily Morison Beck, ed., 15th ed.1980), p. 87.

11872563

John S. SWISS, individually and d/b/a Swiss's Alaska Trophy Hunts, Appellant, v. CHIGNIK RIVER LIMITED, an Alaska corporation, Appellee

Swiss v. Chignik River Ltd.

1998-01-02

No. S-7726

433

436

951 P.2d 433

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

John S. SWISS, individually and d/b/a Swiss’s Alaska Trophy Hunts, Appellant, v. CHIGNIK RIVER LIMITED, an Alaska corporation, Appellee.

John S. SWISS, individually and d/b/a Swiss’s Alaska Trophy Hunts, Appellant, v. CHIGNIK RIVER LIMITED, an Alaska corporation, Appellee. No. S-7726. Supreme Court of Alaska. Jan. 2, 1998. Thomas E. Meacham, Anchorage, for Appellant. Amy L. Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage, for Appellee. Before COMPTON, C.J., and MATTHEWS and BRYNER, JJ.

2224

13405

OPINION MATTHEWS, Justice. I. INTRODUCTION The Alaska Native Claims Settlement Act (ANCSA) requires village corporations to convey land used as a subsistence campsite to the occupant. The question presented is whether an occupant may be entitled to more than one campsite for a given subsistence use. We answer "yes" because the act contains no limitations pertaining to subsistence campsites and multiple campsites are frequently needed for the subsistence lifestyle which Congress meant to protect. II. FACTS AND PROCEEDINGS John Swiss is a big game guide and subsistence hunter and fisherman. In 1949 he and his family began setnet fishing at Polly Creek; in 1951 he opened a commercial big game guiding business. Swiss set up permanent hunting camps in several places around the state. One of these was at Black Lake, the site at issue in this case. In 1967 Swiss built a cabin at the site. This camp has been used as a place out of which hunters were guided and for obtaining meat for personal use from moose, caribou and ptarmigan. Pursuant to section 14(a) of ANCSA, 43 U.S.C. § 1613(a), Chignik River Limited (Chignik) selected and received title to large blocks of federal land including the land on which the Black Lake camp stands. Section 14(e)(1) of ANCSA, 43 U.S.C. § 1613(c)(1), requires village corporations to convey to "any Native or non-Native occupant" title to the surface estate of tracts of land obtained under section 14(a) used, as of December 18, 1971, "as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry." Id. Swiss has received a conveyance of a primary place of business site. This was his guiding campsite at Cathedral Creek. He has also had a tract near Fan Creek con veyed to him as a subsistence campsite. In this case, Swiss ultimately came to claim that he was entitled to conveyance of the Black Lake camp as another subsistence campsite. When Chignik failed to take action on Swiss's application for a conveyance he filed suit. On cross motions for summary judgment, the superior court ruled that Swiss was not entitled to the Black Lake parcel as a subsistence campsite because he had already received a conveyance of the Fan Creek subsistence campsite and he claimed both sites for the same subsistence use— gathering meat. The court also awarded Chignik Civil Rule 82 attorney's fees of $6,891.60 and costs of $1,383.80. Swiss appeals, claiming that an occupant is not limited to a conveyance of a single subsistence campsite for a particular subsistence use under section 14(c)(1). Chignik argues that the superior court was correct in its reasoning regarding the number of subsistence campsites to which an occupant is entitled and, in the alternative, that Swiss did not use the Black Lake camp as a subsistence campsite but as a commercial camp and that the conveyance should be denied on that ground. III. DISCUSSION A. Conveyance Under Section lk(c)(l). ANCSA section 14(c)(1), 43 U.S.C. § 1613(c)(1), provides: Each patent issued [to a village corporation under section 14(a) and (b) of the act] shall be subject to the requirements of this subsection. Upon receipt of a patent or patents: (1) the Village Corporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 . as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry[.] In Hakala v. Atxam Corporation, 753 P.2d 1144 (Alaska 1988), we interpreted the "primary place of business" provision of section 14(c)(1) to mean that "for each business in which a person engages, there can be only one primary place of business." Id. at 1148. Thus, an occupant is entitled to conveyance of only one parcel of land as a primary place of business for a given business. In this case, the superior court reasoned that the statutory limitation placed on the conveyance of a "primary place of business" should also be read into the clause providing for conveyance of a subsistence campsite. The court wrote: The language of Sec. 14(c)(1) limits conveyances of businesses and residences to the primary business and residence site and conveyances of reindeer husbandry sites to the headquarters for such activities. That indicates that even though long time users of the land had secondary business sites, residences, and reindeer husbandry sites, they are not entitled to a Sec. 14(c)(1) conveyance for those sites. By the same token, the conveyance of one subsistence campsite for a particular subsistence purpose should act to bar the conveyance of additional subsistence sites used for the same purpose. Thus, under the reasoning employed by the superior court, one could obtain conveyances of a game subsistence campsite and a berry picking subsistence campsite but not two game subsistence campsites. As Swiss had claimed his Fan Creek and Black Lake camps as game subsistence sites, and had obtained a conveyance of the former, the superior court concluded he was not entitled to the latter. B. Does Section lU(c)(l) Limit Conveyance of Subsistence Campsites to One Campsite Per Subsistence Use? Swiss argues that our Hakala decision provides the key to the outcome of this case. He notes that "in contrast to the 'primary' place of business requirement and the 'primary' place of residence requirement in Section 14(e)(1), the 'subsistence campsite' category is not so qualified." He concludes, given this Court's holding in Hakala that a "primary" place of business can only be a single site, the fact that Congress did not similarly qualify subsistence campsite claims should have led the court below to the opposite conclusion: that Congress, by not imposing the "primary" qualifier on subsistence campsites (as it had done for places of business and places of residence), explicitly did not intend to limit a claimant to only one subsistence campsite. Chignik argues in opposition that Swiss's interpretation of the act would cause too much ANCSA land to be conveyed out of the hands of village corporations. In our view, Swiss has the better of the argument. Section 14(c)(1) does not impose an express limitation on the number of subsistence campsites as it does for residences and businesses. This omission implies that no limitation was intended. See Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991) (designating certain things in a statute indicates that omissions should be understood as exclusions); Burrell v. Burrell, 696 P.2d 157, 165 (Alaska 1984) ("It is an accepted rule of statutory construction that to include specific terms presumptively excludes those which are not enumerated."). Furthermore, practical considerations also indicate that a rule of one game campsite per occupant was not intended. Many Alaskan Natives leading a traditional subsistence lifestyle rely on more than one species for meat. Each species may be harvested in a different location, thus requiring several subsistence campsites. Further, some species are migratory and pursuing them requires more than one campsite. Imposing a single-campsite limit for taking game would ignore these realities. The influential report of the Federal Field Committee- for Development Planning in Alaska, Alaska Natives & the Land (1968), submitted to Congress as background for ANCSA, recognized these facts and the consequent need for multiple campsites: Alaska is often pictured as a hunter's paradise. No vision could be more misleading. True, there are areas where wildlife abounds. There are other areas, some as large as most states, where few or no game animals exist. A case in point is the northern caribou that wander over the Arctic tundra, inhabiting one area for a few months then migrating to another. Oftentimes they are found hundreds of miles from where they were at the same time in previous years. Sometimes they avoid using a part of their range or migrating route for years. Other large areas such as the Yukon-Kuskokwim deltas support only waterfowl and small furbearers. Much the same may be said for the Aleutian Islands. It is only when discussing southern and interior Alaska that we can deal in terms of biological populations existing permanently in the same location. And even these are subject to the cyclic fluctuations common to most forms of wildlife. To a human population depending upon these resources for survival, this meant adoption of a way of life that would enable them to obtain food, clothing and shelter at all times of the year. Most imperative was continual contact with their food supply. It also meant a human population density at a level commensurate with the natural productivity of the land and the waters. That the Native people were able to devise means of covering long distances in search of food, for living in the open for long periods of time, of traveling over moving sea ice, and means of preserving their food during that part of the year when the temperature was above freezing is proof of their resourcefulness and energy. Id. at 91. Grants of fishing, hunting, and food-gathering sites may be made to individuals now using them or to Native groups for later transfer to the individuals in posses sion. Since agencies do not have knowledge of the locations of all such camps nor their users, the most practical approach is to have government teams meet with villages in the field to obtain applications from villagers for the sites they use. Even residents of the largest villages continue to use historic sites for hunting, fishing, and trapping — sometimes for longer periods than they reside in what may be called their home villages. Congress might impose a maximum number of subsistence-use sites and a maximum acreage that might be embraced by all applications from each head of a household or other adult, but in so doing it should be remembered that the number of subsistence sites required for each family in their subsistence quest varies throughout the state. While the 160-acre limitation of the Alaska Native Allotment Act might be adequate, the limitation to only four parcels would not cover the number of sites now in use by many families. Id. at 539. Based on the structure of section 14(c) and the nature of the subsistence hunting practices which Congress sought to protect, we conclude that the superior court erred in holding that an occupant is entitled to conveyance of only one subsistence campsite for subsistence game under section 14(c)(1). C. Did Swiss Use the Black Lake Camp as a Subsistence Campsite? Chignik contends that the superior court's grant of summary judgment should be upheld on the alternate ground that Swiss used the Black Lake site primarily for business and only incidentally as a subsistence campsite and that he is not entitled to conveyance of the site under section 14(e)(1). We decline to make such a determination on the record before us. No standard has been set to determine whether a site which is used for subsistence and for another purpose qualifies as a subsistence campsite under ANCSA. Chignik suggests that the decision should turn on the "predominant character" of the use of the site. Swiss suggests that qualifying subsistence usage need only be "not inconsequential" or, alternatively and more restrictively, "substantial." Other standards are also conceivable. The question as to what the applicable standard should be was not litigated in the superior court, and has not been brought into focus in the parties' briefs before this court. Therefore, we do not believe that it would be appropriate to decide at this time what the standard should be. On remand, the superior court should invite additional briefing, decide on the appropriate standard, find the facts, and apply them to the standard. D. Attorney's Fees and Costs. We reverse the superior court's award of attorney's fees and costs to Chignik because the award is not now appropriate given our reversal of the underlying decision. IV. CONCLUSION For the reasons stated, we REVERSE the judgment of the superior court and REMAND for further proceedings in light of this opinion. EASTAUGH and FABE, JJ., not participating. . Swiss initially litigated the case as a claim for another primary place of business site. It became clear that this claim would not prevail because of this court's ruling in Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988). There, we held that a person could only have one primary place of business for a given business for purposes of section 14(c)(1). Id. at 1148. Swiss had claimed both the Cathedral Creek site and the Black Lake camp as primary places of business for his guiding operations. However, in his initial application to Chignik for conveyance, he had also claimed that the Black Lake camp was a subsistence campsite used to gather meat for his family. Swiss amended his complaint to claim the Black Lake camp as a subsistence campsite.

11880305

C.T., Appellant, v. J.S. and C.B., Appellees

C.T. v. J.S.

1998-01-16

No. S-8056

1199

1200

951 P.2d 1199

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

C.T., Appellant, v. J.S. and C.B., Appellees.

C.T., Appellant, v. J.S. and C.B., Appellees. No. S-8056. Supreme Court of Alaska. Jan. 16, 1998. Helen L. Simpson, Law Office of Helen L. Simpson, Anchorage, for Appellant. No appearance by Appellees. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

1012

5926

OPINION COMPTON, Justice. I. INTRODUCTION C.T. appeals from the denial of her motion, brought pursuant to Alaska Civil Rule 60(b)(4) and Alaska Adoption Rule 17(a), to set aside the adoption of her daughter. We vacate the decree of adoption and remand. II. FACTS AND PROCEEDINGS C.T. and C.B. lived together, on and off, in a "marriage-like relationship" from approximately October 1987 through August 1993. C.T. gave birth to a child (J.T.) in March 1987. C.T. represented to J.T. that C.B. was J.T.'s father. In 1994 C.B. and C.T. disputed custody of J.T. Blood tests revealed that C.B. is not J.T.'s biological father. J.T.'s biological father is J.S. has had no relationship with J.T. C.B. and J.S. jointly filed an action to terminate J.S.'s parental rights and declare J.T. adopted by C.B. C.T. refused to consent to the adoption. The trial court held that C.T. was equitably estopped from withholding her consent to the adoption because of her prior representations to J.T. that C.B. is J.T.'s biological father. The court then decreed J.T. adopted by C.B. C.T.'s motion for reconsideration was denied. C.T. next moved to set aside the decree of adoption under Civil Rule 60(b)(4) and Adoption Rule 17(a), arguing that the adoption was void. That motion was also denied. C.T. appeals. III. STANDARD OF REVIEW The issue before this court is one of law. We review questions of law de novo. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). We are not bound by the lower court's decision, but have the duty to "adopt the rule of law that is most persuasive in light of precedent, reason and policy." Id. IV. DISCUSSION Was the Trial Court Permitted to Equitably Estop C.T. from Withholding Consent to Her Daughter's Adoption? Alaska Statute 25.28.040 provides in part that "[u]nless consent is not required under AS 25.23.050, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by . the mother of the minor." No one suggests that any of the exceptions in AS 25.23.050 applies in this case. The only question is whether the trial court permissibly circumvented the consent requirement by equitably estopping C.T. from asserting her statutory right to withhold consent. If not, then the adoption decree is void for lack of subject matter jurisdiction, and should have been set aside under Civil Rule 60(b)(4) or Adoption Rule 17(a). See In the Matter of the Adoption of K.S., 543 P.2d 1191, 1194 (Alaska 1975) ("K.S.'s mother was unwilling to give the consent required by AS 20.10.020(3); thus the trial court was without jurisdiction to grant the petition for adoption unless one of the exceptions to consent enumerated in AS 20.10.040 were applicable."). The test for determining whether a person may be equitably estopped from asserting a right is set forth in Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 101-02 (Alaska 1978): There is a species of estoppel . which precludes a party from taking a position inconsistent with one he has previously taken where circumstances render assertion of the second position unconscionable. The general elements required for the application of the doctrine of equitable estop-pel are the assertion of a position by conduct or word, reasonable reliance thereon by another party, and resulting prejudice. C.T. contends that a trial court may never dispense with a mother's consent to the adoption of her child on the ground of equitable estoppel. We need not reach this question — the trial court misapplied the equitable estoppel doctrine in any event. The trial court found that C.T. represented to J.T. that C.B. is J.T.'s father. It is upon this representation that C.B. and J.T. may have reasonably relied. It is this representation that resulted in arguable prejudice to J.T. No one suggests that C.T. represented, at any time, that she would consent to C.B. adopting J.T. We agree with C.T. that "[i]t is just not logical that the mother's holding out to her daughter that C.B. was her father has anything to do with adoption." Since C.T. never represented that she would consent to C.B. adopting J.T., the court could not estop her from withholding her consent to that adoption. Its ruling to the contrary constitutes error. V. CONCLUSION The trial court erred in estopping C.T. from withholding her consent to J.T.'s adoption. Since the mother did not consent, the adoption decree is void for lack of subject matter jurisdiction. It should have been set aside under Civil Rule 60(b)(4) or Adoption Rule 17(a). We VACATE the decree of adoption and REMAND the case with directions to dismiss the petition for adoption. . The trial court's findings of fact are inconsistent. They state that J.T. was bom on March 27, 1987, that the relationship between C.B. and C.T. began in October 1987, and that J.T. was born during that relationship. Given the context of this case, it seems likely that J.T. was born during the relationship and that the trial court mistook either J.T.'s birthdate or the start date of the relationship. . Civil Rule 60(b)(4) reads "On motion and upon such terms as are just, the court may relieve a party . from a final judgment, order, or proceeding for the following reasons: . (4) the judgment is void." .Adoption Rule 17(a) reads: A person may move to set aside the decree [of adoption] by filing a motion stating the grounds for challenging the validity of the de-cree_ [T]he burden is on the party challenging the decree to show by a preponderance of the evidence that the decree is not valid. . AS 20.10.020 and AS 20.10.040 are former versions of current AS 25.23.040 and AS 25.23.050, respectively.

8912847

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

Dayton v. State

2005-09-16

No. A-8791

1073

1085

120 P.3d 1073

120

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Franklin DAYTON Jr., Appellant, v. STATE of Alaska, Appellee. No. A-8791. Court of Appeals of Alaska. Sept. 16, 2005. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. W.H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Ap peals, Anchorage, and Gregg D. Renkes, At-tornmney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

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OPINION MANNHEIMER, Judge. This case requires us to resolve the slight inconsistency between the "Austin" rule-the sentencing rule first established by this Court in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981)-and the later legislative codification of that rule in former AS 12.55.125(k)(2). As we explain in more detail below, we promulgated the Austin rule under our common-law authority to create rules to implement and supplement the then-existing statutes governing the sentencing of first felony offenders convicted of class B and class C felonies-i.e., offenders who were not subject to presumptive sentencing. The purpose of the Austin rule was to make the sentencing of first felony offenders more consistent with the sentencing of second felony offenders (i.e., offenders who were subject to presumptive sentencing). And the purpose of AS 12.55.125(k)(2) was to codify the Austin rule. But the wording of the statute differs slightly from the final version of the Austin rule that we announced in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983). For the reasons explained here, we conclude that AS 12.55.125(k)(2) did indeed codify a slightly different sentencing rule from the one we announced in Brezenoff And because any common-law rule announced by this Court must yield to a contrary provision of a statute dealing with the same issue, we conclude that AS 12.55.125(k)(2) superseded our rule. Underlying facts Franklin Dayton Jr. was originally indicted for first- and second-degree sexual assault, stemming from his act of sexual penetration with a woman who was intoxicated and who had fallen asleep in his home. Dayton successfully moved to have the first-degree sexual assault charge dismissed, but the superi- or court upheld the second-degree sexual assault charge. The parties then negotiated a plea bargain. Under the terms of this plea bargain, the State agreed to dismiss the sexual assault charge and replace it with a charge of third-degree assault (i.e, not a sexual assault). The parties agreed to open sentencing on this reduced charge, and the parties further agreed that the superior court's sentencing decision could be based on the contents of the pre-sentence report and the police reports in the case, without the need for either side to produce live testimony. As Dayton's attorney told the court, Defense Attorney: And . part of the agreement is [that] we won't contest any information in the pre-sentence report that would require that the victim be present to testify.... None of the core information will [be] contested] from the police reports. Following this announcement from the defense attorney, Superior Court Judge Randy M. Olsen addressed Dayton personally, asking him if he understood what he was giving up: The Court: not going to have a trial, and you're not going to have witnesses come in. And Ms. Holland, [your attorney,] is very experienced, [and she] would be able to cross-examine people and make people come in and testify . even if they didn't want to.... And you're giving up all of those trial rights in return for getting this resolution [of your case]. And you say you want to go straight to . the sentencing. Is that what you want to do? Dayton: Yes. However, the parties then expressed some doubt as to whether the new charge of third-degree assault was a true lesser included offense of the original sexual assault charges. They concluded that, in order to resolve any doubt, the district attorney's office should draw up an information charging Dayton with third-degree assault, and then Dayton should be asked to formally waive indictment on this charge. For this reason, another court proceeding was scheduled for the following day. The next afternoon, Dayton waived indictment and pleaded no contest to the information charging him with third-degree assault. At that time, Dayton's attorney again affirmed that "there's not going to be any denials of the information that's . in the police report." The defense attorney explained that there were "two different versions [of events]" presented in the reports-the victim's version, and Dayton's version. But the attorney told the court: Defense Attorney: We agree that there's no need that the complaining witness would have to testify, either in person or telephonically, even [as] to . information [that is] disputed about the incident. Three weeks before Dayton's sentencing, the State filed its required pre-sentencing pleading under Alaska Criminal Rule 32.1. In this pleading, the State noted that Dayton was not subject to presumptive sentencing because he was a first felony offender and because his offense, third-degree assault, was a class C felony. This meant that Dayton's sentencing was governed by former AS 12.55.125(k)(2). AS 12.55.125(k)(2) was repealed earlier this year when the legislature revised Alaska's presumptive sentencing laws. See SLA 2005, ch. 2, § 32 (effective March 23, 2005). However, at the time of Dayton's offense and at the time of his sentencing, this statute declared that, in the absence of one or more of the aggravating factors defined in AS 12.55.155(c), or extraordinary circumstances as defined in AS 12.55.165, a first felony offender convicted of a class C felony could not receive a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime.... In Dayton's case, the relevant presumptive term was 2 years to serve. The State announced that it would rely on two aggravating factors to seek a sentence above the normal 2-year limit. These two aggravating factors were AS 12.55.155(c)(5) (that the victim was particularly vulnerable because she was incapacitated due to intoxication), and AS 12.55.155(c)(10) (that Dayton's conduct was among the most serious within the definition of the offense because he had, in fact, sexually assaulted the victim). The State further announced that, to prove these two aggravators, it would rely on the information found on pages 2 through 5 of the pre-sentence report. These pages of the pre-sentence report contain (1) the victim's version of events, (2) the statement of a witness who reported that the victim came to her house in tears and said that Dayton had raped her, and (8) Dayton's various responses to this accusation. The following week, Dayton's attorney filed a response to the State's pleading. This response almost derailed the plea bargain. In her response, Dayton's attorney wrote: Mr. Dayton disputes the state's ability to rely upon [pages] 2-5 of the presentence report[,] as Mr. Dayton is lodging objections to the presentence report.... Mr. Dayton will re-enter [a] testimonial denial of the [State's] claim that [his] sexual encounter with [the victim] was nonconsensual. The state is therefore not entitled to rely on hearsay statements such as [are] found in the presentence report to meet its burden of proof regarding [the proposed] aggravating factors. [See] Ashenfelter v. State, 988 P.2d 120 (Alaska App.1999). That is, the defense attorney declared that Dayton was going to offer a testimonial denial of the information contained in the pre-sentence report-thus requiring the State to either call the victim to the stand or give up its attempt to prove the aggravators. Understandably, the State responded by reminding Judge Olsen of the defense attorney's previous statements in open court on this subject. As we have already described, the defense attorney had declared (on two different occasions) that, as part of the plea bargain, Dayton "would not] contest any information in the pre-sentence report that would require that the victim be present to testify", and that "there [would bel no need [for] the complaining witness . to testify, either in person or telephonically, even [as] to . information [that is] disputed about the incident". At the ensuing court hearing, Dayton's attorney told Judge Olsen that she had interpreted the plea agreement to mean that Dayton would refrain from entering a testimonial denial, and would not require the State to call the victim to the stand, so long as the superior court refrained from making any findings about the facts of the offense: Defense Attorney: [(Wihat the defense thought the plea agreement meant was that [the parties] would not ask . the court [to] make a determination about a particular version [of the events] being proved.... And if you listen to the actual [recording] of the change-of-plea hearing, . I was saying [that] so long as the pre-sentence report would include both [the victim's and the defendant's] versions, we don't see any reason to have a testimonial denial.... [When we said "no testimonial denials", we meant that we weren't denying that that's what [the victim] reported, that that's how she remembered the incident happening, and that [wel would not . [be] asking [to have] her version completely stricken from the report. [But I never agreed] that [the State] could rely on the pre-sentence report as evidence [to prove aggravating factors]. The defense attorney's attempted explanation of her actions did not convinee the prosecutor. The prosecutor told Judge Olsen: " 'No testimonial denials' means exactly that: . no testimonial denials of any disputed facts. That is what is in the agreement, and that is what is placed on the record." The prosecutor stated that if Dayton and his attorney held some different view of this matter, then there was no meeting of the minds: Dayton should file a motion to withdraw his plea, and the State would reinstate the preexisting charges. Judge Olsen agreed with the prosecutor that, under Alaska case law, the term "testimonial denial" refers to an objection to the sentencing court's reliance on the matters asserted in a witness's out-of-court statement, not an objection to the fact that the witness made the statement. Judge Olsen further ruled that, in the absence of a testimonial denial from Dayton, the State would be entitled to rely on the contents of the pre-sentence report to prove the two proposed aggravating factors-that is, to prove that Dayton had sexually assaulted the victim, and to prove that the victim's intoxication made her particularly vulnerable. Thus, Judge Olsen declared, the choice facing Dayton was to proceed with the sentencing under those rules, or to withdraw his plea. Judge Olsen gave the parties one week to discuss this matter. When the parties returned to court the following week, the prosecutor told Judge Olsen that the parties had agreed that the pre-sentence report would incorporate both the victim's version of events and the defendant's version of events: Further, the parties had agreed that Prosecutor: . both sides would respectively argue whatever findings the court [shJould make with respect to aggra-vators or mitigators, and what weight to give [those aggravators and mitigators], based upon [the] information that is [contained] in the pre-sentence report [and] in the police report that the court would have to review. And there would be no need to have testimony from [the victim], [or] to put [in] any additional testimony ., and there would be no other further objections. The Court Okay. Ms. Holland? Defense Attorney: Right, that covers it.... I had some objections just to the format of the pre-sentence report and other things, but nothing as to the substance, the information in it. So that does cover [it]. Two days later, the parties returned to court for Dayton's sentencing. The prosecu tor and the defense attorney argued their differing interpretations of the information contained in the pre-sentence report. The defense attorney acknowledged that the State's position on the two aggravating factors was perhaps consistent with the victim's description of events. However, the defense attorney argued that it was impossible to conclude, from the conflicting versions of events contained in the pre-sentence report, that the truth of the victim's account was established by clear and convincing evidence. (At the time of Dayton's sentencing, the standard of proof for aggravating and mitigating factors was "clear and convincing evidence". See former AS 12.55.155(f) (2004).) At the conclusion of these arguments, Judge Olsen stated that he "had] no doubt that Mr. Dayton engaged in sexual penetration with [the] victim while she was incapacitated." The judge explained that his conclusion was based on several factors: The Court One [factor] is [Dayton's] varied stories about what happened. [My conclusion is] also based upon his victim's reaction after [becoming] conscious of the assault.... [She ran out of the house] and [ran] to friends, and [was] very emotionally upset. And all of that just validates [my conclusion that] there was no consent.... There wasn't any dating relationship [between these two people]. There wasn't any signal of [a sexual) come-on.... What happened was just a horrible crime to an incapacitated woman. I really am convinced that the aggrava-tors have been established by clear and convincing evidence.... Judge Olsen then sentenced Dayton to 4 years' imprisonment with 2 years suspended (i.e., 2 years to serve). Dayton's claim under Blakely v. Washington, and how resolution of this Blakely claim hinges on the meaning of AS 12.55.125(k)(2) In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 LEd.2d 403 (2004), the Supreme Court held that the Sixth Amendment to the United States Constitution guarantees criminal defendants a right of jury trial on all factual issues that are necessary to establish a sentencing judge's authority to impose the type of sentence that the defendant received. Thus, when a sentencing judge has no authority to exceed a specified sentencing ceiling unless particular aggravating factors are proved, the defendant has a right to demand a jury trial on those aggravating factors (with the exception of prior criminal convictions). Blakely, 542 U.S. at 302-303, 124 S.Ct. at 2537-38. If the defendant is denied this right, then the sentencing judge can not exceed the prescribed statutory ceiling. Id., 124 S.Ct. at 2538. Dayton's case presents an issue concerning the relationship between the right to jury trial recognized in Blakely and the sentencing of first felony offenders under former AS 12.55.125(k)(2). Part of the answer is found in our recent decision in State v. Gibbs, where we held that Blakely does not affect sentencing under AS 12.55.125(k)(2) if the defendant received less time to serve than the presumptive term specified for second felony offenders convicted of the same crime. 105 P.3d 145, 146 (Alaska App.2005). In Gibbs, we expressly rejected the argument that the Blakely right to jury trial was triggered whenever the defendant's total sentence (that is, the defendant's time to serve plus suspended time) exceeded the presumptive term for second felony offenders. Id., 105 P.3d at 147-48. We noted that, in 2001, in Cook v. State, we squarely held that AS 12.55.125(k)(2) only limits a sentencing judge's authority to impose time to serve; the statute does not limit the judge's authority to impose additional suspended time, so long as the "time to serve" limitation is honored. Gibbs, 105 P.3d at 148. But Gibbs does not wholly resolve Dayton's case, because Dayton's case raises a question concerning the proper interpretation of the "time to serve" limitation codified in AS 12.55.125(k)(2). Although AS 12.55.125(k)(2) was intended to codify the Austin rule, we have previously recognized that there is a slight discrepancy between the wording of this statute and the final form of the Austin rule that this Court announced in Brezenoff v. State, 658 P.2d 1359 (Alaska App.1983). As explained in Brezenoff, the Austin rule requires proof of aggravating factors if a defendant's time to serve equals the presumptive term for a second felony offender and, in addition, the defendant receives suspended jail time: Where the total sentence received by a first offender exceeds the presumptive sentence for a second offender but the period of actual imprisonment is substantially less, . the total sentence meets the Austin requirement of a substantially more favorable sentence for the first offender. Where, however, the actual period of imprisonment equals or exceeds the presumptive term for a second offender, we will require aggravating factors or extraordinary cireumstances to justify additional [Jail] timel,] even if it is suspended. Brezenoff, 658 P.2d at 1362 (citations omitted). Thus, when Dayton's attorney discussed the range of permissible sentences with Judge Olsen, she told the judge that, unless the State proved aggravating factors, the "time to serve" component of Dayton's sentence had to be at least one day less than the 2-year presumptive term prescribed for see-ond felony offenders. But AS 12.55.125(k)(2) is worded different ly from the rule stated in Brezenoff. Under the statute, aggravating factors are needed only if the defendant's time to serve "exceeds the presumptive term for a second felony offender convicted of the same crime". (Emphasis added) Thus, "the Austin rule calls for a first offender to receive an unsuspended term of imprisonment more favorable than the presumptive term for second felony offenders, while the statute calls for a first felony offender to receive an unsuspended term no greater than the presumptive term for see-ond felony offenders". In Pitka v. State, 19 P.3d 604 (Alaska App.2001), the State expressly argued that AS 12.55.125(k)(2) had superseded the Austin rule on this point. We found it unnecessary to decide this issue because, in Pitka, the State proved an aggravating factor. Id., 19 P.3d at 608. But now, Dayton's sentence of 4 years with 2 years suspended again squarely raises this issue, and our resolution of this point is crucial to our consideration of Dayton's Blakely claim. We therefore must decide whether the legislature, by enacting AS 12.55.125(k)(2), changed the rule governing the time-to-serve component of a first felony offender's sentence-whether, in the absence of aggravating factors, a first felony offender's time to serve must be more favorable than the presumptive term for a second felony offender (the Austin/Brezenoff formulation) or, instead, it must not exceed that presumptive term (the statutory formulation). By enacting AS 12.55.125(k)(2), the legislature superseded the Austin/Brezenoff rule As we acknowledged in Gibbs, the Austin rule is an example of our exercise of the common-law authority to declare the law in the absence of contrary legislation. (Regarding this common-law authority, see our supreme court's decision in Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002), affirming that, "in the absence of a statute directing a contrary rule, courts [are] empowered to interpret the common law . unless and until the Alaska legislature acts to modify [that law]." See also Edwards v. State, 34 P.3d 962, 968 (Alaska App.2001): "[(When] statutory [analysis] does not yield an answer to our inquiry, we must employ our common-law power to declare the law in the absence of a statutory directive. .") As our supreme court has observed, "a statute may form the basis for a common law rule which applies beyond the prescribed scope of the statute." This is the rationale of the Austin/Brezenoff rule. Under the version of presumptive sentencing enacted in 1980, in prosecutions for class B and class C felonies, the presumptive sentencing statutes only governed the sentencing of second and third felony offenders; the legislature did not expressly restrict the sentencing of first felony offenders. As we explained in Cook v. State, the purpose of our decision in Austin (and our subsequent decisions interpreting Austin ) was to implement the legislature's policy of reasonable sentence uniformity in the sentencing of those first felony offenders. The fundamental policy behind the Austin rule was "protecting first offenders against harsher treatment than similarly situated second offenders". In other words, all other things being equal, a first felony offender should receive a more favorable sentence than a second felony offender. But "[wlhen the courts exercise their common-law authority, the guiding principle is that they should not exercise this authority in disregard of existing constitutional and statutory provisions." This means that when a court adopts a common-law rule and then the legislature enacts a statute to govern the same matter, the statute controls. We - therefore - conclude - that - AS 12.55.125(k)(2) supersedes the Austin/Brezenoff rule. Anticipating our conclusion, Dayton suggests that we should interpret the statute to mean the same thing as the Austin/Brezenoff rule. That is, even though AS 12.55.125(k)(2) says that aggravating factors are needed only if a defendant's time to serve "exceeds" the presumptive term for a second felony offender convicted of the same crime, Dayton asks us to interpret this statute as if it said "equals or exceeds". But the issue here is not what we would like the statute to say, or what we think it ought to say. Rather, the question is what the legislature intended. Other than arguing that this Court's formulation of the rule is better, Dayton offers nothing from the legislative history of AS 12.55.125(k)(2) to support his suggestion that the legislature misspoke when it said "exceeds", and that the legislature really meant to say "equals or exceeds". We note that the legislature used a similar formulation when it amended AS 12.55.120(a) and (d) in 1995, limiting the right of sentence appeal to those felony offenders who receive a composite sentence "exceeding two years of unsuspended incarceration", and to those misdemeanor offenders who receive a composite sentence "exceeding 120 days". We further note that the legislature might reasonably - have concluded that AS 12.55.125(k)(2) would present fewer administrative problems for the Department of Corrections if the statute said "exceeds" rather than "equals or exceeds"-so that sentencing judges would not impose sentences of "1 year and 11 months" or even "1 year and 364 days" to stay within the statutory limit. It is true that Alaska does not adhere to the "plain meaning" rule of statutory construction. Nevertheless, the wording of AS 12.55.125(k)(2) is clear-and this means that Dayton must present a very convincing argument before we declare that the statute should be interpreted at variance with that wording. Dayton has failed to meet this burden. Accordingly, we declare that - AS 12.55.125(k)(2) means what it says: when a judge is sentencing a first felony offender for a class B or a class C felony, the defendant's time to serve (i.e., the unsuspended portion of the defendant's term of imprisonment) can equal, but can not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime. Dayton's argument that AS 12.55.125(k)(2) was unconstitutional if interpreted in this way Dayton - argues that if - AS 12.55.125(k)(2) is interpreted as we have just interpreted it, then the statute was unconstitutional. Dayton notes that, under the pre-2005 presumptive sentencing statutes, a judge could not sentence a second felony offender to more than the applicable presumptive term-even if the additional jail time was suspended-unless aggravating factors were proved. Dayton contends that, all other things being equal, it is "anomalous" for AS 12.55.125()(2) to authorize a judge to sentence a first felony offender to the same amount of unsuspended jail time that a similarly situated second felony offender could receive, plus additional suspended jail time (something that the judge could not do when sentencing the similarly situated second felony offender). Dayton asserts that this distinction is so unfair and so unreasonable that it deprives first felony offenders of due process of law. But this purported unfairness has been a fixture of Alaska law since 1982, when this Court decided Tazruk v. State, 655 P.2d 788 (Alaska App.1982). The defendant in Tazruk was a first felony offender convicted of a class B felony. He received a sentence of 8 years' imprisonment with 5 years suspended (i.e., 3 years to serve). On appeal, Tazruk invoked the Austin rule that, in a non-aggravated case, a first felony offender should receive a more favorable sentence than the presumptive term that would apply to a second felony offender. In Tazruk's case, that applicable presumptive term was 4 years. Tazruk therefore argued that his 8-year sentence was illegal under Austin. We affirmed Tazruk's sentence because we rejected his proposed interpretation of the Austin rule: We conclude that a sentence of eight years with five suspended is not greater than the presumptive sentence of four years for purposes of applying the Austin rule. When we evaluate a sentencel,] we consider the whole sentence including suspended time. However, in evaluating whether a sentence is in excess of the presumptive sentence which a second felony offender would receive, our primary focus should be on [the unsuspended] portion of the sentence.... By that standard, the three years of imprisonment to which Tazruk is sentenced is less than the four years which a second felony offender would receive. In the event that the suspended portion of Tazruk's sentence is later imposed, he would be entitled to bring a sentence appeal at that time. [But wel conclude that Tazruk's sentence does not violate the Austin rule. Tazruk, 655 P.2d at 789. To a large extent, Dayton's current argument concerning the purported unfairness of AS 12.55.125(k)(2) is a reprise of the attack on Tagruk that was presented to us in Cook v. State, 36 P.3d 710 (Alaska App.2001). We rejected that argument in Cook, and we do so again here. Even under the Austin rule, suspended jail time was not the equivalent of unsuspended jail time. As our decision in Tazruk illustrates, the Austin rule allowed a judge to sentence a first felony offender to a term of imprisonment that, in total, exceeded the presumptive term for a second felony offender, so long as the unsuspended portion of the sentence was less than the applicable presumptive term. It is true that, in non-aggravated cases, the Austin rule (as interpreted in Tazruk and in Brezenoff) allowed a sentencing judge to give a first felony offender almost the same amount of time to serve as a second felony offender, and then add suspended jail time. But as we noted in Tazruk, if the defendant's probation was later revoked and the previously suspended jail time was imposed, the defendant would again be able to appeal the sentence-and, in such cireumstances, if the defendant's new total of unsuspended incarceration exceeded the applicable presumptive term, the sentence would have to be supported by aggravating factors or extraordinary circumstances. Moreover, as the State points out, a first felony offender's sentence of imprisonment was a non-presumptive sentence of imprisonment. That is, even though a first felony offender convicted of a class B or class C felony might receive unsuspended jail time equal to (or almost equal to) the presumptive term for a second felony offender, the first felony offender would be eligible for discretionary parole after serving one-fourth of the sentence, while a second felony offender would be ineligible for discretionary parole. For these reasons, we re-affirm the interpretation of the Austin rule that we announced twenty years ago in Tasruk, and that we recently upheld in Cook: the Austin rule focused on a defendant's unsuspended term of imprisonment, not on additional jail time that might be suspended. As we explained above, the Austin rule called for an unsuspended term of imprisonment that was more favorable than the applicable presumptive term for second felony offenders. But as Dayton's attorney told Judge Olsen during a discussion of sentencing matters, even in the absence of aggravating factors, the Austin rule would have authorized Judge Olsen to sentence Dayton to an unsuspended term of 2 years minus 1 day. That is, AS 12.55.125(k)(2) increased the authorized amount of unsuspended incarceration by a single day; it allowed Judge Olsen to impose an unsuspended term of 2 years. Thus, if AS 12.55.125(k)(2) is so unfair as to violate the guarantee of due process of law, that unfairness must le in this one additional day of unsuspended jail time. Dayton argues that this single day is indeed constitutionally significant-because, by superseding - the - Austin - rule, - AS 12.55.125(k)(2) allowed a sentencing judge to give a first felony offender an unsuspended term of imprisonment that was not just close to, but rather equal to, the presumptive term for a second felony offender, plus an additional amount of suspended jail time. Dayton argues that this was fundamentally unfair because a judge could not give the same sentence to a second felony offender (the presumptive term to serve, plus additional suspended jail time) unless one or more aggravating factors were proved. According to Dayton, this extra day is the straw that broke the statute's back. No longer could the State argue that, notwithstanding the additional jail time, a first offender's time to serve was minimally less than the applicable presumptive term for see-ond felony offenders. Rather, in cases where no aggravating factors were proved, AS 12.55.125(k)(2) allowed sentencing judges to give first felony offenders a more severe sentence than similarly situated second felony offenders-i.e., exactly the same amount of time to serve, plus additional suspended time-without any apparent justification for this difference in treatment. But as we pointed out earlier, the sentence of imprisonment that a first felony offender received under AS 12.55.125(k)(2) was not the same as the sentence of imprisonment that a second felony offender received under the applicable presumptive sentencing statutes (former AS 12.55.125(d) or (e), depending on whether the offense was a class B or class C felony). First felony offenders received a non-presumptive term; they were eligible for discretionary parole after serving one-fourth of their sentence. Second felony offenders received a presumptive term; they were not eligible for discretionary parole. Thus, even though a first felony offender convicted of a class B or class C felony might receive the same amount of time to serve as a similarly situated second felony offender, the first felony offender's sentence was in fact less severe. For this reason, we conclude that AS 12.55.125(k)(2) did not violate the due process rights of first felony offenders. Our conclusion with respect to AS 12.55.125(k)(2) - and Dayton's - Blakely claim As we have explained here, AS 12.55.125(k)(2) superseded the common-law sentencing rule announced in Austin, Tazruk, and Brezenoff. Moreover, we have rejected Dayton's constitutional challenge to this statute. This means that, even without proof of any aggravating factors, Judge OIl-sen was authorized to impose the sentence that Dayton received in this case: 4 years' imprisonment with 2 years suspended. Dayton's Blakely argument is therefore moot. Issues that may potentially arise in future proceedings in Dayton's case Even though Dayton's sentence is lawful under AS 12.55.125(k)(2), the fact that he received a term of suspended imprisonment means that, potentially, Blakely issues will arise in his case in the future-that is, if Dayton violates his probation and the superi- or court decides to revoke some or all of the suspended imprisonment. We need not decide now whether, or how, Blakely would apply to those potential probation revocation proceedings. We do, however, wish to address two related matters. As explained above, Dayton's sentencing judge, Judge Olsen, found that the State had proved two aggravating factors by clear and convincing evidence. Dayton argues that, under Blakely, he was entitled to have a jury decide whether the State had proved these aggravating factors, and he was also entitled to demand that the aggravating factors be proved beyond a reasonable doubt. This is a correct reading of Blakely. However, Dayton's conviction stems from a plea bargain in which he expressly agreed that the aggravators would be litigated in this manner. It could be argued that Dayton must renounce his plea bargain if, in the future, he wishes to raise a Blakely attack on the aggravators and on any enhanced sentence imposed for violation of probation. We express no opinion on this issue at this time. Dayton also argues that, aside from any Blakely issue, it was improper as a matter of law for Judge Olsen to find the two aggravating factors based solely on the content of the pre-sentence report and the police reports. Dayton points out that the pre-sentence report contains at least two different versions of events, and he argues that certain portions of the pre-sentence report cast doubt on the veracity of the vie-tim's account. Dayton contends that, under these cireumstances, the law should prohibit a sentencing judge from finding any disputed aggravator to be proved unless the State presents live testimony to support the ag-gravator. This argument is a repudiation of the position that this same attorney expressly endorsed in the superior court. As we explained above, Dayton's plea agreement with the State almost unraveled when Dayton's attorney insisted that the State was obliged to present live testimony from the victim, and could not rely solely on the pre-sentence report, if the State wished to prove aggravating factors at Dayton's sentencing. The plea bargain went forward again only after Dayton's attorney expressly agreed (in open court) that Judge Olsen could decide the disputed aggravating factors based on the content of the pre-sentence report and the police reports, without requiring live testimony from the victim (or anyone else). Dayton's point was not preserved in the superior court, and any error was invited. Because of this, Dayton is estopped from pursuing this claim. Dayton's challenges to three of his conditions of probation One of Dayton's conditions of probation, General Condition No. 11, requires him to "[albide by any special instructions given [to him]} by . probation officers". Dayton argues that this condition of probation constitutes an improper delegation of authority to the Department of Corrections because, theoretically, a probation officer's instruction might violate Dayton's constitutional rights, or because the instruction might place such a substantial burden on Dayton as to amount to a new condition of probation, outside the ones imposed by the sentencing court. Dayton contends that we should amend the condition of probation so that it reads: "abide by any special instructions given by . probation officers . that are necessary to the implementation of the conditions of probation established by the court, that are not inconsistent with any other condition of probation, that are consistent with the purpose[s] of probation, and that do not violate any statutory or constitutional right of the probationer." But, with the caveat that a probation officer's instruction need be "necessary" only in the broader sense of that word (i.e., appropriate and well adapted to fulfilling the objectives of probation), the limitations that Dayton proposes are already implicitly present. Dayton has the right to seek court review of any special instruction from a probation officer that he believes abridges his rights or exceeds the authority of the Department of Corrections. His objection to this condition of probation is therefore moot. Another of Dayton's conditions of probation, Special Condition No. 6, requires him to "(inform [his] probation officer of any medications being taken and [to] provide proof of valid prescriptions for [these medications]." Dayton argues that the record contains no evidence that he abuses prescription drugs. Moreover, Dayton argues that this condition of probation is worded so broadly that it requires him to inform his probation officer every time he takes aspirin or any other non-prescription medication. Based on the fact that Judge Olsen required Dayton to "provide proof of valid pre-seriptions" for the medications he was taking, it appears to us that Judge Olsen did not intend to require Dayton to report nonprescription medications. Rather, the judge intended to impose a narrower reporting requirement, confined to prescription medications. The question, then, is whether the record supports Judge Olsen's decision to require Dayton to report his use of any prescription medication. When Judge Olsen imposed this requirement, he told Dayton that it was "just to help [the probation officers] keep track of [your progress]; the probation officers are responsible for your continued progress, and . any substance abuse, they should have access to that." But a person's use of prescription medications does not typically indicate substance abuse. We agree with Dayton that, in the absence of any reason to believe that he had abused or might abuse prescription drugs, there was an insufficient basis for this condition of his probation. Finally, Dayton challenges Special Condition No. 9, which requires him to submit to warrantless searches "for prohibited weapons and alcohol". Dayton concedes that the record establishes his problem with alcohol, but he contests the portion of this condition that subjects him to searches for "prohibited weapons". He claims that Judge Olsen erred in authorizing this type of search because Dayton's underlying offense involved no weapon. In Sprague v. State, 590 P.2d 410 (Alaska 1979), the Alaska Supreme Court invalidated a similar condition of probation that required the defendant to submit to warrantless searches for drugs. The defendant in Sprague was being sentenced for burglary; he had not been accused of any drug of fenses, nor had the State shown that he was addicted to drugs or that his involvement in the burglary was precipitated by a need for money to purchase illegal drugs. Rather, the sentencing judge imposed this condition "to forestall Sprague's future involvement with the kind of individuals who would be likely to burglarize other people's homes." The supreme court concluded that, given "so weak a connection between the crime committed and the [challenged] condition of probation", Sprague could not be subjected to warrantless searches for drugs as a condition of his probation: If we were to uphold the probation condition in this case, in effect, we would be opening up virtually all classes of offenders to warrantless searches on less than probable cause. Sprague, 590 P.2d at 418. Dayton's case is similar. The record contains no indication that Dayton has ever used or possessed weapons in violation of the law, or that he has used or carried weapons during the commission of a crime. It is true that, because Dayton is now a convicted felon, Alaska law bars him from possessing any concealable firearm, and federal law forbids him from possessing any firearm at all. But the question is whether Dayton's person, residence, and vehicles should be subjected to warrantless searches for weapons on less than probable cause. The record contains no justification for this condition of probation. Conclusion Under former AS 12.55.125(k)(2), Judge Olsen was authorized to sentence Dayton to 4 years' imprisonment with 2 years suspended even in the absence of any aggravating factors. Dayton's Blakely attack on the sentencing procedures in his case is therefore moot. Accordingly, we AFFIRM Dayton's sentence of 4 years with 2 years suspended. With regard to the three challenged conditions of Dayton's probation, we AFFIRM General Condition 11, but we VACATE Special Condition 6 and the "weapons" clause of Special Condition 9. . See former AS 12.55.125(e)(1) (before the 2005 amendment). . See Evans v. State, 23 P.3d 650, 652 (Alaska App.2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989) (a sentencing judge can rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted unless the defendant offers a testimonial denial of those statements and submits to cross-examination, in which case the State must support its assertions with live testimony). . 36 P.3d 710, 730 (Alaska App.2001). . Beasley v. State, 56 P.3d 1082, 1087 (Alaska App.2002) (Mannheimer, J., concurring) (emphasis in the original). . Gibbs, 105 P.3d at 148. . Evans, 56 P.3d at 1056 n. 60, quoting Bauman v. Day, 892 P.2d 817, 828 (Alaska 1995), and Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981). . John v. Baker, 982 P.2d 738, 793-94 (Alaska 1999), quoting Hanebuth v. Bell Helicopter Internat'l, 694 P.2d 143, 146 (Alaska 1984). . Cook, 36 P.3d at 730. . Espinoza v. State, 901 P.2d 450, 453 (Alaska App.1995). Accord, Andrew v. State, 835 P.2d 1251, 1253 (Alaska App.1992). . Hosier v. State, 957 P.2d 1360, 1364-65 (Alaska App.1998). . Dandova v. State, 72 P.3d 325, 333 (Alaska App.2003). . See Brant v. State, 992 P.2d 590, 592-93 (Alaska App.1999) (Mannheimer, J., concurring). . See 1995 SLA, ch. 79, § 7-8. . Eppenger v. State, 966 P.2d 995, 996 (Alaska App.1998). . See, e.g., Eppenger v. State, 966 P.2d at 996; Tallent v. State, 951 P.2d 857, 860 (Alaska App.1997). . See Haag v. State, 117 P.3d 775, 783 (Alaska App.2005). . Tazruk, 655 P.2d at 789. . Cook, 36 P.3d at 730. . Tazruk, 655 P.2d at 789. See also Chrisman v. State, 789 P.2d 370, 371 (Alaska App.1990). . See former AS 12.55.025(g)(3) (pre-2005) (presumptive terms of imprisonment could not be reduced); AS 33.16.090(b) (pre-2005) (prisoners who received a presumptive term were not eligible for discretionary parole during that pre-sumplive term, although they could apply for parole after serving a portion of any extra years of imprisonment that were added to the presumptive term because of aggravating factors); and AS 33.16.100(c) (pre-2005) (prisoners serving a non-presumptive term for a class B or class C felony were eligible for discretionary parole after serving one-fourth of their sentence). See also 22 AAC 20.040(4) and 20.035(4) (restating the rule that prisoners serving a non-presumptive term for a class B or class C felony are eligible for discretionary parole after serving one-fourth of their sentence). . See the definition of the phrase "necessary and proper contained in Black's Law Dictionary (7th ed.1999), p. 1052. . Sprague, 590 P.2d at 417-18. . Id. at 418.

8912613

Mary Anne ONDRUSEK and John Ondrusek, Appellants, v. Robert MURPHY d/b/a Chilkoot Horseback Adventures, Appellee

Ondrusek v. Murphy

2005-09-23

No. S-11196

1053

1059

120 P.3d 1053

120

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Mary Anne ONDRUSEK and John Ondrusek, Appellants, v. Robert MURPHY d/b/a Chilkoot Horseback Adventures, Appellee.

Mary Anne ONDRUSEK and John Ondrusek, Appellants, v. Robert MURPHY d/b/a Chilkoot Horseback Adventures, Appellee. No. S-11196. Supreme Court of Alaska. Sept. 23, 2005. Mark Clayton Choate, Choate Law Firm LCC, Juneau, for Appellants. Paul D. Stockler, Anchorage, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3776

22802

OPINION MATTHEWS, Justice. I. INTRODUCTION This case arises from an injury that occurred at Chilkoot Horseback Adventures on a day that it was closed for business. Travis Locke, an employee of Chilkoot, took his mother and stepfather, the Ondruseks, out for a horseback ride. Upon return, Locke's mother got off her horse without assistance, but she fell and suffered a broken leg. The Ondruseks sued Robert Murphy d/b/a Chil-koot Horseback Adventures for negligence under a theory of respondeat superior. The superior court denied the Ondruseks' motion for summary judgment on this issue and the case went to trial. The jury returned a verdiet in favor of Chilkoot. The Ondruseks now appeal arguing that respondeat superior liability is a question of law and not a question for the jury, and that no questions of material fact existed regarding the issue of respondeat superior liability. Because genuine issues of material fact exist and conflicting inferences could be drawn concerning whether Locke was acting within the seope of his employment, we conclude that the superior court properly denied the motion for summary judgment. II. FACTS AND PROCEEDINGS A. Facts Robert Murphy d/b/a Chilkoot Horseback Adventures (Chilkoot) in Skagway provides horseback rides and tours. Chilkoot operates mostly in the summer months, catering to out-of-state tourists and Alaska residents. In May 2000 Chilkoot was open for business only on days that eruise ships were docked in Skagway. On days that business was closed, Chilkoot sometimes permitted trail guides to ride Chilkoot horses on their own time and occasionally allowed them to take friends and family out for free rides. During some business days, Chilkoot would offer free rides to eruise ship employees or friends and family if there were openings in a paying tour. Chilkoot expected its guides to follow certain safety procedures whenever a non-employee rode a Chilkoot horse, whether business was open or closed. These procedures included a "Horse 101" safety lecture, directions on the proper method for dismount ing a horse, instructions never to dismount without assistance from a guide, and several checks to see that the horses were properly saddled. When business was closed, Chil-koot did not require non-employees to sign the standard waiver form customers signed when business was open. Chilkoot did not permit customers to drive their own vehicles onto Chilkoot property on days that business was open, whether they were paying or not. Instead, Chilkoot employees would pick everyone up at the cruise ship dock in Chilkoot vehicles and drive them to the property. When business was closed, Chilkoot did not permit guides to use Chil-koot vehicles, and thus non-paying customers would arrange their own transportation to Chilkoot. In 1998 Chilkoot hired Travis Locke to work as a trail guide. Locke had been riding horses since he was a small child and rode competitively throughout his childhood, in college, and on the open circuit. In 2000 Locke considered himself the most experienced, able guide at Chilkoot. On May 27, 2000, Mary Anne and John Ondrusek, Locke's mother and stepfather, were visiting Skagway on their way back to Texas. Because Chilkoot was not open for business and it was a nice day, Locke invited the Ondruseks on a free horseback ride. The three of them drove to Chilkoot in Mary Anne's vehicle. Several other people joined the free ride, including two other Chilkoot guides and two of Locke's friends who had never ridden before. Locke did not take the group on the full route used for paying tours that day, but turned back early because the Ondruseks appeared to be getting sore. When the group returned to Chilkoot, Mary Anne attempted to dismount her horse without assistance. While dismounting, Mary Anne fell and broke her leg. Whether Chilkoot authorized the ride that day is disputed. Murphy testified that Locke did not ask permission for this particular ride and that he never met the Ondru-seks. Locke testified that he told Murphy about the ride and that he did not recall Murphy prohibiting Locke from riding in the past. Additionally, Mary Anne testified that she met Murphy right before the ride and that he said "You all have a good time." Additionally, the parties are in disagreement regarding whether Locke gave a safety lecture before the ride, including instructing the group not to dismount without assistance. Finally, there is a dispute about whether the ride that day was meant to benefit Chilkoot's business. Murphy testified that Chilkoot encouraged the guides to ride on days off because "the more time we . put on our guide's back with the horses, the better." Locke, on the other hand, testified that riding the horses on days off did not benefit Chilkoot, but harmed the business because the horses needed the rest to stay healthy. B. Proceedings The Ondruseks sued Chilkoot for negligence under a theory of respondeat superior. Chilkoot filed an answer denying that the free ride was business-related and denying that Locke was acting within the seope of his employment. Chilkoot admitted that Mary Anne fell when dismounting her horse and was injured, but denied all other allegations related to the cause of the injury. The Ondruseks filed a motion for partial summary judgment requesting the trial court to find, as a matter of law, that Locke was acting within the seope of his employment at the time of Mary Anne's accident, and that Chilkoot was liable for Mary Anne's injuries under the doctrine of respondeat superior. Chilkoot filed an opposition to the motion, arguing that material issues of fact existed. The superior court denied the motion, finding multiple issues of material fact relating to the doctrine of respondeat superior. The case was then tried before a jury. At the close of trial, the court instructed the jury that if it determined that it was more likely than not Locke's conduct occurred within the seope of his employment, the jury could find Chilkoot liable. The court further instructed the jury to consider the factors stated in Restatement (Second) of Agency sections 228 and 229 when determining whether Locke was acting within the seope of his employment. The special verdict form first asked the jury to determine the scope of employment before addressing any other issues. Because the jury found that Locke was not acting within the seope of his employment, no other issues were reached. III. DISCUSSION A. - Standard of Review We review a superior court order denying summary judgment de novo. We will affirm the superior court's denial of summary judgment if a genuine issue of material fact exists or the moving party was not entitled to judgment as a matter of law. "A material issue of fact exists where reasonable jurors could disagree on the resolution of a factual issue." Facts are to be viewed in the light most favorable to the nonmoving party. B. The Superior Court Did Not Err in Denying the Motion for Summary Judgment on the Issue of Responde-at Superior Because Genuine Issues of Material Fact Exist. The Ondruseks assert that this court analyzes respondeat superior liability under the Restatement (Second) of Agency section 228 (hereinafter Restatement). The Ondru-seks argue that the superior court should have granted summary judgment on the question of respondeat superior liability because no issues of material fact existed concerning whether Locke was acting within the scope of his employment under the factors set forth in section 228. Section 228 states in full: (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; (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 seope 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. The Ondruseks argue that (1) the first factor is satisfied because Chilkoot employed Locke to take people on trail rides, and this case arose from such a ride; (2) the second factor is met because Murphy authorized Locke to take his mother on a trail ride and the ride occurred on Chilkoot riding trails; and (8) the third factor is satisfied because the ride benefitted Chilkoot's business by providing the guides with experience. The Ondruseks contend that the above facts are all undisputed and thus Locke was acting within the scope of his employment as a matter of law. Chilkoot responds that this court does not strictly adhere to the requirements in Restatement section 228, but also considers whether the conduct is "of the same general nature as that authorized, or incidental to the conduct authorized" considering the factors set forth in section 229. Chilkoot asserts that questions such as whether the conduct is "too little actuated by a purpose to serve the master" are inherently fact specific and should be left for the jury. Chilkoot argues that even if the facts are undisputed, seope of employment is still a question for the jury because reasonable jurors could draw conflicting inferences. Additionally, Chilkoot disagrees with the Ondruseks' assertion that the facts are undisputed. Chilkoot points to Locke's testimony that the free rides did not benefit Chilkoot because the horses needed rest on days when Chilkoot was closed for business, and Locke's testimony that the Ondruseks were not paying for the ride and the rides were not expected to bring in future business. Chil-koot argues that under these facts a reasonable jury could conclude that Locke's conduct was "too little actuated by a purpose to serve" Chilkoot, and thus could find that Locke was not acting within the scope of his employment. Chilkoot asserts that Locke's conduct was not the type Chilkoot employed him to perform because the ride was free, Locke was not being paid, Chilkoot was closed, no waivers were signed, and the route differed from the one used during actual tours. Additionally, Chilkoot argues that a dispute exists regarding "the extent of departure from the normal method of accomplishing an authorized result," pointing out that the parties disagree about whether the employees followed standard Chilkoot procedures, such as giving a safety lecture, giving the dismount warning, and checking the saddles. Finally, Chilkoot asserts that the facts are in dispute regarding whether Chilkoot guides commonly give this type of ride because Locke testified it is "pretty rare" for guides to take people on free rides on days that Chilkoot is closed. Under the doctrine of respondeat superior an employer may be liable for the conduct of its employees if the conduct occurred within the scope of their employment. We have adopted a flexible analysis for the determination of scope of employment, guided by the factors stated in the Restatement sections 228 and 229. We have held that the scope of employment is a fact specific inquiry for the jury unless the facts are undisputed or lend themselves to only one conclusion. In Luth v. Rogers & Babler Construction Co., the tort at issue occurred during the employee's twenty-five-mile commute between his home and his jobsite, where he worked as a construction flagman. We held that, although the facts were undisputed, the jury could have drawn conflicting inferences about whether this conduct was within the seope of employment. In Fruit v. Schreiner, the employee was involved in an accident during an annual convention hosted by his employer at an out-of-town resort. The accident occurred early in the morning when the employee was returning to the resort after failing to find the rest of his group at a restaurant and bar. We held that, because some evidence supported a finding that the conduct arose out of the employee's motivation to serve the employer by socializing to learn from out-of-state attendees' work experiences, a reasonable jury could draw conflicting conclusions about whether the accident took place within the seope of employment. Here, material issues of fact exist regarding scope of employment and thus denial of the summary judgment motion was appropriate. Also, construing the facts in favor of Chilkoot, we cannot conclude that Locke was acting within the seope of his employment as a matter of law. The facts are disputed regarding whether Chilkoot authorized the ride on May 27, 2000. Murphy testified that Locke did not tell him about the ride and that he never met the Ondruseks. Locke, however, testified that he "might have mentioned it" to Murphy. And Mary Anne testified that she met Murphy right before the horseback ride. The facts are also disputed as to whether the ride benefitted Chilkoot's business. Murphy testified that the more the guides rode the better it was for business because the guides would gain experience. Murphy also testified, however, that his biggest concern regarding the free rides was that the horses had enough rest. And he also was concerned that the guides riding on days off had adequate experience. He was less inclined to allow inexperienced guides to ride when business was closed. This is contrary to the idea that free rides for friends and family always benefit Chilkoot by giving the guides more experience. Additionally, Locke testified that he thought riding horses on days off did not benefit Chilkoot, but harmed the business because the horses did not get adequate rest. The Ondruseks argue that the trial court should not have considered Locke's opinion testimony in denying summary judgment. Chilkoot responds that Locke's testimony contained issues of material fact and that Locke's opinion testimony is equal in weight to Murphy's opinion testimony because on a motion for summary judgment the court does not weigh testimony or make credibility determinations. Additionally, Chilkoot argues that lay opinion testimony is admissible if it is rationally based on the perception of the witness and it aids in the determination of a factual issue. The Ondruseks reply that Locke's opinion cannot dispute Murphy's opinion because Murphy, as the sole owner of Chilkoot, is the only person who can make a factual statement about whether the business is benefitted. Evidence of an employee's motivation to benefit the business is a relevant consideration when determining the scope of employment. Whether an employee's conduct bene-fitted the employer is determined from the perspective of the employee, not the desire of the employer. In Fruit, for instance, we relied on the existence of evidence "that [the employee] was at least motivated in part by his desire to . improve his abilities as a salesman," in finding that material issues of fact existed regarding whether he was acting within the scope of his employment. In VECO, Inc. v. Rosebrock, we clarified the "motivation to serve" test stating that imposing "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." Here, the trial court did not err in considering Locke's testimony regarding the motivation for his actions. Locke testified that he had no desire to benefit the business by taking his mother out on a free ride. In fact, Locke thought that riding the horses on days Chilkoot was closed was harmful to the business. This testimony was relevant to the issue whether Locke was acting within the scope of his employment. IV. CONCLUSION For the above reasons, we conclude that the Ondruseks' motion for summary judgment was properly denied. The final judgment entered by the court based on the jury verdict is therefore AFFIRMED. . City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004). . Id. Chilkoot does not argue that the denial of the motion for summary judgment may not be considered as a point on appeal given that this case was subsequently resolved by a trial on the merits. Such an argument would be favorably received in the federal courts, and in many state jurisdictions. See Lama v. Borras, 16 F.3d 473, 476 n. 5 (1st Cir.1994); Black v. J.I. Case Co., 22 F.3d 568, 570-72 (5th Cir.1994), cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994); Watson v. Amedco Steel, Inc., 29 F.3d 274, 276-78 (7th Cir.1994); Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431, 434 (8th Cir.1994); Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir.1992), cert. denied, 507 U.S. 973, 113 S.Ct 1417, 122 L.Ed.2d 787 (1993); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990); Holley v. Northrop, 835 F.2d 1375, 1377-78 (11th Cir.1988); Locricchio v. Legal Serv. Corp., 833 F.2d 1352, 1358-59 (9th Cir.1987); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573-74 (Fed.Cir.1986), cert. dismissed, 479 U.S. 1072, 107 S.Ct. 1262, 94 L.Ed.2d 124; Fleitz v. Van Westrienen, 114 Ariz. 246, 560 P.2d 430, 432-33 (App.1977) (finding that a denial of summary judgment is not appeal-able, but recognizing a narrow exception if the denial was made on a point of law and prevented the losing party from offering evidence or urging the point at the time of trial); Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114, 1117 (Colo.1981) ("To hold otherwise could lead to the absurd result that one who has sustained his position after a full trial and a more complete presentation of the evidence might nevertheless be reversed on appeal because he had failed to prove his case fully at the time of the hearing on the motion for summary judgment."); Phillips v. Abel, 141 Ga.App. 291, 233 S.E.2d 384 (1977) (finding the issue is moot after the evidence has been reviewed in a trial on the merits); Evans v. Jensen, 103 Idaho 937, 655 P.2d 454, 459 (App.1982) (explaining that a final judgment after trial should be tested upon the record made at trial not at the time summary judgment was denied); Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (explaining that after a full trial on the merits the denial of summary judgment merges with the trial); Skowronski v. Sachs, 62 Mass.App.Ct. 630, 818 N.E.2d 635, 638 n. 5 (2004) {explaining that no right to review exists when case has proceeded to trial on the merits, unless summary judgment issue was on a different claim than was tried) Cannon v. Day, 165 N.C.App. 302, 598 S.E.2d 207, 210 (2004) ("Improper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts...."); All-States Leasing Co. v. Pacific Empire Land Corp., 31 Or.App. 733, 571 P.2d 192 (1977). But cf. Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 396 (1979); Wynn v. Winsen, Ltd., 246 So.2d 639, 640 (Fla.Dist.App.1971); Metro Mach. Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632, 634 (1992); Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015, 1018 (1978). This court, however, has reviewed summary judgment denials Diamond v. Wagstaff, 873 P.2d 1286, 1289-90 (Alaska 1994); Cameron v. Beard, 864 P.2d 538, 545-46 (Alaska 1993); Western Pioneer, Inc. v. Harbor Enters., 818 P.2d 654 (Alaska 1991). In one case, Western Pioneer, we reversed a judgment entered on a jury verdict on the basis that summary judgment should have been entered in favor of the party that lost at trial. But the issue involved was a question of law that had been improperly resolved at summary judgment and the resolution affected the trial. Ofien summary judgment motions are denied on the basis that there are genuine issues of material fact. At least as to motions denied on that basis, this court will give serious consideration in the future to adoption of what seems to be the majority view concerning reviewability of summary judgment denials, when the point is properly raised. . McGee Steel Co. v. State ex rel. McDonald Indus. Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986). . Samaniego, 83 P.3d at 1082. . Restatement (Second) or Agency § 229 (1958). This section states in pertinent part: (2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: (a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (£) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result; and (§) whether or not the act is seriously criminal. . Restatement § 228(2). . Restatement § 229(2)(i). . See id. § 229(2)(a). . Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 346 (Alaska 1990). . Taranto v. North Slope Borough, 909 P.2d 354, 358 (Alaska 1996) (citing Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764-65 n. 14 (Alaska 1973)). . Taranto, 909 P.2d at 359 ("[S]cope of employment is a fact-specific issue requiring case-by-case determination."); Luth, 507 P.2d at 764 ('[S]cope of employment questions are jury issues where conflicting inferences can be drawn from undisputed facts."); Fruit v. Schreiner, 502 P.2d 133, 140-41 (Alaska 1972) (noting "[alppli-cability of respondeat superior will depend primarily on the findings of fact in each case" and that "the factual determination generally is left to the jury"). . 507 P.2d at 762. . Id. at 765. . 502 P.2d at 135. . Id. . Id. at 142. . Whether or not Chilkoot authorized the conduct is a factor to be considered under Restatement § 228(1)(b). . See Restatement § 228(1)(c). . See VECO, Inc. v. Rosebrock, 970 P.2d 906, 924 n. 36 (Alaska 1999); Doe, 791 P.2d at 346; Fruit, 502 P.2d at 142. . 502 P.2d at 142 (emphasis added). . 970 P.2d at 924 n. 36.

12014610

CITY OF NORTH POLE, Petitioner, v. Betty ZABEK, Respondent; Betty ZABEK, Appellant and Cross-Appellee, v. CITY OF NORTH POLE, Appellee and Cross-Appellant

City of North Pole v. Zabek

1997-02-21

Nos. S-6777, S-6907, S-6927

1292

1307

934 P.2d 1292

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

CITY OF NORTH POLE, Petitioner, v. Betty ZABEK, Respondent. Betty ZABEK, Appellant and Cross-Appellee, v. CITY OF NORTH POLE, Appellee and Cross-Appellant.

CITY OF NORTH POLE, Petitioner, v. Betty ZABEK, Respondent. Betty ZABEK, Appellant and Cross-Appellee, v. CITY OF NORTH POLE, Appellee and Cross-Appellant. Nos. S-6777, S-6907, S-6927. Supreme Court of Alaska. Feb. 21, 1997. Rehearing Denied April 3, 1997. John J. Tiemessen, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for Petitioner City of North Pole. Brett M. Wood, Fairbanks, for Respondent, Appellant and Cross-Appellee Betty Zabek. Joseph W. Sheehan, Fairbanks, for Appel-lee and Cross-Appellant City of North Pole. Before COMPTON, C.J., MATTHEWS and EASTAUGH, JJ., RABINOWITZ and SHORTELL, JJ. pro tem. Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

9000

56345

OPINION COMPTON, Chief Justice. I. INTRODUCTION The City of North Pole (City) terminated Betty Zabek's employment as a police dispatcher without providing a hearing. Zabek appealed this termination to the City's personnel review board (PRB), which heard oral argument some months after the termination. The PRB later affirmed Zabek's termination. Zabek appealed to the superior court. The superior court found that Zabek's termination violated her right to due process of law, and that the appeal before the PRB did not provide sufficient process to serve as a curative post-termination hearing. It ordered that Zabek receive back pay minus any mitigation, granted in part her request for attorney's fees and costs, and remanded her ease to the PRB for a post-termination hearing. Although the superior court's ruling did not constitute an appealable final judgment, the City nonetheless has "appealed" both the court's finding of a due process violation and the award of attorney's fees and costs. Zabek filed a separate action against the City alleging, inter alia, that the City and its employees deprived her of federally protected rights in violation of 42 U.S.C. § 1983 (section 1983), and that the City was liable to her for slander. The superior court rejected both of these claims on summary judgment and awarded attorney's fees and costs for the City. Zabek appeals the summary judgment on these two claims; the City cross-appeals, claiming that the superior court inappropriately reduced the attorney's fee award. We have elected to treat the City's attempt to appeal from the superior court's due process determination as a petition for review, grant the petition, and affirm in part and reverse in part that decision. We affirm the superior court's award of summary judgment to the City on Zabek's section 1983 and slander claims, as well as the court's reduction in the City's attorney's fee award. II. FACTS AND PROCEEDINGS Zabek was employed as a police dispatcher for the North Pole Police Department (NPPD). As a dispatcher, Zabek was authorized to use the Alaska Public Safety Information Network (APSIN), a confidential computerized database that contains information on criminal and driving records. Zabek concedes that having security clearance to access APSIN was a requirement of her job. In 1991 an investigation by the Alaska State Troopers (AST) uncovered evidence that Zabek had (1) used APSIN to run a personal search of the license plate numbers of cars parked at a local mayoral candidate's headquarters, (2) allowed unauthorized persons physical access to a secure APSIN area, and (3) disseminated information obtained through the APSIN system to an unauthorized individual. After reviewing the AST investigative report, the State Department of Public Safety, Control Terminal Agency (CTA), revoked Zabek's access to APSIN. On October 18, 1991, the date on which Za-bek's access to APSIN was revoked, NPPD Police Chief Lynn F. Lamm wrote Zabek to inform her that her employment would be terminated, effective November 1, as a result of her loss of APSIN access. Zabek filed a grievance under the City's employee grievance procedure. A City ordinance establishes a three-step grievance procedure culminating in an appeal to the may- or. At no step in the process is a hearing required, although the mayor does have the discretion to hold a hearing at step three. North Pole Code of Ordinances (NPCO) § 2.60.070(A). Mayor Lute Cunningham affirmed Lamm's termination of Zabek without holding a hearing. After the three-step grievance procedure was exhausted, Zabek appealed the outcome to the PRB, the City's personnel review board made up of the city council. NPCO § 2.60.070(A)(3), .080. The PRB heard oral argument on February 22, 1992; Zabek was represented by counsel at this hearing. After permitting some post-argument supplementation of the record, the PRB affirmed Zabek's termination on April 6. Zabek appealed the decision of the PRB to the superior court. The superior court ruled that Zabek had been denied a pretermination hearing in violation of her due process rights, and that the process she received after her termination did not remedy this deficiency. It remanded the case to the PRB for an adequate post-termination hearing and an award of back pay, minus any mitigation. Prior to the superior court's decision regarding Zabek's due process claim, she brought a separate action in the superior court against the City, Lamm, and unknown defendants alleging various tortious acts, including slander. Zabek's complaint in this separate action was amended to include a claim that the City had deprived her of federally-protected rights in violation of section 1983. The superior court granted the City's motion for summary judgment. It ruled that Zabek's section 1983 claim was barred by collateral estoppel. It also ruled that Za-bek's failure to identify any employees of the City who had disseminated slanderous information about her undermined any basis upon which the City could be held vicariously liable for slander. The superior court awarded attorney's fees to the City only for those fees accrued in defending against Zabek's state law claims. Despite the fact that the superior court did not enter final judgment as to Zabek's due process claim in her administrative appeal, the City has attempted to appeal the superi- or court's decision, as well as the court's award of attorney's fees incurred in defending this claim. Zabek appeals the superior court's rejection of her separate section 1983 and slander claims, arguing that her section 1983 claim was not barred by collateral es-toppel and that the summary judgment on her slander claim was error. The City cross-appeals, arguing that the superior court erred in awarding attorney's fees for only those fees accrued in defending against Za-bek's state law claims. We have elected to treat the City's attempt to appeal the due process decision as a petition for review, which we grant and consolidate with the appeal and cross-appeal of the superior court's judgment on the separate section 1983 and slander claims. III. DISCUSSION A. Appealability of the Superior Court's Decision "[A] decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court." City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979). We lack appellate jurisdiction when a superior court has not issued a final judgment. See Alaska R.App.P. 202 ("An appeal may be taken to the supreme court from a final judgment entered by the superior court...."). In deciding Zabek's due process claim, the superior court reversed the administrative decision of the PRB and remanded for further proceedings. Under Thibodeau, the decision of the court does not constitute a final judgment in the case. The ruling of the superior court was therefore not a final judgment, and this court lacks appellate jurisdiction over the case under Alaska Appellate Rule 202. Courts must be mindful of our holding in Thibodeau. Litigants also should keep Thibodeau in mind, since the usual consequence of an improperly brought appeal is dismissal. Although the City erred in trying to bring this action as an appeal from a final judgment, we may choose instead to treat this "appeal" as a petition for review, pursuant to Alaska Appellate Rule 402. Review of a non-appealable order or decision is not a matter of right "but will be granted only where the sound policy behind the rule requiring appeals to be taken only from final judgments is outweighed" by the presence and significance of various enumerated considerations. Alaska R.App.P. 402(b). While appeal and petition for review, "the two routes to this court[,] are mutually exclusive," Jordan v. Reed, 544 P.2d 75, 79 (Alaska 1975), "[t]his court has not hesitated to treat an appeal improperly brought from a non-final judgment as a petition for review in order to prevent hardship and injustice." Thibodeau, 595 P.2d at 631 (footnote omitted). We have also chosen to treat an improperly brought appeal as a petition for review when "we believe[d] that our disposition of this case will effectively dispose of the issues remaining in the underlying civil action" and would "prevent 'unnecessary delay, expense, [and] hardship' to the parties." Wade Oilfield v. Providence Washington Ins. Co. of Alaska, 759 P.2d 1302, 1305 n. 6 (Alaska 1988) (quoting Alaska R.App.P. 610(b)(1)). Finally, when "a constitutional question of particular substance and importance has been presented we will consider this appeal as a petition for review, and grant review." Muller v. State, 478 P.2d 822, 824 (Alaska 1971) (footnote omitted). All of these considerations that led us to treat the improperly brought appeals in Thi-bodeau⅛ Wade, and Muller as petitions for review are present in this case. The City presents us with a constitutional question of some importance, both parties face the hardship of continued appeals, rehearings, and delay, and we believe our resolution of this due process dispute can effectively dispose of the remaining issues before the superior court. Therefore, we choose to treat this appeal as a petition for review, which we grant. While we conclude that the facts of this case warrant treating this improperly brought appeal as a petition for review, situations like this are rare. We grant petitions for review only when certain conditions are met. See Alaska R.App.P. 402(b). It is far more difficult to gain entry to this court through this discretionary review than it is through an appeal as of right. Unless the prerequisites for treating such a premature "appeal" as a petition for review are met, it will be dismissed. B. Due Process 1. The City violated Zabek's due process right to a pre-termination hearing. The United States and Alaska Constitutions prohibit state actions that deprive individuals of property without due process of law. Public employees who may be terminated only for just cause have a property interest in continued employment. Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1148 (Alaska 1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 878, 93 L.Ed.2d 832 (1987). Zabek was such an employee, and her interest in continued employment was therefore protected by the Due Process Clauses of the United States and Alaska Constitutions. "An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the ease.' " Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)). "Like the federal constitution, the Alaska constitution affords pretermination due process protection to public employees who may only be terminated for just cause." Storrs, 721 P.2d at 1150. "At a minimum, the employee must receive oral or written notice of the proposed discharge, an explanation of the employer's evidence, and an opportunity to present his position." Id. at 1149. The right to a pre-termination hearing deserves particular consideration in this case. The Supreme Court has "described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.' " Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493, (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)) (emphasis in original). "This principle requires 'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493 (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972)). We have "consistently held that due process of law guaranteed by the United States and Alaska Constitutions requires a pre-termination hearing." Odum v. University of Alaska, Anchorage, 845 P.2d 432, 434 (Alaska 1993) (citing Storrs, 721 P.2d at 1149-50; Kenai Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034, 1037 (Alaska 1984); McMillan v. Anchorage Community Hosp., 646 P.2d 857, 864 (Alaska 1982); University of Alaska v. Chauvin, 521 P.2d 1234, 1238 (Alaska 1974); Nichols v. Eckert, 504 P.2d 1359, 1366 (Alaska 1973) (Erwin, J., concurring)). The City failed to provide Zabek with the opportunity to be heard prior to her termination. Zabek was in Florida, on an extended leave, at the time the termination decision was made. Chief Lamm's letter informing Zabek of her termination was dated October 18, 1991; it simply informed Zabek that her termination would become effective on November 1. The Due Process Clauses require more pre-termination process than this. The City argues that because Zabek neither contested the fact that APSIN clearance was a requirement of her job nor the fact that her clearance had been revoked, no hearing was required; there were no disposi-tive facts left to be determined through the adversarial process. "While this case apparently presents no factual issues, it is not possible to be certain without a proper hearing." McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353, 1357 (Alaska 1974). We have never held that the apparent absence of dispute over dispositive facts makes a summary termination without the constitutionally-mandated pre-termination hearing acceptable. Indeed, one of the reasons a pre-termination hearing is required is to give the employee the opportunity to present in her defense facts which, if developed, might weigh against her termination. Even if it appears almost certain that the employee will be unable to do so, due process requires that she be given the opportunity to try. The City's reasoning would foreclose this opportunity, prejudging the merits of termination decisions. The City also argues that it did not need to offer Zabek a pre-termination hearing because she was on extended leave; because "Ms. Zabek was out of the state for twenty days after her ASPIN [sic] clearance was revoked[,][t]here was no opportunity for a pre-termination hearing." The City was not confronted with a situation so urgent that Zabek had to be terminated within those twenty days. See Breeden v. City of Nome, 628 P.2d 924, 927 (Alaska 1981) (twenty-four hour notice period "a time period not justified by the urgency of the city's interests involved"). We see no reason why the City could not have scheduled a pretermination hearing and invited Zabek to return for it. The superior court correctly determined that Zabek had a due process right to a pre-termination hearing, and that her summary termination violated this right. 2. Zabek's appeal before the PRB on February 22, 1992 served as a curative post-termination hearing. A failure to provide sufficient pre-termination process may be corrected by a curative post-termination hearing in which due process is provided. The evidence presented in such a post-termination hearing may be sufficient to justify a suspension or termination after such a hearing, even if it would have been insufficient to justify a summary suspension or termination. See Brown, 691 P.2d at 1039; McMillan, 646 P.2d at 866-67. "A full judicial hearing is not necessary, but a hearing that allows the administrative authority to examine both sides of the controversy will protect the interests and rights of all who are involved." Nichols, 504 P.2d at 1365. Zabek was provided with an adversarial proceeding. She had the benefit of counsel at the proceeding. Finally, she was allowed to frame the issues that would be explored at this proceeding. The procedures adopted for the hearing before the PRB did not provide for the calling of witnesses, but only for a half hour of oral argument by each side. The PRB did allow for some supplementation of the record after oral argument, which allowed Zabek to submit some witness testimony through affidavits. However, Zabek did not have the benefit of this testimony at the actual oral hearing before the PRB. In Nichols, we found the charge of teacher incompetency sufficiently serious to warrant the heightened procedural protection that the right to call witnesses brings. Id. This case is distinguishable. Unlike the termination of the teachers in Nichols, Za-bek's termination was not based on serious charges that would call her very character or capacity for employment into question, charges such as incompetency, misconduct, or dishonesty. Instead, her termination was based solely on the revocation of her APSIN clearance. This revocation was a decision made by the CTA, not the City; the City did not base its termination on the merits of the CTA decision to revoke Zabek's APSIN clearance, but only on the fact of the revocation itself. Had the City based its termi nation on the merits, this termination would have been based on charges the serious nature and consequences of which would be undeniable. Because the City's decision to terminate Zabek was based solely on her loss of APSIN clearance, however, the post-hearing supplementation of the record with witness affidavits provided Zabek with all the process due to her. We therefore conclude that the superior court erred in determining that the February 1992 hearing before the PRB failed to provide sufficient due process to serve as a curative post-termination hearing, and we reverse this part of its decision. 3. Zabek was entitled to an award of back pay without adjustment for mitigation. The superior court ruled that Zabek was entitled to back pay minus mitigation from the date of her wrongful termination through the date she receives the curative post-termination hearing that the court ordered. As discussed above, we have concluded that the February 1992 appeal before the PRB had already served as a curative posRtermination hearing by the 1994 date of this ruling. See section III.2., supra. The PRB did not issue a valid termination decision at the time of the February 1992 hearing, however. Instead, it waited until April 6 to issue its decision affirming Zabek's termination. April 6 is therefore the date that Zabek's termination became legally effective, since it was only then that Zabek was notified of her termination after the provision of adequate due process. Zabek's back pay award must therefore be measured from November 1, 1991, the date of her unconstitutional summary termination, through April 6, 1992. See Brown, 691 P.2d at 1038-39; McMillan, 646 P.2d at 867. The superior court held that Zabek's back pay award should be reduced by mitigation, if any. However, because the period between the November 1 termination and the April 6 decision of the PRB was a brief one, we hold that the City is not entitled to reduce Zabek's back pay award by any mitigation. Given the specialized nature of Zabek's employment as a police dispatcher, we conclude that it would be unreasonable to place upon her the burden of finding comparable employment during so short a period of time. This is particularly so, since part of this period was spent preparing for a hearing within four months of her unlawful termination. 4. The award of attorney's fees to Zabek must be remanded for reconsideration. Because of our decision regarding Zabek's due process claim, we remand for a reconsideration of the attorney's fee award and a redetermination of prevailing party status. C. Zabek's Section 1983 Claim Zabek's section 1983 claim is based on her allegations that the City deprived her of federally-protected due process rights. Because we hold that the February 1992 PRB hearing provided sufficient due process to serve as a curative post-termination hearing, we need not reach the merits of Zabek's appeal of the superior court's judgment on her separate section 1983 claim. The due process violation was corrected by the February hearing before the PRB, leaving Za-bek's subsequent section 1983 claim without an underlying deprivation of constitutional right upon which to be based. The superior court's summary judgment on Zabek's section 1983 claim is rendered correct by virtue of our decision on the due process claim. D. Zabek's Slander Claim The superior court granted the City's motion for summary judgment on Zabek's separate slander claim, observing that there is no "basis for holding the City liable based on the actions of unidentified employees when [its] liability is purely vicarious, as responde-at superior is." For vicarious liability to attach, some sort of underlying liability must be established for which the employer can be held liable. State v. Will, 807 P.2d 467, 471 (Alaska 1991) (state cannot be vicariously liable for negligence through trooper when trooper himself not negligent); Bevins v. Ballard, 655 P.2d 757, 760 n. 2 (Alaska 1982) (broker not vicariously liable for acts of employee when trial court found in favor of employee). Zabek never alleged any facts that could establish this sort of underlying liability because she never presented any evidence which, if taken to be true, would identify a particular employee of the City as the source of slanderous statements against her. Zabek had stipulated to a dismissal of all claims against Lamm, the one employee of the City she had named as a defendant in her action. For over nine months, she had been unable to identify any other individual employees who might arguably be liable for slander themselves. Because she could not point to any particular employees who might be liable for slander, Zabek failed to allege any material facts through which she might have been able to establish the vicarious liability of the City. The City was therefore entitled to judgment as a matter of law. E. The Reduction of the City's Attorney's Fee Award Alaska courts do not award attorney's fees against section 1983 plaintiffs for that portion of the prevailing party's attorney's fees incurred defending against the section 1983 action, unless the 1983 action was "frivolous, unreasonable or without foundation." Lyman v. State, 824 P.2d 703, 707 (Alaska 1992). The City argues that it deserved a full twenty percent award of its total attorney's fees, pursuant to Alaska Civil Rule 82(b)(2), because Zabek's 1983 claim was frivolous, unreasonable, and without foundation. While the superior court's judgment against Zabek on her section 1983 claim is rendered correct by virtue of our decision on the due process issue, we do not consider this claim so groundless as to be "frivolous, unreasonable, or without foundation." Zabek's claim that the City never provided a curative post-termination hearing lacked merit, but it was not so implausible that Zabek should have known that a section 1983 claim based on it would have lacked any reasonable basis. We therefore hold that the superior court correctly refused to award those attorney's fees accrued in defending against Za-bek's section 1983 claim. IV. CONCLUSION We AFFIRM the superior court's ruling in the administrative appeal that Zabek was entitled to back pay for the period from her November termination through her proper termination after a curative post-termination hearing before the PRB, but REVERSE its ruling that the February PRB hearing failed to provide sufficient due process to serve as a curative post-termination hearing. We VACATE the award of attorney's fees based on Zabek's due process claim. We REMAND for a determination of back pay to which Zabek is entitled, and a redetermination of prevailing party status and attorney's fees in the due process action. Back pay is to be awarded without any reduction for mitigation. We AFFIRM the superior court's award of summary judgment for the City on Zabek's separate section 1983 and slander claims, as well as its refusal to award the City attorney's fees accrued in defending against Zabek's 1983 claim. FABE and BRYNER, JJ., not participating. . These considerations are as follows: (1) Postponement of review until appeal may be taken from a final judgment will result in injustice because of impairment of a legal right, or because of unnecessary delay, expense, hardship or other related factors; or (2) The order or decision involves an important question of law on which there is substantial ground for difference of opinion, and an immediate review of the order or decision may materially advance the ultimate termination of the litigation, or may advance an important public interest which might be compromised if the petition is not granted; or (3) The trial 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 the appellate court's power of supervision and review; or (4)The issue is one which might otherwise evade review, and an immediate decision by the appellate court is needed for the guidance of the lower courts or is otherwise in the public interest. Alaska R.App.P. 402(b). . The alleged due process violation that underlies this appeal has already generated two other lawsuits and a rehearing before the PRB. Zabek brought a section 1983 action based on her due process claim; this related action is one of the subjects of the appeal before us that we have consolidated with this petition for review. The superior court, in finding that Zabek's due process rights were violated, ordered a rehearing before the PRB. This rehearing took place in June 1994. Zabek is currently appealing the PRB's decision upon this rehearing before the superior court, alleging, inter alia, that this hearing also denied her of due process of law. . "... nor shall any state deprive any person of life, liberty, or property, without due process of law...." U.S. Const, amend. XIV, § 1. . "No person shall be deprived of life, liberty, or property, without due process of law." Alaska Const, art. I, § 7. ."Issues of constitutional interpretation are questions of law which this court reviews de novo." Revelle v. Marston, 898 P.2d 917, 925 n. 13 (Alaska 1995). . In Degnan v. Bering Strait School District, 753 P.2d 146 (Alaska 1988), we were presented with a factual situation that was similar in some respects. Degnan was an employee of the school district whose employment was terminated without a hearing after the state commissioner of education refused to approve his contract. Id. at 148. Without such approval, Degnan's contract was rendered void ah initio; state law in effect at the time prohibited the district's employment of a member of the immediate family of a school board member without the written approval of the commissioner, and Degnan's sister was on the board at the time he was hired. Id. at 148- 49. We affirmed the district's termination of Degnan, observing: The legal validity of Degnan's contract, and hence the extent to which he was entitled to procedural protection upon its termination, was dependent upon (1) whether his sister was on the board at the time of his hiring, and (2) whether written approval of his contract was obtained from the commissioner. Because we conclude that Degnan was afforded ample notice and opportunity to be heard, at least as to these threshold questions, prior to his termination, we find no violation of Degnan's due process rights. Id. at 149 (footnote omitted). We went on to explain: While a contract which is void for illegality does not itself convey a constitutionally protected property interest, an erroneous assumption of illegality by a government agency could result in the denial of pretermination rights to persons possessing a valid contract. In light of the risk of such deprivations, we think that due process requires at least minimal notice and opportunity to be heard as to the basic facts underlying the alleged illegality. Id. at 149 n. 6. (emphasis added). Degnan does not stand for the proposition that a public employer may never terminate an employee on the basis of underlying determinations made by another agency without first correcting for the other agency's failure to provide minimal due process in making those determinations. Instead, Degnan merely stands for the proposition that an underlying determination that would deny the very existence of a constitutionally-protected property interest cannot form the basis of a subsequent termination without the provision of the due process to which such an interest would give rise, unless adequate process is first provided as to that underlying determination itself. . Zabek's termination does not present us with the situation presented in Degnan. The determination made by the CTA did not affect the process due Zabek, for it did not render her contract void ab initio, thereby denying the existence of her property interest in continued employment. The CTA never determined that Zabek's contract was illegal, nor did it make any determinations that rendered her contract illegal. Zabek still possessed a valid contract after losing her APSIN clearance. While she could no longer perform her duties under this contract after losing her clearance, her contract remained valid, and the City was required to provide her with adequate due process before it could terminate her employment. The City therefore owed Zabek no due process whatsoever as to the underlying determinations that led to the revocation of her APSIN clearance, despite the fact that the CTA, unlike the commissioner in Degnan, had failed to provide even minimal due process in making its determinations. . Had the PRB provided a clear indication, either at the hearing or in its February 28 interim decision, of how it would decide Zabek's appeal, Zabek's back pay period would have ended earlier. See North Slope Borough v. Barraza, 906 P.2d 1377, 1379-81 (Alaska 1995) (interim decision found just cause to terminate employee; therefore, back pay only awarded through date of interim decision, not date of issuance of formal findings of fact and conclusions of law). Here, however, the interim decision only called for supplementation of the record. Because it gave no indication of how the PRB would decide Zabek's appeal, Zabek is entitled to back pay through the date of the PRB's April 6 decision. .42 U.S.C. § 1983 provides, in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 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 proceeding for redress. . The dissent argues that Zabek's § 1983 claims should be discussed because the court holds that her due process rights were initially violated. However, because any violation of Zabek's due process rights was cured, there is no constitutional violation on which to base Zabek's § 1983 claim. It is unnecessary to discuss the § 1983 issues raised by the dissent. . "When reviewing a grant of summary judgment, this court 'must determine whether there was a genuine issue of material fact and whether the moving party was entitled to judgment on the law applicable to the established facts.' " Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (quoting Brock v. Alaska Int'l Indus., 645 P.2d 188, 190 n. 6 (Alaska 1982)). . Indeed, at the time she brought her section 1983 action, Zabek had already convinced the superior court that her underlying due process claim had merit.

11880661

Robert M. McGHEE, Appellant, v. STATE of Alaska, Appellee

McGhee v. State

1998-01-23

No. S-7817

1215

1220

951 P.2d 1215

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Robert M. McGHEE, Appellant, v. STATE of Alaska, Appellee.

Robert M. McGHEE, Appellant, v. STATE of Alaska, Appellee. No. S-7817. Supreme Court of Alaska. Jan. 23, 1998. Eugene B. Cyrus, Eagle River, for Appellant. Douglas D. Gardner, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ. . Any possibility of actual unreliability resulting from the procedural flaw in McGhee's original change of plea hearing was effectively cured by McGhee’s reconviction upon his re-entering a no contest plea to the same charge. There is no danger in these circumstances of manifest injustice resulting from enhancement based on a conviction involving actual innocence. Nor is there danger under these circumstances that the change in dates could give rise to actual unfairness stemming from lack of prior notice or lack of an opportunity to reform. See, e.g., State v. Rastopsoff, 659 P.2d 630, 636 (Alaska App.1983). McGhee characterizes his 1989 DWI conviction as “unconstitutional,” and thereby suggests that his case involves the form of manifest injustice addressed in Fann, 864 P.2d at 537. There we observed that manifest injustice might arise from enhancement of a license revocation based on a prior conviction that was entered in violation of a defendant’s fundamental constitutional rights. Cf. Pananen v. State, 711 P.2d 528, 531-32 (Alaska App.1985) (adopting Justice Marshall’s concurring opinion in Baldosar v. Illinois, 446 U.S. 222, 227-29, 100 S.Ct. 1585, 1587-88, 64 L.Ed.2d 169 (1980)). McGhee’s reliance on Fann is unavailing. McGhee was allowed to withdraw his original no contest plea because he was not expressly advised of his right to a juiy trial. This procedural flaw was a violation of Alaska Criminal Rule 11(c)(2) but did not in itself amount to a constitutional violation. Cf. Swensen v. Municipality of Anchorage, 616 P.2d 874, 879 (Alaska 1980) (holding that a similar Rule 11 violation did not call for automatic reversal but was subject to a case-specific harmless error analysis “like other non-constitutional errors”). To the extent that the violation of Rule 11 might be characterized as constitution-related because the rule's advisement requirement effectuates the constitutional right to a jury trial, this is not the type of fundamental constitutional violation contemplated in Fann.

1947

12199

OPINION BRYNER, Justice. Robert M. McGhee's driver's license was administratively revoked following his arrest for driving while intoxicated (DWI). The revocation was enhanced to reflect two prior DWI convictions. McGhee subsequently obtained a court order vacating one of the prior convictions and was then reconvicted. Given the new conviction date for the prior DWI, McGhee now has only one DWI conviction predating the arrest that triggered his revocation. Does this change entitle McGhee to a shorter period of revocation? We conclude that it does not. Because McGhee remains convicted of the same DWIs that subjected him to an enhanced revocation, the temporary set-aside of the prior DWI requires no alteration of the original revocation. I. BACKGROUND On October 21,1994, McGhee was arrested for DWI. After taking and failing a breath test, McGhee was notified that the DMV would revoke his driver's license. Following a hearing on January 9, 1995, before a DMV hearing officer, the DMV issued an order affirming its notice of revocation; since McGhee had previously been convicted of DWI in 1985 and 1989, the period of revocation was fixed at three years. McGhee was represented by counsel at the DMV hearing but did not question the validity of his prior DWI convictions or challenge the enhanced period of revocation. McGhee was informed of his right to appeal the revocation within thirty days but did not do so. Approximately six months passed. On June 16, 1995, in a district court hearing on his 1994 DWI charge, McGhee moved to set aside his 1989 DWI conviction. He argued that his original plea of no contest in that ease was defective because the court failed to expressly advise him of his right to a jury trial. After reviewing the record of the 1989 change of plea hearing, District Court Judge William Fuld granted McGhee's motion and vacated the prior conviction. McGhee immediately re-entered a no contest plea to the 1989 charge; he then pled no contest to the 1994 DWI, and Judge Fuld imposed sentences for both the 1989 and 1994 DWIs. Another six months later, McGhee returned to the DMV, seeking a reduction of his enhanced period of license revocation. McGhee reasoned that because the withdrawal and re-entry of his no contest plea had changed the conviction date for his 1989 DWI, he now had only one DWI conviction that was entered before the date of his arrest on the 1994 DWI. On this basis, McGhee asked the DMV to "roll back" his three-year license revocation to one year, the mandatory period of revocation for a DWI arrestee with one prior DWI conviction. The DMV refused to reduce the period of revocation, concluding that the "change in conviction date does not require the [DMV] to reconsider and amend the administrative action entered prior to the court action." The DMV also noted that its hearing officer correctly based the period of revocation "on the record at the time of the hearing" and that McGhee withdrew his plea on the 1989 DWI after the agency action had become final. McGhee appealed to the superior court, which affirmed the DMVs decision. McGhee then filed this appeal. II. DISCUSSION On appeal, McGhee renews the arguments he advanced before the DMV and the superior court. He claims that the June 16, 1995, withdrawal and re-entry of his no contest plea on the 1989 DWI left only one DWI conviction entered prior to his 1994 DWI arrest. McGhee insists that this change in circumstances required the DMV to issue a revised revocation order reflecting the current chronology of his driving record. We disagree. Under AS 28.15.165, the DMV is authorized to revoke the license of any driver who fails a breath test administered following an arrest for DWI. The period of revocation is fixed at ninety-days for drivers who have no DWI convictions within ten years preceding the arrest; that period is enhanced to one year for drivers with one prior conviction and three years for drivers with two prior convictions. See AS 28.15.165(d); 28.15.181(c)(l)-(3); 28.35.030(o)(4)(A). For purposes of establishing the number of prior DWI convictions and the resulting period of revocation, two points of reference are critical: the date of the DWI arrest that triggered the revocation and the date of entry of any prior DWI conviction. All DWI convictions entered within the ten-year period immediately preceding the date of the current arrest must be counted in determining the applicable period of revocation. Wik v. State, Dep't of Pub. Safety, 786 P.2d 384, 387 (Alaska 1990). At the time of McGhee's revocation hearing, the DMV hearing officer correctly determined that two DWI convictions had been entered against McGhee within the ten years preceding his 1994 DWI arrest; accordingly, the hearing officer properly ordered McGhee's license revoked for three years. McGhee appeared with counsel at the DMV hearing but did not question the validity of his prior convictions. Under AS 28.15.166(m), McGhee had thirty days to appeal to the superior court the DMV hearing officer's order affirming the revocation. Since McGhee faded to appeal, the hearing officer's decision became final thirty days after its issuance on January 9,1995. McGhee has cited no statute or regulation providing for reconsideration of a DMV revocation order after it becomes final. Even in the absence of any express grant of authority to reconsider and modify a final revocation order, however, the DMV may well have inherent modification power when enforcement of the original order would result in manifest injustice. Yet the DMVs decision to deny modification in McGhee's case clearly worked no manifest injustice. The original three-year revocation order accurately reflected McGhee's then-existing driving record. Continued enforcement of this three-year revocation order might have become manifestly unjust had the district court's later order vacating McGhee's 1989 DWI conviction led to dismissal of the 1989 charge, or to McGhee's acquittal. But in actuality, the set-aside order led almost instantly to McGhee's reconviction for precisely the same crime. McGhee thus had two prior DWI convictions when he was arrested for his 1994 DWI and when he appeared before the DMV hearing officer in the ensuing revocation proceeding. As a result of his reconviction on the 1989 DWI, he continued to have convictions for the same two offenses when he later returned to the DMV seeking a reduction; only the date of conviction for the 1989 DWI had changed. Enforcing the original revocation order in light of this mere change in date poses no risk of actual injustice to McGhee. On the other hand, reducing the original period of revocation based solely on this change would result in significant prejudice to the important interest of public safety. The purpose of Alaska's enhanced license revocation statute is "not . to visit additional punishment on an offender, 'but in order to protect the public against incompetent and careless drivers.'" Robinson v. Texas Dep't of Pub. Safety, 586 S.W.2d 604, 606 (Tex.Civ.App.1979), quoted mth approval in Wik, 786 P.2d at 387. In applying the enhancement statute, we must bear in mind that "[t]he intent of the legislature must govern and the policies and purposes of the statute should not be defeated." Id. (quoting Belarde v. Municipality of Anchorage, 634 P.2d 567, 568 (Alaska App.1981)). Given McGhee's reconvietion on the 1989 DWI after his initial conviction was vacated, the DMV's original three-year period of revocation accurately reflects his potential danger as a driver at the time of his arrest for DWI in 1994. Hence, in terms of the community's need for protection, the enhanced period of revocation is still an appropriate societal response. We have consistently expressed disfavor with the tactical manipulation of DWI conviction dates to avoid enhanced license revocations. See, e.g., Wik v. State, Dep't of Pub. Safety, 786 P.2d 384, 387 (Alaska 1990); Tulowetzke v. Dep't of Pub. Safety, 743 P.2d 368, 371 (Alaska 1987). McGhee's case involves nothing else. In these circumstances, amendment of the original revocation order was properly denied. III. CONCLUSION The superior court's decision affirming the DMV's denial of reconsideration is AFFIRMED. . This court gives no deference to a decision of the superior court when it acts in an intermediate appellate capacity. CH Kelly Trust v. Municipality of Anchorage, Bd. of Equalization, 909 P.2d 1381, 1382 (Alaska 1996). When, as here, an appeal involves an agency's resolution of questions of law not involving agency expertise, we review the agency's decision de novo, exercising our independent judgment. State, Dep't of Pub. Safety v. Fann, 864 P.2d 533, 536 (Alaska 1993). . Moreover, all prior DWIs must be counted separately, "regardless of whether the prior convictions were entered simultaneously." Tulowetzke v. Dep't of Pub. Safety, 743 P.2d 368, 371 (Alaska 1987). . We have previously held that, in an appeal from a DMV license revocation order, the superi- or court has jurisdiction to consider whether out-of-state DWI convictions are "constitutionally infirm" — that is, if they "truly were entered in violation of a driver's fundamental rights." State, Dep't of Pub. Safety v. Fann, 864 P.2d 533, 537 (Alaska 1993). Our recognition in Fann of the superior court's authority to consider the constitutionality of out-of-state DWI convictions — which we characterized as having "presumptive validity," id. at 536 — should not be read as suggesting that DMV hearing officers are empowered to rule on constitutional challenges to facially valid Alaska judgments. .Cf. Fann, 864 P.2d at 537 (indicating avoidance of manifest injustice as the basis for allowing challenges to out-of-state DWI convictions that "truly were entered in violation of a driver's fundamental rights").

12003220

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

Lamont v. State

1997-03-28

No. A-5998

774

783

934 P.2d 774

934

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Larry J. LAMONT, Appellant, v. STATE of Alaska, Appellee. No. A-5998. Court of Appeals of Alaska. March 28, 1997. John E. McConnaughy III, Assistant Public Defender, John B. Salemi, Public Defender, Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4830

29584

OPINION BRYNER, Chief Judge. Larry J. Lamont was convicted, in separate trials stemming from unrelated incidents, of third-degree assault and two counts of second-degree sexual assault. He appeals his assault conviction, contending that the trial court erred in refusing to instruct the jury on his claim of self-defense. He appeals his sexual assault convictions, contending that the trial court abused its discretion in admitting evidence that he physically assaulted another woman in the past. We reverse both convictions. Third-Degree Assault Lamont was charged with third-degree assault for pointing a gun at Village Police Officer Lott Lott. During September 1994, Lamont lived in his mother's house in the village of Tuluksak. He operated a small store out of the house. At Lamont's trial, Officer Lott testified that during the early morning hours of September 10, he walked into the area of Lamont's mother's house because "[sjomeone told me that there was drinking" going on there. Lott was unarmed. According to Lott and other witnesses, an intoxicated Lamont approached Lott in the street, pulled out a gun, pointed it at Lott's chest, and threatened to "blow [Lott's] head off." Lamont eventually put the gun away and returned to his mother's house. At his trial for the third-degree assault, Lamont conceded that he had in fact pointed a gun at Lott. The theory he hoped to present was that he acted in self-defense. Lamont's version of events differed from that offered by Lott and other prosecution witnesses. Lamont claimed that he had been walking late at night in an area away from his mother's house when Lott approached him from behind and began to follow him. It was dark, and Lamont initially could not identify who it was behind him. He asked who it was, and attempted to warn the person off. However, he received no answer; the stranger "just stood there." At some point, Lamont recognized that the other person was Lott. Lamont knew that Lott was a "pretty strong guy" — "I've seen his muscles, he works a lot." Lamont suspected that Lott had previously stolen money from him, and he became afraid that Lott planned to take his money again. Lamont was particularly nervous because he was carrying approximately one hundred dollars in cash from store proceeds; he was afraid that Lott was after that money. Lamont was also fearful because he knew that Lott had been in trouble with the law before and had spent some time in jail. Lamont was intoxicated and was concerned that he would be unable to defend himself if Lott tried to rob him. Lamont saw no other people in the area. To ward off a possible robbery, Lamont "spun around" and pulled out the gun — "just for a second" — in order to scare Lott away. To support this defense, Lamont testified in his own behalf. Lamont specifically sought to testify about the money Lott allegedly stole from him in the past and about his knowledge that Lott had previously had problems with the law that had landed him in jail. Lamont also offered to call his brother as a witness to corroborate his claim of a prior theft. The trial court, however, issued a protective order prohibiting Lamont from introducing any evidence about Lott's prior theft or jail time. At the conclusion of the case, Lamont requested jury instructions on self-defense, use of deadly force, and robbery. The trial court denied the requested instructions, ruling that Lamont had present ed insufficient evidence to support a claim of self-defense. On appeal, Lamont argues that the superi- or court erred in prohibiting him from presenting his claim of self-defense. We agree. "[E]ven a weak or implausible self-defense claim is a question for the jury." Folger v. State, 648 P.2d 111, 113 (Alaska App.1982). It is well recognized that the burden is on the defendant to produce some evidence in support of a claim of self-defense before he will be entitled to a jury instruction. The burden to produce some evidence of self-defense is not, however, a heavy one; this standard is satisfied when self-defense has fairly been called into issue. In each case, the relevant inquiry is, "did the evidence viewed in the light most favorable to the defendant, generate the issue of self-defense for jury consideration?" A jury question will be presented and an instruction 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. Paul v. State, 655 P.2d 772, 775 (Alaska App.1982) (footnotes and citations omitted). The "some evidence" that must be presented to warrant the giving of a jury instruction on self-defense may consist solely of the uncorroborated testimony of the defendant himself. Brown v. State, 698 P.2d 671, 674 (Alaska App.1985). Once there is some evidence to support a claim of self-defense, the issue becomes one for the jury, not the court: Because it is apparent that a colorable claim of self-defense must be resolved by the jury, along with other factual issues relevant to the determination of innocence or guilt, the role played by the trial court in deciding whether a self-defense instruction is called for must be a limited one. The court must be mindful of the need to refrain from adjudicating factual issues that fall within the jury's domain. Application of too severe a standard in determining whether "some evidence" of self-defense has been presented will inevitably place the court in jeopardy of encroaching on the prerogative of the jury and, to that extent, impinging on the right of the accused to a jury trial. Paul, 655 P.2d at 775-76. Lamont would have been justified in using deadly force only to the extent that he "reasonably believe[d] the use of deadly force [was] necessary for self defense against death, serious physical injury, kidnapping, sexual assault in the first degree, sexual assault in the second degree, or robbery in any degree." AS 11.81.335(a)(2). Moreover, Lamont would not have been entitled to use deadly force if he knew that he could instead have retreated "with complete personal safety and with complete safety as to others." AS 11.81.335(b). The state correctly points out that in a case involving the alleged use of deadly force, the defendant must produce "some evidence tending to prove each element of [self] defense." Ha v. State, 892 P.2d 184, 190 (Alaska App.1995). The state contends that the trial court properly declined to instruct Lamont's jury on self-defense because Lamont failed to present "some evidence" that he reasonably believed himself to be in danger of robbery (or any of the other of fenses enumerated in AS 11.81.335(a)(2)) or that he could not have retreated safely. In arguing that Lamont failed to present some evidence that he reasonably believed a robbery to be imminent, the state points out the lack of evidence establishing that Lott ever actually intended to rob Lamont: Lamont testified at trial that Lott never touched Lamont, made a move to touch Lamont, or threatened Lamont with a weapon. Lamont also admitted that Lott never demanded money from him or tried to take anything from Lamont. This is essentially the same reasoning used by the superior court in denying Lamont's requested instructions. The trial court found that by Mr. Lamont's own admission there wasn't a scintilla [of evidence] that Mr. Lott was taking or attempted to take any property from Mr. Lamont. There just was no robbery involved.... There was no attempt at anything. That's looking at the evidence most favorably to Mr. Lamont, not even considering the fact that the other witnesses said it was — Mr. Lott didn't come up behind Mr. Lamont but that Mr. Lamont came up to Mr. Lott. So even considering the evidence most favorable to Mr. Lamont there's no evidence whatsoever that Mr. Lott attempted or did anything to try to take anything from . Mr. Lamont, so I'm going to go ahead and deny the request for three jury instructions. However, the trial court's insistence on an objective showing that Lott actually attempted to rob Lamont fundamentally misconstrued the showing needed to warrant a self-defense instruction: When a homicide defendant asserts that he or she acted in self-defense, the law does not require the defendant to prove that he or she actually faced imminent deadly attack. Even if the defendant's fear turns out to have been mistaken, the defense still may be established if the defendant proves that, under the circumstances, he or she reasonably feared imminent deadly attack at the hand of the victim. McCracken v. State, 914 P.2d 893, 898 (Alaska App.1996). The trial court thus appears to have applied an incorrect legal standard when it placed determinative significance on Lamont's failure to present evidence of actual threats, force, or attempted robbery. The giving of jury instructions on self-defense has been required or upheld in situations where the defendant "did not know if [the victim] was armed with a weapon, although [he] did not see any weapons," Folger, 648 P.2d at 112, where the victim's actions were unaccompanied by any verbal threats, Toomey v. State, 581 P.2d 1124, 1125-26 (Alaska 1978) (four justices in agreement that self-defense instruction was necessary), and where the victim had merely "leaned forward as if to stand up" after making verbal threats and was shot to death in his seat. McCracken, 914 P.2d at 895. In Houston v. State, 602 P.2d 784 (Alaska 1979), the supreme court held that the defendant had introduced "substantial evidence of the merits of his self-defense theory" simply through his own testimony that he shot a stranger in a restroom "because he saw [the victim] make a movement for his pocket and feared 'he was goin' in his pocket or he was reachin' for someth-in'.'" 602 P.2d at 788. These cases illustrate that Lamont was not required to show that a robbery was actually imminent, but merely that he reasonably believed one to be imminent. Lamont specifically testified that he held this belief, and he described the circumstances that led him to do so. The reasonableness of Lamont's belief was a question for the jury, to be assessed by weighing Lamont's testimony against that of other witnesses. Paul v. State, 655 P.2d at 778. Having presented some "evidence in light of which a reasonable juror could have entertained a reasonable doubt" as to whether he reasonably believed that he faced an imminent threat of robbery, Lamont met his burden as to this element of the defense. Folger, 648 P.2d at 113 (quoting LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980)). The state further argues that Lamont failed to offer any evidence indicating that he could not have avoided the encounter by retreating to safety. According to the state, "[since] the evidence unambiguously showed that the encounter took place in the street, and that Lott had no weapon of any kind, there was no evidence that Lamont had no opportunity to retreat." This argument, however, mistakenly proceeds from a view of the evidence taken in the light most favorable to the state, not from the view most favorable to Lamont's claim of self-defense. The state ignores Lamont's testimony that the encounter occurred in a dark area of the village, late at night, when Lamont believed that no other persons were present. The argument likewise ignores Lamont's testimony that he knew Lott to be a strong man and that Lamont believed himself to be too intoxicated to defend himself effectively without resorting to his gun. With respect to the safe retreat requirement set out in AS 11.81.335(b), the pertinent question is whether Lamont met his burden of presenting some evidence from which the jury could find a reasonable doubt as to whether Lamont knew that he could retreat with complete safety. Lamont's testimony readily met this burden. In sum, the record establishes that Lamont presented some evidence supporting all necessary elements of his claim of self-defense. The trial court erred in refusing to instruct the jury on Lamont's claim of self-defense and in precluding Lamont from presenting evidence to support this claim. We must therefore reverse Lamont's conviction for third-degree assault. Second-Degree Sexual Assault On September 27, 1994, sixteen-year-old R.A. and two other teenage girls went to the Lamont's house to shop at his store. The three girls accompanied Lamont to his bedroom, where Lamont offered them some whiskey. After Lamont and the three teenagers had been drinking for some time, R.A.'s companions departed, leaving R.A. alone with Lamont. Upon leaving Lamont's house, R.A.'s two girlfriends encountered R.A.'s brother, Eric A., and R.A.'s boyfriend, George N.; the girls told Eric and George that R.A. was at Lamont's house and was drunk. Eric and George went to Lamont's house. There, they heard what sounded like a bed pounding up against the wall; they also heard R.A. saying "no" and "stop" in what sounded like a frightened voice. Eric went home to get his (and R.A.'s) parents. Upon being told of R.A.'s situation, Eric and R.A.'s parents went to Lamont's house. R.A.'s mother, Gertrude A., went inside and asked for Lamont. Lamont's aunt led her down the hallway, and called for Lamont but got no response. After some time, a door swung open slightly; Gertrude A. pushed it open the rest of the way and saw her daughter inside, lying on the floor, "curled up like a little baby." Gertrude "kn[e]w [R.A.] . wasn't . in her right mind." She had to pick R.A. up by her arms to get her off the floor. R.A. was incapable of speech and "did not even know it was me there." Gertrude and Eric then "walked her all the way home." At home, R.A. told her mother that Lamont had raped her. The state charged Lamont with two counts of sexual assault in the first degree for two separate acts of nonconsensual sexual intercourse that allegedly took place during the evening he was with R.A. At trial, Lamont acknowledged that he had engaged in sexual penetration with R.A. but contended that the acts were consensual. As part of his theory of defense, he attempted to show that R.A. might have fabricated her claim of rape because she knew that her mother did not like Lamont and did not approve of her spending time with him. In developing this defense before the jury, Lamont's attorney asked R.A.'s mother, Gertrude A., on cross-examination, whether she "would much prefer [her] daughter going out with George N[J than, let's say, Larry Lamont." Gertrude A. said "Yes." On redirect, the state asked Gertrude A., "Why don't you like Larry Lamont?" Lamont's attorney objected, arguing that this question called for an answer that was probably excludable under Evidence Rule 404(b). Upon inquiry by the court outside the jury's presence, R.A.'s mother disclosed the reason that she did not like Lamont: Being a health aide I know of what he did in the past to his girlfriend he had for close to eight months. He brutally abused her, and for my daughter R[.]'s safety I didn't want that to happen to her. We used to see black and blue all over [the former girlfriend's] face and body. The state maintained that Lamont's cross-examination had "opened the door" to this testimony. The state also argued that the testimony "is not being offered to show [Lamont's] propensity to commit the crime but it is being offered to prove his opportunity, his absence of mistake and his intent." The trial court agreed: First of all, the defense opened the door when [it] questioned Ms. A[.] regarding her preference for Mr. N[.] as being the boyfriend vis-a-vis Mr. Lamont. Secondly, this is admissible for other purposes aside from propensity; for opportunity, intent, absence of mistake or aceident[J Over Lamont's objection R.A.'s mother was allowed to testify that she disliked Lamont because he had "brutally abused" his former girlfriend. On appeal, Lamont claims that the trial court abused its discretion in admitting testimony concerning his prior assaultive conduct toward another woman. Lamont argues that neither of the trial court's reasons for allowing this testimony withstands scrutiny. Lamont's arguments have merit. While evidence of a defendant's prior misconduct is admissible under Alaska Rule of Evidence 404(b)(1) to establish "opportunity, intent, . or absence of mistake or accident," none of these purposes had any realistic bearing on the issues in dispute in this case. Lamont did not claim mistake or accident; his past violence toward another woman had no relevance to show that he had an opportunity to sexually assault R.A.; and the complete lack of similarity between the past and present acts rendered the past acts inadmissible to show intent. In the factual context of this case, the disputed evidence was not even colorably admissible to prove "opportunity, intent, . or absence of mistake or accident." A.R.E. 404(b)(1). The trial court's other justification for admitting the disputed testimony was that Lamont had "opened the door" by questioning R.A.'s mother about her hostility toward Lamont. " 'Opening the door' to otherwise inadmissible evidence is often referred to as the doctrine of 'curative admissibility.' " Bentley v. State, 711 P.2d 544, 546 (Alaska App.1985). Although we did not label it as such, we applied this doctrine in Leonard v. State, 655 P.2d 766 (Alaska App.1982). Leonard agreed and then refused to take a polygraph test; at trial, he received a protective order excluding evidence of his refusal. In testifying on his own behalf, however, Leonard disclosed that he had agreed to take the polygraph test but did not mention his subsequent refusal. The state objected immediately and the judge excused the jury. After hearing arguments from both sides, the judge ruled that "the state will have the right, unless you bring it out, to explore the fact that a polygraph was offered and later refused." Id. at 768. We upheld the ruling, based on the theory behind the doctrine of curative admissibility. Id. at 771. By contrast, we found the circumstances in Bentley v. State readily distinguishable. 711 P.2d at 545-46. There, the prosecution's primary witness was Pearson, a former girl friend of Bentley. To establish Pearson's bias against Bentley, the defense brought out, on cross-examination, that the circumstances surrounding Pearson's breakup with Bentley had been acrimonious. The trial court concluded that this cross-examination opened the door for the state to inquire on redirect about the specific reasons for Pearson's hostility toward Bentley. Id. at 545. This inquiry elicited testimony concerning "Bentley's neglect of Pearson while she was pregnant with his child, including Bentley's failure to provide a decent home for her, and his continual drug use"; the inquiry further elicited testimony concerning the funeral of Pearson's baby, where Bentley "arrived in police custody and attempted only to seek out those who could help him get out of jail." Id. In reversing the trial court's decision admitting this evidence of prior misconduct, we distinguised Bentley's case from Leonard: Unlike Leonard, Bentley did not present inadmissible evidence or mischaracterize a fact to the prejudice of the state. Bentley properly impeached Pearson for bias as permitted under Evidence Rule 613. Furthermore, Bentley's cross-examination was not misleading. Pearson, apparently, had actual bias and admitted as much. See Gilliam v. State, 270 Ind. 71, 383 N.E.2d 297, 301 (1978) (evidence relied upon to "open the door" must leave the trier of fact with false or misleading impression of facts presented). In addition, to the extent the cross-examination opened the door to a certain amount of explanation by the state, we find that far more than mere explanation was admitted here. Bentley, 711 P.2d at 546 (footnote omitted). Our decision in Bentley relied in part on United States v. Winston, 447 F.2d 1236 (D.C.Cir.1971), where the court wrote: "Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door." "The doctrine of curative admissibility is one dangerously prone to overuse." Permission to explore in rebuttal with testimony not admissible on direct, on the ground that the other party has opened the doors, rests "upon the necessity of removing prejudice in the interest of fairness." The doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice. Introduction of otherwise inadmissible evidence under shield of this doctrine is permitted "only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." Id. at 1240 (citations and footnote omitted), quoted in Bentley, 711 P.2d at 546. The situation in Lamont's case resembles the situation in Bentley rather than the situation in Leonard. Lamont's cross-examination of R.A.'s mother created no misleading impressions requiring further explanation. Lamont established that R.A.'s mother harbored a degree of hostility or bias toward him but did nothing to suggest that the hostility was baseless or unfounded. The state did not dispute the existence of this bias; rather, the evidence concerning the source of the bias confirmed its existence. Under the circumstances, the source of Gertrude A.'s bias had no relevance. Lamont's apparent purpose in establishing that R.A.'s mother disliked him was to suggest that R.A. might have been afraid to tell her mother that she engaged in consensual sex with Lamont and that R.A. thus had a motive to fabricate her report of sexual assault. Revealing the source of Gertrude A.'s hostility toward Lamont had no logical tendency to disprove R.A.'s potential desire to conceal her consent from her mother: regardless of the underlying reasons for the hostility, R.A. could have feared incurring her mother's wrath. Thus, in no realistic sense did Lamont's cross-examination of Gertrude A. "open the door" to evidence of Lamont's prior misconduct; that Lamont had previously assaulted another woman simply had no probative value to any disputed issue in the case. Nor can we readily dismiss the erroneous admission of this evidence as harmless. Error in the admission of evidence is harmless when "the evidence could not have substantially influenced the jury's verdict." Stevens v. State, 748 P.2d 771, 775 (Alaska App.1988). Lamont was acquitted of the two counts charging him with first-degree sexual assault and convicted of the two lesser offenses of second-degree sexual assault. These convictions required a finding that Lamont had engaged in sexual penetration with R.A., knowing that she was either "incapacitated" or "unaware that a sexual act [was] being committed." AS 11.41.420(a)(3)(B) & (C). Lamont conceded that he engaged in sexual penetration with R.A. The state contends that "the evidence was overwhelming that R.A. was so intoxicated that she was temporarily incapacitated." The state argues that, under these circumstances, any "possible error" in admitting Gertrude A.'s testimony could not have had "an appreciable effect on the jury's verdicts that Lamont committed two second-degree sexual assaults on R.A." But while evidence of R.A.'s after-the-fact incapacitation was indeed overwhelming, proof of her condition at the time of her sexual contact with Lamont was far less certain. The two girls who accompanied R.A. to Lamont's house and drank alcohol with Lamont and R.A. both testified that R.A. was conscious when they left her alone with Lamont; neither witness provided any testimony suggesting that R.A.'s intoxication had progressed to or approached the point of incapacitation. R.A.'s brother and his companion claimed that, before they informed Gertrude A. of her daughter's presence at Lamont's house, they heard R.A.'s voice coming from Lamont's bedroom. Gertrude A. herself testified to various delays that appear to have consumed at least an hour between when she first heard word of where her daughter was and when she finally found R.A. passed out in Lamont's room. And Lamont testified that he and R.A. continued drinking after they had sex. Given these circumstances, we are unable to say that there was overwhelming proof of R.A.'s incapacitation at the time she engaged in sexual intercourse with Lamont, or of Lamont's knowledge of R.A's incapacity. We are likewise unable to say that the error in admitting evidence of Lamont's prior misconduct was unlikely to have affected the jury's verdict, particularly in light of the manner in which the prosecution used this evidence in final argument to the jury. In the opening segment of its final argument, the prosecutor stated that We also know that through what Gertrude said that there was a pattern to this as-saultive type behavior. He had put himself on other women, he's forced himself on other women, he's assaulted other women. On rebuttal, the prosecutor went on to describe Lamont as "this guy who has terrorized the village, terrorized women." These arguments openly invited the jury to treat Gertrude A.'s testimony as evidence of Lamont's propensity to commit violent crimes against women. Given the prosecution's emphasis on the prejudicial aspect of Lamont's prior misconduct, we must conclude that the erroneous admission of this evidence requires reversal of Lamont's second-degree sexual assault convictions. Lamont's convictions for third-degree assault and second-degree sexual assault are accordingly REVERSED. . Lamont also appeals his sentence. Since we reverse Lamont's convictions, we need not address the sentence appeal. . Use of deadly force in self defense is defined in AS 11.81.335, which provides, in relevant part: (a) Except as provided in (b) of this section, a person may use deadly force upon another person when and to the extent (1) the use of nondeadly force is justified under AS 11.81.330; and (2) the person reasonably believes the use of deadly force is necessary for self defense against death, serious physical injury, kidnapping, sexual assault in the first degree, sexual assault in the second degree, or robbery in any degree. (b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating].] Use of nondeadly force in self defense — a prerequisite for use of deadly force under AS 11.81.335(a)(1) — is permitted under AS 11.81.330(a), subject to certain exceptions not relevant here, when a "person reasonably believes it is necessary for self defense against what the person reasonably believes to be the use of unlawful force by the other[.]" . Lamont's failure to claim that he believed Lott to be armed is not significant, since Lamont would have been entitled to use deadly force to protect himself against any form of robbery; Lott could have committed either a first- or second-degree robbery of Lamont without using a deadly weapon. See AS 11.41.500(a)(3); AS 11.41.510. Thus, Lamont could reasonably have feared an imminent robbery, even if he knew that Lott was unarmed. . The state also charged Lamont with three counts of furnishing alcohol to minors. Lamont did not contest the alcohol charges during his trial. . "[I]t is normally required that in order to be admissible on the issue of intent the prior misconduct of the accused must be similar to the crime charged and not too remote in time." Fields v. State, 629 P.2d 46, 51 (Alaska 1981) (quoting Freeman v. State, 486 P.2d 967, 977 (Alaska 1971)). . We faced precisely the same situation in Bentley: Such evidence in no way "cured" the shadow of bias cast upon Pearson. The effect of the evidence was only to show what good reasons Pearson had to be biased and to discredit Bentley's character in front of the jury. 711 P.2d at 547. . Indeed, R.A.'s fear of incurring her mother's wrath might have increased if her mother's hos tility was well-founded and deep-seated rather than superficial. . Both of these witnesses claimed to have heard statements of R.A. indicating that she was being raped. It might be argued that the jury necessarily rejected this testimony in acquitting Lamont of first-degree sexual assault; along the same lines, it might also be argued that Lamont's convictions of the lesser offenses of second-degree sexual assault establish that his jury was not prejudiced by the prior misconduct evidence, since the potential prejudice of this evidence lay in its tendency to establish that Lamont was violent toward women and thus probably raped R.A. — the crime of which Lamont was acquitted. However, reliance on this type of interpretation as a basis for finding harmless error would ignore the very danger that rendered the disputed prior misconduct evidence inadmissible in the first instance: the danger that this evidence might encourage a verdict reflecting emotional hostility rather than rational deliberation. Given the inflammatory nature of the prior misconduct evidence, it is impossible to say with any degree of confidence that the improper evidence did not induce a compromise verdict.

11866837

Michael J. FLANNERY, Appellant, v. Stephanie FLANNERY, Appellee

Flannery v. Flannery

1997-12-19

No. S-7478

126

135

950 P.2d 126

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Michael J. FLANNERY, Appellant, v. Stephanie FLANNERY, Appellee.

Michael J. FLANNERY, Appellant, v. Stephanie FLANNERY, Appellee. No. S-7478. Supreme Court of Alaska. Dec. 19, 1997. Rehearing Denied Jan. 22, 1998. Carl J.D. Bauman, Hughes, Thorsness, Gantz, Powell & Brundin, LLC, Anchorage, for Appellant. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Soldotna, for Appellee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

5031

31108

OPINION EASTAUGH, Justice. I. INTRODUCTION Michael Flannery entered into an agreement in 1992 to pay child support significantly exceeding the minimum amount required by Alaska Civil Rule 90.3; in 1995 he moved to reduce his support payments, claiming a material change of circumstances under Rule 90.3(h)(1). The superior court denied his motion. We conclude that the superior court erred when it relied on a three-year average of Michael's income to determine that he had not experienced a reduction in income. Accordingly, we reverse and remand. II. FACTS AND PROCEEDINGS Michael and Stephanie Flannery married in 1978 and divorced in 1992. Their four children were born between 1979 and 1986. Michael is a general surgeon who has practiced medicine since 1973; he has practiced in Soldotna since 1990. He is the only doctor employed by his professional corporation, and is its sole owner and shareholder. During their marriage, Stephanie worked as a nurse-bookkeeper for Michaefs corporation. She now resides in Mississippi where she has worked as a registered nurse since 1992. In 1991 Stephanie filed a domestic violence petition and a complaint for divorce. After preliminary orders were entered, including one requiring Michael to pay child support of $2,700 per month, the Flannerys entered into a "Property, Custody, Visitation, and Child Support Agreement." Judge Elaine Andrews incorporated their agreement by reference into the June 1992 final divorce decree. The agreement provides for joint legal custody of the children and gives primary physical custody to Stephanie during the school years and to Michael during the summers. The child support provisions state in relevant part: "The parties agree that [Michael's] adjusted monthly income is $10,273. The parties agree that there are unusual circumstances which justify departure from the formula set forth in Alaska Civil Rule 90.3. The parties agree that [Michael's] child support obligation is $3,600 per month beginning June 1, 1992." The agreement also contains self-executing provisions that reduce Michael's monthly child support by $900 for each child who chooses to live with Michael. The agreement does not address whether and how changes in Michael's income or Stephanie's income might affect child support. The agreement specified how it was to be modified. Paragraph XXIV states, "No modification or waiver of any of the terms herein shall be valid unless in writing and signed by both parties." Rule 90.3(a) controlled the calculation of child support payable for the Flannery children because the parents did not share physical custody. Rule 90.3(a)(2) specifies the percentages by which Michael's adjusted income "must be multiplied" to calculate child support: 20% for one child, 27% for two, 33% for three, and 36% for four. Rule 90.3(c) governs "exceptions." Rule 90.3(c)(2) provides that Rule 90.3(a) and (b) (and thus the specified percentages) "do not apply to the extent" the obligor parent's adjusted annual income exceeds $72,000. Prior to July 15, 1995, and at the time the parties entered into the agreement and the court entered the divorce decree, this income "cap" was $60,-000. Alaska Supreme Court Order No. 1192 (March 10, 1995). If the obligor's income exceeds the cap, "the court may make an additional award only if it is just and proper, taking into account the needs of the children, the standard of living of the children and the extent to which that standard should be reflective of the supporting parent's ability to pay." Alaska R. Civ. P. 90.3(c)(2). In approving the agreement and incorporating it by reference into the divorce decree, Judge Andrews found: There is good cause to deviate from the child support formula set forth in Alaska Civil Rule 90.3. The child support formula set forth in the Property, Custody, Visita tion and Child Support Agreement is just and proper, taking into account the needs of the children, the standard of living of the children, and [Michael]'s ability to pay. The "deviation" the court noted was the result of basing support on all of Michael's income, including that exceeding the cap. Had the parties adhered to the $60,000 cap then in effect, the support for four children would have been $1,800 per month. Alaska R. Civ. P. 90.3(a)(2). Applying the Rule 90.3(a)(2) percentages to $10,273 — Michael's monthly adjusted income as specified in the parties' agreement — the monthly support for four children would have been $3,698.28, very similar to the $3,600 support the parties agreed to and the court approved. In 1993 the oldest child chose to live with Michael, who then reduced his monthly child support payments to $2,700. In early January 1995 the next oldest child chose to live with Michael. Michael promptly filed a motion to modify the child support agreement. Claiming that his medical practice had declined and that he could no longer pay the agreed-upon child support, Michael asked that the $60,000 cap be applied, although he admitted his income exceeded $60,000. He asked that his obligation for the four children be reduced to $1,800 per month, with a further reduction of $450 for each child living with him. He supported his motion with the affidavit of Annette Flan-nery, his present wife and the bookkeeper óf his corporation. The evidence would have supported a finding that Michael's adjusted income had dropped after January 1995 to about $6,000 or to somewhat "less than" $6,000 per month. Following a two-day evidentiary hearing, Judge Rene J. Gonzalez denied Michael's motion for modification, finding that, the evidence did not support Michael's contention there had been a substantial change of circumstances by a reduction of income to "less than $6,000." The court stated that it was appropriate to review Michael's income by calculating a three-year average, because he was a private physician whose income might vary from year to year. The court denied Michael's reconsideration motion. This appeal followed. III. DISCUSSION A. Standard of Review This court reviews modification of child support orders under an abuse of discretion standard. Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988). An abuse of discretion will be found only if "based on the record as a whole this court is left with a 'definite and firm conviction that a mistake has been made.' " Richmond v. Richmond, 779 P.2d 1211, 1216 (Alaska 1989) (citation omitted). Under Alaska Civil Rule 52(a) "[f]indings of fact shall not be set aside unless clearly erroneous." See Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska 1989). The interpretation of the parties' agreement is a question of law, which we review applying our independent judgment. Van Alfen v. Van Alfen, 909 P.2d 1075, 1077 n. 4 (Alaska 1996) (citation omitted). B. Modifiability of the Agreement under Rule 90.3(h)(1) The threshold question we must decide is whether a private agreement that bases child support on income exceeding the Rule 90.3(e)(2) cap is modifiable under Rule 90.3(h)(1). Michael argues that "[t]he law of Alaska is clear that child support payments, even if based on an agreement between the parties, are subject to modification." Stephanie contends that Michael's child support obligation under the agreement — a valid and binding contract between the parties — is self-executing and clear on its face, and should be enforced without reference to Rule 90.3. She also argues that the language governing modification of the agreement is binding and that the child support obligation in the agreement "would not be subject to modification by the court based upon any change in circumstances." Certainly superior courts have authority to modify a child support order. Alaska Statute 25.24.170 confers broad authority to do so. See also Alaska R. Civ. P. 90.3(h)(1). We have not squarely decided whether and under what circumstances the power to modify upon a showing of a material change of circumstances encompasses orders based on agreements to pay more child support than the Rule 90.3 guidelines require. It is clear, however, that an order based on an agreement to pay 'less child support than the guidelines require is modifiable under Rule 90.3. Stephanie and Michael could not have agreed to child support payments lower than those required under the Rule 90.3 guidelines without obtaining judicial approval for the deviation under Rule 90.3(e)(1). See Cox v. Cox, 776 P.2d 1045, 1048-49 (Alaska 1989); see also Taylor v. McGlothlin, 919 P.2d 1349, 1352 (Alaska 1996) ("The prohibition against parents agreeing privately to a level of a child support below that called for by the provisions of Civil Rule 90.3 is an integral component of Civil Rule 90.3.") (emphasis added). The broad language of these eases suggests that this principle also applies-to child support agreements that exceed the Rule 90.3 requirements. In Cox, for example, we held that "[pjarents may not make a child support agreement which is not subject to the rule." Id. at 1048. In a case decided before Rule 90.3 was adopted, we stated that "[A child support] order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties." Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979). Of course an agreement to pay less than the rule requires disadvantages the children; agreeing to pay more than the rule requires does not (assuming the payments are sustainable without threatening the obligor's ability to pay support in the future). A court being asked to approve a deviation from the support guidelines must look critically at an agreement that proposes to pay less than the rule requires. Concern for the children is no impediment to approving an agreement that calls for greater support than the rule specifies. That does not mean, however, that the mere existence of such an agreement, even one containing language purportedly restricting amendment, places modification beyond the power of the superior court. Child support is a matter of public concern, and neither AS 25.24.170 nor Rule 90.3(h)(1) suggests that particular terms of an agreement can totally restrict the court's ability to modi fy it so long as a change of circumstances is proven. The rationale underlying judicial modification of child support agreements is consistent with a conclusion- that existence of the agreement should not altogether prevent the obligor from invoking Rule 90.3 in order to seek modification of the agreement. Commentary I.B. to Rule 90.3 states that the primary purpose of the rule "is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of the parents to pay." We recently explained that Rule 90.3(h)(1), which "provides an exception to the general principle that final judgments should not be disturbed," recognizes "that courts have a special duty with regard to the support of children whose parents have divorced." Bunn v. House, 934 P.2d 753, 757 (Alaska 1997). Further, it is not clear, given the present divided custody status of the children in this case, that the agreement calls for more total support than would be imposed if there were no agreement. There is no fixed formula applicable to divided custody under Civil Rule 90.3 and various methods have been employed. These methods are described in Bunn, 934 P.2d at 754-57. All of the methods require consideration of the- incomes of both parties. Thus the income of Stephanie as well as that of Michael would have contributed to the children's court ordered support had there been a divided custody calculation, whereas under the agreement only Michael's income is contributed. Depending on the formula used and the amount of the parties' income, the amount to be paid by Stephanie for the support of children in Michael's custody plus the amount to be paid by Michael for the support of the children in Stephanie's custody could exceed the amount paid by Michael under the agreement. The clause in the agreement that no modification "shall be valid unless in writing and signed by both parties" did not prevent the superior court from entertaining a motion to modify under Rule 90.3. The parties themselves invoked Rule 90.3 in their agreement, explained in terms satisfying that rule why the payments were based on income exceeding the rule'.s $60,000 cap, and obtained court approval of their agreement. Under these circumstances, the rule must take precedence over the terms of the parties' agreement. We thus conclude that the agreement did not prevent Michael from invoking Rule 90.3(h)(1) to seek modification based on a claim of a material change of circumstances. We further conclude that the factors set forth in Curley, 588 P.2d at 291-92, appropriately determine whether there has been a material change of circumstances if, as here, the obligor parent initially agreed to pay child support in excess of the amounts minimally required by Rule 90.3. In Curley, we adopted a "balancing of the equities approach" in which "the movant [must] show by a preponderance of the evidence that there has been a material and substantial change in circumstances." 588 P.2d at 292 n. 9. We explained that "[t]he change ordinarily must be more or less permanent rather than temporary." Id. at 291. In deciding whether to grant modification under AS 25.24.170, the court must consider: both the needs of the child or children supported as well as the needs and financial abilities of both parents.... [T]he trial court must examine the financial situation of both parents and determine whether the equities justify placing a greater burden on one and a correspondingly lesser burden on the other. Id. at 292. We have consistently followed Curley. See, e.g., Dewey v. Dewey, 886 P.2d 623, 629 (Alaska 1994); Arndt v. Arndt, 777 P.2d 668, 670 (Alaska 1989); Patch, 760 P.2d at 529. In applying Curley to a claim that changed circumstances justify modifying support set by an arms-length agreement to an amount that continues to exceed the minimum set by the rule, the court must make efforts to respect the parties' contractual intentions and expectations. Thus, changes which the agreement anticipated should not be the basis for modification absent a showing of justification for relieving the parties of their bargained-for exchange. This practice will also encourage the parties to memorialize the circumstances that governed their agreement. C. The Applicability of the "Fifteen Percent Rule" Michael also argues that he is entitled under the rule to a presumption of a material change of circumstances. "A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order." Alaska R. Civ. P. 90.8(h)(1). When Michael sought modification, two children continued to reside with Stephanie. Per the agreement, Michael's support obligation was therefore $1,800. Michael argues that his support obligation as calculated under Rule 90.3 — applying the present $72,-000 cap and taking into account the divided custody situation — is $726 per month. He therefore argues that the resulting support obligation is more than 15% less than his existing obligation of $1,800. This, he concludes, proves a material change of circumstances, entitling him to modification. We find this argument untenable. If an obligor initially agrees to pay an amount in excess of that minimally required under Rule 90.3 or if the court orders an additional award under Rule 90.3(e)(2), the "15% rule" does not apply. Aga v. Aga, 941 P.2d 1260, 1263 n. 6 (Alaska 1997). If the presumption were available in such a case, an obligor who agreed to pay child support more than 15% greater than the support required by Rule 90.3 could seek a modification immediately after signing the agreement. Likewise, the presumption would immediately arise in any case in which a court ordered additional payments under Rule 90.3(c)(2). As we stated in Bunn, " '[t]he 15% rule' is a rule of materiality, not a definition of what constitutes a change of circumstances. There must be a change of circumstances, either factual or legal." Bunn, 934 P.2d at 758. We think that in context of an agreement like the Flannerys', the 15% rule can be used to demonstrate materiality, but the comparison cannot be between the amounts Michael agreed to pay and what the rule minimally requires. Instead, the amount Michael agreed to pay must be compared to the amount the agreement would require in light of the parties' contracting intentions and expectations. For example, in a case in which the only change in circumstances is a reduction in the obligor's adjusted income, and the parties based child support on the obligor's uncapped income, multiplying the obligor's uncapped changed income by the pertinent percentage yields the support the parties presumptively would have specified had that been the obligor's income when they entered into their agreement. If the support so calculated is more than 15% less than the agreed-upon support, materiality exists for purposes of seeking modification. D. Averaging Michael's Income Michael sought modification in part because he claimed that his monthly adjusted income had decreased from over $10,000 in 1992 to less than $6,000 in 1995. The court averaged Michael's income for the three-year period between 1992 and 1994 and concluded that because Michael's average adjusted income was $10,000 per month, his income had not declined as alleged. Michael does not dispute the finding that his average monthly income was approximately $10,000 per month. He instead argues that the trial court erred in relying on the 1992-94 average, when the relevant period of "changed circumstances" began in January 1995. He contends that the superior court should have compared the $10,000 average with his substantially reduced 1995 income of $6,000 per month. We agree with Michael's argument that because Rule 90.3(h)(2) provides that child support arrearages may not be modified retroactively, it was incumbent upon him to "promptly apply for a modification of child support when [the] material change in circumstances occurred]." Alaska R. Civ. P. 90.3, Commentary X. He did just that, applying for modification in January 1995 when his income allegedly declined. The superior court erred in not considering January 1995 onward as the relevant period of "changed circumstances," instead of relying solely on the 1992-94 average. On remand, the trial court should consider Michael's adjusted income from January 1995 forward and should also determine whether any reduction in income is permanent or temporary. See Curley, 588 P.2d at 291 ("The change ordinarily must be more or less permanent rather than temporary."); see also Patch, 760 P.2d at 530 ("[A] trial court should be reluctant to modify child support obligations when the obligor's loss of income appears only temporary."). The trial court may also consider Michael's future earning capacity. We have stated that a child supr port obligation "is related, but not limited, to the parent's present income." Patch, 760 P.2d at 529. As a general principle, the trial court should "consider the nature of the changes and the reasons for the changes,! and then . determine whether, trader all the circumstances, a modification is warranted." Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987) (citation omitted). E. Divided Custody as a Material Change of Circumstances Michael contends that the trial court erred in not considering as a material change of circumstances the fact that as of January 1995 he had primary physical custody of two of the four children. Michael also argues that the fact of divided custody entitles him to a recalculation of his child support obligation under the divided custody formula outlined in Rule 90.3, Commentary VI.B.3. Stephanie argues that "[f]or there to be a 'substantial change of circumstance,' something must occur which was not contemplated by the parties at the time they had entered into their initial agreement." We agree. The parties here expressly contemplated possible changes in primary physical custody when they entered into their agreement, and they calibrated the child support provisions accordingly. The Wyoming Supreme Court faced a similar issue in Kidd v. Kidd, 832 P.2d 566 (Wyo.1992), and found that the clear and unambiguous child support provisions of a comprehensive divorce settlement agreement could only be modified upon a showing by the obligor of a "substantial change in circumstances not anticipated at the time of the Agreement." Id. at 570. For the same reason, the occurrence of the anticipated event of divided custody is not in itself a basis for recalculation using the divided custody formula suggested in the Rule 90.3 commentary. F. Stephanie's Income Michael argues that the superior court erred in not considering Stephanie's improved financial situation as a material change of circumstances, allegedly entitling him to a reduction in his child support obligation and application of the Rule 90.3 guidelines. At the time of the modification hearing, Stephanie's adjusted annual income from her job as a nurse was $39,708. It appears that she had been employed in Michael's office prior to their divorce. Stephanie's improved employment situation is not, standing alone, a per se material change of circumstances for purposes of Rule 90.3(h)(1), nor does it return Michael to the minimum requirements of the Rule 90.3 guidelines and excuse him from the terms of the support agreement. Nevertheless, on remand, the superior court should consider Stephanie's income. Curley, 588 P.2d at 292 (noting that the trial court must consider the financial situation of both parents). G. The $72,000 Cap Rule 90.3(c)(2) permits child support to be calculated on income exceeding $72,000 if there is good cause. Michael argues that, in concluding that there was still good cause to deviate from Rule 90.3, Judge Gonzalez "simply parroted" Judge Andrews's 1992 finding. He also contends that Stephanie failed to satisfy Rule 90.3(c)(2), which places the burden on the nonobligor parent to "present evidence which justifies departure from [the] general rule" of the $72,000 cap. Alaska R. Civ. P. 90.3, Commentary VI.D. Where, as here, the obligor parent initially agrees to waive the cap and later asks the court to apply the cap, the obligor has the burden of showing that the Rule 90.3(c)(2) factors, considered in light of the obligor's materially changed circumstances, now warrant application of the cap. This should generally be a difficult burden to meet, given our conclusion that a successful showing of a material change of circumstances for obligors in Michael's position does not entitle them to an automatic reentry into the Rule 90.3 subcap guidelines. Accordingly, Rule 90.3(c)(2) is not a "back door" through which Michael can return to the minimum requirements of Rule 90.3. Michael has submitted no evidence of circumstances that would justify reimposition of the Rule 90.3(c)(2) cap. H.Calculation of Support on Remand Given the potential factual complexity of such disputes, we decline to attempt to prescribe a single formula for recalculating child support following a change of circumstances after the parties have negotiated a child support obligation in an amount exceeding the minimum required under Rule 90.3. We nonetheless conclude that such an obligor, after proving a material change of circumstances, is not entitled to an automatic reversion to the Rule 90.3 schedule. Michael agreed to waive the cap. As a result, he agreed to pay twice the minimum child support Rule 90.3 would have required, and agreed to a proportional reduction for each child who chose to live with him. Since this was the framework of the parties' negotiated agreement, any subsequent recalculation must take this as its starting point. On remand, if Michael is found to have experienced a permanent material change of circumstances based on a decrease in income, one possible approach would be to reduce his support payments pro rata; for example a 20% decrease in income would result in a 20% decrease in the agreed-upon support. This is just one suggested approach, however; we leave it to the discretion of the trial courts in this and other eases to explore other methods of recalculating support. In this ease, for example, other possible changes, such as increases in Stephanie's income or earning capacity, or the need to provide support equitably for the children in the custody of both parents, may complicate a simple pro rata comparison. IV. CONCLUSION In deciding whether Michael proved a change in circumstances, it was error to ignore evidence that Michael's income declined during the first six months of 1995 and to rely exclusively on an average of his income for three prior years. We REVERSE and REMAND for further proceedings consistent with this opinion. . Michael argues that we should not consider this argument because Stephanie did not cross-appeal and did not timely move to supplement the points on appeal. Stephanie was not obligated to cross-appeal for us to consider her argument. See Fox v. Alascom, Inc., 783 P.2d 1154, 1157 (Alaska 1989): "An appellee who does not wish a change in the decree appealed from is not required to cross-appeal in order to preserve his right to urge errors in a district court's ruling that would, if accepted by the appellate court, support an affirmance of the appealed decree." . AS 25.24.170 states: Modification of judgment, (a) Subject to AS 25.20.110, any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony, for the appointment of trustees for the care and custody of the minor children or for their nurture and education, for the care, nurture, and education of unmarried 18-year-old children of the marriage while they are actively pursuing a high school diploma or an equivalent level of technical or vocational training and living as dependents with a parent, guardian, or designee of the parent or guardian, or for the maintenance of either party to the action. (b) For the purposes of a motion to modify or terminate child support, the adoption or enactment of guidelines or a significant amendment to guidelines for determining support is a material change in circumstances, if the guidelines are relevant to the motion. . This generalization does not necessarily apply where the obligor has custody of one or more children, as an increase in the obligor's payments decreases the funds available for the support of children in the custody of the obligor. See, e.g., Bussert v. Bussert, 677 N.E.2d 68 (Ind. App.1997) (Father, after obtaining custody of one of three children, agreed to pay previous level of support which exceeded guideline amount; later, the court approved the father's request to reduce child support obligation to zero because guidelines then called for no payment of support by either parent; court explained that enforcement of the parties' agreement would "compromise[ ] the standard of living of the child in Father's custody" and was thus "contrary to public policy."). .We need not consider here whether a court should give particular scrutiny to an agreement that, even though it specifies support greater than the minimum the rule requires, nonetheless might call for payments that represent a mere pittance given the obligor parent's extraordinary wealth and income. . Wc emphasize again that child support and property divisions are distinct issues that should be treated separately. We have slated that Division of marital property by the court is separate and distinct from questions of child support. Property divisions are final judgments which can be modified only under limit-éd circumstances, whereas child support awards can be changed periodically under much more liberal standards. One should not be a tradeoff for the other. Arndt v. Arndt, 777 P.2d 668, 670 (Alaska 1989) (citation omitted). . Citing Rule 90.3(c)(1), Michael contends that Stephanie was required to prove "good cause" by "clear and convincing evidence that manifest injustice would result if the support award were not varied." Alaska R. Civ. P. 90.3(c)(1). The quoted requirement applies only to subpara-graphs (A) and (B) of Rule 90.3(c)(1) and does not apply to the cap provision found in Rule 90.3(c)(2). Farrell v. Farrell, 819 P.2d 896, 902 (Alaska 1991) ("Subsection (c)(2) contains its own standards and does not cross-reference (c)(1)."). . He also proposes an alternative method of calculating support in a divided custody situation (the shared custody formula) that yields a support obligation of $475.25 per month to Stephanie for the two children in her custody. . Michael contends that because of the poor financial condition of his professional corporation, his salary as of January 1995 "had to be dropped to a financially responsible and sustainable level, which is $9,000 per month gross, $6,000 per month net." . Had the superior court been asked to calculate Michael's initial child support obligation under Rule 90.3, it could have appropriately considered his three-year income average for the purpose of estimating Michael's future income. However, none of the cases involving a "three-year average" for that purpose involved a motion to modify child support based upon an alleged change in circumstances. See, e.g., Renfro v. Renfro, 848 P.2d 830, 833 (Alaska 1993). The superior court permissibly might have looked at financial information for past years to help determine whether the alleged decline beginning in January 1995 was only temporary, unproven, or voluntary. It appears that is not what the court did, and it made no findings-suggesting that it was rejecting the post-1994 evidence on those grounds. Just because an obligor is a private physician whose income "may vary from year to year" does not in itself permit the court to ignore evidence of an alleged income decline by looking exclusively at an average of past earnings history unless it finds that any current declines are only temporary. .We offer no opinion about whether Michael's income declined after 1994, as he alleges, or whether any reduction was unproven, temporary, or1 voluntary, as Stephanie argues. Additional evidence may be available upon remand to aid the superior court in deciding whether there was a change in circumstances that justifies a prospective (post-1995 motion) reduction of Michael's support obligation. . This result also requires that the award of costs and attorney's fees to Stephanie must be vacated.

11871483

Ronald E. ROSS, Appellant, v. STATE of Alaska, Appellee

Ross v. State

1997-12-26

No. A-6290

587

592

950 P.2d 587

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Ronald E. ROSS, Appellant, v. STATE of Alaska, Appellee.

Ronald E. ROSS, Appellant, v. STATE of Alaska, Appellee. No. A-6290. Court of Appeals of Alaska. Dec. 26, 1997. Rehearing Denied Jan. 30, 1998. Colleen A. Kosluehar, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

2516

15200

OPINION MANNHEIMER, Judge. The offense of driving while intoxicated (DWI) has traditionally been a misdemeanor, but in 1995 the Alaska Legislature made this offense a class C felony for defendants with two prior convictions for either DWI or breath-test refusal within the preceding five years. See AS 28.35.030(n), enacted by 1995 SLA ch. 80, § 7. The main issue raised in this appeal is whether the existence of the defendant's two prior convictions is an element of the crime of felony DWI, or is instead merely a factor that enhances the defendant's sentence. For the reasons explained below, we hold that the existence of the two prior convictions is an element of the crime. In their briefs to this court, the parties to this appeal discuss one other issue that is related to the question of whether the prior convictions are an element of the crime. This second issue is whether a defendant on trial for felony DWI has a right to have the trial judge assume the role of trier of fact on the issue of the prior convictions — and to keep all evidence of the prior convictions away from the jury. We conclude that we need not decide this issue for two reasons: first, because it was not preserved for appeal; and second, because the appellant has not demonstrated that he was prejudiced by the manner in which evidence of his prior convictions was presented to the jury. Ronald E. Ross was tried for felony DWI in the Fairbanks superior court. He was charged with driving while intoxicated on the evening of October 18,1995; the offense was charged as a felony because Ross had been convicted of DWI in 1991 and again in 1993. Just before the trial began, Ross asked Superior Court Judge pro tem. Charles R. Pengilly to keep all evidence of the prior DWI convictions from the jury. Ross argued that his prior convictions were not an element of the offense — that the prior convictions were relevant only to sentencing (in the event the jury found Ross guilty of the current DWI). Ross told Judge Pengilly that, because the prior convictions were a sentencing factor and not an element of the crime, it was the judge's role, not the jury's, to decide whether Ross had previously been convicted. Judge Pengilly rejected Ross's request because he concluded that the existence of pri- or convictions was indeed an element of the offense, something that the State would have to prove to the jury beyond a reasonable doubt. The judge did, however, agree with Ross that evidence of the prior convictions posed a danger of unfair prejudice. He suggested that this risk of prejudice could be minimized if Ross and the State stipulated to the bare facts of the prior convictions. Ross chose to pursue this option. He and the prosecutor agreed that a short statement concerning the prior convictions would be read to the jury during trial and then reiterated in the jury instructions at the end of the trial. In accordance with this agreement, Judge Pengilly told the jury: Ladies and gentlemen, the State and the defense have reached a stipulation[.] . The parties have agreed that Mr. Ross was convicted of DWI on February 28, 1991, and again . on August 6, 1993. Given that the parties have agreed to those facts, you can take those facts as having been conclusively proven. The issue of Ross's prior convictions came up one more time, during the prosecutor's summation to the jury. Ross had taken the stand at trial and had testified that he consumed only a small amount of alcohol on the evening in question. In his rebuttal argument, the prosecutor suggested to the jury that they should not believe Ross's testimony, in part because Ross had been convicted twice of DWI within the preceding five years. Ross objected. Judge Pengilly sustained the objection and immediately instructed the jurors that evidence of Ross's prior convictions had been admitted solely for the purpose of establishing the "prior convictions" element of the offense. Judge Pengilly told the jurors that they were not to consider Ross's prior convictions when deciding whether Ross had committed DWI on the evening charged in the indictment: It's inappropriate to infer that a defendant is guilty on this occasion based on the fact that he has done something similar in the past. So, to the extent that [the prosecutor's] argument suggests [this], you should disregard it. On appeal, Ross renews his argument that the existence of prior convictions is not an element of the offense of felony DWI, but rather a penalty-enhancing factor to be decided by the judge. We conclude, however, that AS 28.35.030(n) codifies a discrete offense of felony driving while intoxicated, and the existence of two prior convictions within the preceding five years is an element of that offense. This court addressed an analogous statutory construction problem in Morgan v. State, 661 P.2d 1102 (Alaska App.1983). The statute at issue in Morgan was former AS 4.16.200(b), which made bootlegging (sale of liquor without a license) a felony offense under certain conditions. One of those conditions was that the defendant had previously been convicted of bootlegging. Morgan was charged with felony bootlegging under this provision. However, because the State viewed Morgan's prior conviction as a sentence-enhancement factor rather than an element.of the offense, the State drafted an indictment that did not include any allegation concerning Morgan's prior conviction, and the State presented no evidence of the prior conviction to the grand jury. Morgan, 661 P.2d at 1103. Morgan attacked the indictment on this basis, but the trial judge agreed with the State that Morgan's prior conviction was not an element of the offense. Id. Later, Morgan asked to have the jury determine the existence of his prior conviction. The trial judge rejected Morgan's request and decided the prior conviction issue himself. Id. On appeal, this court held that AS 4.16.200(b) created the substantive offense of felony bootlegging, with the existence of a prior conviction constituting one element of that offense. Id. Because a defendant is entitled to have the grand: jury and the petit jury decide all essential elements of the charged offense, this court held that Morgan's trial judge should have dismissed the indictment, and that the judge later erred "in not permitting the trial jury to decide whether the state had proved beyond a reasonable doubt the prior conviction element of this offense." Id. We noted that the structure of the statute indicated the legislature's intention to create a separate felony offense. Id. Moreover, to the extent that the wording of the statute might be ambiguous on this point, we expressed our hesitancy to eonstrue a penal statute so as to deny a defendant the right to grand jury and petit jury determination of all essential factual issues. Id. at 1104. Guided by Morgan, we construe AS 28.35.030(n) as codifying a separate felony offense. Even more clearly than the structure of former AS 4.16.200(b), the structure of AS 28.35.030 evinces the legislature's intention to create two discrete crimes of driving while intoxicated — the traditional misdemeanor offense codified in subsection (a) and an aggravated, felony-level offense for repeat offenders codified in subsection (n). The misdemeanor offense has one set of penalties, listed in subsection (b), and the felony offense has a separate set of penalties, listed in subsection (n). Moreover, as in Morgan, we hesitate to construe a criminal statute so as to deny defendants the right to grand jury indictment and jury trial on an important element of the State's case. Recently, in State v. Winters, 944 P.2d 54 (Alaska App.1997), we held that AS 28.35.030(b) and 030(n) constitute separate and independent (albeit parallel) sentencing provisions. An implicit premise of this holding is that AS 28.35.030(a) and AS 28.35.030(n) codify separate offenses. We now make that premise explicit. We hold that a defendant's prior convictions are an essential element of the offense of felony driving while intoxicated under AS 28.35.030(n). To obtain an indictment for this offense, the State must present evidence of a defendant's prior convictions to the grand jury. To obtain a conviction for this offense at trial, the State must convince the trier of fact of the defendant's prior convictions beyond a reasonable doubt. It follows that, in the present case, Judge Pengilly correctly rejected Ross's argument that the prior convictions were merely factors to be considered by the court at sentenc ing. The existence of Ross's prior convictions is an element of the offense, and thus was an issue of fact for the jury. Ross argues in the alternative that, even if the existence of prior convictions is an element of the offense, evidence of Ross's prior offenses was presented to the jury in a manner that fatally prejudiced the fairness of his trial. This argument is not preserved. As described above, after Judge Pengilly rejected Ross's argument that the prior convictions were merely sentencing factors, Ross agreed to submit a stipulation to the jury rather than have the prior convictions actively litigated. Ross can not now attack the wording that he agreed to. Moreover, the stipulation in this case did little more than inform the jury of the existence and dates of Ross's prior convictions. This procedure — providing the jury with a bare-bones stipulation concerning a defendant's prior convictions — was suggested by this court in Morgan, 661 P.2d at 1104 n. 4, citing Mead v. State, 445 P.2d 229, 234 (Alaska 1968). We therefore find no plain error in the procedure of giving Ross's jury a sparse stipulated description of the defendant's prior convictions. It is true that the prosecutor, in his summation to the jury, urged the jury to draw an unfair inference from Ross's prior convictions. However, as described above, Ross objected to the prosecutor's argument and Judge Pengilly sustained the objection, emphasizing his ruling with a curative instruction to the jury. In one conelusory sentence in his reply brief, Ross asserts that this instruction was ineffective to cure the problem. But in Azzarella v. State, 703 P.2d 1182, 1186 (Alaska App.1985), this court upheld a similar curative instruction given by the prosecutor at grand jury; in light of that curative instruction, we concluded that the grand jury record yielded "no reason to believe that the grand jury used the evidence of the prior convictions for purposes other than the one for which it was expressly intended". Similarly, in Ross's case, Judge Pengilly correctly instructed the jury on the permissible and impermissible uses of the prior conviction evidence, and the record gives no indication that the trial jury disregarded the judge's instruction. Moreover, we note that Ross never asked for any different instruction or for any other remedy. In sum, we uphold Judge Pengilly's ruling that Ross's prior convictions were an element of the offense, and we uphold Judge Pengilly's method for minimizing the problems inherent in having the jury decide this issue. The judgement of the superior court is AFFIRMED. However, we wish to emphasize the limited nature of our ruling: First, the issue presented in Ross's case does not arise if a defendant's prior convictions are relevant for some purpose other than to establish the "prior convictions" element of felony DWI. If the defendant's prior convictions are relevant for some other purpose, see Alaska Evidence Rule 404(b), and if the trial judge concludes that the probative value of this evidence is not outweighed by the danger of unfair prejudice, see Alaska Evidence Rule 403, then the jury can of course hear evidence of the prior convictions. The problem we address here arises only in cases like Ross's, where the prior convictions have no relevance other than to prove the "prior convictions" element of the crime. Second, we do not hold that the stipulation used in Ross's case is the only correct method for dealing with the issue of the defendant's prior convictions in such eases. Nor do we hold that it is the best method. We hold only that it is a permissible method, and that it was a fair method under the facts of Ross's ease. We note that a defendant's willingness to stipulate to prior convictions does not answer the question of who will be the trier of fact on this element of the crime. Criminal eases are decided by jury unless the defendant waives the right to jury trial and the government consents to have the case tried to the court. In a jury trial, even when the parties reach a stipulation concerning the defendant's prior convictions, the stipulation will be presented to the jury, and the jury will decide the prior convictions element. It is possible that a defendant might offer to waive the right to jury trial on the prior convictions element of the offense. This waiver could not be made through counsel; it would have to be made by the defendant personally. See McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App.1993). If the defendant waives jury trial on the prior convictions element, and if the State is likewise willing to have the trial judge decide this element, then we see no reason why this element should not be tried to the court. If, however, the State is not also willing to waive jury trial on the element of the defendant's prior convictions, then the defendant's offer to waive jury trial would raise another unresolved question: whether a defendant can unilaterally waive jury trial on one or more elements of a criminal charge. See Alaska Criminal Rule 23(a); Horton v. State, 758 P.2d 628 (Alaska App.1988). Another way of dealing with this problem — one that we recommend to judges in the future — is to bifurcate the trial. In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant's prior convictions. This solution would preserve both parties' right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant's prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them. . Under former AS 4.16.200(b)(1), a person who sold liquor without a license in a local-option area was "guilty of a class C felony ., if [the person] ha[d] previously been convicted of a violation of AS 4.11.010" (i.e., convicted of selling liquor without a license).

11876839

Paul A. TALLENT, Appellant, v. STATE of Alaska, Appellee

Tallent v. State

1997-12-26

No. A-6267

857

865

951 P.2d 857

951

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Paul A. TALLENT, Appellant, v. STATE of Alaska, Appellee.

Paul A. TALLENT, Appellant, v. STATE of Alaska, Appellee. No. A-6267. Court of Appeals of Alaska. Dec. 26, 1997. Order Denying Rehearing Jan. 26, 1998. Suzanne Weller, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. William H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

5221

31893

OPINION MANNHEIMER, Judge. Paul A. Tallent was convicted of second-degree theft under AS 11.46.130(a)(6)(C). This statute provides that a theft of between $50 and $500 — an offense that would normally be third-degree theft — constitutes second-degree theft if the defendant has been convicted of similar thefts twice before in the preceding five years. Tallent's appeal raises two issues, both involving the question of whether the jury should have been informed of his prior convictions. The first issue is whether the existence of a defendant's prior theft convictions is an element of the offense of second-degree theft under AS 11.46.130(a)(6). Tallent argues that the defendant's prior convictions are not an element, of the crime but are, instead, simply a factor that enhances the defendant's sentence. Accordingly, Tallent argues that the existence of his prior convictions was an issue for the court, not the jury. As explained below, we reject Tallent's construction of the second-degree theft statute; we conclude that the existence of a defendant's prior convictions is an element of the offense. The second issue is whether, even though the existence of prior convictions is an element of the offense, the trial judge is nevertheless empowered to keep this element of the offense from the jury if (1) the defendant offers to stipulate to the prior convictions and (2) the defendant agrees to waive jury trial on this element. We conclude that we need not resolve this issue. Even though Tallent's trial judge handled the matter of the prior convictions in a different way, the way chosen by the trial judge was proper and did not prejudice Tallent. Facts of the case On October 31, 1995, Paul Tallent was in an Anchorage Sears store. A store security guard was watching Tallent on a surveillance video monitor. The security guard observed Tallent grab an object from the perfume counter and then walk out of the store. The security guard and a companion followed Tal-lent to a gas station across the street, where they confronted him. Tallent was holding a bottle of perfume sold by Sears for $62.50; he also had a plastic bag containing an identical bottle of perfume and a thermostat sold by Sears for $54.99. Tallent had no wallet, no identification, no money, no credit cards, and no receipt for the items in his possession. The security guards arrested Tallent and summoned the Anchorage police. Tallent was subsequently indicted for second-degree theft, based on his prior theft convictions. Before his trial began, Tallent asked the court to prohibit the State from introducing evidence of his prior theft convictions. Tal-lent argued that he would be unduly prejudiced if the jury learned that he had previously been convicted of theft. He offered to concede the existence of the prior convictions. The prosecutor replied that he did not oppose resolving the issue of Tallent's prior convictions by stipulation, but he did oppose Tallent's proposal to withhold this issue from the jury. The prosecutor argued that Tal-lent's prior theft convictions were an element of the offense, a factual issue that the State was obliged to prove beyond a reasonable doubt to the jury. The prosecutor feared that if this issue was withheld from the jury, any resulting verdict would be defective. The trial judge, Superior Court Judge Larry D. Card, acknowledged that evidence of Tallent's prior theft convictions might prejudice the jury's consideration of the current theft charge. He inquired if Tallent had considered waiving a jury altogether and having the case tried to the court. Tallent's attorney indicated that Tallent was not willing to waive jury trial. Judge Card then ruled that the jury would have to decide the issue of Tallent's prior theft convictions. The judge based this ruling on his conclusion that prior theft convictions are an element of second-degree theft under AS 11.46.130(a)(6), and on the further conclusion that, in a criminal jury trial, the law requires the jury to decide each and every element of the offense. Nevertheless, in order to minimize the prejudice that would otherwise result if the state presented the prior thefts in fuller detail, Judge Card suggested that the parties draft a stipulation regarding the prior convictions. The court took a short recess, and the parties returned with an almost-completed stipulation. The sole point of contention was that Tallent wanted the stipulation to refer to his prior convictions only by statute number, leaving out any mention of the word "theft". Judge Card denied this request. The judge anticipated that a statute-number reference would leave the jury speculating as to the nature of Tallent's convictions; he concluded that the jury should be told the relevant information — that Tallent's prior crimes were thefts. The stipulation, as finally drafted and read to the jury, stated: 1) That the defendant, Paul Tallent was convicted and sentenced on 20 June 1994 in case 3AN-S94-3635 of the crime of theft in - the third degree in violation of AS 11.46.140(a)(1) before Judge Michael Wol-verton in Anchorage District Court. 2) That the defendant, Paul Tallent was convicted and sentenced on 15 November 1994 in case 3AN-S94-8427 of the crime of theft in the third degree in violation of AS 11.46.140(a)(1) before Judge Sigurd E. Murphy in Anchorage District Court. 3) That Judgements of Conviction were entered "in both cases, and those convictions have not been modified by any subsequent set-aside or motion for post-conviction relief. In order to mitigate the prejudice of this information and to encourage the jury to use this information only for the purpose of establishing the "prior convictions" element of the offense, Judge Card instructed the jury that Tallent's prior convictions were not to be considered evidence of his propensity to commit theft. Instead, Judge Card admonished the jury to focus their attention on whether the State had proved beyond a reasonable doubt that Tallent had committed the current offense (the theft from Sears alleged to have occurred on October 31,1995). The jury found Tallent guilty, and this appeal followed. Prior theft convictions are an element of second-degree theft under AS 11.f6.130(a)(6) Tallent first argues that his jury should not have heard any evidence concerning his prior convictions because the existence of prior convictions is not an element of the offense of second-degree theft under AS 11.46.130(a)(6). Tallent asserts that AS 11.46.130(a)(6). does not define the substantive offense of second-degree theft; instead, Tallent argues, the statute is a penalty-enhancement provision for repeat offenders convicted of third-degree theft. If Tallent is correct, then the existence of Tallent's prior convictions would be relevant only for purposes of sentencing, and it would be error to allow the jury to decide this issue. Subsection 130(a)(6) was enacted as part of SLA 1988, ch. 133. This session law added subsections to the first-degree, second-degree, and third-degree theft statutes. In general terms, each new subsection declared that a defendant who committed theft for the third time in five years was now guilty of the next higher degree of theft. That is, a repeat second-degree theft offender would be guilty of first-degree theft, a repeat third-degree theft offender would be guilty of second-degree theft, and a repeat fourth-degree theft offender would be guilty of third-degree theft. See SLA 1988, ch. 133, § 1-3. The language and structure of AS 11.46.130(a)(6) contradict Tallent's assertion that his prior convictions serve merely to enhance the penalty for what was really a third-degree theft. The statutory language, and its placement as a subpart of AS 11.46.130(a), plainly suggest that an offender who steals between $50 and $500 for the third time in five years commits theft in the second degree, and that the defendant's prior convictions constitute one element of this offense. Alaska does not enforce the traditional "plain meaning" rule of statutory construction (the rule that, if the wording of a statute is "plain", then courts will look no further to determine the legislature's intention). However, when the wording of a statute is apparently clear, a litigant like Tallent who argues for a different construction of the statute bears a heavy burden of demonstrating that the legislature intended something different from what the words would normally mean. Peninsula Marketing Assn. v. State, 817 P.2d 917, 922 (Alaska 1991); Helton v. State, 778 P.2d 1156, 1158 (Alaska App.1989). The legislative history of SLA 1988, ch. 133 provides some support for Tallent's construction of the statute. The legislature described SLA 1988, ch. 133 as "An Act increasing the penalties for repeat convictions for the crimes of theft and concealment of merchandise". Tallent points out that, during its journey through the legislature as House Bill 461, people sometimes referred to the new law as a penalty provision. For example, in his fiscal note to the House Judiciary Committee, Legislative Counsel Jack Chenowith described HB 461 as "primarily a sentencing bill". See 1988 House Fiscal Notes at 414. However, returning to the language of the act itself, we conclude that the newly-enacted subsections were not merely penalty provisions. As amended by SLA 1988, ch. 133, the second-degree theft statute, AS 11.46.130(a), declared that a person committed the offense of second-degree theft if the person committed theft and: (1) the value of the property or services [was] $500 or more but less than $25,000; (2) the property [was] a firearm or explosive; (3) the property [was] taken from the person of another; or (4) the value of the property [was] $50 or more but less than $500 and within the preceding five years the person [had] been convicted and sentenced on two or more separate occasions in this or another jurisdiction of [theft in at least the third degree, or felony concealment of merchandise]. This court construed a similarly worded statute in Morgan v. State, 661 P.2d 1102 (Alaska App.1983). The statute at issue in Morgan was former AS 4.16.200(b), which made bootlegging (sale of liquor without a license) a felony offense under certain conditions. One of those conditions was that the defendant had previously been convicted of bootlegging. Morgan was charged with felony bootlegging under this provision. However, because the State viewed Morgan's prior conviction as a sentence-enhancement factor rather than an element of the offense, the State drafted an indictment that did not include any allegation concerning Morgan's prior conviction, and the State presented no evidence of the prior conviction to the grand jury. Morgan, 661 P.2d at 1103. Morgan attacked the indictment on this basis, but the trial judge agreed with the State that Morgan's prior conviction was not an element of the offense. Id. Later, at trial, Morgan asked to have the jury determine the existence of his prior conviction. The trial judge rejected Morgan's request and decided the prior conviction issue himself. Id. On appeal, this court held that AS 4.16.200(b) created the substantive offense of felony bootlegging, with the existence of a prior conviction constituting one element of that offense. Id. Because a defendant is entitled to have the grand jury and the petit jury decide all essential elements of the charged offense, this court held that Morgan's trial judge should have dismissed the indictment, and that the judge later erred "in not permitting the trial jury to decide whether the state had proved beyond a reasonable doubt the prior conviction element of this offense." Id. We noted that the structure of the statute indicated the legislature's intention to create a separate felony offense. Id. Moreover, to the extent that the wording of the statute might be ambiguous on this point, we expressed our hesitancy to construe a penal statute so as to deny a defendant the right to grand jury and petit jury determination of all essential factual issues. Id. at 1104. Morgan established a rule of construction for statutes that increase the degree of a criminal offense based on the defendant's prior convictions. After Morgan, such a statute will be interpreted to create a separate substantive offense, and the defendant's prior convictions will be construed as an element of that offense, unless the legislature clearly indicates a contrary intention. Morgan was decided in 1983, five years before the legislature passed SLA 1988, ch. 133. The language of the new theft provisions enacted in SLA 1988, ch. 133 parallels the language of the bootlegging statute construed in Morgan. Pursuant to Morgan, we presume that the new theft provisions were designed to create new substantive offenses, with prior convictions being one element of the offense. True, the legislative history shows that at least some of the people involved in the legislative process viewed the statute as a "sentencing" provision. However, this view is not reflected in the language of the statute itself. We note that the legislature has in the past drafted statutes that clearly call for enhanced penalties depending on a defendant's prior record. See, for example, the felony sentencing provisions of AS 12.55.125 and the driving while intoxicated statutes, AS 28.35.030(b) and AS 28.35.030(n). The second-degree theft statute, on the other hand, gives no indication that the legislature viewed a defendant's prior convictions as merely penalty-enhancing. We therefore conclude that AS 11.46.130(a)(6) defines a separate method of committing the substantive crime of second-degree theft, and that a defendant's prior convictions are an essential element of that crime. To charge a defendant with second-degree theft under this subsection, those offenses must be alleged in the indictment and proved to the grand jury; to prove the defendant guilty at trial, the State must prove those prior convictions beyond a reasonable doubt to the trier of fact. Does a trial judge have the authority to withhold this element of the crime from the jury? Tallent argues in the alternative that, even though his prior theft convictions are an element of second-degree theft under subsec tion 130(a)(6), Judge Card nevertheless had the authority to exclude all evidence of those convictions from Tallent's trial, and to decide this element himself rather than submitting the issue to the jury. As explained above, Tallent urged Judge Card to pursue this course. He pointed out that the jury's consideration of his guilt could be unfairly influenced by evidence that he had committed theft twice before. (To further induce Judge Card to withhold this issue from the jury, Tallent offered to stipulate that he had the requisite prior convictions. Logically, however, it makes little difference whether a defendant is willing to stipulate to the prior convictions or instead wishes to contest them. The point of Tal-lent's argument is that when a defendant is on trial for theft under a repeat offender provision, the jury will be unfairly prejudiced by evidence of the defendant's prior theft convictions. If the jury is the trier of fact on this issue, the same type of danger is present whether the evidence of prior convictions comes in by stipulation or through the normal litigation process. Conversely, if fairness requires the judge to be the trier of fact on the issue of prior convictions, the fairness of this procedure does not hinge on whether the defendant is willing to stipulate to the prior convictions or instead wishes to contest them.) Judge Card denied Tallent's request; the judge concluded that he had no authority to keep the issue from the jury because the existence of the prior convictions was an element of the offense. On appeal, Tallent asserts even if prior convictions are an element of the offense, Judge Card nevertheless had the power to withhold that issue from the jury if the judge concluded that evidence of the prior convictions would be more prejudicial than probative. The question Tallent raises has no ready answer under Alaska law. In State v. McLaughlin, 860 P.2d 1270 (Alaska App.1993), this court addressed a similar question: whether, when a defendant is prosecuted for being a felon in possession of a concealable firearm, the trial judge is authorized to exclude all evidence of the defendant's prior felony conviction and keep this issue from the jury. We held that a trial judge can not do this. But in a footnote, we recognized that the result might be different if the defendant's conduct would be unlawful even in the absence of prior convictions: We . note that our decision addresses only the specific circumstances of this case, in which the charged offense consists of conduct that is ordinarily lawful [and] is rendered unlawful only because of the defendant's prior conviction of a felony. By contrast, other types of crimes that include the existence of a prior felony conviction as an element deal with conduct that is already independently unlawful; in such cases, the prior-conviction element serves only to enhance the seriousness of the offense. See, e.g., Morgan v. State, 661 P.2d 1102, 1103-04 (Alaska App.1983) (unlicensed sale of alcohol in a local option area, normally a class A misdemeanor, becomes a class C felony when the defendant has previously been convicted of a similar offense). In this latter type of case, failing to inform the jury of the prior-conviction element arguably entails few of the problems presented in the former type of case; consequently, a strong argument might be made .for a significantly broader range of trial court discretion. See Azzarella v. State, 703 P.2d 1182, 1188 (Alaska App.1985). The facts of this case do not require us to decide the issue. McLaughlin, 860 P.2d at 1278 n. 15. Despite the fact that the McLaughlin footnote expressly disavowed any intention of "decid[ing] the issue", Tallent's brief to this court all but assumes that the McLaughlin footnote is a directive to trial judges to withhold the issue of prior convictions from the jury in eases like his — eases where the defendant's conduct on the current occasion would be criminal even without reference to the prior convictions. This is reading too much into the footnote. We left the issue undecided in McLaughlin because, even though evidence of prior convictions will often create a danger of unfair prejudice, other legal aspects of the situation point toward leaving the issue with the jury. For instance, Tallent's primary argument is that a trial judge is authorized to exclude evidence of the defendant's prior crimes whenever "the existence of [the] prior crime[s] only enhanee[s] the seriousness of the current charge, and the [defendant's] conduct [on the current occasion is] independently unlawful." No Alaska case has explicitly recognized such authority in a trial judge. Moreover, one might reasonably question the premise underlying Tallent's argument. Criminal offenses often require proof of facts that can potentially sway the emotions of jurors or lead them to return a verdict based on improper considerations. For instance, under AS 11.41.500(a)(3), unarmed robbery becomes robbery in the first-degreé if the robber causes serious physical injury to any person. Depending upon the severity of the injury (if, for example, the victim was maimed or permanently disfigured), such evidence might conceivably lead the jury to decide the case based on' outrage at the injury suffered by the victim, rather than demanding that the government meet its full burden of proof. Tallent's argument implies that a defendant who is prosecuted for first-degree robbery under 500(a)(3) should be able to stipulate to the victim's injury and then demand that the trial judge (1) bar the government from introducing any evidence of the injury and (2) withhold the issue of serious physical injury from the jury. Since robbery is a crime whether or not the robber inflicts injury, the defendant's infliction of serious physical injury "only - enhances the seriousness of . conduct [that is] independently unlawful". Under Tallent's reasoning, the trial judge could confine the jury to deciding whether the defendant committed second-degree robbery. However, we are aware of no legal authority to support this outcome. Tallent suggests that this court's decision in Morgan v. State, 661 P.2d 1102, supra, supports his argument. As explained above, Morgan dealt with the crime of felony bootlegging; this court held that a defendant's prior bootlegging conviction was an element of the offense, and the State would have to prove the prior conviction at trial. This court then added the following footnote, 661 P.2d at 1104 n. 4: We recognize that some defendants . will not desire to have the state prove their prior conviction at trial. These defendants have the option of stipulating to the conviction. Mead v. State, 445 P.2d 229, 234 (Alaska 1968), cert. denied, 396 U.S. 855, 90 S.Ct. 117, 24 L.Ed.2d 104 (1969). Tallent interprets this footnote as indicating approval of his suggestion that a defendant can stipulate to prior convictions and ask to have this issue withheld from the jury. However, the fact that a defendant's prior convictions might be proved by stipulation (rather than through the introduction of testimony and/or documents) does not resolve the question of whether the jury or the trial judge will be the trier of fact on the issue of the prior convictions. If anything, the Morgan footnote suggests that the jury should remain the trier of fact even when the defendant is willing to stipulate to the prior convictions. The Morgan footnote cites the Alaska Supreme Court's decision in Mead, where the defendant was tried for being a felon in possession of a concealable firearm. The parties in Mead stipulated that the defendant had previously been convicted of a felony. However, this stipulation was given to the jury, and the jury remained the trier of fact on the issue of the defendant's prior conviction. Mead, 445 P.2d at 234. Tallent suggests, for the first time on appeal, that a defendant might waive his or her right to jury trial on this one element and consent to have the trial judge decide the question of the prior convictions. This issue is not preserved for appeal; Tallent did not offer such a waiver in the trial court. Moreover, Tallent's suggestion raises yet another, unresolved issue: whether the State has a right to insist on a jury determination of all the elements of the crime, even when the defendant wishes to waive jury trial on one or more elements. Alaska Criminal Rule 23(a) states: "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state." In Horton v. State, 758 P.2d 628, 630 (Alaska App.1988), this court held that, under Crimi nal Rule 28(a), a defendant can not waive jury trial unless the State agrees. Horton suggested that "there might be some cases where requiring the defendant to undergo a jury trial might result in denying the defendant the right to an impartial trial", and that Alaska Criminal Rule 58 might provide the trial judge with authority to relax Rule 23(a) "where necessary to advance justice". However, the Horton decision merely recognized the issue; it did not resolve it. Having catalogued the issues raised by Tallent's argument, we conclude that we need not resolve all of them. When Tallent asked Judge Card to exclude all evidence of his prior theft convictions, he did not discuss all of these potential legal problems. He merely asserted that Morgan authorized a trial judge to withhold a defendant's prior convictions from the jury. After Judge Card ruled (correctly) that Tallent's prior convictions were an element of the offense, Tal-lent's request boiled down to essentially one legal issue: whether Judge Card had the authority to decide the prior convictions element himself and bar the jury from considering this element or hearing any evidence concerning it. As we have just explained, Morgan does not resolve this issue. If anything, the Morgan footnote suggests, by its citation to Mead, that even when a defendant stipulates to the existence of prior convictions, the issue remains with the jury. On this record, and given the fact that Tallent never indicated that he was willing to waive jury trial, Judge Card did not abuse his discretion when he rejected Tallent's reading of Morgan and concluded that all the elements of the offense needed to be decided by the jury. Further, under these circumstances, we can not say that Judge Card abused his discretion when he followed a course similar to the one approved by the supreme court in Mead — (1) having the jury decide the issue of the prior convictions, but (2) limiting proof of the prior convictions to a bare-bones stipulation, and (3) specifically instructing the jury that the defendant's prior convictions were not to be taken as evidence of his propensity to commit theft, and that the real issue in the case was whether the defendant committed the currently charged theft. Tallent questions Judge Card's decision to refer to the prior convictions as "thefts". He argues that the judge should have allowed the' stipulation to track the language of the second-degree theft statute — so that it would merely tell the jury that Tallent had twice previously been convicted of violating "AS 11.46.140(a)(1) or (2), or an offense under another law or ordinance with similar elements". We agree with Judge Card that an unexplained reference to a statute number "[wouldn't] tell the jury anything", and that it was better to be straightforward in this matter. An unexplained statutory reference might have encouraged the jurors to engage in speculation as to what crimes Tallent had committed in the past to make his current offense more serious. At best, Tallent might hope that the more knowledgeable jurors would discern that his past crimes must have been theft-related. At worst, the jurors might conclude that Tallent had committed more serious crimes. Judge Card did not abuse his discretion when he ruled that the stipulation should speak of "theft" rather than merely reciting statute numbers. Conclusion We hold that a defendant's prior theft convictions are an element of second-degree theft under AS 11.46.130(a)(6). We further hold that, under the facts of this case, Judge Card did not abuse his discretion when he ruled (1) that the jury should decide this issue and (2) that Tallent's prior thefts should be proved by stipulation, coupled with a cautionary instruction regarding the limited relevance of the prior convictions. For this reason, the judgement of the superior court is AFFIRMED. However, we wish to emphasize certain aspects of our decision. First, the issue presented in Tallent's case does not arise if a defendant's prior convictions are relevant for some purpose other than to establish the "prior convictions" element of first-, second-, or third-degree theft. If the defendant's prior convictions are relevant for some other purpose, see Alaska Evi dence Rule 404(b), and if the trial judge concludes that the probative value of this evidence is not outweighed by the danger of unfair prejudice, see Alaska Evidence Rule 403, then the jury can of course hear evidence of the prior convictions. The problem we address here arises only in cáses like Tallent's, where the prior convictions have no relevance other than to prove the "prior convictions" element of the crime. Second, we do not hold that the stipulation used in Tallent's ease is the only correct method for dealing with the issue of the defendant's prior convictions in such cases. Nor do we hold that it is the best method. We hold only that it is a permissible method, and that it was a fair method under the facts of Tallent's case. We again note that a defendant's willingness to stipulate to prior convictions does not answer the question of who will be the trier of fact on this element of the crime. Criminal cases are tried to a jury unless the defendant waives the right to jury trial and the government likewise consents to have the case tried to the court. In a jury trial, even when the parties reach a stipulation concerning the defendant's prior convictions, the stipulation will be presented to the jury, and the jury will decide the prior convictions element. It is possible that a defendant might offer to waive the right to jury trial on the prior convictions element of the offense. This waiver could not be made through counsel; it would have to be made by the defendant personally. See McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App.1993). If the defendant waives jury trial on the prior con-vietions element, and if the State is likewise willing to have the trial judge decide this element, then we see no reason why this; element should not be tried to the court. If, however, the State is not also willing to waive jury trial on the element of the defendant's prior convictions, then the defendant's offer to waive jury trial would raise another unresolved question: whether a defendant can unilaterally waive jury trial on one or more elements of a criminal charge. See Alaska Criminal Rule 23(a); Horton v. State, 758 P.2d 628, supra. Another way of dealing with this problem — one that we recommend to judges in the future — is to bifurcate the trial. In a bifurcated trial, the jury would first decide whether the defendant was guilty of theft on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant's prior convictions. This solution would preserve both parties' right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant's prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them. . AS 11.46.130(a)(6) declares that a person commits theft in the second degree if the person commits theft of property valued at between $50 and $500 "and within the preceding five years the person has been convicted and sentenced on two or more separate occasions in [Alaska] or another jurisdiction of[:] (A) AS 11.46.120 [i.e., first-degree theft] or an offense under another law or ordinance with similar elements; (B) a crime set out in this subsection [i.e., second-degree theft ] or an offense under another law or ordinance with similar elements; (C) AS 11.46.140(a)(1) or (2) [i.e., third-degree theft committed by stealing property valued at between $50 and $500, or by stealing a credit card], or an offense under another law or ordinance with similar elements; or (D) AS 11.46.220(c)(1) or (c)(2)(A) [i.e., concealment of merchandise if the merchandise is a firearm or is valued at $50 or more], or an offense under another law or ordinance with similar elements." . Under former AS 4.16.200(b)(1), a person who sold liquor without a license in a local-option area was "guilty of a class C felony . if [the person] ha[d] previously been convicted of a violation of AS 4.11.010" [i.e., convicted of selling liquor without a license].

11872607

Larry HERNANDEZ, Appellant, v. Louise LAMBERT, Appellee

Hernandez v. Lambert

1998-01-02

No. S-7690

436

442

951 P.2d 436

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Larry HERNANDEZ, Appellant, v. Louise LAMBERT, Appellee.

Larry HERNANDEZ, Appellant, v. Louise LAMBERT, Appellee. No. S-7690. Supreme Court of Alaska. Jan. 2, 1998. Fleur L. Roberts, Law Offices of Fleur L. Roberts, Fairbanks, for Appellant. Christine A McLeod, Andrew Harrington, and Robert K. Hickerson, Alaska Legal Services Corporation, Fairbanks, for Appellee. Mark Andrews' and Michael Walleri, for Amicus Curiae Tanana Chiefs Conference. Lloyd Benton Miller, Sonosky, Chambers, Saehse, Miller & Munson, for Amicus Curiae Native Village of Tanana. Heather R. Kendall, Native American Rights Fund, for Amicus Curiae Alaska Inter-Tribal Counsel. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

3576

22118

OPINION BRYNER, Justice. At issue here is the timeliness of a superi- or court paternity action that conflicted with an adoption order issued by an Alaska tribal court five years previously. The superior court ruled that the tribal order was valid, that its issuance triggered Alaska's one-year time limit on challenges to adoption decrees, and that the paternity action was therefore time-barred. We agree that the paternity action is time-barred but reach this conclusion without deciding the validity of the tribal adoption order; we conclude that, whatever its validity when originally entered, the order became legally cognizable upon the State's issuance of a new certificate of birth ratifying it as an adoption by tribal custom. I. FACTS AND PROCEEDINGS On February 26,1990, Sandra Joseph gave birth to a baby boy, C.L., in Fairbanks. Joseph, who resided in Tanana, was unmarried at the time and declined to name C.L.'s father on the birth certificate. It is undisputed that Joseph was acquainted with Larry Hernandez before she gave birth to C.L. and that she and Hernandez had sexual relations at some time prior to the birth. Joseph's relationship with Hernandez ended some time in 1989; Hernandez evidently left Tana-na without learning of Joseph's pregnancy. Several weeks after C.L.'s birth, Joseph gave custody of her son to Louise and Russell Lambert, her sister and brother-in-law. With Joseph's consent, the Lamberts petitioned for adoption of C.L.; since Joseph, C.L., and Louise Lambert are all enrolled members of the Native Village of Tanana, the Lamberts pursued the adoption through the Tanana Tribal Court, which held a hearing on their petition. The court sent Joseph notice of the hearing, but she did not appear. Because Joseph declined to name her child's father, the court listed the father's identity as unknown and made no attempt at service. On September 4, 1990, the tribal court issued an order finding the proposed adoption to be in C.L.'s best interest. The order terminated Joseph's parental rights, declared Russell and Louise Lambert to be C.L.'s parents for all legal purposes, and directed a new birth certificate to be issued reflecting the adoption. That same day, the court forwarded notice of the adoption to the Secretary of Interior's Office and dispatched to the Alaska Department of Health and Social Services, Bureau of Vital Statistics, a form entitled, "Report of Adoption Occurring Under Tribal Custom." Upon receipt of the report, the Bureau of Vital Statistics issued a new birth certificate, naming Russell and Louise Lambert as C.L.'s parents. Some two or three years later, in 1992 or 1993, while at a party in Fairbanks, Hernandez encountered Joseph for the first time since the end of their relationship. Joseph told Hernandez that she had given birth to a child, and Hernandez surmised that the child might be his. More than a year later, on March 8, 1995, Hernandez petitioned the superior court to determine if he was C.L.'s biological father and, if in fact he was, to establish support, custody, and visitation. By then, the Lamberts had divorced, and Louise Lambert had been awarded sole physical custody of C.L. Lambert moved to dismiss Hernandez's petition, arguing that the case belonged in the Tanana Tribal Court and that the superior court lacked subject matter jurisdiction. Alternatively, Lambert moved for summary judgment, arguing that the superior court was required to give full faith and credit to the tribal adoption order. Lambert maintained that Hernandez had no right to displace C.L.'s adoptive father and that Hernandez's paternity action was in any event time-barred, since it was filed more than one year after the tribal adoption order was issued. In opposition to Lambert's motion, Hernandez argued that the superior court had exclusive jurisdiction over the issue of C.L.'s paternity because tribal courts within Alaska are not empowered to exercise jurisdiction in child custody cases. Hernandez also asserted that the tribal adoption order was not entitled to full faith and credit because it was issued without notice to him, thereby violating his rights to equal protection and due process. Superior Court Judge Niesje J. Steinkruger granted Lambert's motion for summary judgment. Finding that the tribal order was a valid decree of adoption and was entitled to full faith and credit, Judge Steinkruger concluded that Hernandez's paternity action was foreclosed because Hernandez had "presented no genuine issues of material fact regarding the validity of the [tribal] adoption." Alternatively, Judge Steinkruger found that Hernandez's petition was barred by AS 25.23.140(b), Alaska's one-year statute of limitations governing challenges to adoption decrees. Hernandez appealed. II. DISCUSSION On appeal, Hernandez argues that the 1990 tribal adoption order violated his constitutional right to due process because he was given no notice of the adoption proceeding. Hernandez insists that the constitutionally flawed decree does not deserve full faith and credit and does not preclude the superior court from adjudicating the merits of his paternity action. This argument, however, presents a threshold question of timeliness. Since Hernandez's paternity action relies on his assertion that the tribal adoption order is invalid for lack of notice, and since the action was filed almost five years after the adoption order was issued, we must inquire whether the paternity action is barred by the time limit set out in AS 25.23.140(b). This statute provides, in relevant part, that "upon the expiration of one year after an adoption decree is issued, the decree may not be questioned . in any manner upon any ground, including . failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter[.]" Hernandez asserts the tribal decree's invalidity based on lack of notice; 'he further suggests that Joseph's failure to disclose to the Tanana Tribal Court his identity as C.L.'s father might have constituted a fraud. But lack of notice and fraud are both specifically included in the statutory list of grounds that become time-barred "upon the expiration of one year after an adoption decree is issued[.]" Id. Hence, these grounds provide ho basis for relaxation of the statute. Hernandez seeks to escape the clear language of the statutory time bar by asserting that his paternity action is an independent proceeding rather than a challenge to the tribal adoption order. This assertion, however, is at odds with Hernandez's primary argument that the tribal order is not entitled to full faith and credit because it is constitutionally flawed. Hernandez also observes that the Lamberts are now divorced and that Louise Lambert has been awarded sole physical custody of C.L. Given Russell Lambert's departure from the adoptive household, Hernandez suggests that the paternity action is not inconsistent with the tribal adoption order— that there is now room for a new father in C.L.'s life. However, the Lamberts' divorce and the consequent award of physical custody to Louise neither terminated Russell's parental rights and obligations nor displaced him as C.L.'s adoptive father. Hernandez lastly notes that the tribal adoption order did not expressly terminate the parental rights of C.L.'s biological father; Hernandez argues that, for this reason, his claim of parental rights in the paternity action does not conflict with the adoption order. Yet the adoption order's omission of specific language terminating the parental rights of C.L.'s biological father is of no particular consequence, since, even without express termination language, the legal effect of the order was to "relieve the natural parents of the adopted person of all parental rights and responsibilities, and, . terminate all legal relationships between the adopted person and the natural parents[.]" AS 25.28.130(a). In naming Louise and Russell Lambert as C.L.'s parents, the adoption decree necessarily terminated any putative biological father's rights. See Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973). This being the case, Hernandez's filing of a paternity action that claimed parental rights as to C.L. unmistakably had the effect of questioning the tribal adoption order; the paternity action thus ran afoul of the statutory injunction that an adoption decree "may not be questioned . in any manner upon any ground." AS 25.23.140(b). To be sure, this court's prior holdings indicate that the Tanana Tribal Court lacked authority to issue a decree of adoption. See In re F.P., 843 P.2d 1214 (Alaska 1992), cert. denied sub nom. Circle Native Community v. Alaska Dep't of Health and Social Serv., 508 U.S. 950, 113 S.Ct. 2441, 124 L.Ed.2d 659 (1993); In re K.E., 744 P.2d 1173 (Alaska 1987); Native Village of Nenana v. State, Dep't of Health and Social Serv., 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008, 107 S.Ct. 649, 93 L.Ed.2d 704 (1986). These decisions raise the question of whether the Tanana Tribal Court's adoption order should be deemed to be an "adoption decree" within the meaning of AS 25.23.140(b), so as to trigger the one-year period of limitation. Lambert nevertheless argues that even if the Tanana Tribal Court lacked jurisdiction to issue an adoption decree, the State of Alaska had authority to recognize the tribal court's adoption order as a customary adoption of an Indian child. Lambert contends that the State did just that by issuing a new Alaska certificate of birth. We find this argument persuasive. Under 7 Alaska Administrative Code (AAC) 05.700(a), the Bureau of Vital Statistics is charged with authority to issue new certificates of birth "for persons born in Alaska, upon adoption." Under 7 AAC 05.700(b) (1996), the Bureau's authority extends to Indian adoptions that have "occurred under tribal custom." In the present ease, the Tanana Tribal Court sent the Bureau of Vital Statistics a "Report of Adoption Occurring Under Tribal Custom"; the Bureau, in accordance with 7 AAC 05.700(b), issued a new birth certificate. naming the Lamberts as C.L.'s parents. The effect of the Bureau's action was to ratify the tribal adoption proceeding and imbue the tribal court's order with sufficient legal color to warrant its treatment as "an adoption decree" within the meaning of AS 25.23.140(b). Hernandez's case thus falls squarely within the letter and spirit of the statutory time bar. Adoptive custody results in the rapid development of lasting and powerful psychological ties between adoptive parents and children, especially young children. Once formed, these bonds can seldom be severed without irreparable damage to the child's well-being. In terms of this potential harm, it matters little whether the adoptive relationship , arises by formal decree or through tribal custom. Alaska's stringent one-year limit on challenges to adoption decrees stands as testament to this practical reality. As we said in In re T.N.F., 781 P.2d 973, 980 (1989), cert. denied sub nom. Jasso v. Finney, 494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990): To allow collateral attacks on final adoption decrees at any time threatens to unreasonably disrupt the upbringing of the adopted child. AS 25.23.140 is a strong policy statement by the Alaska Legislature that an adoption decree should not be challenged on any ground after one year. Hernandez's case poses precisely this kind of threat. Hernandez made no effort to claim paternity or have contact with C.L. until almost five years after the Lamberts became C.L.'s adoptive parents; by the time Hernandez's paternity action was filed, well over a year had passed since he was told of C.L.'s birth and actually realized that C.L. might be his son. Even if we assume that AS 25.23.140(b)'s one-year limit did not begin to run until Hernandez actually became aware of his potential claim to parental rights, his paternity action would be well beyond the allowable time for filing. Alaska's one-year filing limit embodies a careful balance between competing interests: on one hand, the interest of preserving "stability in a family relationship, particularly when a young minor is involved"; on the other hand, the interest of avoiding "the possible loss to a person whose rights are cut off through fraud or ignorance." Unif. Adoption Act § 15, 9 U.L.A. 102-03 cmt. (1988). Here, the balance tips decidedly against Hernandez. Any interest Hernandez might once have had in claiming parental rights to C.L. has clearly not been cut off through fraud or ignorance, but rather through neglect and delay. III. CONCLUSION The Superior Court's order granting summary judgment is AFFIRMED. . The parties agree that Joseph and Hernandez had sexual relations. Although Hernandez claims that he and Joseph "lived together for several years," we find nothing in the record to support the claim. Joseph has expressly denied having sexual relations with Hernandez during the period of time when C.L. was conceived. . According to Hernandez, Joseph showed him a picture of C.L.; after both agreed that C.L. "might look like" Hernandez, Joseph told Hernandez that he was C.L.'s father. Joseph's account of the conversation differs: she denies informing Hernandez that C.L. was his child. Joseph claims that she in fact knows C.L.'s father to be another man. . Hernandez initially asked the court to order DNA testing to establish his paternity and to delay consideration of the dismissal and summary motions pending completion of the tests. The superior court denied this request, explaining that "[t]he jurisdictional issue and legal issue of whether this action can proceed or the tribal adoption has finality is not dependent on DNA testing." . Judge Steinkruger acknowledged this court's decisions holding that Alaska's tribal courts lack jurisdiction in child custody cases. See In re F.P., 843 P.2d 1214 (Alaska 1992), cert. denied sub nom. Circle Native Community v. Alaska Dep't of Health and Social Services, 508 U.S. 950, 113 S.Ct. 2441, 124 L.Ed.2d 659 (1993); In re K.E., 744 P.2d 1173 (Alaska 1987); Native Village of Nenana v. State, Dep't of Health and Social Serv., 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008, 107 S.Ct. 649, 93 L.Ed.2d 704 (1986). The judge nevertheless found these cases superseded by recent developments in the federal arena, particularly the Department of Interior's publication in 1995 of a notice listing various Alaska Native villages, including the Native Village of Tanana, as Indian tribes, see Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 60 Fed.Reg. 9250 (1995). Concluding that the Tanana Tribal Court was now empowered to assert jurisdiction over adoptions, the judge found that the 1990 tribal adoption order was entitled to full faith and credit under 25 U.S.C. § 1911(d). The judge alternatively concluded that, even if the tribal court lacked formal jurisdiction, its order would be entitled to full faith and credit under AS 25.23.160, which requires that "[a] decree of court . establishing the relationship by adoption issued under due process of law by a court of any other jurisdiction within or outside of the United States shall be recognized in this state." . Rulings on summary judgment are subject to de novo review and may be affirmed on grounds different than those advanced by the trial court. James v. McCombs, 936 P.2d 520, 523 n. 2 (Alaska 1997). . See U.S. Const, amend. XIV; Alaska Const, art. 1, § 7. . The full text of AS 25.23.140(b) is as follows: Subject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree may not be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter, unless, in case of the adoption of a minor the petitioner has not taken custody of the minor, or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. . Hernandez does not argue, as he did below, that the Tanana Tribal Court lacked jurisdiction over C.L.'s adoption. Even if he did make this argument, it would have no bearing on the applicability of AS 25.23.140(b), since jurisdictional questions are also listed in the statute as being covered by the time limit. . Hernandez does not challenge the validity of the time bar itself. We note that AS 25.23.140(b) is virtually identical to Uniform Adoption Act § 15 and that similar statutes have consistently withstood constitutional challenges in other jurisdictions. See, e.g., Syrovatka v. Erlich, 608 F.2d 307, 310-11 (8th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980) (finding statute of limitations barred natural parents from contesting an' adoption where original notice to adoption proceeding failed due process standards); Hogue v. Olympic Bank, 76 Or.App. 17, 708 P.2d 605, 611 (1985), review denied, 300 Or. 545, 715 P.2d 92 (1986) (finding that statute finalizing adoption proceedings did not violate due process rights even where the court issuing the adoption decree had defective jurisdiction); see also In re Adoption of Lori Gay W., 589 P.2d 217, 220 (Okla.1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2165, 60 L.Ed.2d 1047 (1979) (citing White v. Davis, 163 Colo. 122, 428 P.2d 909 (1967)). . As we have already noted in footnote 4 above, Judge Steinkruger undertook a reexamination of this court's decisions on tribal jurisdiction, found them superseded, and thus concluded that the Tanana Tribal Court's adoption order was a valid adoption decree. Judge Steinkruger's alternative conclusion that Hernandez's claim was time-barred likewise presumed that the tribal order was a valid adoption decree and that its issuance thus triggered the one-year time limit specified in AS 25.23.140(b). Since we affirm the trial court's summary judgment order on a legal ground different than . that relied on below, we find no occasion to reexamine our prior decisions. Cf. In re F.P., 843 P.2d 1214 (Alaska 1992), cert. denied sub nom. Circle Native Community v. Alaska Dep't of Health and Social Serv., 508 U.S. 950, 113 S.Ct. 2441, 124 L.Ed.2d 659 (1993). We similarly decline to consider whether the Tanana Tribal Court's adoption order was entitled to full faith and credit under AS 25.23.160. . The full text of 7 AAC 05.700 is as follows: NEW CERTIFICATE OF BIRTH, (a) The bureau shall establish a new certificate of birth, upon proper request that such certificate be made, for persons bom in Alaska, upon adoption or legitimation and the submission of the required documents and other necessary information as required by the State Registrar; provided that such new certificate of birth shall not be established in cases of adoption if such negative request be received from the court decreeing the adoption, the person himself if of legal age, or from the adoptive parents. (b) When the adoption of an Indian child, as defined in 25 U.S.C.1903(4), has occurred under tribal custom the state registrar will require the following documents and information to issue a new certificate of birth: (1) a statement, on a.form provided by the bureau, signed by each biological parent, unless one or both of the parents is deceased, cannot be contacted through reasonable means, or is an unwed father where paternity has not been acknowledged or established: (A) identifying the child and the tribe of the child, as defined in 25 U.S.C.1903(5); and (B) affirming that under tribal custom an adoption has occurred; (2) a request for a new birth certificate, on a form provided by the bureau, signed by an adoptive parent; and (3) a written statement, on a form provided by the bureau, from the governing body of the child's tribe, as defined in 25 U.S.C.1903(5), affirming that: (A) an Indian child has been adopted under tribal custom; the statement must identify the child, each known biological parent, and each adoptive parent; (B) the tribe has not been informed of any person or agency who is asserting a claim to custody under state or tribal law; (C) one of the adoptive parents is an Indian, as defined in 25 U.S.C.1903(3); and (D) when one or both of the biological parents cannot be located to provide the statement required by (b)(1) of this section, the parent knew or had notice of the adoption at the time it occurred, except in cases involving an unwed father where paternity has not been acknowledged or established. . Some courts construing statutes of limitation similar to AS 25.23.140(b) have suggested that a discovery rule must be applied to the commencement of the time limit in order to avoid potential constitutional problems. See, e.g., In re Adoption of Lori Gay W., 589 P.2d 217, 222 (Okla.1978), cert. denied sub nom. Strouse v. Winter, 441 U.S. 945, 99 S.Ct. 2165, 60 L.Ed.2d 1047 (1979); see also Sumter v. Allton, 278 Ark. 621, 648 S.W.2d 55 (1983); Wade v. Geren, 743 P.2d 1070 (Okla. 1987). Since Hernandez's action is barred under any interpretation of the Alaska statute, we need not determine whether AS 25.23.140(b) is subject to a discovery rule. . Our conclusion that Hernandez's paternity action was time-barred makes it unnecessary for us to consider whether the tribal adoption order violated Hernandez's right to due process.

11866800

Wilton TONEY, Appellant, v. CITY OF ANCHORAGE POLICE DEPARTMENT and Three John Doe Employees, Appellees

Toney v. City of Anchorage Police Department

1997-12-19

No. S-7572

123

126

950 P.2d 123

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Wilton TONEY, Appellant, v. CITY OF ANCHORAGE POLICE DEPARTMENT and Three John Doe Employees, Appellees.

Wilton TONEY, Appellant, v. CITY OF ANCHORAGE POLICE DEPARTMENT and Three John Doe Employees, Appellees. No. S-7572. Supreme Court of Alaska. Dec. 19, 1997. Arthur S. Robinson, Robinson, Beiswenger & Ehrhardt, Soldotna, for Appellant. Stephanie Galbraith Moore, Assistant Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellees. Before MATTHEWS, C.J., and COMPTON, EASTAUGH and BRYNER, JJ.

1413

8546

OPINION COMPTON, Justice. I. INTRODUCTION Wilton Toney appeals from an order dismissing his complaint for failure to state a claim upon which relief can be granted. This order was based on Toney's failure to file the complaint within the applicable period of limitation. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS On September 14, 1988, Wilton Toney was arrested and charged with drug trafficking. On September 14 and 15 officers of either the Anchorage Police Department (APD), the Alaska State Troopers (AST), or both, executed search warrants and seized certain items of Toney's property. At some later point, this property was turned over to the federal Drug Enforcement Agency (DEA). Toney claims to have been notified of this fact on July 7, 1989. It appears that no forfeiture proceeding was held prior to turning the property over to the DEA. On June 19, 1995, Toney, acting pro se, filed a complaint for conversion of the seized property. Named as defendants were APD, AST, and three John Doe employees of each. AST filed an Alaska Civil Rule 12(b)(6) motion to dismiss for failure to state a claim, based on the expiration of the applicable period of limitation. APD filed a similar motion. The superior court dismissed To-ney's complaint for failure to state a claim upon which relief can be granted, based upon a statute of limitation. Toney filed a motion to reconsider this dismissal, which was denied. This appeal followed. A consensual dismissal has since been entered as to AST and its employees. APD and three John Doe employees of APD remain parties to this appeal. III. STANDARD OF REVIEW This court reviews de novo an order dismissing a complaint for failure to state a claim. See Kollodge v. State of Alaska, 757 P.2d 1024 (Alaska 1988). To survive a Rule 12(b)(6) motion "it is enough that the complaint set forth allegations of fact consistent with and appropriate to some enforceable cause of action." The trial court must only consider the material contained in the pleadings . The court "must presume all factual allegations of the complaint to be true and [make] all reasonable inferences . in favor of the non-moving party." Motions to dismiss are viewed with disfavor and should rarely be granted. Id. at 1025-26 (alterations in original) (citations omitted). IV. DISCUSSION The issue contested by the parties is whether there is a set of facts, provable within the framework of the complaint, under which the complaint was timely filed. To answer this question, we must first determine which statute of limitation applies to Toney's claim against APD and which statute of limitation applies to his claim against the three John Doe officers. A. Which Statute of Limitation Applies to Toney's Claim against APD? The parties discuss three possible statutes: (1) AS 09.10.050(3) sets forth a six-year period of limitation for "taking, detaining, or injuring personal property." (2) AS 09.10.070(a)(2) sets forth a two-year period of limitation in the following language: "A person may not bring an action . (2) upon a statute for a forfeiture or penalty to the state." (3) AS 09.10.060(b) sets forth a three-year period of limitation in the following language: "A person may not bring an action upon a statute for penalty or forfeiture where the action is given to the party aggrieved or to that party and the state unless the action is brought within three years, except where the statute imposing it prescribes a different limitation." Alaska Statute 09.10.050(3) governs actions for conversion. The six-year statute of limitation found in AS 09.10.050(3) will apply to Toney's claims unless another, more specific statute also applies. APD suggests that one of the forfeiture-related statutes of limitation should apply, reasoning thus: To-ney alleges that the state transferred his property to the DEA prior to a required, forfeiture proceeding under AS 17.30.116. Therefore Toney's action is one for non-fea-sance (by the state) "upon a statute for a forfeiture." We disagree. Both AS 09.10.060(b) and AS 09.10.070(a)(2) use the language "an action upon a statute." This language appears to require that the statute at least implicitly, if not explicitly, provide the cause of action. Toney's action is not provided by statute; it is an action for conversion, a creature of common law. If APD had followed the forfeiture procedures contained in AS 17.30.116, then it would have a defense to Toney's conversion claim. But this does not mean that AS 17.30.116 provides the claim itself. Though APD's arguments do not persuade us, neither are they wholly meritless. Rather, they highlight an-ambiguity present in both AS 09.10.060(b) and AS 09.10:070(a)(2). However, to the extent that a statute of limitation is ambiguous, we have held that it will be resolved in favor of permitting an action. See Safeco Ins. Co. of Am. v. Honeywell, 639 P.2d 996, 1001 (Alaska 1981) ('Where two constructions as to the limitations period are possible, the courts prefer the one which gives the longer period in which to prosecute the action."). We therefore conclude that AS 09.10.060(b) and AS 09.10.070(a)(2) are inapplicable to Toney's claims. We hold that the six-year period of limitation contained in AS 09.10.050 applies to Toney's claims against APD. [3] The next question is whether there is a set of facts, provable within the framework of the complaint, under which Toney's action against APD was filed within the applicable six-year period. That the initial seizure was lawful (in execution of a warrant) is consistent with the complaint; that the transfer of the property to the DEA was the tortious act (conversion) is consistent with the complaint; that the transfer took place at some point after June 19, 1989 is consistent with the complaint. On this set of facts, the complaint, filed June 19, 1995, would be within a six-year period of limitation. B. Which Statute of Limitation Applies to Toney's Claim against the Three John Doe Officers of APD? With respect to the three John Doe Officers of APD, a fourth statute of limitation may apply: Former AS 09.10.060(a) was in effect at the time this action began. It set forth a three-year period of limitation for actions against individual peace officers for acts performed in their official capacity. On appeal, Toney argues that whether the officers were acting in their official capacity is a question of fact that we must resolve in his favor. We conclude, how ever, that in his motion to reconsider, Toney conceded that the officers were, in fact, acting in their official capacity. Though the parties present no Alaska cases on this point, a number of other courts have held that when a party concedes a fact before the trial court, the party may not later contest it. See, e.g., Bush v. Wilson & Co., 157 Kan. 82, 138 P.2d 457, 462 (1943); Brookfield Co. v. Mart, 139 Or. 495, 10 P.2d 594, 595 (1931); Quincy Valley State Bank v. Schneider, 36 Wash.2d 748, 219 P.2d 985, 985-86 (1950). We find this position persuasive. Having conceded before the trial court that the John Doe officers were acting in their official capacity, Toney may not suggest that this is still a triable issue of fact. We hold that the three-year period of limitation in former AS 09.10.060(a) applies to Toney's claims against the John Doe officers. There is no set of facts provable within the framework of To-ney's complaint under which that complaint could have been filed within the three-year period. V. CONCLUSION We REVERSE the dismissal of Toney's complaint against APD and REMAND for further proceedings consistent with this opinion. 'We AFFIRM the dismissal of Toney's complaint against the John Doe officers. FABE, J., not participating. . The court's order does not make clear which statute of limitation it deemed applicable. . For purposes of this appeal, it does not matter whether the statute of limitation began to run when APD transferred the property or when To-ney was notified of that transfer. Evidence may show that both of these events occurred after June 19, 1989. We therefore do not consider this issue.

8904707

Gary E. WEBB, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Michelle WEBB, n/k/a Michelle Key, Appellee

Webb v. State, Department of Revenue, Child Support Enforcement Division ex rel. Webb

2005-09-09

No. S-11160

197

201

120 P.3d 197

120

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Gary E. WEBB, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Michelle WEBB, n/k/a Michelle Key, Appellee.

Gary E. WEBB, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Michelle WEBB, n/k/a Michelle Key, Appellee. No. S-11160. Supreme Court of Alaska. Sept. 9, 2005. Bryan T. Schulz, Ketchikan, for Appellant. Susan L. Daniels, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

2857

17182

OPINION FABE, Justice. I. INTRODUCTION Gary Webb, a father of two children, did not pay child support during a period when his children were in the custody of their grandmothers. He claims that the children's mother, to whom he owed the support payments, is precluded under Civil Rule from collecting the arrears accumulated during that time. The superior court disagreed with Webb, concluding that Rule 90.3(h)(3) provides for preclusion only when the obligor parent has primary physical custody of the children. We agree with the superior court and affirm. | II. FACTS AND PROCEEDINGS A. Factual History Gary Webb and Michele Key were married January 29, 1988. They had two daughters, Megan, born on April 21, 1988 and Sarah, born on March 11, 1989. The marriage was dissolved on April 12, 1990. Key was granted legal and primary physical custody of the children and Webb was ordered to pay $418 a month in child support. At the time of their divorce, the parties were living on Fort Richardson. Key later moved to Maine and Webb moved to Ward Cove. Courts in Maine later appointed the daughters' grandmothers as guardians in two separate proceedings. Roberta Webb, Gary's mother, was made guardian of Sarah in 1998, an arrangement which lasted until the guardianship was terminated in 2001. Sarah then returned to living with Key. In 1995 Megan was placed in the guardianship of Sheila Smith, Key's mother, who also resides in Maine. A petition to terminate this guardianship was filed in Maine in 1997. Although the termination was never issued, it is undisputed that Megan returned to live with Key. Thus, between 1998 and 2001, Key never had custody of both daughters at onee, and between 1995 and 1997, she had custody of neither of them. According to the Child Support Enforcement Division (CSED), Webb made no child support payments to Key between 1998 and 2001. He made some payments to his mother, Sarah's guardian, which CSED eventually credited against his arrears. B. Procedural History On October 24, 2001, when both children were back in Key's custody, Webb, acting pro se, moved to modify the amount of arrears he owed, claiming that he should not have to pay for the period in which both children were in their grandmothers' custody. The superior court read his motion as requesting relief for the years 1998 through 1997, which included a period of time when Megan was still living with Key. In response, CSED calculated that Webb owed $6,001.53 in arrears. Webb assented to that figure and the superior court approved it. CSED later returned to court, moving under Civil Rule 60(b)(1) to set aside the arrears order because of an error in its calculation. The agency claimed that Webb in fact owed $72,105.22 but allowed that Webb might be able to show that he had made more payments than had been accounted for. In his opposition to the motion, Webb renewed his argument that he should not have to pay arrears for the period when both girls were with their grandmothers and should only have to pay reduced arrears for the time when Megan was living with Key. At this time, Webb was represented by counsel and argued that Civil Rule 90.83(h)(3) precluded the collection of these arrears. He also claimed that he had made payments that CSED failed to credit when it computed the arrears. After an evidentiary hearing apparently resolved the question of eredit due to Webb, the superior court decided that Civil Rule 90.3(h)(3) did not apply and that CSED was therefore not precluded from collecting arrears for the challenged period. The court entered a final order setting the amount owed at $51,058.14. Webb appeals. III. STANDARD OF REVIEW The question whether preclusion applies in this case depends on the application of a court rule that determines the "correct method of calculating child support"; it is thus a question of law we review de novo. We will adopt "the rule of law most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. Rule 90.3(h)(2) Does Not Preclude an Obligee Parent from Collecting Arrears Accumulated While the Children Are in the Custody of a Third Party Who Is Not the Obligor Parent. Webb seeks a retroactive modification of his child support obligation and asks us to eliminate or significantly reduce his Hability for the child support debt that accrued over a period of 101 months when one or both of his daughters were living with their grandmothers. In general, Civil Rule 90.3(h)(3) bars retroactive modification. It is subject to two exceptions, one of which is relevant here. Civil Rule 90.3(h)(3) provides in relevant part: Preclusion. The court may find that a parent and a parent's assignee are precluded from collecting arrearages for support of children that accumulated during a time period exceeding nine months for which the parent agreed or acquiesced to the obligor exercising primary custody of the children. A finding that preclusion is a, defense must be based on clear and con-vinceing evidence.[ ] Under this rule, if the child or children live with the obligor parent, with the consent of the obligee parent, for a period greater than nine months, and the obligor parent does not make support payments during that time, then the obligee parent may not collect the arrears. Webb claims that this rule should preclude Key from collecting the arrears accumulated while the daughters were living with their grandmothers. We disagree. 1. The plain language and policy of Rule 90.3(h)(3) do not support preclusion in this case. A prerequisite for any interpretation of a court rule is that it have a basis in the rule's text. Webb's proposed interpretation of Civil Rule 90.3(h)(3), to allow preclusion for a period when the children are in the custody of a third party, is not permitted by the language of the rule. The rule provides for preclusion when the children have lived with the obligor. Thus, the plain language of the rule does not support Webb's interpretation. Rule 90.8(h)(3) only allows preclusion in one situation: when the children have lived with the parent who owes child support. Megan and Sarah never lived with Webb. Under the plain language of the rule, there is no basis to preclude Key from collecting support. We have previously stated that when "a straightforward application of [a court] rule yields [an] extreme or absurd . result," it may "require us to bend the plain language of the rule." But requiring Webb to pay the child support he owes does not lead to an extreme or absurd result. First, when children live with a third party, both parents have the duty to support the children. Thus, Webb was not absolved of a duty to support his children merely by their living with a third party rather than their mother. And although it is true that Key will be compensated by Webb for past child support expenses that were actually paid by the grandmothers, any windfall to Key might be temporary, as the grandmothers will be able to seek reimbursement from Key for child support received for the period of time the children were in the grandmothers' care. Finally, Key is currently caring for the children, who are the beneficiaries of the child support order. In the event either of the grandmothers chooses not to pursue compensation from Key, the children should benefit from Webb's payment of child support arrears to Key, their primary custodian, for obligee parents are required by the statute to administer support funds on the children's behalf. Retroactively modifying the child support order to permit Webb to evade his child support obligations would result in a windfall to Webb and deprive the children of funds to which they are entitled. "Child support awards, by their very definition, are intended to benefit the child, not provide a windfall to the parent." During the years that Webb was not meeting his obligations, his daughters were not receiving the benefit the support order was designed to provide. We therefore conclude there is no reason to go beyond the words of the rule and allow preclusion. 2; Absent a modification of the support order, the original order is enforceable. We agree that Webb could have sought modification of the support order given that there was a change in the physical custody of the children. But he chose to wait until his daughters had returned to live with Key before seeking to modify child support. As we previously held in Karpuleon v. Karpuleon, "the burden is on the parents to promptly apply for modification" when a child changes residency. "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." Court-ordered child support may only be modified or terminated by the court; a child support order does not automatically terminate simply because a third party assumes custody of the children. "The obli gation to pay child support pursuant to a court order generally continues until the child reaches age 18 or until the happening of any contingency specified in the court order." And several courts have concluded that the death of a non-custodial parent, the death of a custodial parent, the emancipation of the child, or the appointment of a third party as a temporary conservator for the child does not terminate the support obligation. Thus, a court-ordered change of custody arising out of a guardianship proceeding, as in this case, does not automatically extinguish a valid support order. Webb did not petition the court to change the existing child support order throughout the eight-year period when his daughters were living with their grandmothers in Maine. Webb's failure to seek modification of the support order may not now be used to contest the child support arrears he owes. Webb relies on Turinsky v. Long and Bennett v. Bennett to argue that support orders have no effect when custody of the children changes. But in Turinsky, we explained that "[clhild support awards should be based on a custody and visitation order," not on the visitation actually exercised. This language supports the State's position that retroactive modification is not permissible and that the superior court must always look to the most recent child support order. And Bennett reiterates our holding in Turin-sky and explains that this principle was intended "to encourage parents to either comply with court orders or move to modify them in a timely manner." v. CONCLUSION Because the language of Civil Rule 90.3(b)(8) does not permit preclusion when the obligor parent did not have physical custody of the children, we AFFIRM the superi- or court's decision. . - Both parties agree that the State of Maine paid public assistance on behalf of the children from 1991 through 1993 but was reimbursed in full for this amount by Webb. Maine has not requested additional enforcement services from Alaska and has sought no further reimbursement from Webb. . Civil Rule 90.3(h)(3) uses the term "arrearag-es." This court has used both "arrearages" and "arrears." - Compare Cline v. Cline, 90 P.3d 147, 151 (Alaska 2004) with Murphy v. Newlynn, 34 P.3d 331, 333 (Alaska 2001). . Murphy, 34 P.3d at 333. . Id. . Alaska Civil Rule 90.3(h)(2) provides: "No Ret roactive Modification. Child support arrearage may not be modified retroactively, except as allowed by AS 25.27.166(d)." AS 25.27.166(d) permits retroactive modification if paternity is disestablished. . In a technical sense, this provision does not permit a retroactive modification of the child support award because it does not extinguish the child support debt. It simply bars the creditor from collecting the debt. In terms of pleading, the rule provides a defense to collection, rather than a means of disproving the debt. . See Murphy, 34 P.3d at 335 (allowing partial preclusion when only one of two children lived with obligor parent). . See Alaska Civil Rule 90.3(h)(3); Murphy, 34 P.3d at 335. . Cf. West v. Buchanan, 981 P.2d 1065, 1069-71 (Alaska 1999); In re K.A.H., 967 P.2d 91, 93-94 (Alaska 1998). . - Alaska Civil Rule 90.3(h)(3). . Mundt v. Northwest Explorations, Inc., 963 P.2d 265, 270 (Alaska 1998). . See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) (superseded on other grounds by Civil Rule 90.3 and Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996)) (explaining that "[al parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes") (citation omitted). . Id. (noting that "(a) claim for reimbursement belongs to whomever supported the children, and is simply an action on a debt"). . See 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. ."). . See AS 25.27.060(a) ("[Alu order of support establishes a relationship by which the custodian. of the child is the administrator for the purposes of administrating child support on behalf of the child."). . Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000). . Webb relies on our decision in Murphy, 34 P.3d at 331, to argue that Rule 90.3(h)(2) should be extended beyond its language. In Murphy, we held that the obligee parent was precluded from collecting arrears for the child who lived with the obligor, reasoning in part that requiring the obligor parent to pay child support while he was actually supporting the child "would not benefit [the child] and would provide [the obligee parent] with an undeserved windfall." Id. at 335. As an initial matter, we note an essential factual difference between Murphy and this case: in Murphy, the obligor parent contested paying child support because he had primary physical custody of one of the children. Id. at 332-33. Webb never had primary physical custody of either of his children nor does he claim to have been actually supporting either child during this period. Moreover, our decision in Murphy relied on the principle that "child support awards . are intended to benefit the child." Id. at 335 (quoting Bennett, 6 P.3d at 727). And here, as we clarified above, any windfall to Key would be temporary because the grandmothers have a legal right to the support arrears. On remand, the superior court has the discretion to structure its order to ensure that the arrears are spent for the children's benefit. See, e.g., State, Dep't of Soc. Servs., Cedar County ex rel. Brecht v. Brecht, 255 N.W.2d 342, 345 (Iowa 1977) ("Reasonable and adequate safeguards should be imposed upon {child support] lump sum payments to assure their eventual and orderly distribution for the needs of the children."). . 881 P.2d 318, 320 (Alaska 1994). . Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996) (holding child support arrears should be based on the valid custody and visitation order issued by the court, not on the amount of visitation actually exercised). . - See In re Marriage of Gregory, 230 Cal.App.3d 112, 281 Cal.Rptr. 188, 190 (1991) ("a parent must look for assistance from the courts in order to modify or terminate a support order"); Abrams v. Connolly, 781 P.2d 651, 656 (Colo.1989) (even following the death of the custodial parent, the non-custodial parent must resort to the court if modification of the support award is justified). . - In re Marriage of Gregory, 281 Cal.Rptr. at 190 (concluding that the death of the custodial parent does not terminate the child support order); see also O'Brien v. O'Brien, 136 Md.App. 497, 766 A.2d 211, 215 (Md. Spec.App.2001, rev'd on other grounds, 367 Md. 547, 790 A.2d 1 (2002) (same)). . See, e.g., Stein v. Hubbard, 25 Cal.App.3d 603, 102 Cal.Rptr. 303, 303-04 (1972) (court-ordered child support survives death of non-custodial parent); In re Marriage of Gregory; 281 Cal.Rptr. at 190 (death of custodial parent does not terminate support order); In re Marriage of Beilock, 81 Cal.App.3d 713, 146 Cal.Rptr. 675, 684 (1972) ("emancipation does not automatically terminate the parent's obligation of support'") (internal quotations and citations omitted); Matter of Marriage of Henick, 125 Or.App. 563, 865 P.2d 1336, 1337-38 (1993) (appoifntment of temporary conservator did not end father's obligation to provide support). . We also note that the child support order in this case imposes a support obligation on Webb; it does not specify that this support obligation is to be paid only to Key. The order would therefore permit CSED to substitute a third-party custodian as payee. The support order in this case provides for support to continue until "each child reaches the age of eighteen, is otherwise legally emancipated or dies." . 910 P.2d 590. . 6 P.3d 724. . 910 P.2d at 595. . Bennett, 6 P.3d at 727 (citing Turinsky, 910 P.2d at 594-95).

12003038

Jon McINTYRE, Appellant, v. STATE of Alaska, Appellee

McIntyre v. State

1997-03-28

No. A-6065

770

774

934 P.2d 770

934

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Jon McINTYRE, Appellant, v. STATE of Alaska, Appellee.

Jon McINTYRE, Appellant, v. STATE of Alaska, Appellee. No. A-6065. Court of Appeals of Alaska. March 28, 1997. James H. Cannon, Assistant Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for Appellant. Sara L. Gehrig, Assistant District Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2000

12258

OPINION COATS, Judge. A jury convicted Jon McIntyre of fourth-degree assault, a class A misdemeanor. AS 11.41.230. McIntyre appeals, contending that District Court Judge Charles R. Pengilly erred by prohibiting cross-examination into a witness's potential bias in favor of the victim. We reverse. In the evening of August 9, 1995, McIntyre's wife, L.M., was playing Scrabble at the home of a neighbor, S.D., a woman with whom the McIntyres socialized. The three had been drinking together at the McIntyre home earlier in the evening. McIntyre arrived at S.D.'s home and, after a further period of socializing and drinking, stated that he wanted to take the two young McIntyre children, who were spending the night at S.D.'s home with S.D.'s children, back to the McIntyre home. L.M. disagreed, saying that their sleeping children should not be disturbed and should remain. L.M. testified that she and McIntyre eventually agreed that their children would stay at S.D.'s house, and the two left S.D.'s house together; however, as soon as they were outside, McIntyre began to yell at L.M. and punched her in the face with his fist, choked her with both hands, and threatened to kill her. McIntyre, in contrast, testified that he went outside first to start the McIntyres' car to drive their children home, and that as he returned to the house, L.M. punched him several times in the face and jumped onto him. He testified that he struck her once in the face in self-defense and "flipped" her off of him. In any event, S.D., who was still inside her house, saw the commotion, telephoned the troopers, and called out that she had done so. McIntyre then fled the scene. The troopers located McIntyre three days later. After L.M. testified, S.D. corroborated L.M.'s version of the events. S.D. testified that McIntyre and L.M. left her house after arguing about the children. She then heard L.M. screaming and saw through the picture window that McIntyre was choking L.M. S.D. testified, on direct examination, that she had known and been friends with McIntyre years longer than with L.M., and that being involved in the trial placed her in an "uncomfortable position" because she did not "want to take sides" with either friend against the other. S.D. testified that she was simply telling the truth about what she had seen. S.D. also testified that she had not cared one way or the other about the McIntyres' argument concerning where their children would stay the night. On redirect examination, S.D. testified that she was not fabricating her testimony and that she felt loyalty to both her friends, L.M. and McIntyre, and was not willing to lie on either friend's behalf against the other. After S.D.'s testimony and cross-examination, McIntyre asked Judge Pengilly, out of the presence of the jury, to allow him to inquire into and testify on the issue of S.D.'s bias in favor of L.M. McIntyre claimed, and offered to testify, that L.M. was bisexual, and that just before the assault in this case he had seen through the picture window that L.M. and S.D. were "making out." He claimed that L.M. and S.D. were involved in a romantic relationship. Judge Pengilly asked McIntyre to specify what probative value such testimony would have regarding any material fact in the case. McIntyre responded that evidence of S.D.'s bias toward L.M. would cast doubt on S.D.'s corroborating account of certain disputed details of the evening, such as whether McIntyre ever re-entered S.D.'s house or handed S.D. L.M.'s glasses. The prosecutor did not dispute the allegation that L.M. was bisexual but represented that S.D. was heterosexual. The prosecutor contended that McIntyre sought merely to prejudicially stigmatize S.D. and L.M. The prosecutor also argued that even if S.D. had been involved in a romantic relationship with L.M. and was biased, this was not sufficiently relevant because the details of S.D.'s testimony that McIntyre sought to question went only to collateral issues. Judge Pengilly ruled that he saw minimal or no probative value in evidence that S.D. had given biased testimony about matters "vergfing] on the trivial," such as whether McIntyre had handed S.D. L.M.'s glasses. He found that the potential prejudicial effect of evidence of L.M.'s sexual orientation was "really extreme" and "enormous," especially in light of a recent controversy in the community about sexual orientation, and so ruled that such evidence would not be admitted. McIntyre appeals, contending that Judge Pengilly erred by refusing to allow him to inquire into S.D.'s possible bias. A defendant's constitutional right to confront and cross-examine witnesses is violated when a trial court's restrictions on cross-examination impair the defendant's ability to establish the witness's bias. Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); Johnson v. State, 889 P.2d 1076, 1080 (Alaska App.1995); Wood v. State, 837 P.2d 743, 745-47 (Alaska App.1992). However, a trial judge has broad discretion to exclude relevant evidence of a witness's bias under Alaska Evidence Rule 403 if the probative force of that evidence is outweighed by the danger of unfair preju dice. Kameroff v. State, 926 P.2d 1174, 1179 (Alaska App.1996); Beltz v. State, 895 P.2d 513, 518 (Alaska App.1995); Johnson, 889 P.2d at 1080-81. Trial judges retain wide latitude to impose reasonable limits on cross-examination to protect against prejudice. Kameroff, 926 P.2d at 1179-80; Wood, 837 P.2d at 746-47. We will not reverse a trial judge's exercise of discretion in regulating cross-examination into bias unless the jury did not otherwise receive information adequate to allow it to evaluate the bias and motives of a witness. Beltz, 895 P.2d at 518; Johnson, 889 P.2d at 1080; Stumpf v. State, 749 P.2d 880, 901 (Alaska App.1988). On appeal, McIntyre does not challenge Judge Pengilly's finding that evidence of and inquiry into L.M.'s and S.D.'s sexual orientation and possible relationship had a potential for "really extreme" and "enormous" prejudice. Rather, McIntyre contends that such evidence was highly probative of S.D.'s bias, and that in this case Judge Pengilly unreasonably prohibited all inquiry into the specific area of S.D.'s possible bias due to a sexual relationship with L.M. See Kameroff, 926 P.2d at 1179-80 (reversing because the court precluded all inquiry into a witness's probation status); Wood, 837 P.2d at 746-47 (reversing because the court precluded all inquiry into a witness's informal juvenile probation status under a conduct agreement). On consideration of the record in this ease, we agree that Judge Pengilly abused his discretion by precluding all inquiry into S.D.'s possible bias in favor of L.M. The evidence of S.D.'s bias had significant probative value. While Judge Pengilly could properly find that evidence of a sexual relationship beween L.M. and S.D. could have prejudiced the jury against them, he erred in ruling that this potential prejudice outweighed the probative value of the evidence. The bias of a witness toward a party is always relevant to the jury's consideration of the case; it is never a collateral issue. Wood, 837 P.2d at 745; Jackson v. State, 695 P.2d 227, 230 (Alaska App.1985). If a witness has a romantic relationship with a party, or any other emotional attachment to a party, that fact is clearly a source of potential bias; the jury should be aware of such evidence in order to fully evaluate the witness's testimony. This is true regardless of whether the witness and the party are of the same sex or of opposite sexes. We recognize that evidence of same-sex romantic relationships may tend to prejudice or inflame the jury. Trial judges have considerable discretion to regulate the presentation of this evidence so as to limit its unfair prejudicial impact. However, when evidence of a romantic relationship tends to establish a witness's potential bias, and no other evidence is available to establish the same bias, a court may not wholly exclude inquiry into the relationship. We caution that the proponent of such evidence is not entitled to present baseless accusations or unfounded speculation. The trial judge may require a party to give advance notice of its intent to introduce such evidence. As a foundational matter, the proponent of any potentially prejudicial evidence should normally be required to establish a good-faith factual basis before commencing inquiry into the area. In the present case, however, McIntyre clearly offered to provide a factual basis supporting inquiry into the possible existence of a romantic relationship between L.M. and S.D. McIntyre offered to take the stand and testify that his wife was bisexual and that he had personally observed L.M. and S.D. "making out." Such voir dire testimony would have established a foundation for allowing McIntyre to cross-examine S.D. about these matters. The state contends that, even if S.D. and L.M. had been sexually involved, this would not have been important in evaluating S.D.'s testimony. However, although S.D. did not testify that she knew who first assaulted whom, S.D. did testify that she looked out the window and saw McIntyre choking L.M. McIntyre denied ever choking L.M. or placing his hands around her neck. The issue of whether McIntyre choked L.M. was disputed at trial and did not "verge on the trivial." This point was clearly important to the jury's appraisal of McIntyre's claim of self-defense, the central disputed issue in the case. Evidence that S.D. was romantically involved with L.M., and thus was potentially biased in favor of L.M., would be relevant both to the jury's assessment of S.D.'s credibility and to its assessment of McIntyre's guilt or innocence. Judge Pengilly precluded McIntyre from presenting any evidence on this point. We conclude that this decision was an abuse of discretion, and we therefore REVERSE McIntyre's conviction. . See Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 452 S.E.2d 159, 165 (1994); see also State v. Wargo, 140 Ariz. 70, 680 P.2d 206, 209 (App.1984); Watkins v. State, 206 Ga.App. 701, 426 S.E.2d 238, 243 (1992); Vaughn v. State, 888 S.W.2d 62, 74-75 (Tex.App.1994); Riggins v. State, 107 Nev. 178, 808 P.2d 535, 539 (1991), rev'd on other grounds, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992); State v. Becraft, 33 N.C.App. 709, 236 S.E.2d 306, 306-07 (1977). But see People v. Whalen, 390 Mich. 672, 213 N.W.2d 116, 122-24 (1973); State v. Wilfong, 68 N.C.App. 681, 315 S.E.2d 753, 755-56 (1984) (lesbian relationships irrelevant or unsupported in both cases). Cf. Kvasnikoff v. State, 674 P.2d 302, 305-06 (Alaska App.1983) ("The trial judge in this case had the difficult task of weighing the probative value of evidence which indicated that the defendant had engaged in other homosexual conduct, against the danger of undue prejudice, i.e., that the jury might presume consent simply as a result of their own prejudices or hostilities against homosexuals, and confusion of the issues.... The trial judge in this case was understandably concerned that the main issue in the trial would become the sexuality of the victim rather than the conduct of the defendant on the occasion in question."). The Kvasnikoff case, however, is distinguishable from this case. Kvasnikoff sought to introduce evidence of the rape victim's homosexuality in order to bolster his consent defense. This court upheld the trial court's decision to exclude the evidence for that purpose as irrelevant under the rape shield law. Kvasnikoff did not seek to introduce the evidence to establish a witness's bias. Id. at 306 n. 7. This court later noted that the rape shield law is inapplicable to evidence directly intended to establish bias. Daniels v. State, 767 P.2d 1163, 1167 n. 2 (Alaska App.1989).

8912704

Phillip D. CASCIOLA, Appellant, v. F.S. AIR SERVICE, INC., Appellee

Casciola v. F.S. Air Service, Inc.

2005-09-23

No. S-11023

1059

1069

120 P.3d 1059

120

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Phillip D. CASCIOLA, Appellant, v. F.S. AIR SERVICE, INC., Appellee.

Phillip D. CASCIOLA, Appellant, v. F.S. AIR SERVICE, INC., Appellee. No. S-11023. Supreme Court of Alaska. Sept. 23, 2005. Phillip D. Casciola, pro se, Bradenton, Florida. Gregory A. Miller and Daniel C. Kent, Birch Horton Bittner and Cherot, Anchorage, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

5983

38062

OPINION CARPENETIL Justice. I. INTRODUCTION Phillip Casciola and his wholly-owned corporation, Jetbroker.com, Inc. ("Jetbroker"), obtained $25,000 from F.S. Air Service, Inc. ("F.S. Air") by misrepresenting Jetbroker's ability to procure two Learjet engines for F.S. Air, FS. Air sued Casciola and Jet-broker for misrepresentation and breach of contract after Jetbroker failed to deliver the engines or return the deposit. Following summary judgment and a damages trial, Casciola and Jetbroker were held jointly and severally liable for compensatory and punitive damages. Casciola now appeals the partial summary judgment order finding him personally liable for Jetbroker's actions, as well as the awards of compensatory and punitive damages. We affirm the superior court in all respects. II. FACTS AND PROCEEDINGS A. - Factual Background F.S. Air is a charter flight service based in Anchorage. F.S. Air has a long-term mede-vac and personnel transport contract with a hospital in Bethel which requires F.S. Air to be ready to fly on forty-five minutes notice at all times. Two F.S. Air Learjets are dedicated to medevac duty. Phillip Casciola is a resident of Florida and the founder, sole shareholder, and president of Jetbroker. Jetbroker is ostensibly in the business of buying, selling, and appraising engines and parts for jet aircraft. In March 2002 the engines of one of F.S. Air's Learjets needed replacement. F.S. Air responded to an advertisement for freshly overhauled Learjet engines from Jetbroker. After inspecting detailed descriptions of the engines provided by Jetbroker, F.S. Air signed a letter drafted by Casciola on March 13, 2002 that listed the terms of the parties' agreement. Jetbroker agreed to broker two engines to F.S. Air in exchange for $100,000 and the cores of F.S. Air's current engines. Jetbroker required an immediate deposit of $25,000 with the remaining $75,000 due upon delivery of the engines. After agreeing to Casciola's terms and signing the letter, F.S. Air's president, Sandra Butler, immediately wired $25,000 to Jetbroker's Florida bank account. Jetbroker did not deliver the engines. Casciola wrote to F.S. Air on March 26, 2002 that "there seems to be a logbook problem with the engines that we had anticipated securing and outsourcing for you," and asked for "a few more days" to settle the logbook problem. Casciola also asked if F.S. Air wanted Jetbroker to attempt to secure two other engines. On April 8, 2002 Sandra Butler asked Cas-ciola to return the $25,000 deposit because the two engines that Jetbroker had agreed to broker were unavailable. Casciola agreed to refund the deposit but asked F.S. Air to release Jetbroker from the March 18 agreement. F.S. Air agreed to release Jetbroker from the agreement as long as Jetbroker returned the $25,000. Casciola responded by asking for a mutual release and offering to secure other suitable engines for F.S. Air. On April 15, 2002 Sandra Butler signed and delivered a mutual release to Jetbroker-onee again asking Jetbroker to refund the deposit. Casciola replied that the mutual release would be acceptable with a "few minor changes" but expressed his hope that the release would be unnecessary and that F.S. Air would allow Jetbroker to locate alternative engines. F.S. Air accepted Jetbroker's changes and informed Jetbroker that F.S. Air had secured engines from another source and desired "nothing further to do with [Jet-broker], except to get its money back." F.S. Air also promised to file suit against Jetbroker if the deposit was not promptly refunded. On April 19, 2002 Jetbroker replied that the contract provided more than twenty business days to perform and expressed dissatisfaction that F.S. Air had purchased engines through another vendor. Because FS. Air no longer needed engines, Jetbroker offered to provide "some other type of aviation related service or product" to "earn our fees." Jetbroker also requested that the parties submit their dispute to mediation, but approved of the mutual release. F.S. Air replied by demanding that Jetbroker refund the deposit and reiterating that there "is no possibility of F.S. Air doing any further business with [Jetbroker]." On April 22, 2002 F.S. Air filed this suit. B. Proceedings F.S. Air's complaint advanced claims for breach of contract against Jetbroker and intentional and negligent misrepresentation against Jetbroker and Casciola F.S. Air asked for compensatory and punitive damages. Casciola did not obtain counsel for Jet-broker or himself. He has attempted to represent Jetbroker and himself pro se throughout the proceedings below and this appeal. He filed an answer and counterclaim on behalf of himself and Jetbroker in May 2002. In July 2002 the superior court grant ed F.S. Air's Motion to Strike Jetbroker's Answer and Counterclaim because Jetbroker had not obtained corporate counsel as required by AS 22.20.040. Superior Court Judge Eric Sanders ordered Jetbroker to obtain corporate counsel by August 7, 2002. Jetbroker did not obtain corporate counsel, and Judge Sanders entered a default judgment against Jetbroker on August 21, 2002 for "failure to appear and answer or otherwise defend this action." In October 2002 F.S. Air moved for partial summary judgment against Casciola for misrepresentation both in his personal capacity and in his role as an officer/shareholder for a sham corporation. Casciola did not oppose FS. Air's motion. Judge Sanders granted the motion without an opinion on November 7, 2002. Casciola also failed to respond to F.S. Air's discovery requests. F.S8. Air moved to compel discovery and deem its Requests for Admission to be admitted. Casciola did not oppose the motion or respond to F.S. Air's earlier discovery requests. Judge Sanders granted F.S. Air's motion on November 28, 2002. Among other facts, Casciola was deemed to have admitted that neither he nor Jetbroker possessed the advertised engines between March 2002 and September 2002 and that neither he nor Jetbroker possessed the "authority to broker or sell the two jet engines involved in this case." The case proceeded to trial on compensatory and punitive damages. Casciola submitted an "Answer to Plaintiff's Trial Brief" but did not otherwise participate in the trial. Superior Court Judge Phillip R. Volland conducted a bench trial on February 27, 2002. Judge Volland found that F.S. Air had proven by a preponderance of the evidence that it had been injured in the amount of $30,000 and held Jetbroker and Casciola jointly and severally liable for the damages. Judge Volland also determined that F.S. Air had shown by clear and convincing evidence that "[dlefendants' conduct was outrageous, malicious, and done with bad motives and/or reckless indifference to F.S. Air's interests, to deliberately pocket FS. Air's $25,000 for Defendant's own financial profit and to F.S. Air's detriment.... Defendants' actions also appear . to have been . part of a series of deliberate actions." Judge Volland held Jetbroker and Casciola jointly and severally liable for $300,000 in punitive damages. Casciola appeals. III. STANDARD OF REVIEW We review a grant of summary judgment de novo. We will affirm if there are no genuine issues of material fact and if the movant is entitled to judgment as a matter of law. Since Cooper Industries, Inc. v. Leatherman Tool Group, Inc., we review de movo whether a punitive damages award is grossly excessive under the due process clause of the Fourteenth Amendment. IV. DISCUSSION A. Casciola's Briefing Is Adequate Only in Regard to His Arguments Concerning Punitive Damages and Piercing the Corporate Veil. We do not consider arguments that are inadequately briefed. We have held that where a point is specified as error in a brief on appeal, but the point is "not given more than cursory statement in the argument portion of the brief, [it] will not be considered" by the court but will be treated as abandoned. We apply a more lenient standard to pro se litigants. To avoid waiver, a pro se litigant's briefing must allow his or her opponent and this court to discern the pro se's legal argument. Even a pro se litigant, however, must cite authority and provide a legal theory. Casciola's briefing on appeal is for the most part insufficient and difficult to follow. Because his argument regarding the compensatory award does not allege any errors by the superior court or articulate a legal theory, we will not consider it. But his argument that the superior court erred by piercing the corporate veil and holding him personally liable for Jetbroker's misdeeds and his argument that the punitive damages award was inappropriate outline recognizable legal theories and cite identifiable authorities. Given our lenient stance towards pro se litigants, we will address these two arguments. B. Casciola Is Liable for the Compensatory and Punitive Damages Award Regardless of his Personal Liability for Jetbroker. As noted, F.S. Air named Casciola as a defendant in his individual capacity based on his intentional misrepresentations. - F.S. Air moved for partial summary judgment on two issues: (1) Casciola's liability for misrepresentation, and (2) Casciola's personal liability for Jetbroker's corporate wrongdoing. Casciola failed to oppose the motion, and Judge Sanders granted partial summary judgment. Following trial, Judge Volland entered an order noting that "Judge Sanders previously ruled in this matter that F.S. Air is entitled to judgment from both Defendants." Judge Volland determined that Jet-broker and Casciola were jointly and severally liable to F.S. Air in the amount of the $30,000 for compensatory damages and $300,000 for punitive damages. Casciola has not challenged on appeal either Judge Vol-land's conclusion that he is jointly liable, or Judge Sanders's finding of liability in his personal capacity for his individual acts of misrepresentation. Instead, Casciola contends that Judge Sanders erred in granting summary judgment to F.S. Air regarding his personal liability for Jetbroker's wrongdoing. He argues that there was insufficient proof before Judge Sanders that Jetbroker functioned as a mere instrumentality of his will. We need not address this argument. Even if F.S. Air were not entitled to summary judgment regarding Casciola's personal lability for Jetbroker, Casciola has not contested that he would still be jointly liable in his individual capacity for both punitive and compensatory damages because of his misrepresentations. Consequently, a reversal would not alter Casciola's lability, and error, if any, would be harmless. C. The Punitive Damages Award Is Not Excessive. Casciola does not appeal Judge Volland's ruling that "F.S. Air has shown by clear and convincing evidence that F.S. Air is entitled to recover punitive damages, jointly and severally, from Jetbroker and Casciola." Rather, Casciola contests the amount of punitive damages awarded, arguing that a $300,000 award is "grossly excessive" in comparison to the $30,000 compensatory award. Because Casciola engaged in extremely reprehensible conduct, Alaska case law and statutory law gave notice that a high ratio between punitive and compensatory damages was possible, and since a large award is necessary to deter this type of fraud, we conclude that the award does not violate either Alaska or federal law. 1. The punitive damages award does not violate Alaska law. Casciola has not argued that the punitive award violates Alaska law. Consequently, we would not ordinarily address the application of Alaska law to the punitive award. However, in light of Casciola's claim that the punitive award violates federal due process, and the emphasis placed by the United States Supreme Court on the reprehensibility of misconduct and the existence of comparable civil and criminal penalties for particular misconduct, we review Alaska law on punitive damages and on civil and eriminal penalties for comparable misconduct as a guide. As a preliminary matter, we note that Alaska law does not prescribe a fixed ratio, or range of ratios, between punitive and compensatory damages. Though both AS 09.17.0220 and the United States Supreme Court suggest that three- or four-to-one ratios between punitive and compensatory damages are appropriate, we have upheld punitive damages far in excess of these ratios. Our reluctance to adopt a fixed ratio is motivated in part by the fact that punitive damage awards must be tailored to case-specific facts in order to achieve optimal deterrence and punishment. Where compensatory damages may be small relative to the cost of litigating, or where the nature of a tortfeasor's scheme makes deterrence and punishment difficult, a higher ratio may be necessary to create the incentives necessary to vindicate Alaska's legitimate interest in preventing particularly malignant conduct. Alaska Statute 09.17.020(c) identifies seven factors relevant to the determination of an appropriate punitive damages award: (1) the likelihood at the time of the conduct that serious harm would arise from the defendant's conduct; (2) the degree of the defendant's awareness of the likelihood described in (1) of this subsection; (3) the amount of financial gain the defendant gained or expected to gain as a result of the defendant's conduct; (4) the duration of the conduct and any intentional concealment of the conduct; (5) the attitude and conduct of the defendant upon discovery of the conduct; (6) the financial condition of the defendant; and (7) the total deterrence of other damages and punishment imposed on the defendant as a result of the conduct, including compensatory and punitive damages awards to persons in situations similar to those of the plaintiff and the severity of the eriminal penalties to which the defendant has been or may be subjected. These factors are well-represented in this case. Casciola intentionally deceived F.S. Air in order to obtain $25,000, and he continued to lis to F.S. Air to conceal his fraud and to delay legal action. The facts admitted by Casciola strongly resemble erim-inal conduct and could form the basis for charges carrying substantial fines and jail time. Casciola's conduct also resembles a series of unlawful business practices under AS 45.50471(b). Such unlawful business practices can result in civil penalties of up to $5,000 per violation. Alaska law also specifically authorizes larger punitive awards to punish intentional torts motivated by financial gain. Additionally, the record supports the conclusion that a substantial penalty is necessary to punish Casciola and to deter him, and others like him, from similar misconduct in the future. Ample evidence demonstrates that Caseiola's misconduct in this case was merely one part of an ongoing pattern of fraud and misrepresentation. Casciola appears to have engaged in an identical scheme on at least one previous occasion: Casciola was deemed to have admitted that he was a "defendant in a case filed by Heritage Christian to recover an unreturned $200,000 deposit made by Heritage Christian to purchase a jet." As the superior court noted, Casciola is the sole officer of eight Florida corporations "engaging in jet aircraft engine and part sales and appraisals." During the course of this litigation, Casciola has continued to solicit business from F.S. Air through his other corporations. A large award is also necessary in order to change the dynamic of Casciola's fraudulent scheme. Currently a victim of Casciola's scheme must choose between accepting a fractional refund, thereby leaving Casciola with undeserved thousands, and pursuing an expensive and uncertain vindication in the courts. F.S. Air faced this difficult choice. At this juncture, it is not clear that F.S. Air would not have been economically better off had it accepted some fractional refund in April or May 2002. Though the nominal values of the awards in this case are quite large, F.S. Air must discount them by the strong possibility that Casciola will never pay. F.S. Air has also spent a great deal of time, energy, and money in seeking its refund. Other victims may allow Casciola to "skim" their deposits in order to make the economic best of a bad situation. Given this dilemma, a large punitive award is necessary to provide victims with an incentive to pursue proper legal action. 2. The punitive damages award does not impinge on Casciola's federal due process rights. Casciola argues that the punitive damages award is grossly excessive and violates the due process clause of the Fourteenth Amendment. We disagree. The award is constitutionally sound given the re prehensibility of Casciola's conduct, the necessity of a large penalty to alter the incentives of this type of fraud, and the potential penalties available under Alaska criminal and civil law. In BMW of North America, Inc. v. Gore, the United States Supreme Court recognized that "[plunitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition." "Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment." In relevant part, Gore held that a punitive award may be grossly excessive where a tortfeasor lacked notice of the magnitude of the sanction that a state might employ. To determine whether a tortfeasor had fair notice of the potential magnitude of a punitive damages award, the Supreme Court has identified three "guideposts": (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (8) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases,[ ] These guideposts are meant to provide a flexible guide to the requirements of due process. In practice, the guideposts identify a range of ratios of punitive to compensatory damages that are presumptively acceptable and prescribe constitutionally permissible reasons for deviating upwards. Though the Supreme Court is careful to say that there is no bright-line rule and that due process cannot mandate a specific ratio, it also notes that statutes authorizing punitive damages extending back 700 years have emphasized double, treble, or quadruple damages and that a four-to-one ratio may be close to the constitutional line. The Court noted that the most important justification for departing upward from the constitutional comfort zone of three- or four-to-one is the reprehensibility of the misconduct. We turn now to an application of the BMW v. Gore guideposts. a. Casciola's conduct was extremely reprehensible. "[The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." The Supreme Court has set out factors to consider in measuring the reprehensibility of the tortious conduct: We have instructed courts to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tor-tious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.[ ] While only two of these criteria apply to Casciola's conduct-Casciola's conduct involved intentional deceit and involved a series of misrepresentations (indeed, it appears to be part of a larger pattern of wrongdoing)-the facts in this case more than demonstrate the egregiousness of Casciola's conduct. The analysis undertaken above pursuant to Alaska law shows that Alaska considers Casciola's conduct to be extremely blameworthy. The superior court found that Casciola's actions were "outrageous, malicious and with bad motives . to deliberately pocket F.S. Air's $25,000 for Defendant's own financial profit and to F.S. Air's detriment." This finding was correct given the undisputed evidence at trial that Casciola's actions were not part of an isolated incident but emblematic of a larger pattern of fraud and that the injuries suffered by FS. Air flowed from Casciola's "intentional malice, trickery, or deceit." b. - The ratio of punitive to compensatory damages is not excessive. Under the second guidepost, which compares punitive damages with actual damages, the Supreme Court has not prescribed a bright-line rule for when a punitive damages award so far exceeds actual damages that the award violates the due process clause. The Court has noted, however, that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process," and also has stated that "an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety." This guidepost does not proscribe particular ratios as presumptively unconstitutional. Rather, it is a rule of thumb-a general prediction regarding what ratios will satisfy due process. Whether or not a given ratio does satisfy due process, however, depends on other factors, including analysis under the other two stated guideposts. Due process, as noted by the lower federal courts, allows for larger awards relative to the compensatory damages when appropriate. In this case, the ratio between punitive and actual damages awarded is ten-to-one. While this ratio may exceed the Supreme Court's preference for "single-digit" ratios, it does so only slightly, and it is a far lower ratio than any of those that have actually been invalidated by the Supreme Court. More importantly, we are satisfied that the award is more than adequately justified when the other guideposts-the reprehensibility of the conduct and the civil penalties imposed in comparable cases-are considered, as in the other sections of this Opinion. Consequently, while the ratio between the punitive award and the compensatory award is sufficiently high to draw scrutiny, the ratio passes constitutional muster. c. There is no disparity between the award and similar punitive damage awards or civil penalties in Alaska. "The third guidepost in Gore is the disparity between the punitive damages award and the 'civil penalties authorized or imposed in comparable cases.'" The Supreme Court has "also looked to criminal penalties that could be imposed." As we have already seen, Alaska law authorizes substantial criminal and civil penalties for the conduct admitted by Casciola, as well as enhanced punitive damages. Given these penalties, Casciola was on notice that he could face harsh punishment for his conduct. This analysis of the BMW v. Gore guideposts leads us to conclude that the punitive damages award here does not violate Cascio-la's due process rights. Casciola's acts in deceiving F.S. Air in order to steal a large sum of money were highly reprehensible. Casciola was on notice that his conduct could result in severe penalties. A large punitive award is necessary to provide the incentive for victims to seek compensation and to reduce the efficacy of Casciola's scheme. Given these considerations, we conclude that the size of the punitive award does not violate federal due process. v. CONCLUSION Because any error in piercing the veil would be harmless and because the punitive award does not violate due process, we AFFIRM the superior court in all respects. . Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002). . Id. . 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (instructing appellate courts to review constitutionality of punitive damages awards de novo ). . Central Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 277 (Alaska 2002). Prior to Cooper Industries, we reviewed a lower court's decision on a motion for remittitur or new trial regarding punitive damages for abuse of discretion. Id. . Lewis v. State, 469 P.2d 689, 692 n. 2 (Alaska 1970). . - Id. See also Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n. 10 (Alaska 2003) ("Points that are inadequately briefed are considered waived."). . Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). . Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004). . Id. . Casciola's compensatory damages argument consists only of a paragraph requesting us to review a long list of cases in which awards were reduced on appeal. No citations are provided for these cases. The submission is unreviewable. . All persons may be found liable for their own intentional tortious conduct, including acts of fraudulent misrepresentation. - The corporate form does not shield corporate officers or employees who commit torts on behalf of their employer from personal liability. As an Oregon appellate court has stated, [there is no reason to protect corporate officers or employees who authorize, direct and participate in tortious conduct by their corporate principal. If the corporation commits a tort as a result of intentional action on the part of its officers or employees, these agents are also responsible." Schram v. Albertson's, Inc., 146 Or.App. 415, 934 P.2d 483, 491 (1997) (quoting Wampler v. Palmerton, 250 Or. 65, 77, 439 P.2d 601 (1968)). See also Scribner v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160, 168 (1975) (when "an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby."); Robsac Indus., Inc. v. Chartpak, 204 N.J.Super. 149, 497 A.2d 1267, 1271 (App.Div.1985) ("Corporate officers are personally liable to persons injured by their own torts, even though they were acting on behalf of the corporation and their intent was to benefit the corporation."); Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 273 N.W.2d 285, 289 (1979) ("An individual is personally responsible for his own tortious conduct. A corporate agent cannot shield himself from personal liability for a tort he personally commits or participates in by hiding behind the corporate entity; if he is shown to have been acting for the corporation, the corporation also may be liable, but the individual is not thereby relieved of his own responsibility."). We do not address whether the corporate form shields individuals from Liability for negligent torts committed on behalf of the corporation. . In Uchitel Co. v. Telephone Co., 646 P.2d 229, 234-35 (Alaska 1982), we held that it was appropriate to pierce the corporate veil and hold a dominant shareholder personally liable for a corporation's wrongdoing if the corporation functioned as the "mere instrumentality" of the dominant shareholder. To determine when a corporation functioned as the mere instrumentality of its dominant shareholder, we adopted a six-part test adapted from the eleven-part test announced in Jackson v. General Electric Co., 514 P.2d 1170 (Alaska 1973), for piercing the corporate veil in the context of a parent corporation's liability for its subsidiary. Uchitel, 646 P.2d at 235. The six-part test instructed: In adapting the quantitative approach from the parent-subsidiary cases to the individual shareholder-corporation context the following factors should be considered: (a) whether the shareholder sought to be charged owns all or most of the stock of the corporation; (b) whether the shareholder has subscribed to all of the capital stock of the corporation or otherwise caused its incorporation; (c) whether the incorporation has grossly inadequate capital; (d) whether the shareholder uses the property of the corporation as his own; (e) whether the directors or executives of the corporation act independently in the interest of the corporation or simply take their orders from the shareholder in the latter's interest; (f) whether the formal legal requirements of the corporation are observed. Id. See also Nerox Power Systems, Inc. v. M-B Contracting Co., 54 P.3d 791 (Alaska 2002) (articulating Uchitel quantitative test in slightly modified form). Uchitel also held that a dominant shareholder could be held personally liable for corporate acts "if the corporate form is used 'to defeat public convenience, justify wrong, commit fraud, or defend crime' " Id. at 234 (citation omitted). In this case, Casciola claimed that F.S. Air had not presented sufficient evidence of the elements of the six-part test for instrumentality to justify summary judgment. We decline to evaluate this claim because Casciola will remain liable for the entire judgment even if we were to reverse on this issue. We do note, however, that Casciola failed to address F.S. Air's assertion that piercing the corporate veil was appropriate because Casciola used Jetbroker as a front for fraud. Such abuse of the corporate form may justify piercing the corporate veil even in the absence of a showing of instrumentality. Id. . See BMW of N. America v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). See also infra Part IV.C.2. . Fyffe v. Wright, 93 P.3d 444, 457 (Alaska 2004) (citing Norcon, Inc. v. Kotowski, 971 P.2d 158, 175-77 (Alaska 1999)). . See AS 09.17.020(f)(1), (g)(1)-(2); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct 1513, 155 L.Ed.2d 585 (2003) (four-to-one ratio of punitive to compensatory damages may approach constitutional line). Note that AS 09.17.020, by its terms, permits juries to depart from these suggested ratios, so long as the total punitive damages award falls within the maximum dollar-value statutory cap. . See, e.g., Cent. Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 274-77 (Alaska 2002) (approving $600,000 in total punitive damages and $48,000 in compensatory damages for constructive termination and defamation); Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1096-97 (Alaska 2002) (approving $500,000 in punitive damages and $19,259 in compensatory damages against school bus company that employed drug-using driver); Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43, 49 (Alaska 2000) (ordering $725,000 punitive award remitted to $500,000 where compensatory damages for emotional distress equaled $50,000); IBEW, Local 1547 v. Alaska Utility Constr. Inc., 976 P.2d 852, 853-55 (Alaska 1999) (affirming $212,500 punitive award against union that engaged in "outrageous" picketing behavior where compensatory damages totaled $11,622.05); Norcon, Inc. v. Kotowski, 971 P.2d 158, 161, 174-77 (Alaska 1999) (ordering $3,000,000 punitive award remitted to $500,000 where compensatory damages totaled slightly more than $10,000 in sexual harassment suit). . See Norcon, 971 P.2d at 179 (Eastaugh, J., concurring) (discussing desirability of punitive damage awards that are tailored to provide optimal deterrence given litigation costs). . Id. . The superior court deemed Casciola to have admitted that he knowingly entered a contract to sell to F.S. Air jet engines which he did not possess nor have authority to broker or sell, and that, in partial consideration for these engines, F.S. Air paid a $25,000 deposit to Casciola which has not been refunded. Casciola has not attempted to dispute these facts on appeal. . - Casciola initially told F.S. Air that the engines could not be delivered because of a "logbook problem." He then promised to return the deposit if F.S. Air executed a release. After F.S. Air executed a revised release to Casciola's specifications, Casciola explained that he had "engines available for [F.S. Air's] inspection" and proposed continuing to do business but did not return the deposit. Given Casciola's admissions, we are confident that none of these statements was true. . For example, knowingly taking advantage of another's false impressions to obtain $25,000 could constitute theft by deception, a class B felony. See AS 11.46.100, .120, .180; AS 11.81.900(18). Similarly, Casciola's acts could fit the elements of a scheme to defraud, another class B felony. See AS 11.46.600. . An offender convicted of a class B felony may be sentenced to a maximum of ten years imprisonment, AS 12.55.125(d), and fined as much as $100,000. AS 12.55.035(b)(3). . AS 45.50.471(b)(12) defines "using or employing deception, fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived or damaged" as unlawful business practices. . AS 45.50.501(a) authorizes the attorney general to bring an action in the name of the state against parties engaging in practices that violate AS 45.50.471. Pursuant to such an action, a penalty of $5,000 per violation may be assessed against a party who violates AS 45.50.471. See AS 45.50.551(b). In addition, injured private parties in this chapter are statutorily authorized to seek treble damages, AS 45.50.531(a), and costs and full reasonable attorney's fees. AS 45.50.537. . Compare _ AS with _ AS 09.17.020(g). 09.17.020(g). . Heritage Christian Center paid Casciola a $200,000 deposit for the jet but never received the airplane or a refund of its deposit. . During April and May 2002 Casciola attempted to delay F.S. Air by requesting a letter releasing Casciola from the contract, then a mutual release between the parties, then changes to the mutual release, and followed by a claim that the contract allowed Casciola more than twenty business days to perform. These letters contained several requests for settlement, even though Casciola had earlier admitted that F.S. Air was entitled to a full refund of the deposit. This behavior culminated in a May 7, 2002 letter in which Casciola expressed his desire to settle and implicitly warned F.S. Air that legal action would be futile because of a "variety of legal and accounting issues." Combined with Casciola's demonstrated bad faith, this line of correspondence communicates a simple message: F.S. Air should "compromise" or get nothing. . 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The plaintiff in Gore sued BMW for fraud in Alabama court after discovering that his new car had been damaged and the car repainted before delivery. Id. at 563, 116 S.Ct. 1589. A jury awarded Gore $4,000 in actual damages and $4,000,000 in punitive damages. Id. at 565, 116 S.Ct. 1589. The punitive damages figure reflected the estimated actual damages suffered by all BMW owners in Gore's position nationwide. Id. at 564-65, 116 S.Ct. 1589. After the Alabama Supreme Court reduced the award - to $2,000,000, BMW appealed to the U.S. Supreme Court. Id. at 567, 116 S.Ct. 1589. . Id. at 568, 116 S.Ct. 1589. . Id. . - Id. at 574-75, 116 S.Ct. 1589. . State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589). . Id. at 424-25, 123 S.Ct. 1513. . Id. at 419, 123 S.Ct. 1513; Gore, 517 U.S. at 575, 116 S.Ct. 1589. . Campbell, 538 U.S. at 419, 123 S.Ct. 1513 (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589). . Id. (citing Gore, 517 U.S. at 576-77, 116 S.Ct. 1589). . Id. at 425, 123 S.Ct. 1513. . Id. . Id. . See Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285 F.3d 1146, 1151-52 (9th Cir.2002) (ten-to-one ratio was justified in stolen trade secrets case by need to deter large corporation from such conduct); Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1336-39 (11th Cir.1999) (approving ninety-three-to-one ratio in water pollution case because (1) large fine was necessary to deter large corporate defendant, (2) misconduct caused small injury and was difficult to detect, and (3) defendant was on notice that similar conduct might earn substantial civil penalties); Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 577-78 (8th Cir.1997) (imposing ten-to-one ratio in egregious sexual harassment case). Federal appellate courts have also upheld punitive damage awards that far exceed the ten-to-one ratio in actions under 42 U.S.C. § 1983 where plaintiffs suffered only nominal injuries. See Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir.2003) (upholding punitive damage award of $15,000 per plaintiff for Fourth Amendment violations); Lee v. Edwards, 101 F.3d 805, 810-11 (2d Cir.1996) (holding that Gore ratio guidepost does not apply to § 1983 claims where actual damages are nominal). In the context of an action for punitive damages under the Federal Fair Housing Act, 42 U.S.C. § 3601-3631, the Fifth Circuit rejected the argument that a punitive damages ratio exceeding ten-to-one required remittitur. Lincoln v. Case, 340 F.3d 283, 293 (5th Cir.2003). . The Supreme Court has never struck down a punitive award that was only ten times greater than accompanying compensatory award. In Gore, the punitive damages equalled 500 times the compensatory damages, which the Court called "breathtaking." 517 U.S. at 582-83, 116 S.Ct. 1589. In Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), the ratio of punitive to compensatory damages was ninety-to-one. Id. at 426, 121 S.Ct. 1678. And in Campbell, the ratio was 145-to-one. 538 U.S. at 412, 123 S.Ct. 1513. . Campbell, 538 U.S. at 428, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589). . Id. . See supra Part IV.C.1.

12002916

Wesley Allen MINCH, Appellant, v. STATE of Alaska, Appellee

Minch v. State

1997-03-14

No. A-5243

764

770

934 P.2d 764

934

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Wesley Allen MINCH, Appellant, v. STATE of Alaska, Appellee.

Wesley Allen MINCH, Appellant, v. STATE of Alaska, Appellee. No. A-5243. Court of Appeals of Alaska. March 14, 1997. Rehearing Denied April 25, 1997. David W. Rosendin, Ketchikan, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3499

20762

OPINION MANNHEIMER, Judge. Wesley Allen Minch appeals his conviction for fourth-degree misconduct involving a controlled substance (possession of cocaine), AS 11.71.040(a)(3)(A). He contends that his trial was held outside the time limits of Alaska's speedy trial rule, Criminal Rule 45. He also contends that the trial judge mistakenly denied his challenge for cause to one of the prospective jurors. With regard to the speedy trial issue, we conclude that Minch has no claim; his trial was held within the time limits of Criminal Rule 45. With regard to the challenge of the prospective juror, we agree with Minch that the trial judge should have granted his challenge for cause, but we conclude that Minch has failed to show that he was prejudiced by the trial judge's error. The speedy trial issue On March 8, 1991, Minch was served with a summons charging him with possession of cocaine with intent to deliver. This event started the running of Criminal Rule 45. See Criminal Rule 45(c)(1). (For purposes of calculating the Rule 45 time limit, Day 1 was March 9th. Nickels v. State, 545 P.2d 163, 165 (Alaska 1976).) Due to various procedural events and continuances requested by Minch's attorney, Minch's pre-trial motions were not decided until October 1,1991. (Readers interested in the details will find them in the following footnote. ) On October 4th (three days after deciding the pre-trial motions), the superior court held a conference to set the date for Minch's trial. The court indicated that it would set Minch's trial for November 12th. However, Minch's attorney told the court that the State had made an attractive plea offer and that the "likelihood of this [case] going to trial [was] very low". For this reason, Minch's attorney told the court, he would prefer a later trial date. The court suggested a new trial date of January 21, 1992, and Minch's attorney agreed to this date. In their briefs, the parties offer competing calculations of how much countable time had elapsed under Rule 45 at the time of this trial scheduling conference. However, it makes no real difference how much time had run on October 4, 1991. At that October 4th conference, Minch's attorney explicitly agreed to a new trial date of January 21, 1992. This date was 109 days in the future— manifestly outside the normal limits of Rule 45. By agreeing to this date, Minch waived his right to demand an earlier trial. State v. Andrew, 718 P.2d 471 (Alaska 1986); Westdahl v. State, 592 P.2d 1214 (Alaska 1979); Drake v. State, 899 P.2d 1385 (Alaska App.1995). And, as will be explained next, no further time elapsed under Rule 45 between this agreed-upon trial date of January 21, 1992, and the date on which Minch's trial was finally held: May 10,1993. Minch's trial was not held on January 21, 1992. Two weeks before the scheduled trial (on January 7th), Minch asked for a continu-anee until April 21st; he explicitly waived his speedy trial rights until that day. Nor was Minch's trial held on April 21, 1992. Two weeks before the scheduled trial (on April 7th), Minch's attorney notified the court that there would be no trial — that Minch would be changing his plea. With Minch's approval, the court set a change-of-plea hearing for April 17th. For reasons that do not appear in the record, the change-of-plea hearing was rescheduled for April 22nd. On that day, Minch's attorney asked for a continuance of the hearing until late May. The court obliged, rescheduling the change-of-plea hearing for May 29th. On May 29th, the parties appeared in court so that Minch could enter his plea. However, Minch wished to enter a Cooksey plea and preserve an issue for appeal. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). The prosecutor told the court that he did not think Minch's issue was dispositive. In order to preserve Minch's right to appeal, the parties agreed that they would prepare a stipulated statement of facts. The idea was that Minch would be tried on these stipulated facts, the court would find him guilty, and then Minch would be free to raise issues on appeal as if he had gone through a full-blown trial. Because the parties were treating Minch's guilt as a foregone conclusion, the court began to prepare for sentencing. The judge ordered preparation of a pre-sentence report, and he ordered the parties to file their no tices of aggravating and mitigating factors by June 12th. The court scheduled a hearing on aggravating and mitigating factors for June 26th, and the court scheduled the sentencing hearing for July 27th. The State filed its aggravators on June 2nd. Minch filed his mitigators on June 16th. Then, on June 25th (the day before the scheduled hearing on aggravators and mitigators), the parties stipulated to continue that hearing until July 2nd. The parties later stipulated to another continuance until the week of July 20th. On July 23rd, Minch asked for yet another continuance of this hearing. The court rescheduled the aggrava-tors/mitigators hearing for August 4th. As it turned out, the August 4th hearing was not devoted to aggravators and miti-gators; Minch, who was supposed to be in attendance, did not show up. (His attorney told the court that Minch had to be at work that day.) Instead, the parties discussed the information that should appear in the pre-sentence report. Apparently because there had been no trial and the parties had yet to prepare their stipulated statement of facts, the court directed the parties to file affidavits for purposes of the pre-sentence investigation. The parties did not return to court until November 30th. The judge expected to sentence Minch at that time, but Minch's attorney objected. Minch told the court that he and the State had never prepared the stipulated set of facts for the court to use in finding Minch guilty. In fact, the defense attorney said, Minch had decided to reject the State's offer: he now wished to go to trial. In response, the court set a trial date of December 29,1992. On December 17th, the parties appeared in court and Minch announced that he intended to seek dismissal of the charge based on a violation of Rule 45. The court pointed out that litigation of a Rule 45 motion would probably "string [the proceedings] out" because the court would have to set a new motion schedule. Minch said he was agreeable to this; he asked the court to reschedule the trial for March 22, 1993, and he waived his rights under Rule 45 until that date. The court ordered Minch to file his Rule 45 motion by December 28th. For reasons that are not explained in the record, Minch did not file his Rule 45 motion until March 10, 1993. (Trial was scheduled for March 22nd.) When the parties appeared in court on March 19th for the trial call, the State argued that the court should deny Minch's Rule 45 motion because it was so tardy. Given these unresolved issues, the judge canceled the jury trial set for March 22nd; instead, he calendared a motion and trial-setting conference for March 22nd. At this conference on March 22nd, Minch waived his speedy trial rights and agreed to a new trial date of May 10,1993. Minch was finally tried on May 10, 1993, more than two years after he was served with the summons. Despite this two-year delay in bringing Minch to trial, we conclude that Rule 45 - was not violated. As explained above, Minch agreed to a trial date of January 21,1992 when he knew that this date fell outside the normal Rule 45 time limit. Then, with this January trial date approaching, Minch agreed to an even later trial date: April 21, 1992. Thus, the Rule 45 "clock" could not expire until after April 21st. The next significant event occurred on April 7, 1992 (two weeks before Minch's scheduled trial). On that day, Minch announced to the court that he would be changing his plea. When Minch declared that he intended to change his plea, Rule 45 was satisfied. This court resolved this issue ten years ago in a nearly identical case, Morris v. State, 734 P.2d 1012 (Alaska App.1987). The defendant in Morris told the court that he intended to waive trial and change his plea. A change-of-plea hearing was calendared, but the hearing was continued when the parties could not agree on the particulars of Morris's prior convictions. 734 P.2d at 1013. Ultimately, the plea agreement fell apart; the defendant never changed his "not guilty" plea, and the court set a new date for the defendant's trial. Id. at 1013-14. As that trial date approached, the defendant filed a motion to dismiss the case under Rule 45. When the trial court denied this motion, Morris pleaded no contest, reserving his right to appeal the Rule 45 issue. Id. at 1014. On appeal, this court held that Morris's announcement that he intended to change his plea "had the same effect . as an entry of plea". Morris, 734 P.2d at 1014. That is, Morris's announcement terminated the running of Rule 45. This same rule applies to Minch's case. When Minch announced on April 7,1992 that he intended to change his plea, this satisfied Rule 45. Minch's case does, however, involve a few additional wrinkles that merit discussion. Minch's change of plea was to have occurred on April 22, 1992. But when the parties appeared in court on that day, Minch asked the court to continue the change-of-plea hearing until May 29, 1992. And, as explained above, when the parties came to court on May 29th, Minch announced that he would not be entering a Cooksey no contest plea because a Cooksey plea would not allow him to preserve non-dispositive issues for appeal. Instead, Minch told the court, he now agreed to be tried — and to be found guilty — on a stipulated statement of facts that the parties would draw up in the near future. Based on Minch's announcement, the court began the sentencing process — ordering a pre-sentence report and setting a filing deadline for the parties' proposed aggravating and mitigating factors. While it is true that Minch told the court on May 29th that he would not be entering a no contest plea, Minch did not tell the court that he now wished to go to trial. Instead, Minch told the court that he had reached a revised agreement with the State that would allow him to preserve non-dispositive issues for appeal. Under this revised agreement, the court would find Minch guilty on stipulated facts. As explained above, the trial court did not view this revision as a material change in the agreement. The court's response to Minch's announcement (that he wished to be found guilty on stipulated facts) was to order preparation of a pre-sentence report and to set a filing deadline for the parties' proposed ag-gravators and mitigators. We, too, conclude that this change in the agreement was of no consequence. Under either version of the agreement (Cooksey plea or a guilty verdict on stipulated facts), Minch intended for the court to find him guilty without trial of the factual merits of the State's case. For Rule 45 purposes, either version of the agreement had the same effect as a formal change of plea. Thus, any delays following Minch's initial change-of-plea announcement on April 7, 1992 are irrelevant. As this court declared in Morris, 734 P.2d at 1014, Rule 45 "is a speedy-trial rule, not a speedy sentencing rule". The next relevant event occurred six months later, on November 30, 1992. On that day, Minch told the court that his agreement with the State had collapsed and that he now intended to re-assert his right to trial. By virtue of Minch's decision, the Rule 45 clock was extended by a reasonable amount of time (a minimum of 30 days) to allow the superior court to work Minch's case back into its trial calendar. See Petersen v. State, 838 P.2d 812, 814-15 (Alaska App.1992). At a hearing two weeks later, Minch agreed to a trial date of March 22, 1993. Then, on March 22nd, Minch explicitly agreed to a new trial date of May 10, 1993— which is when his trial finally took place. This trial date did not violate Rule 45. Minch's challenge to the prospective juror One of the prospective jurors called for Minch's ease was Michael Louthan, a police officer at the Ketchikan Gateway Borough Airport. During voir dire, the prosecutor asked Louthan whether his job would affect how he viewed the case. Louthan replied, "Somewhat." Louthan explained that he would probably give a fellow law enforcement officer's testimony more weight than testimony offered by a person who was not a law enforcement officer, although he would not "have [any] problem" deciding the case in favor of the defendant if it turned out that the police had made a mistake. During the defense portion of the voir dire, Minch's attorney asked Louthan about his statement that he would give more weight to a fellow officer's testimony. Louthan replied that he had an objective basis for this preference: "[I]n . over ten years of law enforcement," Louthan said, he had never "[been given] any false information . by a law enforcement officer[.]" Defense counsel asked the court to dismiss Louthan from the panel. The court denied this challenge for cause. Defense counsel then again asked Louthan if he would favor the testimony of a police officer over the testimony of someone he did not know. When Louthan responded that this possibility did exist, Minch's attorney again requested that Louthan be dismissed for cause. Before deciding Minch's challenge, the court asked Louthan if he could be a fair juror. Louthan replied, 'Tes." Apparently based on Louthan's answer, the court again denied Minch's challenge for cause. When a party asserts on appeal that the trial judge should have granted a challenge for cause to a prospective juror, this court reviews the trial judge's decision under the "abuse of discretion" standard. Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964); Young v. State, 848 P.2d 267, 269 (Alaska App.1993). Here, we conclude that the trial judge abused his discretion. Alaska Criminal Rule 24(c) lists the grounds for challenging a prospective juror. Under Rule 24(c)(3), a prospective juror should not serve on the jury if they "show[ ] a state of mind which will prevent [them] from rendering a just verdict". Under Rule 24(c)(4), a prospective juror should not serve if they "[have] opinions . which would improperly influence [their] verdict". Officer Louthan candidly admitted that he would weigh the testimony of police officers more heavily than the testimony of other people. Louthan's predisposition to believe police testimony was manifestly relevant when evaluating whether he should serve as a juror in a criminal case. True, Louthan declared that he could decide Minch's case fairly. However, our review of Louthan's entire voir dire leaves us with the firm impression that Louthan mistakenly believed that his preference for police testimony was entirely consistent with a "fair" decision. The trial judge should have granted Minch's challenge for cause. Nevertheless, we conclude that Minch was not prejudiced by this error. After the superior court denied his challenge for cause, Minch used one of his peremptory challenges to remove Louthan from the panel. Minch argues that, because he ultimately used all of his peremptory challenges, and because he was forced to use one of these peremptories to get rid of Louthan, we must presume that he was prejudiced by the trial judge's error. In other words, Minch asks us to make two assumptions, one factual and one legal. The factual assumption is that, had Minch possessed one more peremptory challenge, he would have exercised it against one of the jurors who ultimately decided his case. The legal assumption is that, because this hypothetically pre-emptible juror sat on Minch's case, Minch suffered prejudice. We are unwilling to adopt Minch's reasoning. First, there is nothing in the record to support the assumption that Minch would have used another peremptory challenge if he had had one. Minch never asked the superior court to give him additional peremptory challenges, nor did he argue in any other fashion to the trial court that the jury-selection process had left him with a panel that could not be fair. Even on appeal, Minch makes no argument that the jurors who decided his case were unable to be fair. Moreover, even assuming that Minch would have exercised one more peremptory challenge if he had had one, this fact alone is not sufficient to demonstrate prejudice. As the supreme court clarified in Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745 (Alaska 1992), Peremptory challenges are . not an end in themselves, but rather a means to an end: an impartial jury. Where a party receives an impartial jury, the issue of peremptories is moot. The question is . whether [the party challenging the trial court's ruling] obtained a fair jury despite the imbalance of peremptories. Bohna, 828 P.2d at 762-63. In other words, it is not enough for Minch to prove that the trial judge should have dismissed Louthan for cause, thereby giving Minch one more peremptory challenge for potential use on another juror. "A party has a right to an impartial jury, [but] not to have certain individuals on the jury[.]" Bohna, 828 P.2d at 763 n. 46. In addition to proving that the trial judge made an erroneous ruling on his challenge for cause, Minch must also demonstrate some reason to believe that one or more of the jurors who decided his case were, in fact, not fair. Minch makes no argument and offers nothing in the record to show that the jurors who comprised his jury panel were unfair. We therefore conclude that, although the trial judge should have granted Minch's challenge of Louthan, Minch was not prejudiced by this error. Conclusion Minch was brought to trial within the time limits of Criminal Rule 45. The trial court should have dismissed prospective juror Louthan for cause, but Minch was not harmed by this error. Accordingly, the judgement of the superior court is AFFIRMED. . Minch was tried on this charge; the jury found him guilty of the lesser included offense of simple possession of cocaine. . Minch was arraigned on March 12th and an attorney was appointed to represent him. Minch was released on his own recognizance. On March 29th, Minch consented to a 21-day tolling of Rule 45 so that his preliminary hearing could he delayed. However, on April 11th (before this 21-day period had expired), Minch was indicted (thus obviating the need for a preliminary hearing). Minch was to have been arraigned on this indictment on April 17th, but Minch was not present in court. (His attorney had apparently made a mistake about the scheduled day.) The arraignment was therefore continued until April 22nd, at which time Minch pleaded not guilty. The superior court set an omnibus hearing for May 2, 1991. For reasons that are not explained in the record, the omnibus hearing was not held until May 10th. At that time, Minch's attorney asked the court to extend the deadline for filing pretrial motions. The court gave Minch until June 21st, and trial was set for September 25th. On June 21st, the parties stipulated to a further extension of the motions deadline; the court extended the deadline to July 2nd. On July 2nd, Minch's attorney asked that the deadline be extended to July 15 th. Minch's attorney missed the July 15th deadline. On July 29th, Minch's attorney belatedly asked for yet another extension of the motions deadline. Finally, on August 2, 1991, Minch filed a motion seeking suppression of the evidence against him. The State filed its opposition two weeks later. The court held an evidentiary hearing on this motion on August 27th, but deferred ruling until a necessary transcript could be obtained. From the record, it appears that the transcript was received on September 3rd, at which time Minch's motion was formally under advisement. With Minch's suppression motion under advisement, Minch's trial (previously scheduled for September 25th) was not held. On September 26th, the court granted Minch permission to travel to Idaho. The superior court denied Minch's suppression motion on October 1, 1991. . Under the current version of Rule 45(c), the speedy trial clock is reset to 120 days and begins running afresh when a defendant is allowed to withdraw a plea of guilty or no contest. See Rule 45(c)(6). This current version of the rule did not take effect until July 1993.

12002501

David G. FAULK and Bonnie J. Faulk, Appellants, v. BOARD OF EQUALIZATION, Kenai Peninsula Borough, Appellee

Faulk v. Board of Equalization

1997-03-28

No. S-7276

750

753

934 P.2d 750

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

David G. FAULK and Bonnie J. Faulk, Appellants, v. BOARD OF EQUALIZATION, Kenai Peninsula Borough, Appellee.

David G. FAULK and Bonnie J. Faulk, Appellants, v. BOARD OF EQUALIZATION, Kenai Peninsula Borough, Appellee. No. S-7276. Supreme Court of Alaska. March 28, 1997. Charles G. Evans, Law Offices of Charles G. Evans, Anchorage, for Appellants. William R. Evans, Deputy Borough Attorney, and Thomas R. Boedeker, Borough Attorney, Kenai, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

1914

12036

OPINION FABE, Justice. I. INTRODUCTION David and Bonnie Faulk appeal a superior court decision upholding a Kenai Peninsula Borough (Borough) property valuation. The valuation, calculated for tax purposes, appraised the Faulks' property at more than twice what the Faulks had paid for the property approximately thirty days before the appraisal. Both the Borough Board of Equalization (Board) and the superior court upheld the valuation. On appeal to this court, the Faulks assert that the Board denied their appeal without making adequate findings. We agree and remand the case to the superior court with directions to remand the matter to the Board for additional findings. II. FACTS AND PROCEEDINGS On December 1, 1993, David and Bonnie Faulk purchased the Harbor Lights Condominium Project (Property) for $495,000. The Property, located in Seward, consisted of twelve condominium units. It had been purchased by the previous owner in 1990 for $565,000. The Faulks apparently attribute the $70,000 difference between the 1990 and the 1993 prices to the previous owner's failure to make necessary repairs. David Faulk testified at length about the poor condition of the Property and asserted that repair problems had stigmatized it. He estimated the total repairs at between $420,000 and $480,-000. In contrast, the Borough questioned whether the Property was truly stigmatized and asserted that the cost of repairs was approximately $168,000. On January 1, 1994, the Borough's assessor valued the Property for tax purposes at $1,055,400. That figure represented a value of $70,600 for each of the twelve condominium units plus $208,200 for the land. The parties agree that the Borough's assessor estimated the value of the Property by the comparable sales method. They also agree that there were no condominium complexes in Seward other than the Property that the assessor could have used in the comparable sales analysis. Thus, the assessor estimated the value of the Property by comparing the selling prices for five townhouses in the Seward area. Following the valuation, the Faulks unsuccessfully appealed to the Board and the superior court. At the hearing before the Board, the Faulks argued that the assessment was improper or excessive because (1) the Property was in poor condition and repairs would be more costly than the appraiser estimated, (2) the Property was not comparable to any of the units that the appraiser used in his comparable sales analysis, and (3) the best way to value the Property was by reference to the recent arms-length sale in which the Faulks purchased the Property. After the Faulks stated their case, one Board member moved for a vote on the Faulks' appeal and stated that the Board should uphold the appraiser's valuation "for the reason that the appellant, Mr. Faulk, has not presented sufficient evidence to prove an unequal, excessive or improper valuation." With no further discussion the Board voted six to one to deny the Faulks' appeal. This appeal followed. III. DISCUSSION We have previously concluded that "[t]he threshold question in an administrative appeal is whether the record sufficiently reflects the basis for the [agency's] decision so as to enable meaningful judicial review." Fields v. Kodiak City Council, 628 P.2d 927, 932 (Alaska 1981). In answering that question, "[t]he test of sufficiency is . a functional one: do the [agency's] findings facilitate this court's review, assist the parties and restrain the agency within proper bounds?" South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 175 (Alaska 1993). "[I]n the usual case findings of fact [are] required even in the absence of a statutory duty_" Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 97 n. 11 (Alaska 1974). However, in certain cases, "the issues [are] such that, based on the record, detailed findings [are] not necessary for this court to understand the agency's reasoning process." Fields, 628 P.2d at 932. In one such case, we concluded that an agency did not need to articulate separate findings because the basis for its decision was clear from the entire record. Mobil Oil, 518 P.2d at 97. Similarly, in Coffey, 862 P.2d at 175, we determined that a reviewing court might supplement an agency's otherwise unclear findings by reading them in the context of comments made on the record by agency members to conclude that the agency provided a sufficient statement of the reasons for its decision. The Borough first points out that under AS 29.45.210(b) the Faulks bore the burden of proving that the assessment was erroneous. According to the Borough, therefore, the language of the Board's motion constitutes an adequate finding because it indicates that the Faulks did not satisfy their burden. We disagree. The motion presented to the Board reveals little about the Board's reason for denying the Faulks' appeal other than explaining in conclusory fashion that the Board was not persuaded by the Faulks' arguments and evidence. Because all taxpayers bear the burden of proof when challenging a Borough assessment, such a statement would be true of any decision by the Board to deny a party's appeal. The Borough also argues that the language of the Board's motion, when viewed in light of the entire record, "constitutes sufficient findings to support the Board's decision." As indicated previously, in Coffey, 862 P.2d at 175, we concluded that otherwise inadequate findings were acceptable when read in light of the record as a whole. However, this case is distinguishable from Coffey. In Coffey the issue was whether the Anchorage Planning and Zoning Commission (Commission) had correctly applied the ordinance applicable to its decision to decline to issue to Coffey a natural resource extraction conditional use permit. Id. at 173-75. That ordinance empowered the Commission to deny Coffey's request for a conditional use permit if the Commission found that Coffey's proposed use would not be "compatible with existing and planned uses in the surrounding neighborhood." See id. at 173 (quoting Anchorage Municipal Code (AMC) 21.50.020). In denying Coffey's request, the Commission made express conclusions of fact and law. Id. at 171-72. As a part of these findings, the Commission stated that Coffey's plan "proposed a 'massive commercial natural resource extraction' which was in 'inherent conflict' with the 'adjoining residential land uses.' " Id. at 175. Thus, when we clarified the Commission's findings by referring to comments made by the commissioners on the record, we had as a starting point express Commission findings that suggested that the Commission had denied the conditional use permit due to the impact of Coffey's use on surrounding neighborhoods — a reason contemplated by the controlling ordinance. Id. at 175. Concluding that the Commission had followed the applicable ordinance required us neither to draw extensive inferences nor to speculate about the reasons underlying the Commission's decision. Unlike the Commission in Coffey, the Board did not make findings that might provide us with a starting point for evaluating the Board's decision-making process. Without such guidance, we can only speculate about why the Board thought that the Faulks' evidence was insufficient. In particular, the language of the Board's motion does not facilitate review of how the Board addressed the assessor's treatment of the recent price paid by the Faulks for the Property. In CH Kelly Trust v. Municipality of Anchorage, Bd. of Equalization, 909 P.2d 1381, 1381-82 (Alaska 1996), we concluded that it was reversible error for a municipal appraiser to fail to consider a seven-month-old sale price of a property when the appraiser valued the property for tax purposes. We noted that "[b]y failing to consider recent sales of the subject property the Municipality ignored directly relevant, albeit not conclusive, evidence of [the property's] value." Id. at 1382. We suggested, however, that it would be appropriate for the appraiser to discount or disregard the prior sale price if the appraiser reasonably concluded that the prior sale price did not reflect "prevailing market conditions." See id. In this case, we can only guess how the Board resolved the conflicts between the Borough's and the Faulks' evidence relating to the recent sale price. On the one hand, the Faulks presented uncontradicted evidence that they had purchased the Property approximately thirty days before the assessment in a bona fide arm's length transaction in the open market. On the other hand, the appraiser opined that, when valued individually, the twelve units would have a total value greater than $495,000 because the Faulks probably received a bulk discount for purchasing all twelve units of the Property at once. Significantly, however, the appraiser never explained why he stated in his written report that the alleged bulk discount was twenty-five to thirty-five percent but testified that the discount was "anywhere from 30 to 50 per cent." The Board neither indicated whether it agreed with the appraiser's bulk discount theory nor how, if at all, it resolved the discrepancies between the appraiser's written report and testimony. It also failed to address the Faulks' contention that the poor condition of the Property and lack of comparable condominium complexes demonstrated that the assessed value should have been closer to $495,000 than to $1,055,400. Thus, we have an inadequate basis for determining whether the Board reasonably denied the Faulks' appeal. Where an agency has failed to make adequate findings, we typically remand the ease to the superior court with directions to remand the matter to the agency for additional proceedings. Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 563 (Alaska 1981). We apply that same remedy here. On remand, the superior court should instruct the Board to state its reasons for rejecting the Faulks' appeal. When fulfilling these instructions, the Board in its discretion may receive additional evidence and adjust the assessment if it finds that grounds exist for doing so. See AS 29.45.210(b). IV. CONCLUSION We REVERSE the decision of the superi- or court and REMAND for further proceedings consistent with this opinion. . The comparable sales method is a technique for estimating the value of a specific piece of real properly by "comparing, weighing, and relating" sales of sites similar to the property being appraised. American Institute of Real Estate Appraisers, The Appraisal of Real Estate 135 (6th ed. 1974). . We give no deference to the decision of the superior court because that court acted as an intermediate court of appeal. CH Kelly Trust v. Municipality of Anchorage, Bd. of Equalization, 909 P.2d 1381, 1382 (Alaska 1996). .Specifically, David Faulk testified that (1) the Property had been on the market for "quite a while," (2) other potential investors had "walked away from [it] at the same price," (3) the Faulks were not related to the prior owner and did not know her or her family prior to the sale, and (4) the prior owner had been represented by an independent real estate agent. . A twenty-five percent discount suggests a fair market value of approximately $660,000, well below the $1,055,400 assessed value of the Property, while a fifty percent discount indicates a fair market value of approximately $990,000, only slightly less than the assessed value. . Because we conclude that the Board did not provide an adequate statement of the reasons for its decision, we cannot address the Faulks' argu ments that attack the merits of the Board's decision.

12014694

ALASKA DEMOCRATIC PARTY and Greg Wakefield, Appellants, v. Kathleen RICE, Appellee

Alaska Democratic Party v. Rice

1997-04-04

No. S-6638

1313

1321

934 P.2d 1313

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA DEMOCRATIC PARTY and Greg Wakefield, Appellants, v. Kathleen RICE, Appellee.

ALASKA DEMOCRATIC PARTY and Greg Wakefield, Appellants, v. Kathleen RICE, Appellee. No. S-6638. Supreme Court of Alaska. April 4, 1997. Joe P. Josephson, Anchorage, for Appellant Alaska Democratic Party. Paul Stockier, Anchorage, for Appellant Greg Wakefield. Thomas A Ballantine, Anchorage, for Ap-pellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

4676

29043

OPINION RABINOWITZ, Justice. I. INTRODUCTION . Kathleen Rice (Rice) contended that Greg Wakefield, in his capacity as chair-elect of the Alaska Democratic Party (Party), offered her a two-year position as executive director of the Party. When the job failed to materialize, Rice sued on the alleged oral contract. She was awarded damages after a jury trial. The Party and Wakefield now appeal. We affirm. II. FACTS AND PROCEEDINGS Rice worked for the Party in one capacity or another from approximately 1987 to 1991. In 1991, she was fired from her position as executive director by Rhonda Roberts, the then current chair of the Party. In 1991, Rice began working for the Maryland Democratic Party. While she was in Maryland, Greg Wakefield contacted her regarding his potential candidacy for the Party chair and the possibility of Rice serving as his executive director. In May 1992, Wakefield was in fact elected to chair the Party. His term was set to begin the following February. Rice claims that sometime during the summer after Wakefield had been elected, he "confirmed his decision" to hire her as executive director on the following specific terms: "$36,000.00 a year for at least two years and an additional two years if . Wakefield is re-elected; and approximately $4,000.00 a year in fringe benefits." In August 1992, Nathan Landau, the chair of the Maryland Democratic Party, resigned and asked Rice to come work for him in his new capacity as co-finance chair of the Gore vice-presidential campaign. She accepted this offer. Rice asserts that later, in either September or October, she accepted Wake-field's offer to work for the Party in Alaska. In November, Rice moved to Alaska, resigning her position with Landau, which she claims "could have continued indefinitely . at a pay scale the same as that offered by Wakefield." No written contract was entered into between Rice and Wakefield or between Rice and the Party. In a closed-door meeting on February 5, 1993, the executive committee of the Party advised Wakefield that he could not hire Rice as executive director. Rice alleges that even after this meeting, Wakefield continued to assure her that she had the job. However, on February 15, Wakefield informed her that she could not have the job. Rice filed suit. On cross-motions for summary judgment, the superior court dismissed all counts except those based on the theories of promissory estoppel and misrepresentation. After a trial by jury, Rice was awarded $28,864 in damages on her promissory estoppel claim and $1,558 in damages on her misrepresentation claim. The superior court denied the Party's and Wakefield's motions for directed verdicts and judgment N.O.V. This appeal followed. III.DISCUSSION A. The Superior Court Did Not Err in Denying the Party's Motion for Summary Judgment on Rice's Promissory Estoppel Claim. The question of whether the doctrine of promissory estoppel can be invoked to enforce an oral contract that falls within the Statute of Frauds presents a question of first impression. In order to resolve this question, the policy concerns behind both the Statute of Frauds and the doctrine of promissory estoppel must be examined. The purpose of the Statute of Frauds is to prevent fraud by requiring that certain categories of contracts be reduced to writing. However, "it is not intended as an escape route for persons seeking to avoid obligations undertaken by or imposed upon them." Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464, 465 (1986), overruled on other grounds by Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 916 P.2d 822 (1996). In its ruling on cross summary judgment motions in this case, the superior court addressed some of the conflicting case law on this question and ultimately concluded that as between the Statute of Frauds and promissory estoppel, the latter would prevail. It based this conclusion, in large part, on section 139 of the Restatement (Second) of Contracts which provides that [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise.... Restatement (Second) of Contracts § 139 (1981) (emphasis added). Section 139(2) then goes on to enumerate factors to consider in making the determination of "whether injustice can be avoided only by enforcement of the promise." Id. In reaching its decision on this issue, the superior court reasoned: The Restatement test referenced herein provides an appropriate balance between the competing considerations supporting strict enforcement of the Statute, on the one hand, and prevention of a miscarriage of justice, on the other. Plaintiffs burden in overriding the Statute is to establish the promise's existence by clear and convincing evidence. This heightened burden, along with the other criteria imposed by Section 139, insure that the polices which gave rise to the Statute of Frauds will not, in fact, be nullified by application of the Restatement exception. (Emphasis added.) Commentators have noted that "there is no question that many courts are now prepared to use promissory estoppel to overcome the requirements of the statute of frauds." 2 Arthur L. Corbin, Cor-bin on Contracts § 281A (1950 & Supp.1996). We join those states which endorse the Restatement approach in employment disputes such as this one. Concerning the applicability of section 139, the requisites for a claim must be met, as the jury reasonably found they were here. The Party and Wakefield reasonably could have expected to induce Rice's action by their promise. Rice did in fact resign from her job, move from Maryland, and lose money as a result of her reliance on the Party and Wakefield, which amounted to a substantial worsening of her position. In addition, her reliance on the oral representations was reasonable. Nonetheless, the promise is only enforceable where injustice can only be avoided by enforcement of the promise. The following circumstances are relevant to this inquiry: a) the availability and adequacy of other remedies, particularly cancellation and restitution; b) the definite and substantial character of the action or forbearance in relation to the remedy sought; e) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; d) the reasonableness of the action or forbearance; e) the extent to which the action or forbearance was foreseeable by the promisor. Restatement (Second) of Contracts § 139(2) (emphasis added). In the context of this factual record, the jury could reasonably find that Rice would be a victim of injustice without an award of damages, considering her induced resignation, her move from Maryland, and her loss of money and position. The Statute of Frauds represents a traditional contract principle that is largely formalistic and does not generally concern substantive rights. The extent to which a reliance exception would undermine this principle is minimal and the rights that it would protect are significant. The need to satisfy the clear and convincing proof standard with respect to the subsection 139(2)(c) factor also reassures us that promissory es-toppel will not render the statute of frauds superfluous in the employment context. Accordingly, we affirm the superior court's treatment of this issue and adopt section 139 as the law of this jurisdiction. B. The Superior Court Did Not Commit an Error By Not Incorporating the Phrase "Definite and Substantial" into Jury Instruction Number 12. In regard to Rice's section 139 claim, one aspect of Jury Instruction 12 directed the jury to decide whether Rice "took action in reliance upon the promise.... " The Party and Wakefield claim that section 139 of the Restatement (Second) of Contracts requires more than that "action" be taken; they contend that the action must be of a "definite and substantial" character. As such, they argue that "instruction 12 omitted a crucial component of the section 139 factors." The Restatement lists "the definite and substantial character of the action or forbearance in relation to the remedy sought" as a significant "cireumstance[ ]" to consider when applying the doctrine of promissory estoppel. Restatement (Second) of Contracts § 139. The Party and Wakefield are wrong to characterize this language as creating a "requirementf ]." Further, the "definite and substantial" language was given to the jury in Instruction 13. . When read as a whole, the instructions clearly direct the jury to consider the definite and substantial character of Rice's action before concluding that an injustice could be avoided only by enforcing the promise. As such, the instructions are compatible with the Restatement, and it was not error to omit this modifier from the text of Instruction 12. C. The Evidentiary Record Supports the Jury's Verdict 1. Agency The Party argues that Wakefield, as chair-elect, had neither implied nor apparent authority to contract on behalf of the party. Consequently, they conclude that "the Party is not vicariously liable to Rice under the law of agency." The jury, after being properly instructed on the law of agency, apparently concluded that Wakefield was acting as an agent for the Party when he allegedly offered Rice the job. The superior court declined to reverse the jury's implied determination of this issue. In denying the Party's motion for a judgment N.O.V. on this issue, the superior court concluded that it would have been reasonable for the jury to find that Wakefield had implied authority, apparent authority, or both. In this respect, the superior court observed that "[t]he Party elected Greg Wakefield as its new Chair. In so doing, the Party arguably cloaked Wakefield with apparent authority to conduct business on behalf of his incoming administration." The superior court also concluded, after discussing the Party Plan and comments allegedly made by Party officials, that the "evidence provides a sufficient basis for a finding of the Chair's implied general authority to make hiring decisions regarding executive personnel." In addition to its more general complaints on this topic, the Party specifically claims that "even if Wakefield, as chair-elect, had the implied or apparent authority to hire someone, he lacked the authority to hire Rice at all, and most especially for a set term employment contract of two or more years, as opposed to an employment contract at will." The superior court properly refuted both branches of this argument. In response to the first branch, the superior court concluded that "[b]ecause the evidence supported a finding of general authority, there was no need to adduce evidence of a specific intention to authorize Rice's hiring in particular." With respect to whether Wakefield had the authority to hire someone for a term of years, the superior court held that since the question had not been raised at trial or on motion for directed verdict, it was accordingly waived. The question of whether Wake-field had implied or apparent authority to retain an executive director during the term of his chairmanship was properly submitted to the jury for resolution. 2. Misrepresentation The Party and Wakefield do not, in this appeal, dispute the fact that the jury instructions covering Rice's misrepresentation claim accurately set forth the correct legal standards. The only legal contention that they raise with this claim is that since at the time that the alleged representations were made 'Wakefield was a volunteer, not speaking in his business or professional capacity," his representations cannot provide a basis for recovery. This argument is derived from the text of subsection 552(1) of the Restatement (Second) of Torts (1977). That section would allow recovery against "[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information.... " Id. The Party and Wakefield argue that this language constitutes a "prerequisite for claiming negligent misrepresentation." However, the comment to Subsection 552(1) explains that it is designed primarily to distinguish cases where "the information is given purely gratuitously...." That is not this case. Wakefield had a significant stake in Rice's acceptance of his alleged offer; he apparently wanted her to serve as his executive director. Despite the fact that his term had not yet commenced when the representations were made, they were clearly made in the course of the business of running a political party. As such, even if the Restatement (Second) of Torts does create a prerequisite, that prerequisite was functionally met in this case. The remainder of the Party's and Wakefield's arguments under this heading essentially amount to claims that the jury's verdict is not compatible with the evidence that was introduced at trial. First, they claim that "there was insufficient evidence of reasonable and justifiable reliance by Rice." Since Wakefield was chairman-elect of the Party, and since, according to Rice's testimony, he offered her a job on certain and specific terms, the jury was well within the bounds of reason to conclude that her reliance was justifiable and reasonable under the circumstances. The Party's only other claim is that the requirements of section 161 of the Restatement (Second) of Contracts were not met by the evidence. Even assuming that section 161 has application to this claim, which is founded primarily in tort, a reasonable jury could have found that its requirements were met. More specifically, the jury could have concluded, based upon the evidence in this case, that Wakefield knew "that disclosure of the [executive committee's veto power was] necessary to prevent some previous assertion from being fraudulent or material." Restatement (Second) of Contracts § 161(a) (1981). The comment to section 161 states that "one is expected to disclose . such facts as he . has reason to know will influence the other in determining his course of action." Id. Since Wakefield could certainly be expected to know that disclosure of the fact that he did not actually have the authority to offer Rice a job would influence her actions, the facts alleged here satisfy section 161. Both legal and factual support for the jury's verdict on the misrepresentation claim are found in this record. The Party's and Wakefield's arguments to the contrary are without merit. D. The Damage Amount Was Not Excessive in Light of the Evidence. 1. Section 139 claim According to the special verdict form, Rice was awarded $28,864.00 in damages for lost earnings and benefits on her section 139 claim. The salary that Rice claims to have been offered was $36,000.00 per year plus $4,200.00 in employee benefits. The Party and Wakefield do not seem to dispute the fact that the $28,864.00 amount is a fair measure of Rice's lost wages based upon the salary figures she alleges. The gist of their argument on the promissory estoppel claim is rather that the full "benefit of the bargain [was] not necessary to avoid injustice." As discussed in section III.A., supra, a proven section 139 claim has the effect of rendering the oral contract, which would have been invalid under the Statute of Frauds, legally enforceable on the terms established by Rice. The superior court correctly instructed the jury as to the proper method of calculating damages. Further, since this jury was specifically instructed not to find for Rice on this claim unless "[ijnjustiee can be avoided only be enforcement of the promise," it can be inferred that the jury concluded that the damages award was "necessary to avoid injustice." This question was properly reserved for the jury, and there is nothing unreasonable or outrageous about their award. The Party's and Wakefield's contentions to the contrary are without merit. 2. Misrepresentation The special verdict forms indicate that the jury awarded Rice $1,558.00 on her misrepresentation claim. This amount represents what Rice claims to have spent on moving expenses. As a result of this award, the Party and Wakefield complain that "under the judgment, [Rice] gets both her travel costs . and damages calculated with reference to the terms of the promise," giving her more than she would have received even if the alleged contract had been honored. This argument would have been valid if the superior court had actually awarded this damage item to Rice. It did not. The final judgment order reduced the total award of the jury, which would have been $30,422.00 with the misrepresentation award, to the $28,864.00 amount that represents only lost wages and benefits. Consequently, we reject the Party and Wakefield's contention that the damage award is excessive on this ground. IV. CONCLUSION We AFFIRM the judgment of the superior court. . This is a pure question of law which this court reviews de novo. Langdon v. Champion, 745 P.2d 1371 (Alaska 1987). . See McIntosh v. Murphy, 52 Haw. 29, 469 P.2d 177 (1970); Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464 (1986), overruled by Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 916 P.2d 822, 828 (1996) (recasting elements of promissory estoppel), and Glasscock v. Wilson Constructors, Inc., 627 F.2d 1065 (10th Cir.1980). Numerous decisions have rejected the Restatement approach both implicitly and explicitly. See, e.g., Venable v. Hiclcerson, Phelps, Kirtley & Assoc., Inc., 903 S.W.2d 659 (Mo.App.1995), Greaves v. Medical Imaging Sys., Inc., 124 Wash.2d 389, 879 P.2d 276 (1994), Collins v. Allied Pharmacy Management, Inc., 871 S.W.2d 929 (Tex.App.1994), Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 185 Ill.Dec. 822, 615 N.E.2d 381 (1993), Stearns v. Emery-Waterhouse Co., 596 A.2d 72 (Me.1991), Sales Serv., Inc. v. Daewoo Int'l (America) Corp., 770 S.W.2d 453 (Mo.App.1989), Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840 (Ind.App.1987), Cunnison v. Richardson Greenshields Securities, Inc., 107 A.D.2d 50, 485 N.Y.S.2d 272 (N.Y.App.Div.1985), Moran v. NAV Servs., 189 Ga.App. 825, 377 S.E.2d 909 (1989), Munoz v. Kaiser Steel Corp., 156 Cal.App.3d 965, 203 Cal.Rptr. 345 (1984). .In reviewing a jury's determination, this court views the evidence in the light most favorable to the judgment. It does not "weigh the evidence or judge the credibility of the witnesses," but instead, "determine[s] whether there is room for diversity of opinion among reasonable people. If so, the question is one for the jury." Levar v. Elkins, 604 P.2d 602, 604 (Alaska 1980). In denying the Party's and Wakefield's motions for judgment N.O.V., the superior court stated in part: Rice, however, testified that Caroline Cov-ington had told her that the Chair makes the decision regarding employment of executive directors. Rice claimed Wakefield told her it was his decision who to hire. He allegedly said that if everyone was mad, he and Kathleen would work together through May and then both quit, suggesting again that the decision would be his, notwithstanding opposition. Plaintiff said that when John Pugh was chair, he had communicated that it was within his discretion to fire executive director Bob Speed. And the Party Plan did not give the executive committee authority over such hiring decisions. This was sufficient evidence for the jury to decide that Rice relied on Wakefield's implicit promise that the executive committee could not derail his selection for executive or finance director. While the Party focuses on the reasonableness of Rice's reliance, that is only one factor for the jury to evaluate in deciding whether injustice could be avoided only by enforcing the contract. Our review of the record persuades us that there is ample evidence supporting the superior court's analysis. . The Party and Wakefield present further arguments as to why they should prevail on the promissory estoppel claim. They argue first that "[tjhere was no substantial change of position, no reliance, and no foreseeability of reliance." And second, that " '[t]he interests of justice' do not require enforcement of the alleged 'promise.' " These arguments were not included in the points on appeal submitted at filing, nor were they presented anywhere in the body of the opening brief; they are only argued in the reply brief. As such, they will not be considered by this court. Alaska Rule of Appellate Procedure 204(e). See also Swick v. Seward School Bd., 379 P.2d 97 (Alaska 1963). The arguments are, in any event, without merit. They involve issues that were appropriately resolved against the Party and Wakefield by the jury. Wakefield further claims that the terms of the contract cannot be enforced against him personally. Rice, however, argues that "Wakefield has waived this argument by his conduct at trial." Indeed, it does not appear, based upon the record, that he raised this defense until his motion for judgment N.O.V. Further, as the superior court properly held, the entire judgment N.O.V. motion was improper since Wakefield had failed to move for a directed verdict at the close of the evidence. As a result, this court regards the defense as having never been raised at trial and accordingly waived for purposes of appellate review. . The question here is essentially whether or not the jury instruction is an accurate statement of the law. This court reviews questions of law de novo. Langdon v. Champion, 745 P.2d 1371 (Alaska 1987). . Instruction 13 reads in full as follows: In determining whether injustice can be avoided only by enforcement of a promise, you may consider, among others, the following circumstances: (a) the definite and substantial character of the plaintiff's action in relation to the remedy sought; (b) the extent to which plaintiff's action corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (c) the reasonableness of plaintiff's action; (d)the extent to which plaintiff's action was foreseeable by the promisor. .In regard to these issues the superior court correctly reasoned: Plaintiff relied on the fact that the Party Plan did not indicate any intent to endow the executive committee with authority to override the Chair. As noted previously, moreover, Rice testified to comments purportedly made by Caroline Covington and John Pugh which suggested an intention on the part of Party officials to vest complete discretion over hiring decisions in the Chair. Additionally, John Alexander, an executive committee member at the time Wakefield offered Rice the position, testified that he understood Wakefield to have the unfettered authority to hire a finance director. This evidence provides a sufficient basis for a finding of the Chair's implied general author ity to make hiring decisions regarding executive personnel. Because the evidence supported a finding of general authority, there was no need to adduce evidence of a specific intention to authorize Rice's hiring in particular. Similarly, if an installed Chair could make a binding job offer, the jury could reasonably find that the Party contemplated that a Chair-elect could do the same, so long as the employment was not to be effective prior to the time that the Chair actually assumed the office. The jury was also instructed that the party could be found vicariously liable based on apparent authority. Apparent authority entails conduct of the principal by which third parties are given reason to believe that the agent is authorized to act on the principal's behalf. 3 Am.Jur.2d Agency sec. 78. "Unless the evidence allows but one inference, the question of apparent authority is one of fact for the jury." Jackson v. Power, 743 P.2d 1376 (Alaska 1987); City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128 (Alaska 1983). The Party elected Greg Wakefield as its new Chair. In so doing, the Party arguably cloaked Wakefield with apparent authority to conduct business on behalf of his incoming administration. Wakefield was allowed to speak for the Party in certain respects. He did radio commentary as the Party's spokesman at the November general election. He organized fund raisers. And he travelled to various meetings in his capacity as Chair-elect. Wakefield's actions, moreover, corresponded to those of Rhonda Roberts, when she was Chair-elect. Rice testified that during Roberts' pre-installation phase, she (Roberts) called the Parly office on occasion requesting assistance. Rice responded to these requests. As discussed previously, the Party also promulgated its Party Plan, which placed no limitations on the Chair (or Chair-elect)'s prerogative to make employment decisions. Thus, there was an historical context within which Rice could have construed the Party's position on Wake-field's hiring authority. There was sufficient evidence for the jury to find that Rice understood from Party conduct that Wakefield was authorized to hire personnel for the finance director position. . The Party now contends that it did, in fact, raise this question when moving for directed verdict. In support of this proposition, it offers only the following transcript excerpt: We don't think there's a showing of an implied or apparent agency at all in the — on this record. So, we would ask for directed verdict for [the previously Usted] reasons. This is not adequate. The Party apparently never mentioned anything about the term of employment as it related to agency. As such, the argument has been effectively waived. . "Unless the evidence allows but one inference, the question of apparent authority is one of fact for the juiy." Jackson v. Power, 743 P.2d 1376, 1382 (Alaska 1987) (citations omitted). . This court will not disturb a jury's verdict unless the evidence, considered in the light most favorable to the verdict, is so clearly to the contrary that "reasonable persons could not differ in their judgment." Diamond v. Wagstaff, 873 P.2d 1286, 1290 (Alaska 1994). . In regard to the section 139 claim, the superi- or court instructed the jury in part as follows: If you decide in favor of the plaintiff, you must then decide how much money, if any, will fairly compensate her. I will list for you the items of loss claimed by the plaintiff. You may not assume because I list an item of loss or explain how to measure a particular loss that you are required to make an award for that loss. For each item of loss you must decide that it is more likely than not true that: 1. The plaintiff had such a loss or is reasonably probable to have such a loss in the future, and 2. The loss was legally caused by the conduct of one or both defendants that forms the basis for your verdict. If both of these things are more likely than not true, you must then decide how much money will fairly compensate the plaintiff for that item of loss. If you do not conclude that both of these things are more likely than not true for a particular item of loss, you may not make an award for that loss. As explained in Instruction 12, the items of claimed loss on the promissory estoppel claim are either 1. Lost earnings of $36,000 per year and employment benefits of $4,200 per year for two years, minus earnings actually received and to be received from plaintiff's bill collector's job; or 2. Relocation damages in the amount of $1,558. The item of claimed loss on the misrepresentation claim is 1. Relocation damages in the amount of $1,558. To award plaintiff damages, if any, on her claim for lost earnings and benefits, you must calculate the total amount of earnings and employment benefits that plaintiff would have received during her employment with the Party- From the amount just calculated you must then subtract: (a) the amount of salary and the value of any benefits that plaintiff has received or will receive from her bill collecting job during the period in which she expected to be employed by the Party; (b) the amount of payments, if any, given her by the Party that would not have been made, had she been hired as Finance Director; and (c) the amount of salary and value of any benefits that plaintiff could have earned in mitigation. Mitigation is described hereafter. . In its jury instructions on the misrepresentation claim, the superior court explicitly noted its intention to "make any adjustments that may be necessary to insure that there is no double recovery."

12014775

Gregory W. MARINO, Appellant, v. STATE of Alaska, Appellee

Marino v. State

1997-03-21

No. A-5756

1321

1335

934 P.2d 1321

934

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Gregory W. MARINO, Appellant, v. STATE of Alaska, Appellee.

Gregory W. MARINO, Appellant, v. STATE of Alaska, Appellee. No. A-5756. Court of Appeals of Alaska. March 21, 1997. Sharon Barr and Leslie A. Hiebert, Assistant Public Advocates, and Brant G. McGee, Public Advocate, Anchorage, for Appellant. John A. Scukanec, 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.

7820

47776

OPINION MANNHEIMER, Judge. Gregory W. Marino appeals his convictions for first-degree murder and attempted first-degree murder, as well as the 198-year composite sentence he received for these crimes. Marino questions various evidentiary rulings made by the trial court, and he asserts that his sentence is excessive. We affirm these convictions and sentence. Marino also appeals his convictions for third- and fourth-degree misconduct involving a controlled substance. During the murder investigation, Marino voluntarily gave blood and urine specimens to the police after he was assured that these specimens would be used only in the murder investigation and not to prove that Marino had committed any drug offense. Despite this assurance, the State used test results from these specimens to prove that Marino had possessed cocaine, both for delivery and for personal use. We agree with Marino that the State should not have been allowed to use the test results in this manner, and we therefore reverse Mari-no's drug convictions. Facts of the case The Assault. A little after 11 o'clock on the night of October 22, 1993, seven-year-old Lien Chau Nguyen was awakened by screams. Lien Chau's cousin, Donna Jackson, was calling for help. Lien Chau left her bed and went into the living room to see what was happening. She saw an intruder attacking her cousin. When the man saw Lien Chau, he attacked her and began to choke her. With Donna Jackson's aid, Lien Chau escaped from her attacker and ran into her mother's bedroom. Finding no one there, Lien Chau went back to her own room and hid under the bed. From her place of hiding, Lien Chau heard the man come looking for her. The man first went into her mother's room, and then he came to Lien Chau's room. He shook the bed, then looked under it. When he saw Lien Chau, he pulled her out from beneath the bed. The man demanded to know where Lien Chau's sister was; he promised not to hurt Lien Chau if she told him. Lien Chau replied that she did not know where her sister was. When Lien Chau gave this answer, the man stabbed her in the throat and, according to Lien Chau's testimony at trial, "tried to cut off [her] head". Lien Chau blocked her neck with her hands as the man continued to stab her. She then pretended she was dead. The man stopped stabbing her and left the apartment through the bedroom window. When the attacker was gone, Lien Chau ventured back into the living room to see what had happened to her cousin. She saw Donna Jackson lying dead on the floor. Lien Chau tried to get out of the apartment, but she could not turn the door knob: her hands were too slippery from her own blood. She went to the kitchen, washed her hands, and then she called the 911 emergency operator. The time of this call was 11:20 p.m.. Lien Chau told the 911 operator that a black man had beaten and killed her cousin Donna, that he had also stabbed Lien Chau, and that he had fled through Lien Chau's window. A paramedic who was listening on the line with the 911 operator asked Lien Chau who had stabbed her. She replied that the man was her sister's friend, and that he lived near Tommy's (a grocery and convenience store in Mountain View). Shortly thereafter, the police and paramedics arrived at Lien Chau's house. They put a towel around Lien Chau's neck to staunch the bleeding, and then they took her to the hospital. The hospital examination revealed that Lien Chau had several knife wounds to her head and neck. One of these wounds was very serious: the knife had penetrated the back of her mouth, missing her carotid artery by only a few millimeters. Lien Chau also had a chest wound and numerous defensive wounds on her hands (from attempting to grab the knife blade). When the police initially entered the apartment, they had to step over Donna Jackson's body, which lay just inside the door. The apartment had clearly been the scene of a struggle. Furniture was overturned throughout the apartment. Blood was spattered on the walls, and the floor around Jackson's body was soaked with blood. In Lien Chau's bedroom, there was blood on the curtain, the bed, the chest of drawers, and the window sill (the exit route used by the attacker). In the living room, the police found two knives near Jackson's body. Both of these knives had blood and hair on them, and one of them was broken. The police also found an upright vacuum cleaner near Jackson's body. The vacuum cleaner was covered with blood, and the handle had been broken off from the base. The base of the vacuum was literally full of blood; it had to be drained and dried before the police could test it for fingerprints. There was a third bloody knife, a large bent one, on the floor of Lien Chau's bedroom near her window. Subsequent medical examination revealed that there were approximately sixty-two knife wounds in Donna Jackson's body. Jackson had been stabbed in the heart, both lungs, the spleen, and the liver. Jackson had also sustained a serious head injury caused by a blunt object — most likely, the vacuum cleaner. Background. Lien Chau Nguyen had a 17-year-old sister named Lien Thuong. Gregory Marino and Lien Thuong Nguyen had been involved in a romantic relationship for the four or five months preceding the homicide. Lien Thuong would purchase cocaine for the two of them. Two weeks before the homicide, Marino had given Lien Thuong five rings to use as collateral for a cocaine purchase. Lien Thuong used the rings to buy crack cocaine, which she and Marino smoked. At about the same time as the ring-pawning incident, Lien Chau had occasion to spend the evening at Marino's apartment. The night was October 8th — Lien Chau's seventh birthday. Michelle Pungowiai (a cousin of Lien Thuong's) was babysitting Lien Chau while Lien Thuong spent time with Marino at Marino's apartment. Apparently, Pungowiai was unable to stay with Lien Chau for the whole evening, so she took Lien Chau to Marino's apartment and dropped her off there. Lien Thuong and Marino gave Lien Chau some food and some candy, and then they left her to watch television while they went into the bedroom. Lien Chau watched television until she fell asleep. After a couple hours, Lien Chau's mother came to Marino's apartment and picked her up. About a week later (that is, a week before the murder), Marino began to press Lien Thuong for the return of his rings. Marino threatened to hurt Lien Thuong if she did not get the rings back. He also threatened to hurt "somebody close to [her]". Two days before the murder, Marino communicated a new threat to Lien Thuong through Michelle Pungowiai. Marino told Pungowiai to tell Lien Thuong that if she did not get him the money she owed him, he would harm Lien Thuong or someone else in her family. On the day of the murder, Lien Thuong spoke to Marino on the telephone. Marino again asked her when she was going to redeem his rings from the cocaine dealer. During this conversation, Marino asked Lien Thuong if she knew of anyone who had money or jewelry. Lien Thuong named a drug dealer she knew. Marino said that he was going to the drug dealer's house to rob and kill him. Marino then offered Lien Thuong a description of what it felt like to kill someone. Marino told her that the act of killing was a "rush" like taking drugs. He told Lien Thuong that it was entertaining to watch someone begging for their life, and then he laughed. On the night of the murder, Marino visited the Nguyens' apartment at around 8 o'clock. Lien Thuong opened her bedroom window and told Marino to be quiet: her sister (Lien Chau) and her cousin (Donna Jackson) were in the living room, and she did not want them to know that Marino was visiting. She then had Marino enter the apartment through her window. (The latch on this window had been broken for some time, and the Nguyens used it as a second entrance.) Marino had brought crack cocaine with him; Lien Thuong, Pungowiai, and Marino smoked the crack. Lien Thuong then made a phone call to a drug dealer, who delivered some more cocaine to the apartment. Lien Thuong, Pungowiai, and Marino smoked that cocaine as well. Marino left the apartment between 9:30 and 10:00 p.m.. Shortly after he left, Marino telephoned the apartment and spoke with Lien Thuong about getting more cocaine. Lien Thuong and Pungowiai left the apartment soon after Marino's telephone call. When they left, Donna Jackson and Lien Chau were watching television. Jackson had another hour to live. The Investigation. When Lien Chau was brought to the hospital immediately following the assault, she spoke with Officer Bridges just before she underwent surgery. Lien Chau said that her attacker had been wearing a dark cloth jacket, rubber boots, and a black hat with a white "A" on it. Lien Chau also described her attacker as having curly hair and a mustache. She told the police that this man lived in a peach-colored apartment braiding near Tommy's. Based on Lien Chau's statements, police detectives located a peach-colored apartment building near Tommy's Grocery at 3701 Richmond Street. They set up surveillance of this budding shortly before 2:00 a.m.. A few minutes later, the officers saw a black man walk into the apartment building. The officers spoke to the building manager and found out that there was only one person living in the apartment complex who matched Lien Chau's description. That man lived in apartment number 11. The officers went to apartment 11 and knocked on the door. Marino answered. The officers identified themselves and asked Marino to accompany them to the police station. Marino agreed. One of the officers followed Marino to the bedroom to retrieve a jacket. This officer testified that he saw a dark hat with a white letter on the front of it lying on Marino's bed. The officer also noticed that Marino had a fresh cut on the little finger of his right hand and an apparent bloodstain on one of his thumb-nails. The officers transported Marino to the police station, where they obtained his consent to search his apartment. The officers also questioned Marino concerning his whereabouts and activities that night. Marino repeatedly denied any involvement in the attack. Marino told the police that he was friends with Lien Thuong Nguyen, and that he had visited the Nguyens' apartment earlier that night to take drugs with Lien Thuong. Mar-ino said that he stayed at the apartment for 30 to 45 minutes, that he left between 10:00 and 10:30, and that he had not returned. Marino subsequently consented to have the police take his fingerprints, take blood and urine specimens, and take fingernail scrapings for forensic testing. The police conducted a search of Marino's apartment on the morning of October 23rd. They found no sharp knives, no rubber boots, and no black hat with the letter "A" on it. During their investigation of the crime scene, the police took several blood samples. None of these matched Marino's blood. The police also obtained several shoe prints from the crime scene. None of the shoe prints could definitely be attributed to Marino. The police also obtained seven usable fingerprints from the crime scene, as well as an adult's hand print in Lien Chau's bedroom and another hand print on the handle of the vacuum cleaner. None of these prints matched Marino's. None of the items the police seized from Marino's apartment (various items of clothing, as well as a washcloth and a shoe-cleaning kit) had blood on them, with the exception of one jacket. DNA testing eliminated Donna Jackson and Lien Chau Nguyen as possible sources of the blood on the jacket. There was no other forensic connection between Marino and the crime scene. There was no match between Marino's hair and hair samples found at the crime scene, nor were any hairs from Donna Jackson or Lien Chau Nguyen found at Marino's apartment or on any of his clothing. The police also tested for carpet fibers, but again there was nothing linking Marino to the crime scene. On October 25th, the police interviewed Lien Chau again at the hospital. From a photograph of Marino's apartment building, Lien Chau identified the door to Marino's apartment as the place where her attacker lived. The police then showed Lien Chau a six-person photographic lineup. She picked Marino's photograph. Based on Lien Chau's identification, and notwithstanding the lack of physical evidence to tie Marino to the homicide, a grand jury indicted Marino for first-degree murder for the killing of Donna Jackson. The grand jury also indicted Marino on alternative charges of attempted first-degree murder and first-degree assault for the attack on Lien Chau Nguyen. In addition, the grand jury indicted Marino on two drug charges: third-degree misconduct involving controlled substances (possession of cocaine with intent to deliver), and fourth-degree misconduct involving controlled substances (simple possession of cocaine). Following a jury trial in the Anchorage superior court, Marino was found guilty of all five charges. The State stipulated that, for sentencing purposes, the first-degree assault conviction was subsumed in the attempted murder conviction. Superior Court Judge Mark C. Rowland sentenced Marino to 99 years' imprisonment for the murder of Donna Jackson, to a consecutive 99 years' imprisonment for the attempted murder of Lien Chau Nguyen, and to a consecutive 6 years for the drug convictions. Judge Rowland also declared that Marino was not eligible for parole. Marino's motion for disclosure of the juvenile records of certain witnesses Before trial, Marino sought disclosure of all Division of Family and Youth Services records relating to Lien Thuong, Lien Chau, Karen Nguyen (their mother), and Michelle Pungowiai, as well as the records from any Child-in-Need-of-Aid proceedings involving the three juveniles (Lien Thuong, Lien Chau, and Michelle). Judge Rowland said that he would defer ruling on the merits of Marino's request until he had a chance to examine the documents in camera. The judge ordered the State to turn the records over to him for private inspection so that he could determine which documents (if any) should be disclosed to the defense. See Alaska Criminal Rule 16(d). Within the week, the State turned over all of the records to the court. However, Judge Rowland never issued a subsequent order. That is, the judge never affirmatively granted or denied Marino's request for disclosure, nor did he issue any other order partially granting the request (by designating particular documents to be disclosed). The documents remained with the court and never were disclosed to the defense. Marino's attorney conducted the trial (and eross-exam-ined the juveniles) without seeking a further ruling from the court. On appeal, Marino argues that the trial judge should have disclosed these documents to the defense. However, Marino chose to proceed without seeking a ruling on the merits of his discovery motion. He therefore can not raise this issue on appeal. See Erickson v. State, 824 P.2d 725, 733 (Alaska App.1991) ("[I]n order to properly preserve this issue for appeal, it was [the defendant's] duty to insist that the trial court rule on his motion[.]"); Jonas v. State, 773 P.2d 960, 963 (Alaska App.1989) (by failing to seek a ruling on his motion for a psychiatric evaluation of the complaining witness, the defendant forfeited his right to argue on appeal that the trial court should have granted the motion). Marino's motion for suppression of Lien Chau's identification of him from the photographic lineup, and for suppression of her subsequent in-court identification As described above, Lien Chau called the 911 emergency operator minutes after the murderer left her residence. Lien Chau told the operator that her sister's friend, a black man who lived near Tommy's Grocery, had killed her cousin and had stabbed her. Approximately two and a half days later, on the afternoon of October 25,1993, Anchorage Police Detective Bill Reeder interviewed Lien Chau at the hospital. (Until this time, Lien Chau had been heavily sedated and thus unavailable to be interviewed.) Lien Chau's nurse and Lien Chau's mother were also in the hospital room during the interview. Reeder spoke to Lien Chau about her previous statement to the 911 operator (that her assailant lived near Tommy's). He asked Lien Chau if she knew what color her assailant's apartment budding was; she again identified it as peach-colored. Reeder then showed Lien Chau a photograph of Marino's apartment building; Lien Chau told the officer that she recognized the building. Reeder asked Lien Chau to point out the apartment of the person who had attacked her. (This apartment building is constructed like a motel; the entrances to the individual apartments are on the outer walls of the building.) Lien Chau pointed to the entrance to Marino's apartment. When Lien Chau pointed out Marino's apartment, her mother and her nurse clapped. Reeder himself commented that Lien Chau had "pointed . right to the defendant's door". Reeder then showed Lien Chau an array of six photographs. He told her only that these were "photographs of . some black men", and he cautioned her that the inclusion of particular people in the array "[didn't] mean [that] these people are bad people". Reeder added, "I don't know if this man['s] picture is there or not, and I need you to tell me whether you . can recognize a picture, okay?" Lien Chau told Reeder that the man depicted in photograph number 3 "looks like it might be him . 'cause he had hair like this one.... I think that's him, 'cause he had [a] lot [of] curly hair here." Marino's photograph was in position number 3. Lien Chau's reference to "curly hair" is puzzling, since Marino's photograph clearly shows him to be nearly bald. However, whatever Lien Chau meant by her reference to curly hair, there is no doubt that she selected photograph number 3, and this was Marino's photograph. Marino asked Judge Rowland to suppress Lien Chau's identification of his photograph from the array. Marino argued that the identification procedure had been unduly suggestive. Marino also asked the judge to prohibit Lien Chau from identifying him in court, arguing that any in-court identification would be the product of the tainted photographic identification. Judge Rowland denied these motions. The judge stated that he thought certain aspects of the identification procedure were improperly suggestive (the applause when Lien Chau identified Marino's apartment, and Reeder's simultaneous statement that Lien Chau had pointed to "the defendant's" door). Nevertheless, Judge Rowland concluded that the procedure as a whole was unlikely to yield an unreliable identification. He noted that Lien Chau had had a good opportunity to observe her assailant, she had previously given a description of her assailant to the 911 operator, and she had expressed a high level of certainty when she identified Marino's photograph. On appeal, Marino renews his contention that the photographic identification was im-permissibly suggestive, and that Lien Chau's subsequent in-court identification of Marino should have been suppressed as the tainted fruit of the photographic identification. Marino first argues that, although each of the six photographs depicts a black man, the skin tone of the other five men is significantly lighter than Marino's skin tone. Judge Rowland found this assertion to be baseless. We have examined the photographic array, and we agree with Judge Rowland. Marino then points out that the man depicted in photograph number 5 is looking up and to his left, as if directing his gaze at Marino in photograph number 3. (The photographs are arranged in two rows of three, numbered left to right.) Marino asserts that this man's eyes inexorably draw a person's attention to photograph 3, thus implicitly suggesting that the man in photograph 3 should be identified as the culprit. Judge Rowland found this assertion to be "frivolous", and again we agree. This brings us to the question raised about the reactions displayed by Reeder and the bystanders when Lien Chau identified Marino's apartment (the applause and Reed-er's statement that Lien Chau had identified "the defendant's" apartment). Marino asserts that these reactions tainted Lien Chau's later selection of Marino's photo from the six-person photographic lineup. While such reactions might potentially be problematic in other circumstances, we are convinced that they are essentially irrelevant in Marino's case. Marino was not a stranger to Lien Chau; she knew who he was. On October 8, 1993 (two weeks before the attack), Lien Chau spent the evening at Marino's apartment. Marino gave Lien Chau food and candy. When Lien Chau spoke to the 911 operator just minutes after her assailant fled, she obviously had a particular person in mind. She identified her attacker as a person she knew: the black man who was her sister's friend and who lived near Tommy's. After Lien Chau identified Marino's apartment as the place where her attacker lived, it was clear that Lien Chau believed Marino was the person who had attacked her and Donna Jackson. Marino was the identifiable suspect even if the police had never shown the photographic lineup to Lien Chau. When Lien Chau subsequently picked Marino's photograph from the six-person array, she merely confirmed her previous identification. Had Lien Chau picked someone else, this might have been significant; but she in fact picked out Marino, the person who lived in the apartment that she had already identified. Under these circumstances, even if there was potential suggestiveness in the way the photographic lineup was presented to Lien Chau, this potential suggestiveness had very little significance. From the outset, Lien Chau had identified her assailant as her sister's friend. By the time she was shown the photographic lineup, Lien Chau had identified the building and the apartment where that friend lived. In light of this, the photographic lineup simply tested Lien Chien's ability to identify a photo of that friend. One could argue (and Marino did argue at trial) that Lien Chau was mistaken when she identified her sister's friend as her attacker. But if Lien Chau indeed mistook someone else for Marino, she made this mistake at the time of the crime, not when the police showed her the photographic lineup at the hospital. For these reasons, we uphold Judge Rowland's denial of Marino's motion to suppress the photographic identification, and we also uphold Judge Rowland's denial of Marino's motion to prohibit Lien Chau from identifying him in court. Marino's motion for mistrial based on Lien Thuong's testimony that Marino had said he got a "rush" from killing people At trial, Lien Thuong testified that Marino had telephoned her on the day of the murder and had suggested that he was going to murder a drug dealer to obtain money and jewelry. The prosecutor then asked Lien Thuong, "Did Gregory Marino tell you how it . might feel to kill someone?" Lien Thuong answered: He. told me [that] the feeling, the rush of killing somebody, there's no other rush like it, as when you're doing drugs or whatever. There's nothing else like that rush.... He said [that] the thought of a person begging for their life [was] funny, and he started to laugh. Lien Thuong later testified that she was unsure exactly when Marino had said this to her; she conceded that it might have been a few days before the murder. Marino sought a mistrial because of the above-quoted testimony. Marino's attorney argued that it was unclear from Lien Thuong's testimony exactly when these remarks were made, and thus the remarks did not necessarily reveal Marino's state of mind at the time of the murder. Moreover, the defense attorney argued that the jurors might infer from these comments that Mari-no had committed other unspecified murders, thus prejudicing their consideration of the charges before them. Judge Rowland denied Marino's motion for mistrial. He concluded that Lien Thuong's evidence was relevant to Marino's state of mind at the time of the murder. While Judge Rowland acknowledged that there was conflicting evidence as to the date on which Marino made these remarks, the judge concluded that "the trier of fact could certainly find that [Marino made these] remarks . on the day of the homicide", and thus the remarks were probative of Marino's state of mind and intent. Judge Rowland also concluded that Mari-no's remarks were relevant because they "form[ed] part of the fabric of threats and intimidation" that Marino had engaged in prior to the homicide, as he attempted to induce Lien Thuong to retrieve the rings that had been pledged to drug dealers. Marino's threats, Judge Rowland found, were probative of his "continuing obsession with the return of these rings, which he deemed to be his property". Responding to Marino's suggestion that the remarks might be interpreted as indicating that Marino had killed people before, Judge Rowland offered to give a clarifying or limiting instruction. Marino's attorney told the judge that she would submit one, but she never did. On appeal, Marino renews his claim that Lien Thuong's testimony required a mistrial. However, we agree with Judge Rowland that the testimony concerning Marino's remarks was admissible. Because Marino's statements tended to prove that he was in a murderous state of mind, these statements were admissible if they were made near the time of the homicide. See Lerchenstein v. State, 697 P.2d 312, 314-19 (Alaska App.1985), affirmed, 726 P.2d 546 (Alaska 1986). Judge Rowland found that, even though the evidence was conflicting, a reasonable fact-finder could conclude that Marino made these statements on the day of the homicide. He therefore did not abuse his discretion in admitting the evidence. See Alaska Evidence Rule 104(b), dealing with situations in which the relevance of certain evidence depends on a foundational finding of fact. Moreover, the record supports Judge Rowland's alternative finding — that Marino's statements reveal that he was fixated on obtaining the return of the rings that had been pledged to the drug dealers, and that Marino was trying to "encourage" Lien Thuong to retrieve the rings by using threats and intimidation, hoping that veiled threats of murder would frighten her into action. It is noteworthy that, although the first ground of relevance (state of mind) rests on a finding that Marino was truthfully stating his current emotions and intentions, this second ground of relevance (the use of threats as a way to scare Lien Thuong into action) did not require a finding that Marino was telling the truth when he declared that he got a thrill from killing. If the remarks are viewed as threats, they are relevant not because of how Marino might have felt about killing, but because they showed that Marino wanted Lien Thuong to believe that he got a thrill from killing. It is also important to note that, under either of these two theories of relevance, Marino's remarks are probative regardless of whether he had ever killed another person. That is, the relevance of the remarks does not he in what they might reveal about Mari-no's past activities. Rather, their relevance lies in what they reveal about Marino's intentions and motivations at the time he uttered those remarks. This distinction might have been emphasized to the jury in a limiting instruction, but the distinction is reasonably apparent simply from the evidentiary context in which Marino's remarks were admitted. Moreover, as noted above, Marino declined Judge Rowland's explicit invitation to submit a limiting instruction. For these reasons, we uphold Judge Rowland's denial of Marino's motion for a mistrial. Marino's motion for judgement of acquittal Marino asserts that there is insufficient evidence to support his conviction for murder and attempted murder. However, Marino's argument is based on his assertion that Lien Chau should not have been permitted to identify him as the man who assaulted her and killed Donna Jackson. We have just upheld the admissibility of this evidence. Lien Chau's identification of Marino provides sufficient evidentiary support for his murder and attempted murder convictions. Marino's declarations of innocence to the police As indicated above, the police interviewed Marino for approximately two hours on the morning following the homicide. During this interview, Marino repeatedly declared that he was innocent. He readily consented to police requests to search his apartment and his belongings, as well as to provide body specimens for forensic testing. This interview was videotaped. At trial, the defense attorney asked Judge Rowland for permission to play the entire videotaped interview to the jury — or, in the alternative, for permission to play an abridged version of the interview that still contained several of Marino's assertions of innocence. A defendant's out-of-court assertions of innocence are hearsay if they are offered by the defendant to prove the truth of the matter asserted (the defendant's innocence). See State v. Agoney, 608 P.2d 762, 764 (Alaska 1980); Stumpf v. State, 749 P.2d 880, 899 (Alaska App.1988). The defense attorney argued, however, that Marino's statements to the police fell within the hearsay exception for "excited utterances", Alaska Evidence Rule 803(2). The exciting event that triggered Marino's statements, according to the defense attorney, was the police officers' accusation that Marino was guilty of murder. To obtain admission of a hearsay statement under the "excited utterance" exception, the proponent of the evidence must show that the statement was uttered under the stress or excitement of a startling event or condition that "temporarily still[ed] the [speaker's] capacity [for] reflection and . conscious fabrication". See Commentary to Evidence Rules 803(l)-(2), third paragraph. Judge Rowland found that, under the facts of this case, Marino's statements were not "excited utterances". Marino challenges this finding on appeal. He argues that being falsely accused of murder is an exciting circumstance likely to exert a lengthy influence on a person's emotions. However, the question is not whether Marino was under stress during the police interview; instead, the question is whether Marino proved that his statements were not the product of conscious reflection: The fact that [a person] may have been under stress is not sufficient, by itself, to establish the admissibility of [their] hearsay statements under Evidence Rule 803(2). The question is whether [the person's] out-of-court statements were the product of [their] conscious reflection about what [they] should say. Ryan v. State, 899 P.2d 1371, 1378 n. 4 (Alaska App.1995). Based on the facts of this case, Judge Rowland could reasonably conclude that, guilty or innocent, Marino understood that the police suspected him of murder, and he had both the time and the presence of mind to prepare his replies to their questions. Judge Rowland's finding is not clearly erroneous, and therefore we uphold his ruling that Marino's statements were not "excited utterances". Marino argues alternatively that his statements to the police should have been admitted because they demonstrate his state of mind — more specifically, because "they demonstrate an innocent state of mind". Evidence Rule 803(3) creates a hearsay exception for statements describing the speaker's then-existing state of mind or emotion. However, Rule 803(3) explicitly declares that this hearsay exception does not authorize introduction of "statements] of memory or belief to prove the fact remembered or believed". The second paragraph of the commentary to Rule 803(3) explains: The exclusion of "statements of memory or belief to prove [the] fact remembered or believed" is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing [proof of a person's] state of mind . to serve as the basis for [inferring] the happening of the event which produced the state of mind. In other words, Rule 803(3) does not allow hearsay testimony about a person's belief when that testimony is being offered to prove that the belief was accurate or true. More specifically, Rule 803(3) would not authorize Marino to introduce hearsay testimony that he asserted his innocence if the only relevance of this testimony was to suggest (1) that Marino was being honest when he asserted that he believed himself innocent of the crimes, and (2) that Marino would not believe himself to be innocent unless he was in fact innocent. Some cases from other jurisdictions suggest that, just as evidence of a defendant's conduct can be introduced to prove consciousness of guilt, so too evidence of the defendant's conduct (for instance, cooperation with the police) might be admissible to prove "consciousness of innocence". See the discussion of this point in Lewis v. State, 469 P.2d 689, 691 (Alaska 1970). This proposition is premised on the recognition that non-assertive conduct is not a "statement" under Evidence Rule 801(c); that is, evidence of a person's conduct is not barred by the hearsay rule so long as the conduct was not intended as an assertion. When Marino argued for admission of his videotaped interview with the police, his goal was to get his words — his assertions of innocence — in front of the jury. This is not the non-assertive conduct evidence that Lewis discusses. Marino was not entitled to introduce his assertions of innocence by labeling them verbal conduct. Judge Rowland understood this distinction between assertions (both verbal and nonverbal) and non-assertive conduct, because he allowed Marino to play limited portions of the videotape: those portions in which Mari-no expressed his desire to cooperate with the police and in which Marino consented to be fingerprinted, to have the police search his residence, and to have the police take samples of his blood and urine. Judge Rowland explained his ruling this way: We have a murder scene . that, by all accounts, [was] horrendous[,] bloody, [and] brutal.... [W]hoever [was] present [there], . it would have been a horrendous experience. Because of that, [the defendant's] interview [with the police] has evidentiary value above and beyond the questions asked and answered. It is a visual [record] of this defendant within hours after this incident. His demeanor within hours after an incident of this kind seems to me to have evidentiary significance in and of itself. How he behaved [at that time is] something that reasonably could be considered by the trier of fact, independent of the questions asked and answered. The State argues that it was error for Judge Rowland to admit even these limited portions of the videotape, but we need not decide that issue. The record shows that Marino obtained the most favorable ruling he could reasonably hope for under existing evidence law. We find no error. Having decided all of Marino's challenges to his murder and attempted murder convictions, we affirm his convictions for these crimes. We now turn to Marino's attack on his convictions for third- and fourth-degree misconduct involving a controlled substance. Marino's motion for limited suppression of his blood and urine test results During Marino's interview with the police, the officers asked Marino for permission to take blood and urine specimens from him, and Marino agreed. However, after Marino was indicted for possession of cocaine based on the laboratory analysis of these specimens, Marino asked the superior court to prohibit the State from using these test results as evidence of drug offenses. He argued that the police had tricked him into consenting to give the body specimens by assuring him that the specimens would not be used as evidence of drug offenses. Judge Rowland denied Marino's motion. Based on our review of the record, we conclude that Marino's suppression motion should have been granted. When Detective Baker asked Marino to give the police blood and urine specimens, he told Marino: Believe me, . neither this lieutenant nor I give a fuck whether you [are] high or not at the moment, you know what I mean? That's not why we're here, okay? We're here for serious stuff[.] Later, Baker told Marino: Once again, [we are asking for these specimens] to help remove you from the picture [as a murder suspect].... I want you to understand that we are not interested in any kind of drug offenses here[.] But we're going to take blood samples from [the murder scene, and then] compare [those samples] to yours, and make sure that yours doesn't match any of those. At this point, Marino told Baker, "Let's do it." The record shows that Marino gave his consent after the police promised him that his blood and urine specimens would be used for a particular purpose (tested against the samples found at the scene of the homicide) and would not be used for another particular purpose (tested to see if Marino was using illegal drugs). When the State later used the test results to establish that Marino was guilty of drug offenses, the State exceeded the scope of Marino's consent. The superior court should have barred the State from introducing the test results for this purpose. The State argues that a ruling in Marino's favor on this issue amounts to a declaration that a criminal defendant may rely on a police officer's informal promise of immunity. The State points out that police officers, acting on their own, have no authority to grant immunity or make binding promises of non-prosecution. Green v. State, 857 P.2d 1197, 1201 (Alaska App.1993). However, the State's argument misses the point. The police asked Marino to waive his Fourth Amendment rights and voluntarily give them body samples. He was free to refuse and demand that the police obtain a warrant, but the police convinced him to consent by promising that the samples would not be used to establish his guilt of drug offenses. This was not a promise of immunity; rather, it was a statement that the police were seeking only a limited waiver of Marino's Fourth Amendment rights. See State v. Binner, 131 Or.App. 677, 886 P.2d 1056 (1994) (holding that, under the Oregon constitution, when a person consents to have their blood drawn and tested for specified substances, the scope of that consent limits the scope of the State's power to test the blood without a warrant). The State further points out that, having given verbal assent to the blood and urine sampling, Marino then signed a written consent form which did not include any limitation on the use of the samples. In fact, the form specifically stated that the samples could be tested for evidence of "drug abuse". However, given Detective Baker's assur-anees, it would be unconscionable to hold Marino to the "fine print" on the consent form. Finally, the State argues that any error in admitting the test results was harmless, because both Michelle Pungowiai and Lien Thuong Nguyen testified that Marino brought them cocaine and smoked it with them. However, the State presented no independent laboratory analysis of the substance that Marino delivered to Pungowiai and Lien Thuong Nguyen. The State's identification of that substance as cocaine was based on the fact that, several hours later, laboratory tests of the challenged blood and urine specimens revealed that Marino had cocaine in his system. Thus, the laboratory analysis of Marino's blood and urine was central to the State's case on the two drug charges. We therefore conclude that the superior court should have prohibited the State from introducing the blood and urine test results as evidence of drug offenses, and we further conclude that the error in admitting these test results was not harmless. Marino is entitled to reversal of his convictions for third- and fourth-degree misconduct involving a controlled substance. Marino's sentence appeal Both first-degree murder and attempted first-degree murder are unclassified felonies. AS 11.41.100(b); AS 11.31.100(d)(1). The sentencing range for first-degree murder is 20 to 99 years, while the range for attempted murder is 5 to 99 years. AS 12.55.125(a) and (b). Judge Rowland sentenced Marino to the maximum sentence (99 years) for each of these crimes, and he ordered the two sentences to run consecutively, for a total of 198 years' imprisonment. Further, Judge Rowland ordered that Marino not be eligible for parole during this sentence. See AS 12.55.115. On appeal, Marino challenges Judge Rowland's decision to run the two sentences consecutively, and his further deci sion to eliminate Marino's eligibility for parole. Before a judge imposes a composite sentence that exceeds the maximum sentence for the defendant's most serious offense, Alaska law requires the judge to affirmatively find that such a sentence is necessary to protect the public. Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977); George v. State, 836 P.2d 960, 963-64 (Alaska App.1992). Similarly, "[w]hen a sentencing judge restricts parole eligibility, the judge must specifically address the issue of parole restriction, setting forth with particularity his or her reasons for concluding that the parole eligibility prescribed by AS 33.16.090 and AS 33.16.100(c)-(d) is insufficient to protect the public and insure the defendant's reformation." Stern v. State, 827 P.2d 442, 450 (Alaska App.1992). Judge Rowland made such findings in this case. In sentencing Marino, Judge Rowland gave the following description of Marino's crimes: Apparently angry at the failure of a seventeen-year-old girl (with whom he shared cocaine and sex) to recover certain property of his which had been pawned for the purpose of securing drugs, [the defendant] threatened to hurt this girl or someone close to her if she did not meet his demands.... Carrying out this threat, [the defendant] proceeded to the girl's home, but she was not there. The seven-year-old victim [Lien Chau Nguyen] was there, and her cousin [Donna Jackson], the decedent. The defendant attacked [Jackson] with a knife, perhaps more than one [knife], ultimately stabbing her over sixty times[.] [Then], without any apparent pity, [he] stalked and hunted down a seven-year-old girl, dragging her from her . refuge under the bed, stabbing and cutting her until she had the presence of mind, even in the midst of such carnage — [and] carnage is certainly the word which describes it — to play dead. Judge Rowland then explained his analysis of why a lengthy sentence was required: The facts and circumstances of the [defendant's] crimes . are so wicked and savage, and [they] say so much about the defendant, that they overshadow all other information about the defendant which is available to the court.... [A] sentencing judge . always tries, insofar as [is] possible, to understand . the human motivation that was involved [in a defendant's crime]. I cannot in this case. The one word which kept returning to my mind [to] best describe the [defendant's] conduct is "savagery"[J . As I thought about the defendant's state of mind, I recalled a phrase [from the law of] the 18th and 19th century . describing murderous intent, and that phrase was "a wanton and malignant heart". [W]hen I was a law student, I thought that it was an obscure and archaic phrase[,] . [but] the facts of this ease, and the defendant's conduct, underscore its vitality[.] The deliberate cruelty with which the defendant attacked these relatively defenseless victims, [the fact] that he could sustain the level of violence and cruelty that he did throughout, and the pedestrian and trivial purposes which apparently incited [his actions], demonstrate the defendant's capacity for evil. There are people who believe that there is a personification of evil, a beast that walks the earth. If there is, Mr. Marino, [then] that beast was in that house that day, and you were its agent. Because Marino was a mature adult (43 years old at the time of sentencing), Judge Rowland concluded that Marino's patterns of behavior were "well-established" and the possibility of his rehabilitation was "nil". Based on Marino's conduct, Judge Rowland found that Marino was "certainly amongst the worst class of offender [and] amongst the most dangerous of men". The judge concluded: In my judgement, by his acts the defendant has lost the right to walk free in this or any other society again.... Society should not be required to take any risk at all for the benefit of this defendants] liberty- [It is] my purpose . in formulating [the defendant's] sentence [to ensure] that society does not have to take such a risk. [This] is, indeed, my sole purpose in fashioning a sentence in this ease- Only isolation will serve as a deterrent [to this defendant].... I think it highly likely that, if the defendant were to be released, he would reoffend, and I think that he would not be deterred . by any sentence to be imposed. Judge Rowland then sentenced Marino to consecutive 99-year sentences, without eligibility for parole. As can be seen from the above-quoted sentencing remarks, Judge Rowland explicitly concluded that Marino was an extremely dangerous man who would pose a serious threat to society if he were ever released from prison; the declared purpose of the sentence was to ensure that Marino never would be released. The record supports Judge Rowland's characterization of the offense and of the defendant. Because Lien Thuong Nguyen had not redeemed his rings from the drug dealers, Marino viciously attacked two people who were close to her (her cousin and her younger sister). Marino barely knew these victims; they had done nothing to him. They were simply instruments through which Marino could express his anger over a trivial matter. Showing utter contempt for his victims' lives, he killed one and left the other for dead. Having independently reviewed the record, we conclude that Marino's sentence is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Conclusion We AFFIRM Marino's convictions for murder and attempted murder, and the composite sentence he received for these crimes. We REVERSE Marino's convictions for delivering and possessing cocaine. . Lien Chau's mother, Karen Nguyen, had gone out. . Even though the police did not find the rubber boots or the black cap with the letter "A" that Lien Chau had described, testimony at trial linked these items to Marino. Lien Thuong Nguyen testified that she had seen a cap in Marino's apartment like the one described by her sister. Lien Thuong also testified that Marino normally kept a pair of rubber boots in his apartment behind the door. . We note that, even if the photographic lineup and in-court identification evidence should have been suppressed, Marino would still not be entitled to a judgement of acquittal. See Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992) (a defendant who contends on appeal that the trial judge should have excluded a portion of the State's evidence can not then argue that the State's remaining evidence was insufficient to withstand a motion for judgement of acquittal). . Marino argues only that his drag convictions should be reversed on this ground.

11866650

ALASKA MARINE PILOTS, an Alaska organization, Appellant, v. Robert HENDSCH, Appellee; Robert BOYD and Boyd Enterprises, d/b/a Alaska Marine Pilot Dispatch Services, John Schibel, individually, Richard Murphy, individually, and Harry Jacobsen, individually, Appellants and Cross-Appellees, v. Robert HENDSCH, Alaska Marine Pilots, an Alaska organization, Captain Thomas Dundas, individually, and Captain Stuart Mork, individually, Appellees and Cross-Appellants

Alaska Marine Pilots v. Hendsch

1997-12-12

Nos. S-6729, S-6939 and S-6979

98

112

950 P.2d 98

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA MARINE PILOTS, an Alaska organization, Appellant, v. Robert HENDSCH, Appellee. Robert BOYD and Boyd Enterprises, d/b/a Alaska Marine Pilot Dispatch Services, John Schibel, individually, Richard Murphy, individually, and Harry Jacobsen, individually, Appellants and Cross-Appellees, v. Robert HENDSCH, Alaska Marine Pilots, an Alaska organization, Captain Thomas Dundas, individually, and Captain Stuart Mork, individually, Appellees and Cross-Appellants.

ALASKA MARINE PILOTS, an Alaska organization, Appellant, v. Robert HENDSCH, Appellee. Robert BOYD and Boyd Enterprises, d/b/a Alaska Marine Pilot Dispatch Services, John Schibel, individually, Richard Murphy, individually, and Harry Jacobsen, individually, Appellants and Cross-Appellees, v. Robert HENDSCH, Alaska Marine Pilots, an Alaska organization, Captain Thomas Dundas, individually, and Captain Stuart Mork, individually, Appellees and Cross-Appellants. Nos. S-6729, S-6939 and S-6979. Supreme Court of Alaska. Dec. 12, 1997. Mark E. Ashbum and William S. Cummings, Ashburn & Mason, Anchorage, for Alaska Marine Pilots, Captain Thomas Dun-das and Captain Stuart Mork. Cathleen Nelson McLaughlin, Breña & McLaughlin, P.C., Anchorage, for Robert Hendseh. Robert C. Erwin, Law Offices of Robert C. Erwin, Anchorage, for Robert Boyd and Boyd Enterprises, d/b/a Alaska Marine Pilot Dispatch Services, John Schibel, Richard Murphy and Harry Jacobsen. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ, and CARPENETI, J. pro tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

8302

51146

OPINION CARPENETI, Justice pro tem. I. INTRODUCTION These appeals follow from a lawsuit brought by Robert Hendseh against Boyd Enterprises and Alaska Marine Phots. All three parties appeal various trial court decisions and aspects of the jury verdict. II. FACTS AND PROCEEDINGS In 1988, Boyd Enterprises, d/b/a Alaska Marine Pilot Dispatch Services, and Robert Hendseh made an agreement that provided that Boyd Enterprises would dispatch Hendseh as a marine pilot in western Alaska. Boyd Enterprises dispatched licensed pilots in western Alaska, assigning available pilots to particular ships as needed. Boyd Enterprises assigned Hendseh to piloting jobs in 1988 and 1989. In September 1989, Boyd Enterprises informed Hendseh that because of difficulties between Hendseh and other pilots and customers of Boyd Enterprises, the organization would not use him as a pilot in 1990. But after discussions with Hendseh, Boyd Enterprises changed its position and agreed to dispatch Hendseh. Hendseh and Robert Boyd, on behalf of Boyd Enterprises, signed a contract that ran from September 1, 1989 to September 1, 1990. Hendseh was not scheduled to work in December 1989 or January 1990. In January 1990, Hendseh contacted James Black-more, president of ALAMAR, a major Boyd Enterprises customer, and told him that Boyd Enterprises had serious financial problems caused by mismanagement. Hendseh asked Blaekmore if ALAMAR would support someone else running the pilot dispatch operation. ALAMAR was Boyd Enterprises' best client, accounting for forty to fifty percent of its business. Blaekmore told Robert Boyd of Hendsch's allegations on February 13. Robert Boyd testified that he terminated Hendseh immediately after hearing from Blaekmore. The stated basis for the termination was Boyd Enterprises' projected work requirements and Hendsch's contact with ALAMAR. The contract between Boyd Enterprises and Hendseh allowed either party to terminate the contract on thirty days' notice. Hendseh testified that he received a fax in Seattle on February 13 from Boyd telling him to delay his departure to Dutch Harbor and received a termination letter on February 14. In 1990, Hendseh worked as a captain with Coastal Transportation. In 1991, Hendseh worked as a master of a fishing vessel for Trident Seafoods. In March 1991, Hendseh injured his foot on the vessel while working for Trident but continued working until July 1991. In August 1991, Hendseh was injured in a car crash. In March 1992, Hendseh had surgery on his injured foot. Hendseh filed lawsuits as a result of both the foot injury and the car crash. Robert Boyd, Boyd Enterprises (Boyd defendants ), and Alaska Marine Pilots claim that they did not know of Hendsch's past injuries and lawsuits until "just before trial." In 1991, the Alaska legislature revised the marine piloting statutes. The new statutes required the Alaska Board of Marine Pilots (Board) to establish pilotage regions in the state and criteria for recognizing regional marine phot organizations. See AS 08.62.040(a)(4) (A and C). Licensed marine pilots were permitted to form regional pilot associations under regulations established by the Board. See AS 08.62.175. As a result of these changes, Boyd Enterprises dissolved in December 1991, and the marine pilots who had contracted with Boyd Enterprises formed a new regional organization under AS 08.62.175. The new organization was called Alaska Marine Pilots (AMP). While AMP involved the same pilots, it had a different structure and governing rules than Boyd Enterprises. In January 1992, Hendsch filed a complaint against Robert Boyd and Boyd Enterprises that alleged a breach of the 1989 employment contract and breach of the covenant of good faith and fair dealing, and requested a partnership accounting. Hendsch contended that Boyd breached the contract by firing him unilaterally and without notice on February 14,1990. Boyd filed an answer on February 28, 1992. The case was assigned to the fast track calendar under Alaska Civil Rule 16.1. In February 1992, Hendsch applied for membership in AMP. AMP initially took no action on Hendseh's application, claiming that the Board was still reviewing AMP's request for recognition as a regional organization. AMP wrote to Hendsch and explained the reasons for its lack of attention to his application on March 10, 1992. Two AMP members, Captains Moreno and Garay, reviewed Hendseh's application on behalf of the organization. Another unnamed pilot told them there could be a problem with the Coast Guard piloting endorsements that allowed Hendsch to hold a state license. The anonymous pilot alleged that the endorsements may have been based on false information. Hendsch claims that these anonymous allegations were in regard to trips he made in 1987, and that in 1988 the Coast Guard investigated and found no merit to these claims. Captains Moreno and Garay then obtained Hendsch's Coast Guard file to continue their investigation. Moreno and Garay concluded that it would have been physically impossible for Hendsch to have made all the trips he claimed. AMP claims that the trip requirements ensure that a pilot has the minimum necessary expertise to pilot a ship safely in a given area. AMP contends that the discrepancies raised serious doubts about Hendsch's qualifications to be a pilot. On April 24, 1992, Hendsch again requested admission to AMP. In June 1992, Hendsch's then-attorney, R.J. Smith, met with Captains Moreno and Garay, as well as AMP's attorney David Millen, to discuss the pending membership application. AMP told Smith of the problems with Hendsch's application. Smith testified that AMP representatives told him that if Hendsch withdrew his application request, they would not report their suspicions about Hendsch's license to the state. AMP told Smith that if Hendsch continued to pursue his application, AMP would be forced to deny it and report its suspicions to state authorities. Millen disputed Smith's version of what occurred at the meeting, characterizing AMP's position as simply notifying Hendsch that if he continued to press his application it would be denied, and that if he then appealed to the Board and the Board asked AMP for justification, AMP would have no choice but to give its reasons for the denial: its belief that Hendsch had falsified his records. Hendsch did not withdraw his application, and AMP rejected it on July 29, 1992. Hendsch appealed the rejection to the Board, which began its own investigation. At the Board's request, AMP reported its suspicions about Hendsch's endorsements. Hendsch's pilot license expired in December 1992. At the time of trial it had not been renewed. Also at the time of trial, the renewal of Hendseh's federal license was delayed while the Coast Guard investigated Hendsch's endorsements. In December 1992, Hendsch's lawsuit against Boyd Enterprises was transferred to the inactive calendar. In February 1993, Hendsch moved to amend his complaint to add AMP and Captains Dundas and Mork as defendants and alleged additional causes of action. Leave to file the amendments was granted on March 26, 1993. AMP was served in late April 1993. Hendsch and the original defendants stipulated to extending discovery until sixty days after the new defendants were served, and trial was set for September 1993. According to AMP, "due to confusion about the service of process" it did not enter an appearance until July 21, 1993. In August 1993, the superior court rescheduled the trial for January 10,-1994 and discovery deadlines were extended. The new calendaring order stated that no additional continuances would be granted without a showing of good cause. Trial was held from January 10 to January 22,1994. On January 25, the jury returned a verdict on the original special verdict form. In the special verdict the jury determined that AMP was a successor-in-interest to Boyd Enterprises. The jury also found that Boyd Enterprises owed Hendsch $6,862 for an accounting for 1988 and 1989. The jury also awarded Hendsch $25,000 on the breach of contract claim against Boyd Enterprises, despite finding that Boyd had a legitimate business purpose for firing him. The parties agreed that the jury should not have awarded damages for breach of contract under these circumstances. The court had instructed the jury that AMP had violated AS 08.62.175(c)(4) as a matter of law, and the jury found that this caused $108,000 in damages, of which Hendsch could have mitigated all but $1. The jury also found that AMP intentionally interfered with Hendsch's ability to make a living, causing $108,000 in damages, of which Hendsch could have mitigated only $25,600. Finally, the jury awarded Hendsch $75,000 in punitive damages against AMP. AMP moved for a new trial. The motion was denied. To cure various inconsistencies in the verdict form, supplemental questions were submitted to the jury on January 28, and the jury returned its final, verdict that same day. In the supplemental verdict, the jury found that Boyd Enterprises breached the covenant of good faith and fair dealing, causing $12,001 in damages, and that Hendsch was physically able to work in 1991, 1992, and 1993. The Boyd defendants filed a motion for judgment notwithstanding the verdict, which was denied. Final judgment was entered against Boyd Enterprises, AMP and AMP's individual pilots on October 19,1994. AMP filed appeal S-6729. AMP claims that the court erred in-denying the motion to continue the trial date and to allow further discovery, determining that Hendsch had a private cause of action under AS 08.62.175(c)(4), determining that AMP violated that statute as a matter of law, instructing the jury on the elements of the tort of intentional interference with prospective economic advantage, allowing Hendsch to seek punitive damages, and denying AMP's, request to have the jury resolve inconsistencies in the special verdict. Boyd Enterprises and the named pilots filed appeal S-6939. The Boyd defendants claim that the court erred in denying the motion to continue the trial date, submitting the issue of accounting to the jury, allowing the award of money against Boyd Enterprises for breach of the covenant of good faith and fair dealing after the jury found that Boyd Enterprises had good cause to terminate Hendsch, allowing individual members of an unincorporated association to be held individually liable for torts of other members when they did not participate in or ratify the torts, and instructing the jury on punitive damages. Robert Hendsch also filed an appeal, S-6979. Hendsch contends that the trial court erred in giving an incorrect damage calculation instruction in the Supplemental Special Verdict Form, accepting the reduction in contract damages on the Supplemental Special Verdict Form from $25,000 to $12,001, and accepting the jury's damage calculations for the 1988 and 1989 accounting. III. DISCUSSION A. Whether Denial of the Motion to Continue Constituted an Abuse of Discretion A trial court's decision to deny a motion to continue is reviewed for an abuse of discretion. See Johnson v. Schaub, 867 P.2d 812, 815 (Alaska 1994). A decision "to deny a continuance will be reviewed in light of the particular facts and circumstances of each individual case to determine whether the denial was so unreasonable or so prejudicial as to amount to an abuse of discretion." Id. AMP argues that at his October 1993 deposition, Hendsch claimed he had no physical disability that kept him from working from mid-1991 to the present. AMP and the Boyd defendants later received records from Hendsch's litigation with Trident Seafoods that caused them to question whether Hendsch could have worked as a pilot during 1991 and 1992. According to AMP and Boyd, those records indicate that Hendsch had a "severe disability" that existed until December 1992. AMP and the Boyd defendants moved for a continuance on December 12 and 13, 1993, to conduct additional discovery on the issue of whether Hendsch had made contrary claims in the earlier litigation or to his treating physicians. The trial court denied this request. However, the trial court ruled that if the defendants wished to use medical records and testimony from the prior actions, they could do so. This decision was not an abuse of discretion. This was a fast-track case. The purpose of the fast-track rule was to reduce delays in civil litigation. See former Alaska R. Civ. P. 16.1(a). Under the fast-track rule, a case set for trial could only be continued for "extraordinary good cause." Alaska R. Civ. P. 16.1(i). The case had already been continued once. Although AMP and Boyd hint that perhaps Hendsch was withholding evidence, they cite no interrogatory or document production request that would have covered the materials they eventually obtained from Hendsch's previous lawsuits. The defendants were able to use the Trident Seafoods materials in the trial of the case, so any prejudice they suffered was minimal. The judge's ruling was not an abuse of discretion. B. Whether a Private Cause of Action Is Implied by AS 08.62.175(c)fy) Alaska Statute 08.62.175(c) provides that "a pilot organization recognized by the board shall . be open to membership by all persons licensed under this chapter to pilot vessels in the pilotage region in which the organization is recognized." The trial judge found that this section creates a private cause of action and instructed the jury accordingly. AMP argues that AS 08.62.175(c) does not create a private cause of action. The trial court's reading of AS 08.62.175(c) involves a question of law that this court reviews in its independent judgment. See Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 631 n. 8 (Alaska 1993). AMP argues that because the legislature has created a comprehensive remedial scheme in this area, no private right of action should be found to be implied. See Walt v. State, 751 P.2d 1345, 1352 (Alaska 1988). Hendsch responds that AMP's violation of the statute inflicted serious economic injury on Hendsch by denying him the opportunity to work, and that none of the factors counsel-ling against recognizing a private right of action is present in this case. The Restatement (Second) of Torts lists the factors that help a court to determine whether or not a statute implies a private cause of action. The factors include the nature of the legislative provision, the adequacy of existing remedies, the extent to which a tort action will interfere with existing remedies, the importance of the purpose of the provision, how drastically the new tort will change the law, and the burden the new tort will place on the court system. See Restatement (Second) of Torts § 874A emt. h (1977), cited with approval in Walt v. State, 751 P.2d 1345, 1351 n. 12 (Alaska 1988). Analysis of these factors leads us to conclude that AS 08.62.175(c) implies a private right of action for its violation. As to the nature of the legislative provision, AS 08.62.175(c) is easily susceptible to individual enforcement. A single instance of denying membership to a qualified marine pilot constitutes a clear violation of the statutory command. The conduct the statute prohibits is clear and unambiguous. Cf. O.K. Lumber v. Providence Washington Ins. Co., 759 P.2d 523, 527 (Alaska 1988) (rejecting creation of private cause of action where statute prohibited acts committed frequently enough to become trade practice). In the absence of an implied cause of action, there would be no truly adequate remedy for a pilot wrongfully denied membership in a regional organization. The statute provides only a $5,000 civil fine and possible decertification of the pilot organization. See AS 08.62.155. This provision allows the state to seek compliance with the statute, but it provides no recourse for the injured individual. As we note below, it is also fairly clear that there is no alternative common law cause of action available. A private cause of action should never be found to be implied if it would significantly interfere with existing remedies. As we noted above, there are no other apparent remedies, and neither party has suggested alternatives. A private right of action will not interfere with governmental enforcement of AS 08.62.175(c), as the government remains free to impose the penalties provided by the statute. If anything, private enforcement will assist the government. Finally, we do not believe that this new cause of action will unduly burden the courts, or that it represents a dramatic change in the law. Additionally, we see no potential for "over-enforcement" of the law. The trial court properly found a private cause of action to enforce AS 08.62.175(c). It was also proper for the trial court to instruct the jury that AMP violated AS 08.62.175(e) as a matter of law. If Hendsch held the proper state and federal licenses, it was AMP's obligation to admit him to the organization. See AS 08.62.175(c). If AMP had serious doubts about the facts underlying Hendsch's licenses, it should have contacted the appropriate state and federal authorities. The authorities who issued Hendsch's credentials were the only ones in a position to question them. C. Whether the Jury Should Have Been Instructed on Intentional Interference with Prospective Economic Advantage We have long recognized the tort of intentional interference with prospective economic advantage. See Ellis v. City of Valdez, 686 P.2d 700, 706 (Alaska 1984). In Ellis, we held that "[u]nder this theory, a person who is involved in an economic relationship with another, or who is pursuing reasonable and legitimate prospects of entering such a relationship, is protected from a third person's wrongful conduct which is intended to disrupt the relationship." Id. at 707 (emphasis added). The trial judge's decision to instruct the jury on the tort of intentional interference with prospective economic advantage is a question of law over which we exercise our independent judgment. See Beck v. State Dep't of Transp. and Pub. Facilities, 837 P.2d 105, 114 (Alaska 1992); see also Summers v. Hagen, 852 P.2d 1165, 1168-69 (Alaska 1993). AMP argues that the facts of this case do not support a jury instruction on this tort. Quoting Ellis, AMP notes that this cause of action "contemplates wrongful interference with a developing relationship by an outsider to the relationship. A party who backs away from a developing economic relationship cannot be held liable for inducing himself to sever the relationship." Ellis, 686 P.2d at 708 (citations omitted). Hendsch claims that AMP interfered with his ability to work as a pilot and his relationship with the Board, and that he was therefore entitled to present a cause of action for intentional interference to the jury. Hendseh's cause of action for intentional interference with prospective economic advantage is clearly precluded by Alaska law. In Ellis, the plaintiff sued the City of Valdez over a deal gone bad, in which the City was to have purchased property from him. Ellis, 686 P.2d at 703-04. When the deal fell through, Ellis sued the City claiming, among other things, intentional interference with prospective economic advantage. See id. at 706. We held: In his reply brief, Ellis implies that Valdez improperly interfered with the relationship developing between Ellis and Valdez itself.... But Valdez' actions do not constitute intentional interference with another's prospective economic advantage. The only act of Valdez' which "interfered" with Ellis' prospective advantage was the city's decision not to purchase Ellis' terminal on Ellis' terms. This "arms-length" dealing is not the type of conduct prescribed by the tort. Instead, the cause of action contemplates wrongful interference with a developing relationship by an outsider to that relationship. Id. at 707-08 (emphasis added). AMP cannot be held liable for interference with its own relationship with Hendsch. Hendsch's vague assertions that AMP interfered with Hendsch's ability to work as a pilot and with Hendsch's relationship with the Board cannot support a claim for intentional interference with prospective economic advantage. AMP's "interference" with Hendsch's relationship with the Board did not prevent the formation of any economic relationship that would have resulted in a pecuniary benefit to Hendsch, because Hendsch never had or expected to have an economic relationship with the Board. As to the allegation that AMP interfered with Hendsch's general ability to work as a pilot, there is no third person with whom he had a relationship with which AMP interfered. As AMP points out, there was no evidence that Hendsch was prevented from forming his own pilot association in western Alaska, and AMP did not share its concerns over Hendsch's qualifications with shipowners or their agents. Hendsch no doubt suffered a severe pecuniary loss from AMP's rejection of his application, but he has presented no evidence that the loss came from anything but the loss of the relationship with AMP itself. As a matter of law, Hendsch could not have a claim for intentional interference with prospective economic advantage on these facts. The verdict in favor of Hendsch on the intentional interference with prospective economic advantage claim is reversed. D. Whether There Is Adequate Support for the Jury's Verdict on the Accounting Issues The jury found that Boyd Enterprises owed Hendsch $2,789 for the year 1988, and $4,073 for 1989. Hendsch testified at trial that he was concerned about the allocation of expenses in Boyd Enterprises in 1988 and 1989. Among these concerns were $38,000 in expenses for furniture for pilot houses in 1988, and $27,000 in 1989. Hendsch testified to his belief that personal expenses were wrongfully intermingled with the expenses of Boyd Enterprises. These included Captain Boyd's legal expenses, phone bills, and expenses for taking Boyd's wife on trips. Hendsch testified that using Boyd Enterprises' financial statements, he had determined what expenses had been charged to the enterprise. For 1989, according to the financial statement, the expenses were 24% of income. For 1988, the ratio was approximately 23%. Based on the records of another company, Hendsch testified that he believed a 15% ratio was more reasonable. Using 15% as the proper ratio, Hendsch calculated that he was owed approximately $5,500 for 1988 and $8,000 for 1989. At trial, Hendsch presented the testimony of Kevin VanNortwick, a certified public accountant. VanNortwick expressed the opinion that the allocable expenses of Boyd Enterprises showed "some unusual trends." He found what he thought were unreasonable administrative travel expenses, suspiciously large payments for two years to a particular vendor, and a large promotional expense. He also testified that it would not be proper for expense accounts to be used for personal expenses. Boyd Enterprises claims that no evidence was presented to show that the 15% figure was the industry standard. It also alleges that there was no testimony that "specifically detailed" what expenses might have been improperly charged. Finally, Boyd Enterprises contends that for the jury awards to be appropriate, the jury would have had to have found that there were $92,966 in improper expenses in 1988 and $40,073 in improper expenses in 1989. Boyd Enterprises claims there was no evidence to support this conclusion. In his appeal, Hendsch also attacks the jury's verdict, claiming that there is no evidence to support it. But he claims that this is because the jury award was too low, not because there was a lack of evidence to support any award at all. A jury's findings of fact will not be reversed when there is "room for diversity of opinion among reasonable people." Municipality of Anchorage v. Baugh Const. & Eng'g Co., 122 P.2d 919, 927 (Alaska 1986). When reviewing a motion for a directed verdict or for judgment notwithstanding the verdict, the court is 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." Bobich v. Stewart, 848 P.2d 1232, 1235 (Alaska 1992). We find that there is sufficient evidence to support the jury's verdict on this issue. It appears that the jury divided what Hendsch argued the total allowable expenses for 1988 and 1989 should have been by the total income for 1988 and 1989. This yields an income/expense ratio of approximately 16%. That, of course, is fairly close to the 15% figure that Hendsch advocated. That the jury awarded this amount suggests that it gave substantial credit to the testimony of Hendsch and his accountant. The jury's award is within the range of evidence presented. Remembering that a jury's findings of fact will not be disturbed when there is "room for diversity of opinion among reasonable people," City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978), we affirm the trial court's denial of a new trial on these grounds. E. Whether the Award of $12,001 for Breach of the Covenant of Good Faith and Fair Dealing Was Proper The first special verdict form asked the jury if Boyd Enterprises breached its contract with Hendsch. The jury answered that it had, so it proceeded to the next question, which asked if there was a legitimate business purpose for the termination. The jury found that there was a legitimate purpose. But the instruction following this question contained an error. It directed the jury to answer a question which, by virtue of the jury's earlier answer, was irrelevant. The court submitted a supplemental special verdict to the jury that included the questions on breach of the covenant of good faith and fair dealing from the original special verdict that the jury should have been instructed to answer, but was in fact instructed not to answer. The jury sent back a note asking if the damages for breach of the covenant of good faith and fair dealing would be in addition to the damages awarded for termination of the contract. The trial court proposed telling the jury to ignore the prior award of $25,000 when awarding damages for breach of the covenant. Hendsch's attorney objected on the grounds that the jury would then believe the money awarded for breach of the covenant would be in addition to the previous award for breach of contract. Hendsch argued that the jury should be informed that its $25,000 award was going to be ignored because of a clerical error. He proposed an instruction. AMP's attorney objected on the grounds that the proposed instruction could lead the jury into a decision not based on the merits. Instead, AMP proposed a reference to a prior jury instruction that told the jury not to worry about making overlapping awards, because the trial court would resolve such problems. The court drafted such an instruction, and Hendsch raised no objection. The jury awarded $12,-001 in damages for breach of the covenant of good faith and fair dealing. The Boyd defendants appeal because they claim there was no basis for the jury to make an award. Hendsch claims that the jury was given an erroneous instruction that caused them to mistakenly award him too little money. 1. There was sufficient evidence to support the jury's award. The Boyd defendants argue that there was no basis for the jury to award damages for breach of the covenant of good faith and fair dealing. As we noted above, a jury's findings of fact will not be reversed when there is "room for diversity of opinion among reasonable people." Baugh Const., 722 P.2d at 927. Reviewing a motion for a directed verdict or for judgment notwithstanding the verdict, we determine whether the evidence, when viewed "in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment." Bobich, 843 P.2d at 1235. In Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989) (Luedtke I), we upheld an employee's termination for failing a drug test, but remanded on the issue of the employer's violation of the covenant of good faith and fair dealing. In Luedtke I, the employer had suspended the employee prior to terminating him. In Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220 (Alaska 1992) (Luedtke II), this court reviewed the trial court's decision on the breach of covenant issue. Luedtke II demonstrates that it is possible for an employer to rightfully terminate an employee but to do so in a way that violates the covenant of good faith and fair dealing. See Luedtke II, 834 P.2d at 1223-24. The covenant essentially requires that employers "treat like employees alike" and "act in a manner which a reasonable person would regard as fair." Id. at 1224 (citations omitted). Damages in such a case will be limited to those that flow from the breach of the covenant and cannot include the damages an employee would be entitled to if the employee had been wrongfully terminated. See id. at 1226-27. Based on the evidence presented, the jury could have reasonably concluded that although it was proper for Boyd to terminate Hendsch, it was not proper to do so without thirty days' notice. The jury could have found that terminating the contract without notice constituted a breach of the covenant of good faith and fair dealing. In addition, the contract provided procedural protection for pilots if they were suspended. The jury could have found that Boyd's failure to consult other pilots violated the implied covenant that such consultations would occur prior to termination. The jury could have found these actions to be unreasonable and unfair. Thus the jury's conclusion is within the range of reasonable verdicts based on the evidence. 2. The jury instruction on the covenant damages was not erroneous. Hendsch objects to the amount of damages awarded by the jury for this cause of action. Specifically, he states that because the jury was not told that its award of $25,000 in contract damages was void, the jury thought it was awarding the $12,001 in addition to the $25,000. Hendsch claims that the trial court should have instructed the jury only to decide if the covenant of good faith and fair dealing was breached, and if it was, the court should have affirmed the $25,000 in damages on that basis. Hendsch admits that he did not object to the Supplemental Special Verdict Form at trial. In most eases, arguments which are not dependent on new facts and are closely related to and could have been inferred from the trial pleadings may be presented for appellate review even when not raised below. See Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). However, in Conan Alaska v. Bell Lavalin, Inc., 842 P.2d 148 (Alaska 1992), we refused to extend this exception to jury instructions. Id. at 153-54. Nonetheless, Hendsch contends that he should be permitted to object now because the trial court's instructions to the jury constituted plain error. In Conam Alaska, we held that we would review an objection to a jury instruction raised for the first time on appeal only if "the giving of the challenged instruction was plain error." Id. at 153 (citing Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)). We stated that "[p]lain error will be found when an obvious mistake exists such that the jury instruction creates 'a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice.' " Id. (quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983)). In other words, the query is "whether a correct instruction would have likely altered the result." Id. at 153. This standard imposes "a heavy burden on the appellants to prove that an error was highly likely determinative." Id. We have emphasized that we will not speculate about whether the error changed the result. Id. (citing Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974)). In this instance, Hendsch cannot sustain the burden of showing a high likelihood that a different instruction would have created a different result. His argument that the $25,000 breach of contract award, which both parties agreed was erroneous, was somehow binding on the jury, is without merit. His argument that the jury would have awarded more had they known their $25,000 award was stricken is also not strong enough to meet his burden. The jury was specifically given an instruction not to consider the overlap effect of various awards, and the trial court properly pointed out this instruction to 'the jury in the court's response to the jury's questions. Thus, we need not reach the question of the adequacy of the Supplemental Special Verdict Form. Its use was not plain error. The award for breach of the covenant of good faith and fair dealing is affirmed. F. Whether the Jury Was Properly Instructed on Punitive Damages Hendsch did not claim punitive damages in his complaint, nor, did he move to amend the complaint to do so before trial. He did not reveal an intent to seek punitive damages during discovery. His initial instructions, submitted two weeks before trial, did not include any instructions concerning punitive damages. His first mention of punitive damages was in the trial memorandum. As of the night before the jury was to be instructed, no proposed instruction on punitive damages had been presented. Hendsch did not actually present a punitive damages instruction until the day the jury was instructed. The jury instruction on punitive damages read: Robert Hendsch has made a claim against AMP for punitive damages. Punitive damages can be awarded if you find that AMP's actions were done with malice, bad motives, or reckless indifference to the interests of Robert Hendsch. If you find that AMP's actions were done with malice, bad motives, or a reckless indifference to the interest of Robert Hendsch, you must then place a value on these damages, a value that can be determined based on the need to deter AMP, and similarly situated persons and entities, from engaging in such behavior in the future. While both AMP and the Boyd defendants objected to any instruction on punitive damages, neither noted the failure of this instruction to advise the jury as to the required level of proof for punitive damages. Under AS 09.17.020, punitive damages must be proven by clear and convincing evidence. See State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264, 1266 n. 2 (Alaska 1992). The jury instruction given in this case does not tell the jury to apply the burden of proof by clear and convincing evidence. We have previously noted that "[j]ury instructions which set forth an entirely erroneous standard of liability" normally create a high likelihood that a plain error has been committed. City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977). As noted above, Conam Alaska holds that plain error mil be found when the erroneous jury instruction "would have likely altered the result." 842 P.2d at 153. The evidence at trial as to AMP's intentions — upon which the punitive damages question rested — was sharply in dispute and appeared to be closely balanced. Hendsch urged that AMP acted maliciously out of its own greed and self-interest in denying his application for membership, and he produced evidence to support his position. AMP countered that it had a good-faith concern about Hendsch's piloting credentials and advised Hendsch so that he might knowledgeably choose which course of action he would take, and it too produced supporting evidence. Given the closeness of the evidence and the arguments on this issue, it appears likely that, had the jury been instructed that it could return a punitive damages award only if the proof of malice was clear and convincing, the result would have been different. This conclusion follows from the substantial difference in the quantum of proof necessary to prove a proposition by a preponderance of the evidence and that required to prove the proposition by clear and convincing evidence. The preponderance of the evidence standard is met if the proponent of a proposition satisfies the fact-finder that the asserted facts are "probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964). For clear and convincing evidence, the proponent must "produce[] in the trier of fact a firm belief or conviction about the existence of a fact to be proved." Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994) (quoting Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249, 252 (1984)). We conclude that the failure to instruct the jury on the clear and convincing evidence burden of proof was plain error. The punitive damages award must be reversed. G. Whether Individual Pilots May Be Held Liable for AMP's Actions Defendants Boyd, Schibel, Murphy, and Jacobsen claim that they cannot be held personally liable for any damages owed to Hendsch by AMP. While Boyd was named in the caption of the complaint, Schibel, Murphy, and Jacobsen were not. Hendsch did name "JOHN DOES 1-6" whom he identified as "partners, partners, [sic] representatives, agents, and/or officers of Alaska Marine Pilots." Although Boyd's name appeared in the caption, he was not specifically alleged to have participated in AMP's decision to deny Hendsch membership. The first time that Boyd, Schibel, Murphy, and Jacobsen were specifically named as being individually liable for AMP's decision was in the Final Judgment. The Alaska Rules of Civil Procedure allow a plaintiff to amend the complaint to add a new party, in some circumstances even after the statute of limitations has run. See Alaska R. Civ. P. 15; Siemion v. Rumfelt, 825 P.2d 896, 900-01 (Alaska 1992). Hendsch never attempted to amend his complaint to hold these individuals liable for AMP's actions. Alaska Civil Rule 17(b) provides that an unincorporated association may be sued. This is a departure from the common law rule that a suit against an unincorporated association had to be maintained against the individual members of the association. See 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1861, at 214 (2d ed.1986); 6 Am.Jur.2d Associations and Clubs § 51, at 485 (1963). Civil Rule 23.2 allows a plaintiff to sue representative members of an unincorporated as sociation as a class. See also 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra § 1861, at 215. However, these are merely permissive rules; the plaintiff remains free to sue the entity, the members, or a class of members. See 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra § 1861, at 214-16. A court may not adjudicate the rights of a person or entity that is not a party to the action before it. Williams v. City of Valdez, 603 P.2d 483, 492 (Alaska 1979). Even if we were to assume that all of the individual members of AMP could be held liable for AMP's actions, Hendsch's complaint did not name them as defendants. By way of illustration, an employer can be held liable for certain torts committed by his or her employees. See, e.g., State v. Will, 807 P.2d 467, 471 (Alaska 1991). But a complaint that fails to name the employer as a party cannot result in a judgment against anyone but the employee. For a legally responsible party to be held hable for damages, the plaintiff must name that party in the lawsuit. See, e.g., Fazzi v. Peters, 68 Cal.2d 590, 68 Cal.Rptr. 170, 440 P.2d 242, 245 (1968) (plaintiff could collect on partnership's assets but not assets of individual partners when only partnership was named in complaint), cited with approval in Williams, 603 P.2d at 492 n. 29; Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex.App.1984) (in action for constructive trust, only named parties entitled to judgment); 59A Am.Jur.2d, Partnership § 767, at 616 (1987) (actions against partnership not enforceable against partners not served or joined in suit). We conclude that a final judgment may be rendered only against the parties named in the complaint and for acts alleged in the complaint as to those parties. IV. CONCLUSION The trial court is AFFIRMED in part and REVERSED in part, and the matter is REMANDED for proceedings consistent with this opinion: The trial court's denial of the motion for continuance is AFFIRMED. The trial court's determination that AS 08.62.175(c)(4) implies a private right of action, and that the jury should be instructed that the statute had been violated in this case, is AFFIRMED. The judgment against AMP for intentional interference with prospective economic advantage is REVERSED with the direction to dismiss that cause of action. The verdict concerning allocation of expenses is AFFIRMED. The verdict awarding $12,001 for breach of the covenant of good faith and fair dealing is AFFIRMED. The award of punitive damages is VACATED, and the matter REMANDED for retrial with the instruction that punitive damages must be proved by clear and convincing evidence. The judgment against Boyd, Schibel, Ja-cobsen and Murphy individually for AMP's actions is REVERSED. .Marine pilots are state and federally licensed independent contractors who are hired by ship operators to navigate ships through inland or coastal waters. . The Boyd defendants also include the individually-named Boyd pilots John Schibel, Richard Murphy, and Harry Jacobsen in their individual capacities. . The jury found Alaska Marine Pilots is Boyd Enterprises' successor-in-interest. . To receive federal pilotage endorsements, which are necessary to obtain a state pilot's license, marine pilot applicants must certify that they have completed a minimum number of trips in and out of various ports, harbors and waterways; they must also pass a Coast Guard exam. . Alaska law requires individual pilots and pilot associations to report violations of pilotage law, cooperate with the Board, and protect life and property. See AS 08.62.157, AS 08.62.175(c)(1) and (c)(6); 12 AAC 56.310. . This court rescinded Rule 16.1 in July 1997. See Alaska Supreme Court Order No. 1266 (July 15,1997). . Karl Luck, Director of Occupational Licensing, testified at trial that the state might be able to decertify a marine pilot organization that violated AS 08.62.175(c)(4). . In O.K. Lumber, we noted that the statute provided modest monetary sanctions whereas a successful tort action could result in significant damages. O.K. Lumber, 759 P.2d at 527. This was one of the factors that led us to conclude that we could not imply a private cause of action. Id. In O.K. Lumber, we found that large tort damage awards could "upset the implicit legislative judgment that the broad proscriptions of the act are tolerable because of the limited sanctions imposed." Id. In this case, the behavior prohibited is not broad, or difficult to define, or inapt for individual enforcement. In the absence of such concerns, the fact that an implied cause of action would provide grealfer remedies than no cause of action is one of the very reasons to find that the statute implies it. . We also note in passing that we reject AMP's argument that AS 08.62.175(c) is health or safety legislation. While a primary purpose of regulating marine pilots is preservation of safety, there is no evidence that this is the purpose of AS 08.62.175(c). On its face, the provision seems to be directed at ensuring marine pilots a fair opportunity to pursue their callings, rather than preserving health or safety. Thus, Reed v. Municipality of Anchorage, 782 P.2d 1155, 1156-57 (Alaska 1989) which held that a private cause of action cannot be implied from health or safety laws, is not controlling. .We recognize AMP's perhaps legitimate concerns that it would be dangerous to allow an unqualified employee to join the organization. However, if AMP was concerned about Hendsch's qualifications, its only proper action in that regard was to report those concerns to the appropriate authority. See AS 08.62.157(b). AMP's alleged concerns about the safety of the public, although laudable, were not a legitimate basis to deny Hendsch membership. The decision about whether Hendsch is a competent and qualified pilot is for the state and federal governments to make, not AMP. Moreover, to the extent AMP was motivated by fear of liability re- suiting from Hendsch piloting a vessel, Alaska law relieves regional pilot associations from all liability for claims arising from piloting a vessel. See AS 08.62.165(c). . In the case most closely on point, an Arizona appellate court ruled that the termination of an employee could not constitute interference with prospective economic advantage because the tort "require[s] some contract or business expectancy . vis-a-vis a third party. There was no contractual relation or business expectancy with a third party, only the contract which may have existed between the appellant and appellee hospital." Paros v. Hoemako Hosp., 140 Ariz. 335, 681 P.2d 918, 921 (Ariz.App.1984) (citations omitted). . This resolution moots AMP's appeal point concerning differing amounts in mitigation of Hendsch's damages. Having found that the intentional interference claim should not have been submitted to the jury, we need not address any claimed inconsistency concerning mitigation for damages arising from that claim with mitigation for damages arising from a claim that was properly submitted. We need not address inconsistency for a second reason: Hendsch argued below that the ver-diets were not inconsistent in response to AMP's request that the trial court give supplemental instructions to the jury in order to resolve the apparent inconsistency. Because Hendsch prevailed in this argument, and still does not argue that the verdicts are inconsistent, there is no occasion for us to consider the issue. . In Boyd Enterprises, the expenses of all pilots were pooled, as was all revenue. The difference between the revenue and the costs was then distributed to the pilots on a percentage basis based on the number of pilot days they worked out of the total number of pilot days worked by all Boyd pilots. Thus, if Hendsch could show that some expenses were not chargeable to Boyd Enterprises, he would be entitled to additional monies for 1988 and 1989. . The jury was asked to answer Q13, which asked, "What amount of damages, if any, was caused by the conduct which forms the basis of your verdict concerning the breach of the promise?" Question 12 asked if the breach was the legal cause of any loss to Hendsch. It was left blank, as it should have been, because the jury found a legitimate business purpose for the termination of the contract. But the question that the jury was instructed to answer if it so found was Q13, which asked for the amount of damages caused by the breach of contract. Had the jury answered question Q12 affirmatively (that the breach caused any loss), it was also instructed to answer Q13. Thus, regardless of whether the jury answered the question about legitimate business purpose "yes" or "no", it was still asked for the amount of damages. Further, Q13, which both parties agree the jury should not have answered, directed the jury not to answer questions Q14-Q16, which dealt with the breach of the covenant of good faith and fair dealing. Those questions should have been answered, in any event. . The court based its conclusion on Rule 51(a)'s statement that "[n]o party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection." 842 P.2d at 153 n. 8. . Even this mention was equivocal: "Hendsch may also be entitled to recover other damages including punitive damages if the evidence presented supports such a claim." When the court and counsel reviewed instructions the night before the jury was to be instructed, Hendsch's counsel noted that the proposed special verdict form included a claim for punitive damages and requested permission to write an accompanying instruction. AMP and the Boyd defendants objected on the ground that punitive damages had not been pled. The objections were overruled. As of that point, neither objecting counsel had had an opportunity to object to the form of the instruction. . It is also of significance to us that the punitive damages issue was raised at the very last possible moment and AMP did object to instructing the jury on punitive damages. That AMP failed to notice that the instruction erroneously lacked the clear and convincing evidence standard is understandable given the plaintiff's untimely proffer of the proposed instruction. . We note in passing that the trial court did not abuse its broad discretion in allowing Hendsch to present his punitive damages claim to the jury. We will not reverse such a decision unless we have a "definite and firm conviction upon review of the entire record that the court was mistaken." Vertecs Corp. v. Reichhold Chems., Inc., 671 P.2d 1273, 1277 (Alaska 1983). . We recognize that these authorities deal with partnerships and joint ventures. Nonetheless, we find them highly persuasive. We do not express an opinion as to whether AMP is properly classified as an unincorporated association or a partnership. If anything, the case for liability of partners for obligations of the partnership is even stronger than that for liability of members for obligations of an association. See David J. Oliveiri, Annotation, Liability of Member of Unincorporated Association for Tortious Acts of Association's Nonmember Agent or Employee, 62 A.L.R.3d 1165, 1168 (1975) (noting that many jurisdictions hold members of unincorporated associations liable only for torts they participated in or approved of). But even partners are entitled to notice and an opportunity to argue their case before being held individually liable for obligations of the partnership. Thus, regardless of AMP's organizational status, Boyd, Schibel, Murphy, and Jacobsen cannot be held individually liable.

11871376

Everett L. ANDREWS and Hub City Construction Company, Inc., Appellants, v. WADE & DE YOUNG, INC., P.C., Appellee

Andrews v. Wade & De Young, Inc., P.C.

1997-12-26

No. S-7272

574

580

950 P.2d 574

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Everett L. ANDREWS and Hub City Construction Company, Inc., Appellants, v. WADE & DE YOUNG, INC., P.C., Appellee.

Everett L. ANDREWS and Hub City Construction Company, Inc., Appellants, v. WADE & DE YOUNG, INC., P.C., Appellee. No. S-7272. Supreme Court of Alaska. Dec. 26, 1997. Thomas R. Wickwire, Fairbanks, for Appellants. Thomas L. Melaney, Anchorage, for Appel-lee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ.

4276

26081

OPINION RABINOWITZ, Justice. Everett L. Andrews and Hub City Construction Co., Inc. (collectively referred to as "Hub City") sued Wade & De Young, Inc., P.C., a law firm, for malpractice. The superior court dismissed the action and Hub City appealed. This court reversed the dismissal and remanded the case. See Andrews v. Wade & De Young, Inc., P.C., 875 P.2d 89, 93 (Alaska 1994). On remand, the superior court granted summary judgment to Wade & De Young on res judicata grounds. Hub City now appeals, asserting that the superior court failed to follow this court's instructions. I.BACKGROUND The facts of this case are recounted.in Andrews and will be merely summarized here. See Andrews, 875 P.2d at 90. Wade & De Young represented Moneymaker/Hub City Construction, a joint venture, in litigation with the Alaska State Housing Authority (ASHA). After that litigation settled, Hub City refused to authorize payments to Wade- & De Young for attorney's fees. Wade & De Young brought suit in superior court seeking payment of its attorney's fees. Hub City answered on May 3,1990. The joint venture then petitioned to have the dispute heard by the Alaska Bar Association's Fee Arbitration Panel. The Fee Arbitration Panel concluded that Wade & De Young was entitled to approximately $471,000 for its services. Wade & De Young subsequently filed a motion seeking confirmation of the award, which the superior court granted on July 2,1991. Following confirmation of the award, Hub City filed an action in superior court containing six separate counts for legal malpractice against Wade & De Young based upon the firm's representation of the joint venture in its litigation with ASHA. The superior court dismissed the action "on res judicata grounds." Andrews, 875 P.2d at 90. We reversed the dismissal and remanded the case because the superior court "failed to state affirmatively that it was considering matters outside of the pleadings, thus converting Wade & De Young's Civil Rule 12(b)(6) motion to one for summary judgment." Id. at 91. We noted that Civil Rule 13(a) "would preclude Hub City's legal malpractice action if the claim existed at the time Hub City served its answer in the fee recovery action." Id. Because the superior court's ruling prevented Hub City from presenting evidence concerning the date it first learned of its malpractice claims, we remanded the case to the superior court. Id. at 92-93.' On remand, the superior court granted summary judgment to Wade & De Young, holding that res judicata barred Hub City from pursuing its malpractice claims. As to most claims, the superior court determined that Hub City was aware of its malpractice claims no later than the date the fee arbitration award was confirmed. Hub City appeals, arguing that pursuant to this court's opinion, the superior court should have looked to the date it served its answer, rather than the date of the confirmation to determine whether its malpractice claims were barred. II. STANDARD OF REVIEW This court will affirm the superior court's grant of summary judgment if the evidence, in the record presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See French v. Jadon, Inc., 911 P.2d 20, 23-24 (Alaska 1996). The moving party bears the burden of demonstrating that there is no dispute as to any issue of material fact. See Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988). All reasonable inferences of fact are drawn in favor of the nonmoving party. See Wright v. State, 824 P.2d 718, 720 (Alaska 1992). III. THE REMAND On remand, the superior court heard evidence relating to the date Hub City learned of the facts constituting the basis for its malpractice claims. However, the superior court concluded that the relevant date for determining whether Hub City's malpractice claims were barred was the date the fee arbitration award was confirmed, rather than the (much earlier) date Hub City filed its answer. The superior court explained its choice of relevant date for determining whether Hub City's malpractice claims were barred as follows: The confusion may arise, because the supreme court did not differentiate between compulsory counterclaim and res judicata analyses. Clearly, Rule 13(a) is implicated at a specific point in time: when a pleading is filed. On the other hand, the case law which gives rise to res judicata principles does not specify a particular moment or event in the litigation process when the claim must be made, or lost. This court finds that, as a general matter, the better policy is to require that a defendant raise claims subject to a res judicata defense whenever, in the course of the same transaction litigation, those claims come to light. See Jackinsky v. Jackinsky, 894 P.2d 650 (Alaska 1995); Tolstrup v. Miller, 726 P.2d 1304 (Alaska 1986). Presumably there would be exceptions to this rule, times when such claims became known too late. Thus, res judicata might not apply when knowledge first arises in the course of trial, or possibly any time after discovery has closed_ But exceptions such as these have not been presented in this case. IV. DISCUSSION Alaska Rule of Civil Procedure 13(a) provides: "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...." Although it is not specifically stated in the Rule, it is well established that "[fjailure to assert a compulsory counterclaim bars a party from bringing a later independent action on that claim." Andrews, 875 P.2d at 91 (citing Miller v. LHKM, 751 P.2d 1356, 1359 (Alaska 1988); Wells v. Noey, 399 P.2d 217, 220 (Alaska 1965)). We concluded in the earlier appeal that Hub City's malpractice claims arise from the same transaction and occurrence that was the subject of the earlier attorney's fee recovery litigation. Andrews, 875 P.2d at 91. However, under Civil Rule 13(a), a claim is not compulsory if it is not mature at the time the party serves its pleading. Id. In this regard Civil Rule 13(e) provides: A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. "Rule 13(e) is permissive, not mandatory." Providence Washington Ins. Co. v. McGee, 764 P.2d 712, 715 n. 9 (Alaska 1988). According to Wright, Miller and Kane: An after-acquired claim, even if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, need not be pleaded supplementally; the after-acquired claim is not considered a compulsory counterclaim under Rule 13(a) and a failure to interpose it will not bar its assertion in a later suit. 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1428, at 209 (2d ed.1990). A number of state and federal courts have held that an after-acquired counterclaim is not barred either by the doctrine of claim preclusion or by rules of civil procedure analogous to Civil Rule 13(a). See, e.g., Dillard, v. Security Pac. Brokers, Inc., 835 F.2d 607, 609 (5th Cir.1988); Johnson v. Con-Vey/Keystone, Inc., 856 F.Supp. 1443, 1450-51 (D.Or.1994); Law Offices of Jerris Leonard, P.C. v. Mideast Systems, Ltd., 111 F.R.D. 359, 362 (D.D.C.1986) (all applying analogous rules of civil procedure). Given Hub City's contention that its malpractice claims against Wade • & De Young did not mature until after it had filed its answer in the Wade & De Young suit for attorney's fees, its malpractice claims normally would be characterized as permissive counterclaims. They would thus not be barred by either the res judicata doctrine of claim preclusion or by the preclusive effect accorded to rules of civil procedure analogous to Civil Rule 13(a) and (e). Yet there appears to be some support for the superior court's policy rationale that an after-acquired claim which is not barred as a compulsory counterclaim may nonetheless be barred under res judicata principles if successful prosecution could nullify the earlier judgment. Wright, Miller and Cooper note that Federal courts have in fact supplemented Rule 13(a) with additional defendant preclusion rules. The clearest need for these rules is shown by cases that have involved a variety of direct attacks on the -original judgment based on defenses or claims that could have been advanced in the first action. The rules have extended somewhat beyond the most palpable direct attacks, however, in an effort to protect the repose established by the original judgment against effective destruction in a later action by the former defendant. No clear formula has yet been found to capture this basic purpose, but the principle is well established. Charles A. Wright, Arthur R.' Miller & Edward H. Cooper, Federal Practice and Procedure § 4414, at 110-11 (1981). The legal foundation for the federal courts' adoption of supplemental rules of preclusion (in addition to rules of preclusion flowing from Rule 13(a)) is articulated in the Restatement (Second) of Judgments § 22 (1982), which provides: (1) Where the defendant may interpose a claim as a counterclaim but he fails to do so, he is not thereby precluded from subsequently maintaining an action on that claim, except as stated in Subsection (2). (2) A defendant who may interpose a claim as a counterclaim in an action but fails to do so is precluded, after the rendition of judgment in that action, from maintaining an action on the claim if: (a) The counterclaim is required to be interposed by a compulsory counterclaim statute or rule of court, or (b) The relationship between the counterclaim and the plaintiffs claim is such that successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action. The Restatement Commentary illustrates the concepts embodied within Section 22(2)(b) by way of the following two examples: 9. A brings an action against B for failure to pay the contract price for goods sold and delivered and recovers judgment by default. After entry of final judgment and payment of the price, B brings an action against A to rescind the contract for mutual mistake, seeking restitution of the contract price and offering to return the goods. The action is precluded. 10. A brings an action against B to quiet title to certain real estate and obtains judgment by default. B then brings an action against A to quiet title to the same property, alleging that at the time of the first action, B had acquired title to the property by adverse possession. The action is precluded. Restatement (Second) of Judgments § 22, at 190. Typical of these authorities which have adopted the Restatement's rule is Martino v. McDonald's System, Inc., 598 F.2d 1079 (7th Cir.1979). There the court applied the Restatement's rule in holding that plaintiffs claim was barred. McDonald's sued Martino for breach of contract. Id. at 1081. Before Martino filed an answer, he and McDonald's reached a settlement and the court entered a consent judgment against Martino. Id. Subsequently, Martino brought an antitrust action against McDonald's. Id. Rule 13(a) did not bar this subsequent action because Mar-tino had never filed a pleading in the previous action. Id. at 1082. The Martino court, however, relied on the Restatement (Second) of Judgments to hold that Martino's claim was barred as a direct attack on the rights established in the earlier judgment. Id. at 1085. Whether or not this court should adopt the common law compulsory counterclaim rule of Section 22(2)(b) presents a debatable question. This is particularly so in light of this court's adoption of Civil Rule 13(a) (compulsory counterclaims) and 13(e)(permissive counterclaims for those claims maturing or acquired after service of a responsive pleading). Nevertheless we have determined that we need not answer the question in the factual context of this ease. As noted above, according to Comment (f) to Section 22 of the Restatement, for a counterclaim to be barred, it is not sufficient that the counterclaim grow out of the same transaction . as the plaintiffs claim, nor is it sufficient that the facts constituting a defense also form the basis of the counterclaim. The counterclaim must be such that its successful prosecution in a subsequent action would nullify the judgment, for example, by allowing the defendant to enjoin enforcement of the judgment.... Restatement (Second) of Judgments § 22, Comment f at 189. A subsequent successfully prosecuted malpractice action would not alter rights to damages awarded in an attorney's fee litigation dispute, and would not necessarily entitle the client to restitution. It is conceivable that the attorney's malpractice caused less injury to the client than the cost of the services rendered. In such a situation, the attorney would be able to offset the award by any amount still owed under the original judgment, but the subsequent judgment would not nullify the first judgment. Rowland v. Harrison, 320 Md. 223, 577 A.2d 51, 57 (1990) is a case on point. There the court found that plaintiffs action for malpractice against a veterinarian was not barred by the veterinarian's earlier action to recover a debt for treatment of plaintiffs horse. The court pointed to Illustration 2 to Section 22. This illustration indicates that a plaintiffs malpractice action against a doctor would not be barred by a default judgment against the plaintiff in the doctor's earlier action to collect fees. The court concluded that if the client were successful in the malpractice action, "she would be entitled to whatever amount of damages are determined, but could not recover the fees paid for the treatment of the horse." Id. Likewise, Hub City, if successful, would be entitled to damages caused by Wade & De Young's malpractice, but would not be entitled to restitution of the attorney's fees awarded in the earlier suit. We therefore conclude that even if this court were to adopt the common law compulsory counterclaim rule of Section 22(2)(b) of the Restatement, the facts of this particular ease do not come within the ambit of Section 22(2)(b). Although it is beyond dispute that the earlier attorney's fee litigation and the current malpractice action arise out of the same transaction, it appears that a judgment in Hub City's favor in the malpractice action would not nullify the judgment in the attorney's fee litigation. Given the foregoing, we hold that the superior court erred in relying on the date the fee arbitration award was confirmed, rather than the date Hub City served its answer in the attorney's fee recovery action, in determining whether Hub City's malpractice claims were barred. Wade & De Young nevertheless contend that even if this court concludes that the date Hub City served its answer controls, the superior court's grant of summary judgment can be affirmed without remand, because the record supports the conclusion that Hub City knew of all the elements of its claim for malpractice against Wade & De Young at that time. Reaching this conclusion, however, would entail augmenting the findings of the superior court. Of the six counts of malpractice that Hub City alleged, the superior court held that only Count IV was barred as a "compulsory counterclaim." As to the remaining five counts the superior court never found that Hub City was, or should have been, aware of the grounds for the remaining malpractice counts of as May 3, 1990, the date it served its answer in the attorney's fee recovery action. The superior court is the forum in which to resolve the fact-intensive inquiry which is necessitated by our holding that May 3,1990, not July 2,1991, is the relevant date. Thus we conclude that the superior court's grant of summary judgment as to the six counts of malpractice pled by Hub City was erroneous. V. CONCLUSION The superior court's grant of summary judgment as to Counts I, II, III, IV, V and VI is REVERSED. The case is REMANDED for further proceedings consistent with this opinion. FABE, J., not participating. . Andrews is president and owner of the stock of Hub City Construction Co., Inc. . Hub City served its answer in the fee litigation on May 3, 1990. The superior court confirmed the Fee Arbitration Panel's award on July 2, 1991. In its order granting summary judgment to Wade & De Young the superior court stated: Examination of Hub City's claims reveals that plaintiff was aware of the grounds for each of the six counts in its complaint at the latest, before the fee arbitration award was confirmed. . As we noted in the earlier appeal of this case, "[a] cause of action for attorney malpractice does not mature until 'the client discovers or reasonably should have discovered the existence of all of the elements of his cause of action.' " Andrews v. Wade & De Young, Inc., P.C., 875 P.2d 89, 91 (Alaska 1994) (citing Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)). Hub City maintains that it learned of the facts which form the basis of its malpractice claims during the course of the attorney's fee recovery litigation— after it served its answer in that case. . State court precedent is to the same effect. See, e.g., Skillman v. First State Bank of Altoona, 341 So.2d 691 (Ala.1977) (holding that wrongful garnishment claim was not barred as a compulsory counterclaim to an earlier action by bank to collect on a note because the wrongful garnishment arose after the time for Skillman to answer in the earlier action); O'Brien v. Scottsdale Discount Corp., 14 Ariz.App. 224, 482 P.2d 473 (1971) (finding that trial court erred in holding that claims were compulsory in a previous action and were barred by res judicata where the trial court did not adduce whether the claims had matured before the time O'Brien answered the prior action). Wright, Miller and Cooper state: Failure to assert a counterclaim that is made compulsory by Rule 13(a) precludes a later action, whether the preclusion be explained on grounds of res judicata or on the potentially more flexible grounds of waiver, estoppel, or preclusion by rule. Failure to advance a merely premissive counterclaim, on the other hand, ordinarily does not preclude a later action. Charles A. Wright, Arthur R. Miller & Edward'H. Cooper, Federal Practice and Procedure § 4414, at 109 (1981) (footnotes omitted). See also 18 James W. Moore, Moore's Federal Practice § 131.21 [3][c][ii] at 131-47 (3d ed.1997). . The authors further observe that Despite the express. provisions of Rule 13, a variety of cases have arisen that show the need for additional rules qf defendant preclusion. The need arises in part from various exceptions to the basic requirement of advancing counterclaims that grow out of the same transaction or occurrence as the plaintiff's claim. Rule 13(a), for example, does not require assertion of counterclaims that already are subjects of a pending action, yet circumstances may arise in which pursuit of the pending action should be precluded after judgment in the later-instituted action. So too, the compulsion of Rule 13(a) has often been held inapplicable to actions terminated without a responsive pleading, as upon default, settlement, or dismissal on motion. Wright, Miller and Cooper, Federal Practice and Procedure § 4414, at 110 (footnote omitted). . Comment f to section 22(2)(b) is particularly relevant. In discussing the special circumstances under which failure to interpose counterclaim will operate as a bar, it is stated: Normally, in the absence of a compulsory counterclaim statute or rule of court, the defendant has a choice as to whether or not he will pursue his counterclaim in the action brought against him by the plaintiff. There are occasions, however, when allowance of a subsequent action would so plainly operate to undermine the initial judgment that the principle of finality requires preclusion of such an action'. This need is recognized in Subsection (2)(b). For such an occasion to arise, it is not sufficient that the counterclaim grow out of the same transaction or occurrence as the plaintiff's claim, nor is it sufficient that the facts constituting a defense also form the basis of the counterclaim. The counterclaim must be such that its successful prosecution in a subsequent action would nullify the judgment, for example, by allowing the defendant to enjoin enforcement of the judgment, or to recover on a restitution theory the amount paid pursuant to the judgment, or by depriving the plaintiff in the first action of property rights vested in him under the first judgment. Restatement (Second) of Judgments § 22, Comment f, at 189-90 (internal cross-references omitted). . The Reporter's note to Comment f and Illustrations 9 and 10 reads: Yet there do appear to be at least two situations where the need for such a common-law rule is clear, and identification of those situations may afford guidance in more difficult cases. The first such situation, reflected in Illustration 9, is a case in which a defendant, having failed to interpose a defense or counterclaim in a prior action which terminated in a judgment for plaintiff, now seeks in a subsequent action to obtain relief which, if granted, would permit recovery of the amount paid pursuant to that judgment on a restitution theory. To allow such recovery (or to allow an injunction against enforcement before payment of the judgment) would be to allow an attack on the judgment itself. See the excellent discussion of a comparable but more complex fact situation in Middlesex Concrete Products & Excavating Corp. v. Borough of Carteret, 35 N J.Super. 226, 113 A.2d 821 (1955); see also Bank of Montreal v. Kough, 612 F.2d 467 (9th Cir.1980); Martino v. McDonald's System, Inc., 598 F.2d 1079 (7th Cir.1979), cert. denied, 444 U.S. 966, 100 S.Ct. 455, 62 L.Ed.2d 379 (1979); Fairchild, Arabatzis & Smith, Inc. v. Prometco (Produce & Metals) Co., 470 F.Supp. 610 (S.D.N.Y.1979)... The second situation is one in which the initial judgment has resulted in a declaration of the plaintiff's interest in certain properly and the defendant, as plaintiff in the subsequent action, seeks relief which, if granted, would significantly impair that interest. This situation is exemplified by Illustration 10, and the result posited there is supported by such decisions as Moore v. Harjo, 144 F.2d 318 (10th Cir.1944); Lynch v. Lynch, 250 Iowa 407, 94 N.W.2d 105 (1959); Weiser v. Kling, 38 App.Div. 266, 57 N.Y.S. 48 (1899) (alternative holding); Paulson v. Oregon Surety & Cas. Co., 70 Or. 175, 138 P. 838 (1914). Restatement (Second) of Judgments § 22, at 193-94. . The same rationale was applied in Lee v. City of Peoria, 685 F.2d 196 (7th Cir.1982). In Lee, plaintiff had been dismissed from the police force. Id. He claimed at his administrative hearing and later on appeal in state court, that his dismissal was racially motivated, but presented no evidence in support of this claim. The dismissal was upheld. Id. Lee then instituted a civil rights suit in federal district court. Id. The circuit court affirmed the district court decision holding that plaintiff's failure to raise the defense before the Board barred him from asserting a claim based on the same facts in a subsequent action. Id. at 199-202. Rule 13(a) did not apply because Lee initiated the original proceeding by appealing the Board's decision in a state court proceeding, and as a consequence was not subject to the compulsory counterclaim provisions of Rule 13(a). . The Reporter's note to Comment (f) reads as follows: Comment f and Illustrations 9 and 10 are new. These materials, and Subsection (2)(b) itself, represent an effort to articulate the bases in precedent and policy for what might be termed a "common-law compulsory counterclaim rule." It is perhaps impossible to define the scope of this concept with precision and in any event the problem is one of decreasing importance with the growth of compulsory counterclaim statutes and rules of court. Restatement (Second) of Judgments § 22, at 193. . Of additional significance is the fact that in the first appeal of this action, we stated: [t]he fee arbitration proceeding involved the amount the Joint Venture and Hub City owed Wade & De Young for legal services rendered in the ASHA litigation. The legal malpractice litigation involves whether Wade & De Young committed malpractice during the course of its representation of Hub City in the ASHA litigation. In its fee arbitration decision and award, the Fee Arbitration Panel made no findings regarding Wade & De Young's malpractice. Furthermore, Wade & De Young concede that the Fee Arbitration Panel lacks jurisdiction to adjudicate malpractice claims. Resolution of a fee dispute is different from adjudication of a malpractice claim. While preclusion could arise based upon an arbitrator's decision, the Fee Arbitration Panel's decision and award does not bar Hub City's malpractice action, because the two proceedings implicate different legal and factual issues. Andrews, 875 P.2d at 92-93 (footnote omitted). In our view, if Hub City was unable to present its malpractice claims in the earlier action, it would be manifestly unjust to deny it the opportunity to litigate those claims now. . The superior court's alternative holding that Count IV was barred by application of the compulsory counterclaim rule lacks record support. In moving for summary judgment Wade & De Young failed to demonstrate that Hub City was aware of all the elements of its Count IV claim for malpractice at the time it served its answer in the attorney's fee case.

11872638

Donald Lee SCROGGINS, Appellant, v. STATE of Alaska, Appellee

Scroggins v. State

1998-01-02

No. A-6512

442

445

951 P.2d 442

951

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Donald Lee SCROGGINS, Appellant, v. STATE of Alaska, Appellee.

Donald Lee SCROGGINS, Appellant, v. STATE of Alaska, Appellee. No. A-6512. Court of Appeals of Alaska. Jan. 2, 1998. Jill Jensen, Leutwyler, Brion & Associates, Anchorage, for Appellant. Adrienne P. Bachman, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

1142

7104

OPINION COATS, Chief Judge. Donald Lee Scroggins was convicted, based upon his plea of no contest, of attempted sexual abuse of a minor in the first degree, a class A felony. AS 11.41.434(a)(1); AS 11.31.100. Superior Court Judge Milton M. Souter determined that Scroggins was a second felony offender for purposes of presumptive sentencing based upon Scroggins' 1982 California conviction for lewd or lascivious acts upon a child. California Penal Code § 288(a). Judge Souter found that two aggravating factors applied to Scroggins' sentence and imposed an aggravated presumptive sentence of fifteen years' imprisonment with three years suspended. Judge Souter placed Scroggins on probation for a period of ten years following his release from confinement. Scroggins appeals, arguing that his California conviction is not a prior felony conviction for purposes of presumptive sentencing. We agree and we therefore vacate Scroggins' sentence. The resolution of this issue is governed by AS 12.55.145(a)(1)(B) which provides: For purposes of considering prior convictions in imposing sentence under [the presumptive sentencing statutes], a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction[.] Here, Scroggins concedes his California conviction, but he argues that the California offense is not similar enough to any felony under Alaska law. Whether an out-of-state conviction constitutes a prior felony for purposes of presumptive sentencing is a question of law, which this court reviews de novo. See Borja v. State, 886 P.2d 1311, 1313-14 (Alaska App.1994). Scroggins was convicted in California of the crime of lewd or lascivious acts upon a child under the age of fourteen, for conduct committed on May 11, 1982. We therefore compare Alaska law as of May 11, 1982, with the California statute under which Scroggins was convicted, to determine whether the elements of the California offense are "similar" to any Alaska felony. See AS 12.55.145. California Penal Code § 288(a), under which Scroggins was convicted in 1982, provided: Any person who shall willfully and lewdly commit any lewd or lascivious act . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appeal ing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years. Potentially similar felonies defined under Alaska law at the time the offense was committed include sexual abuse of a minor in the second degree, AS 11.41.436(a)(2) and (3), and unlawful exploita-tion of a minor, AS 11.41.455(a)(2)-(6). These offenses require proof of sexual contact. In 1982, under former AS 11.81.900(b)(51), "sexual contact" meant (A) the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast; or (B) the defendant's intentionally causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast. In addition, this conduct must have been intended to result in either the sexual arousal or sexual gratification of the actor or of the victim. See Flink v. State, 683 P.2d 725, 733 (Alaska App.1984) (since superseded by statute). As Scroggins points out, the California statute prohibits the touching of any body part of the child. See People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037 (1995) (prohibited touching need not be of intimate body part); People v. Diaz, 41 Cal.App.4th 1424, 49 Cal.Rptr.2d 252, 253-54 (1996) (touching of sexual organs not required; any part of the body may be the object of sexual fetish, and any touch, in fulfillment of such a fetish, is harmful to the child and prohibited by statute); People v. Sharp, 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117, 128-32 (1994) (defendant's acts of luring girl to fence, twirling the hair at the back of her neck around his index finger, rubbing girl's back, and telling her not to tell her mother about the incident sufficient to support conviction); People v. O'Connor, 8 Cal.App.4th 941, 10 Cal.Rptr.2d 530, 533 (1992) (section 288 not restricted to genital touching). In contrast, the relevant Alaska statutes prohibit the touching or obscene exhibition of sexual organs: the child's, defendant's, or another person's genitals, anus, or female breast. Thus, the Alaska statutes' focus on the genitals, anus or female breast is considerably narrower than the California statute's prohibition against touching any body part. In Borja, 886 P.2d at 1314, we stated: AS 12.55.145(a)(2)[ ] does not require that the out-of-state offense be identical to an Alaska felony — only that its elements be "similar" to those of an Alaska felony. Implicit in this statutory wording is the possibility that there will be some acts covered by one statute that will not be covered by the other. In Borja, we found a sufficient degree of similarity between the California offense of being an accessory to a felony and the Alaska offense of first-degree hindering of prosecution to allow the California conviction to qualify as a prior felony conviction under AS 12.55.145(a)(2). Id. However, in the instant case, the fact that the California statute prohibits the touching of any body part of the child makes that element of the California statute apply to more conduct than is prohibited by the Alaska statute. We conclude that the elements of Scroggins' prior felony conviction for lewd or lascivious conduct toward a child are not sufficiently similar to the analogous Alaska felonies. Thus, Scroggins' California conviction does not qualify as a prior felony for presumptive sentencing purposes. We accordingly vacate Scroggins' sentence and remand the case to the superior court with directions to the court to sentence Scroggins as a first felony offender. The case is REMANDED for resentenc-ing. . Alaska Statute 12.55.145(a)(2) has been amended and renumbered. The current version of the statute is AS 12.55.145(a)(1)(B). . Even though Scroggins' prior California felony conviction does not qualify as a prior felony conviction for purposes of presumptive sentencing under AS 12.55.145, the sentencing court can properly consider this prior conviction in resen-tencing him. See, e.g., Burnette v. Municipality of Anchorage, 823 P.2d 10, 14 n. 4 (Alaska App.1991); Harlow v. State, 820 P.2d 307, 309 n. 2 (Alaska App.1991); Garroutte v. State, 683 P.2d 262, 269 (Alaska App.1984).

11872480

LAKE COLLEEN ENTERPRISES, INC., Appellant, v. ESTATE OF Michael Raymond MARK, Marguerite E. Biscoe, Personal Representative of the Estate of Michael Raymond Mark, and Ray Mark, Sr., Individually, Appellees

Lake Colleen Enterprises, Inc. v. Estate of Mark

1997-12-26

No. S-7759

427

432

951 P.2d 427

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

LAKE COLLEEN ENTERPRISES, INC., Appellant, v. ESTATE OF Michael Raymond MARK, Marguerite E. Biscoe, Personal Representative of the Estate of Michael Raymond Mark, and Ray Mark, Sr., Individually, Appellees.

LAKE COLLEEN ENTERPRISES, INC., Appellant, v. ESTATE OF Michael Raymond MARK, Marguerite E. Biscoe, Personal Representative of the Estate of Michael Raymond Mark, and Ray Mark, Sr., Individually, Appellees. No. S-7759. Supreme Court of Alaska. Dec. 26, 1997. Rehearing Denied Feb. 24, 1998. William R. Satterberg, Jr., The Law Offices of William R. Satterberg, Jr., Fairbanks, for Appellant. Daniel E. Winfree, Winfree Law Office, Fairbanks, for Appellee Biscoe. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

2395

14590

OPINION MATTHEWS, Justice. I. INTRODUCTION Public access easements are easements reserved by the state to ensure access to state land and water. The question here is whether a dedicated public access easement may be used as an access way for an adjoining private parcel. We answer in the affirmative, because the state had an interest in the adjoining parcel when the easement was created, and the right to use the easement was not destroyed when the state's interest was terminated. II. FACTS AND PROCEEDINGS The Estate of Michael Raymond Mark (Mark) administers a fourteen-acre parcel in Healy adjacent to a seven-acre parcel owned by Lake Colleen Enterprises (Colleen). Both parcels have frontage on the Parks Highway, and Colleen's southern boundary is adjacent to another road. See Appendix. Beginning in January 1982, Mark leased his parcel from the state under the now repealed Remote Parcel Program. The leased land was subject to "[a] 25 foot wide access easement along all lot lines." Mark's property was platted in 1987. The plat showed a twenty-five-foot public access easement along all boundaries except the boundary with the Parks Highway. A plat note stated that "all remote parcels are subject to a 25 foot public access easement along all upland boundaries." Mark obtained title to his parcel from the state in 1991, "subject to platted easements and reservations." The 979-foot southern boundary of Mark's lot forms the northern boundary of Colleen's lot. In 1988 Colleen's predecessors contracted to buy from the State of Alaska what is now Colleen's lot. The contract called for a twenty-one year pay out, and the state retained legal title to the property until the contract price was fully paid. The state transferred title to Colleen's immediate predecessor in 1995. That same year Colleen purchased the property. A hotel was constructed on Colleen's property. In April 1995 Colleen cleared the twenty-five-foot easement on the Mark lot and put in a gravel drive. Colleen uses this drive for access to the rear of the hotel and to maneuver trucks making deliveries to the hotel. In response, Mark built a fence on the boundary, blocking most of Colleen's access from the easement; however, Mark left a twenty-five-foot wide opening in the fence for access to the Colleen property. Parts of the fence were later torn down. Colleen sued Mark to enjoin interference with its access along the easement. Mark counterclaimed, seeking injunctive relief barring Colleen from using the easement and seeking damages for, among other things, trespass and conversion of timber and gravel. After the parties settled the damages claims, Mark moved for summary judgment. The court granted the motion, holding that the easement only permits access to state land and navigable or public waters, not to the Colleen property. Final judgment was entered in accordance with the order granting summary judgment. Colleen appeals. III. DISCUSSION The parties generally agree that there are three statutory sections and two regulatory sections which are potentially relevant to the resolution of this case. They are: AS 38.04.050: Wherever state land is surveyed for purposes of private use, legal rights-of-way and easements shall be reserved for access and, where appropriate, for utility services to each parcel of land. A right-of-way or easement shall be located to assure adequate and feasible access for the purposes for which the right-of-way or easement was intended. Where necessary and appropriate for the use intended or where required by local subdivision ordinances, the director shall arrange for the development of surface access as part of the land availability program. The direct cost of local access development shall be borne by the recipient of the land unless otherwise provided by state statutes or regulations. AS 38.04.055: The director shall reserve easements and rights-of-way on and across land which is made available for private use as necessary to reach or use public water and public and private land. An easement or right-of-way reserved under this section may include trails that have an established history of use for commerce, recreation, or transportation. AS 38.04.058: The director may, under terms agreed to in writing by a grantee, lessee, or interest holder of state land, restrict the use of an easement or right-of-way reserved under AS 38.04.050, 38.04.055 or other law in order to protect public safety or property. 11 AAC 53.300: This section governs easements and rights-of-way other than those for public access to and along navigable and public water. All easements and rights-of-way reserved under this section must be surveyed and platted to the accuracy of the adjacent survey, or to Class III survey standards, if there is no adjacent survey. Except as otherwise provided by law, easements reserved under this section are vested in the public. Easements and rights-of-way of at least the following widths must be surveyed and shown on the plat. When in the public interest, the director may require the survey and platting of additional easements or rights-of-way, or waive these requirements at the time that survey instructions are issued. (1) Public Access Easements. (A) The section line easement is 50 feet wide on the state side. If the state is the owner on both sides, then it is a total of 100 feet wide. (B) The easement for an existing road or trad that does not already have a reserved easement or right-of-way is 30 feet on each side of the centerline of the road or trail. (2) Utility easements are 20 feet wide, unless a need is demonstrated for a wider easement at time of survey and platting. (3) Pedestrian easements are 20 feet wide, unless a need is demonstrated for an easement of a different width at the time of survey and platting. (4) For any control stations set by the United States Coast and Geodetic Survey, Bureau of Land Management, United States Geologic Survey, United States Corps of Engineers, National Geodetic Survey, the division, or private surveyors to at least Class I standards, easements must be created for access to the control station from the nearest practical property boundary. There must be an easement with a radius of five feet around the control station, a pedestrian access easement five feet wide from the nearest practical property boundary to the control station, and, where applicable, a five-foot-wide direct line-of-sight easement from the control station to other control stations. (5) Other easements, as necessary, will be determined at the time of survey. (6) Rights-of-way for arterials must be a minimum of 100 feet wide; rights-of-way for residential roads must be a minimum of 60 feet wide; and other right-of-way widths, as necessary, will be determined at the time of survey. 11 AAC 53.900(25): Únless the context clearly indicates otherwise, in this chapter (25) "public access easement" means an easement retained by the state at the time of disposal of state land, to insure continued access to state land and access to and along navigable or public water[.] The trial court's'decision was based on the definition of "public access easement" set forth in 11 AAC 53.900. The court ruled that the easement on the Mark property was for access to State land and access to and along navigable or public water. Lake Colleen is not using the easement for access to or along navigable or public water or for access to State land. Lake Colleen is using the easement for access to its own property. This exceeds the scope of the reservation in the Mark patent. Colleen argues that this interpretation too narrowly defines the scope of the easement. Citing the "plain language" of AS 38.04.050 and .055, Colleen argues, that the easement must have been intended to ensure access to "each parcel of land" as stated in section .050, including "private land" as stated in section .055. Colleen finds support in the language of section .058, which gives the director authority to restrict the use of an easement reserved under sections .050 or .055, noting that no restriction was imposed in this case. Colleen argues that 11 AAC 53.900(25), the regulation defining the term "public access easement," is invalid inasmuch as it does not refer to access to each parcel of land or public and private land as AS 38.04.050 and .055 require. Mark argues that the statutory directions of sections AS 38.04.050 and .055 are discretionary. The director is required to reserve easements as appropriate or necessary for access to each parcel of land and to reach public water and public and private land. Here the reservation of access to the Colleen property was not necessary since the Colleen property was already accessible from the Parks Highway and another road. Thus, in this case, literal adherence to the definition of public access easement creates no conflict with the statutory sections. In our view, the fact that the definition of "public access easement" does not refer to easements whose purpose is to ensure access to private land does not render the definition inconsistent with the statutory sections, so long as there is other regulatory authority authorizing the director to reserve easements affording access to private land. Sections .050 and .055 require easements where necessary or appropriate for access to private land, but the easements do not have to be called "public access easements." The director has the authority to reserve easements to private land under 11 AAC 53.300(5), which authorizes "other easements, as necessary." We thus accept the definition of "public access easement" as governing the scope of this easement. Nonetheless, in order to conclude that the easement does not provide access to the Colleen property, it is necessary to answer two questions. First, was the Colleen property "state land" within the meaning of 11 AAC 53.900(25) at the time the public access easement was created? Second, if the answer to the first question is affirmative, does state land which is served by a public access easement lose the benefit of the easement upon becoming private land? For the reasons that follow, we conclude that the Colleen property was "state land" at the time the easement was created, and that it did not lose the benefit of the easement upon becoming private land. At the time of the survey of the Mark property and the creation of this easement in 1987, the Colleen property had already been conveyed by the state under a contract of sale to Colleen's predecessors. However, legal title remained in the state. If the purchaser had defaulted, the state would have also been entitled to equitable title. In our view retention of legal title in the state suffices to qualify lands subject to a contract of sale as "state land" within the meaning of the definition of "public access easement." Given the possibility of default in the contract of sale and forfeiture of the lands to the state, the same reasons which make it desirable to ensure access to land wholly owned by the state apply to lands to which the state has only legal title. Otherwise, a confusing patchwork of access rights to public roadways could be created where some parcels of state land, or former state land, have access to a road, but others do not, depending on whether and when parcels have been sold and forfeited. Further, access once granted under a public access easement to state land should not be lost once the state conveys full title to a private owner. Such a result would have the potential to diminish the value of the property to be conveyed and thus the consideration which the state would receive. It would also have the potential to eliminate the only legal or practical access to a given parcel. We conclude, therefore, that the superior court erred in concluding that the public access easement on the Mark property may not be utilized for access to or from the Colleen property. This conclusion does not mean, however, that Colleen may drive on and off the easement at any point along the shared boundary. Easement usage must be reasonable and appropriate to the nature of the land and the purpose of the easement. See Andersen v. Edwards, 625 P.2d 282, 286-87 (Alaska 1981) (holding that express easement does not grant absolute right to use easement; use must be reasonable); Smith v. Commissioners of Public Works, 312 S.C. 460, 441 S.E.2d 331, 336-37 (S.C.App.1994) (holding that express easement granting access at "any point" necessarily grants only reasonable access points). IV. CONCLUSION Since Colleen's land was state land at the time of the survey of the Mark property, the Colleen property is one of the properties that the easement was intended to serve. Consequently, the trial court erred in enjoining Colleen's use of the easement for access to its property. The judgment is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. . The lot numbered ASLS 87-23 is the Mark property. The lot numbered ASLS 83-42 is the Colleen properly. . The plat also contains a dedication signed by the Director of the State Division of Land and Water Management: "I hereby . dedicate for public or private use as noted, all easements . as shown and described hereon." . We observe, however, that the usage in 11 AAC 53.300 of the term "public access easement" is broader than that term as defined in 11 AAC 53.900(25). Under section .300(1), a "public access easement" includes section line easements and easements for existing roads or trails. Section line easements and easements for existing roads or trails do not exist merely to ensure continued access to state land and waters; they often serve private lands as well. This inconsistency suggests that either the definition of "public access easement" is too narrow or that another regulatoiy category is needed to describe easements whose purpose is to serve private and public property. However, this possible inconsistency does not affect the outcome of this case and does not need to be resolved at this time.

11880455

Deborah M. WEST, Appellant, v. Mark E. LAWSON, Appellee

West v. Lawson

1998-01-16

No. S-8083

1200

1206

951 P.2d 1200

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Deborah M. WEST, Appellant, v. Mark E. LAWSON, Appellee.

Deborah M. WEST, Appellant, v. Mark E. LAWSON, Appellee. No. S-8083. Supreme Court of Alaska. Jan. 16, 1998. Vincent Vitale, Anchorage, for Appellant. Mark E. Lawson, pro se, Las Vegas, NV, Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

3177

20310

OPINION FABE, Justice. I. INTRODUCTION This appeal involves a dispute between Deborah West and Mark Lawson over the custody of their three-year-old daughter, Shelby. West and Lawson entered into a custody agreement under which Shelby was to live with each parent fifty percent of the time. Lawson then moved to Las Vegas, Nevada. Following a modification hearing, the superior court imposed a custody schedule under which Shelby would spend alternate six-month periods with West in Anchor age and with Lawson in Las Vegas until she reached school age. We vacate the six-month alternating custody schedule and remand for further proceedings. II. FACTS AND PROCEEDINGS West and Lawson met in November 1992 and began dating several months later. They lived together briefly, but were no longer living together when Shelby was born in January 1994. The parties were never married and have no other children. Shelby was diagnosed with mild cerebral palsy in 1995. After Shelby's birth, the parties attempted reconciliation and Shelby lived with both parties in Lawson's mother's Anchorage apartment until October 1994 when West moved out. Shelby then lived with Lawson for five days each week in his mother's apartment and with West for two days each week during West's days off from work. West visited Shelby regularly at Lawson's mother's apartment. In June 1995 West filed a complaint for custody. Lawson filed an answer and counterclaim seeking sole custody. In February 1996 West and Lawson entered into a custody agreement under which Shelby was to live with each parent fifty percent of the time. Although the agreement did not establish a specific visitation schedule for Shelby's preschool years, Shelby lived approximately half of the week with each parent from February 1996 to November 1996. The agreement specified that once Shelby began kindergarten she would live with each parent on an alternating week basis. In November 1996 Lawson and his wife moved to Las Vegas in pursuit of employment opportunities. Recognizing that his move would make it impossible to continue the alternating half-week custody schedule, Lawson moved for an alternating six-month custody schedule. The motion was denied. West moved for a determination of whether Lawson's move warranted modification of the custody agreement. The motion was granted. A modification hearing was held in March 1997. The court heard testimony from several witnesses including both parties, the child custody investigator, Allen Bailey, and a psychologist, Dr. Karen Henderson-Dixon, called by West as an expert witness. Bailey recommended that West have primary physical custody and that Lawson have visitation rights. Dr. Henderson-Dixon wrote a report and testified about the detrimental effects of an alternating six-month custody schedule on a child Shelby's age. She recommended against such a schedule, but because she had not met with Shelby or her parents and was unfamiliar with details of the case, she expressed no opinion regarding which party should be granted custody. Despite these recommendations, the court explained that it "weighted] pretty heavily the negotiated agreement" between the parties, and that it "[found] nothing in this record that does not suggest that the carefully formulated agreement that the parties arrived at regarding custody in this case is not in the best interests of this child." The court adopted the custody agreement's stipulation that Shelby live with each parent fifty percent of the time. It modified this provision by imposing an alternating six-month custody schedule. Neither at the hearing nor in its final custody order did the court indicate what the custody schedule would be when Shelby begins kindergarten. The custody agreement also provided that Lawson would make payments into a joint bank account to repay West for Social Security benefits he had received on Shelby's behalf. The agreement further provided that Lawson's failure to make the payments would entitle West to obtain judgment for the balance then outstanding, attorney's fees, and prejudgment and postjudgment interest. Although Lawson failed to make the payments, the court's final order required Lawson to repay only the balance then outstanding and postjudgment interest. West appeals the lower court's imposition of the alternating six-month custody schedule and the court's failure to award attorney's fees associated -with obtaining judgment for the outstanding balance and prejudgment interest. III. DISCUSSION A. Standard of Review Modifications of custody decisions are reviewed for abuse of discretion. See Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992). Abuse of discretion may be established when "in reaching its decision, the trial court considers improper factors, fails to consider statutorily mandated factors, or gives too much weight to some factors." Id. "In the context of a custody modification decree, this analysis must be applied to assess whether the superior court was justified in changing the previous custody 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 v. Horutz, 560 P.2d 397, 399 (Alaska 1977). "A finding is clearly erroneous if it leaves this court with 'a definite and firm conviction on the entire record that a mistake has been made.'" 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 Custody Schedule A child custody or visitation award "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); see also A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995). When a court determines the best interests of a child in the context of changed circumstances, "the scope of judicial inquiry is limited to facts directly affecting the child's well-being." S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985) (citing AS 25.24.150(d)). Because Lawson's move to Las Vegas constituted a change of circumstances, the superior court's analysis at the hearing should have focused on whether alternating custody would be in Shelby's best interests in light of the changed circumstances. See House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989). However, the record indicates that in determining Shelby's best interests, the court placed undue weight on the existing custody agreement. Although the court did consider the best interests of the child, its findings suggest that its modification determination was substantially influenced by the agreement's provision that the parties share physical custody equally. Reliance on the agreement was unwarranted because the visitation provision, which established that physical custody would be shared equally, was based on the assumption that both parties would live in Anchorage. Moreover, the evidence in this case does not support a conclusion that the alternating six-month custody schedule is in Shelby's best interests. We addressed the issue of an alternating six-month custody schedule where one parent intended to live outside of Alaska in Kelly v. Kelly, 926 P.2d 1168 (Alaska 1996). We observed that divided physical custody cases typically involve parents who reside in the same community, and that awards of divided physical custody where parents live in different parts of the country "may foreclose 'a stable environment and the development of permanent associations....'" Id. at 1169 (quoting John P. McCahey et al., 2 Child Custody and Visitation Law and Practice § 13.04(2) (1993)). Although we considered the case close, we upheld the alternating six-month schedule because "[n]o evidence was presented that the arrangement was likely to prove harmful to [the child]." Id. In this case, by contrast, evidence was presented that an alternating six-month custody schedule is likely to prove harmful to a three-year-old child such as Shelby. Most notably, Dr. Henderson-Dixon submitted a report in which she traced the three stages of a preschool child's emotional and psychological development and highlighted the critical nature of "stability and consistency of caregiver and surroundings" for a three- or four-year-old child. She explained that "[i]t is not in a preschool child's best interest to have major environmental change," and that while a preschool child ideally needs to be emotionally connected to both parents, she "primarily needs a consistent and stable environment with one parent and frequent contact with the other." She further emphasized the detrimental effects of an alternating six-month custody schedule: While a 6 month on/6 month off visitation schedule may be doable for parents, it does not satisfy the emotional needs of the preschool child and is, in fact, destructive to the child. In her testimony at the modification hearing, Dr. Henderson-Dixon stressed that an alternating six-month custody schedule "is a very bad arrangement" and would be "debilitating" to a child Shelby's age, and that "for a child that age, they are severely handicapped in their development and it will affect them for the rest of their lives." In a memorandum to the lower court, West also presented evidence about the harmful effects of an alternating six-month custody schedule, citing literature from the field of child psychology that cautions against extended visits away from home for three-year-olds. The evidence presented by West is consistent with the prevailing view in the field of child psychology that alternating physical custody schedules can undermine stability in children's lives. See McCahey, supra, § 13.04(2) ("Although courts have awarded alternating custody in appropriate cases,[] divided custody is generally disapproved."); Jeff Atkinson, 1 Modem Child Custody Practice § 6.06, at 861 (1986) ("Alternating custody is controversial because, more than other custodial arrangements, it carries the potential for creating disruption in the child's life."); see also Joseph Goldstein et al., Beyond the Best Interests of the Child 32-34 (rev. ed.1979) (emphasizing the importance of continuity of care and stability for infants, toddlers and young children). In accordance with this view, a number of courts have disfavored alternating physical custody arrangements as unduly disruptive to a child's life. See Wilking v. Reiford, 582 So.2d 717, 719 (Fla.Dist.Ct.App.1991) (holding rotating custody presumptively not in a child's best interests); Heard v. Heard, 353 N.W.2d 157, 162 (Minn.Ct.App.1984) (holding annual rotation of custody not in a child's best interests absent extraordinary circumstances); Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163, 1166 (1988) (holding alternating year physical custody not in a child's best interests where parents lived in different states). Where both parents reside in the same community, however, we have affirmed the use of an alternating week physical custody arrangement as a "thoughtful and sensitive approach to a difficult problem." Deininger v. Deininger, 835 P.2d 449, 451 (Alaska 1992). Other courts likewise approve of alternating physical custody arrangements where parents live in the same community, and emphasize the importance of minimizing the disruption of a child's life. See Peyton v. Peyton, 457 So.2d 321, 323 (La.Ct.App.1984) (affirming alternating three-month custody schedule where parents lived across the street from each other); In re Marriage of Ryan, 222 Mont. 188, 720 P.2d 691, 693 (1986) (affirming alternating week custody schedule where parents lived in same community and where, if either parent moved out of the area, parent remaining in the area would have physical custody during the school year); Beck v. Beck, 86 N.J. 480, 432 A.2d 63, 72 (1981) (recognizing that "geographic proximity of the two homes is an important factor" in awarding joint physical custody); Lapp v. Lapp, 293 N.W.2d 121, 129 (N.D.1980) (affirming alternating six-month custody schedule where the court noted there would be "no substantial disruption" for the child because both parents "are of close geographical proximity"). In such instances, where disruption can be minimized and continuity of care maintained, alternating physical custody may be in a child's best interests. Consistent with the views of experts in the field and other courts, we have expressed a strong preference for preserving stability in children's lives. See, e.g., S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985) ("[W]e have repeatedly stated our concern with maintaining continuity of care and avoiding disturbing and upsetting the child with repeated custody changes.") (citing Gratrix v. Gratrix, 652 P.2d 76, 81 (Alaska 1982)); Morel v. Morel, 647 P.2d 605, 608 (Alaska 1982) ("We have continually stressed the desirability of maintaining continuity of care."). This concern is echoed in the "[fjaetors for consideration in awarding shared child custody" contained in AS 25.20.090. In promulgating this statute, the legislature recognized the importance of maintaining stability in a child's life in the context of shared custody arrangements, requiring that [i]n determining whether to award shared custody of a child the court shall consider (5) the advantages of keeping the child in the community where the child presently resides; (6) the optimal time for the child to spend with each parent considering (A) the actual time spent with each parent; (B) the proximity of each parent to the other and to the school in which the child is enrolled; (C) the feasibility of travel between the parents; . AS 25.20.090. Despite the concerns reflected in AS 25.20.090, Dr. Henderson-Dixon's opinion that an alternating six-month custody schedule would be "destructive" and "debilitating," and the prevailing view that alternating physical custody is disfavored in cases such as this, the superior court found that an alternating six-month custody schedule would be in Shelby's best interests. The court concluded that Dr. Henderson-Dixon's testimony was too general in nature to aid in the determination of Shelby's best interests: I have some concern about and don't find very helpful the testimony of Dr. Henderson-Dixon, primarily because what she gave the court was standard treatise, textbook average child. She's never seen the child. She did not indicate that she had looked at any medical records or anything else about the child and I don't find her testimony to be very helpful in trying to decide what in — are in the best interests of this child. The court made no other findings about the evidence of the potential harmful effects on Shelby of an alternating six-month custody schedule. More particularly, the court did not point to any evidence indicating that Shelby had less need for stability than a "textbook average child." Furthermore, neither the court's oral findings nor its written custody decree addressed the factors enumerated in AS 25.20.090. First, although the court recognized the issue of proximity, it failed to discuss it. See AS 25.20.090(6)(B). Because the proximity of each parent to the other is at the heart of this ease, such an omission is error. Second, although the court raised the issue of travel to determine how to distribute travel expenses between the parties, it failed to consider the feasibility of travel. See AS 25.20.090(6)(C). Finally, the court failed to address any advantages of keeping Shelby in Anchorage, the community in which she resided at the time of the hearing. See AS 25.20.090(5). We conclude that the superior court erred by giving undue weight to the custody agreement, failing to give adequate weight to the evidence presented by West, and failing to consider the relevant factors in AS 25.20.090. Where one parent has moved to a distant locale, we hold that a six-month alternating physical custody arrangement disrupts the stability of a young child's life and thus is not in the child's best interests absent compelling evidence to the contrary. In this case, the record indicates that no such compelling evidence exists. C. Attorney's Fees West argues that she is entitled to attorney's fees and prejudgment interest associated with her enforcement of a financial provision of the custody agreement. Lawson fails to address the issue. The custody agreement provided that Lawson would make payments into a joint bank account as a means of reimbursing West for one-half of the Social Security benefits he had received on Shelby's behalf and had not shared with West. The agreement further provided that Lawson's failure to make the payments would entitle West, on behalf of Shelby, "to obtain a judgment for the balance then outstanding, plus attorney's fees and prejudgment and post-judgment interest at the maximum lawful rate of interest." Lawson failed to make the payments. The court's final custody order required Lawson to repay the balance and post-judgment interest to West. It did not, however, award attorney's fees associated with obtaining judgment or prejudgment interest to West. On remand, the superior court should determine the amount of attorney's fees and prejudgment interest due. IV. CONCLUSION We VACATE the lower court's final custody order and REMAND for a determination of custody and attorney's fees and prejudgment interest consistent with this opinion. . Lawson married Melissa Parker in July 1996. . Lawson claims that West's visits were sporadic until March 1995. . Lawson argues that the agreement contemplated that either party might live outside of Alaska, and points to a single sentence in the agreement that states that "the parties shall equally divide transportation expenses" if they "are living in different cities or states." We reject this argument. The transportation expenses provision notwithstanding, the agreement's visitation provision is based on the assumption that both parties will live in Anchorage. It includes, for example, an alternating week custody schedule once Shelby reaches school age, and a limitation on the amount of time each parent can take Shelby outside of Anchorage. These provisions make sense only in the context of both parties living in Anchorage. Thus, the provision of the custody agreement upon which the superior court principally relied is the provision most affected by the change of circumstances. . We observed in a footnote that Kelly was "an inappropriate case in which to decide whether to adopt a general presumption disfavoring divided custody when the parents do not reside in the same community." Kelly, 926 P.2d at 1169 n. 2. . Because Dr. Henderson-Dixon never met with Shelby or her parents and acknowledged that she knew "none of the details of this child's development," her report and testimony addressed the general developmental dangers of an alternating six-month custody plan for a child Shelby's age. .See William F. Hodges, Interventions for Children of Divorce 170 (1986) ("Children of this age [three years old] should not be required to travel to a distant geographic location for an extensive visit with the noncustodial parent."). . The court observed that "[tjhere is also, I think, a — the fact that these parents now live several thousand miles apart and that is in fact the heart of the issue, so we come back to the question of stability." The court then proceeded to discuss the stability of West's and Lawson's households. It did not discuss, however, the potential effects of the geographical distance between the parties on the stability of Shelby's life. Nowhere else did the court address the question of proximity. . We note that the superior court's final custody order established a custody schedule to be in effect only "until the child is of public school age." On remand, the superior court should either determine a custody schedule for when Shelby begins kindergarten or establish a mechanism for resolving the issue at a later date.

11880716

STATE of Alaska, Petitioner, v. Anthony LADD, Respondent

State v. Ladd

1998-01-16

No. A-6225

1220

1226

951 P.2d 1220

951

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Anthony LADD, Respondent.

STATE of Alaska, Petitioner, v. Anthony LADD, Respondent. No. A-6225. Court of Appeals of Alaska. Jan. 16, 1998. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Respondent. 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.

3838

23289

OPINION MANNHEIMER, Judge. Under Alaska law before 1994, any person under the age of 18 who was charged with a felony was prosecuted and (if found guilty) punished under the juvenile delinquency laws contained in Title 47, chapter 10 of the Alaska Statutes. In 1994, however, the Alaska Legislature amended the coverage of the juvenile delinquency laws by enacting former AS 47.10.010(e). Under this statute (from 1994 to 1996), and now under the successor statute, AS 47.12.030(a), 16- and 17-year-olds who are charged with certain serious felonies are prosecuted as adults and, if found guilty, they are punished as adults. The issue presented in this appeal is: how should a court proceed when a 16- or 17-year-old is prosecuted (as an adult) for one of the serious felonies listed in AS 47.12.030(a) but is ultimately found guilty of some lesser offense? Anthony Ladd, a 16-year-old, was charged with first-degree assault, AS 11.41.200(a), for shooting another boy. Because first-degree assault is a "crime against a person" and because it is a class A felony, see AS 11.41.200(b), Ladd was prosecuted as an adult. Following a jury trial, Ladd was acquitted of first-degree assault but was convicted of a lesser offense, fourth-degree assault (a misdemeanor). See AS 11.41.230(a) &(b). In AS 47.12.030(a), the legislature has specified what it wants a court to do in such cases. If "the minor is convicted of some offense other than [the felonies listed] in this subsection", the superior court is to give the minor an opportunity "to prove, by a preponderance of the evidence, that the minor is amenable to treatment [as a juvenile]". A minor is considered "amenable to treatment" as a juvenile "if the minor probably [can] be rehabilitated by treatment under [AS 47.12] before reaching 20 years of age." See AS 47.12.100(b). If the superior court finds that the minor is amenable to treatment as a juvenile, "the court shall order disposition of the charges . under AS 47.12.120(b)". In other words, if the minor proves that they are amenable to treatment, the court will not sentence the minor as an adult but will instead impose one or more of the juvenile dispositions listed in AS 47.12.120(b). In Ladd's ease, the superior court ruled that this procedure is unconstitutional insofar as it places the burden of persuasion on the minor. The court ruled that, because Ladd had been convicted of only a lesser offense, Ladd must be deemed presumptively amenable to juvenile treatment — and that if the State wanted Ladd to be sentenced as an adult, the State would have to prove Ladd's unamenability to treatment by a preponderance of the evidence. The basic problem, as the superior court saw it, was that minors convicted of the same crime were being treated differently based on the district attorney's initial charging decision. Here is the superior court's analysis: If a 16- or 17-year-old is initially charged with a misdemeanor or with a felony not listed in AS 47.12.030(a), the minor is presumed to be amenable to treatment as a juvenile. If the State wishes to prosecute and punish the minor as an adult, the State must file a petition asking the superior court to waive its juvenile jurisdiction over the minor. AS 47.12.100(a). When that waiver petition is litigated, it is the State's burden to prove by a preponderance of the evidence that the minor is not amenable to juvenile treatment. AS 47.12.100(c). On the other hand, if the 16- or 17-year-old is initially charged with one of the felonies listed in AS 47.12.030(a), then even if the minor is ultimately acquitted of the charged felony and is convicted only of some lesser offense, the minor will nevertheless presumptively be sentenced as an adult. That is, because of the original charge, the minor will be presumed not to be amenable to treatment as a juvenile. If the minor wishes to be sentenced as a juvenile, it is the minor's burden to rebut this presumption — to show by a preponderance of the evidence that they are amenable to treatment under the juvenile system. The superior court concluded that the government's initial charging decision was not a rational basis for this disparate treatment. Therefore, the court ruled, minors who were initially charged with greater offenses and who were later forced to shoulder the burden of proof on the issue of amenability to treatment were being denied the equal protection of the law guaranteed by Article I, Section 1 of the Alaska Constitution. The superior court's ruling is premised on two interlocking assumptions. The court's first assumption is that, all other things being equal, minors convicted of the same crime must presumptively be deemed "similarly situated" for purposes of disposition— and, in particular, for purposes of deciding whether the State or the minor should bear the burden of proof on the issue of amenability to juvenile treatment. The court's second assumption is that the legislature has classified some of these minors differently (forcing them to shoulder the burden of proof on the issue of amenability to treatment) based solely on the district attorney's initial charging decision — a decision that rests within the unfettered discretion of the Department of Law. While we agree with the superior court's first assumption, we conclude that the court's second assumption is flawed. Under the new juvenile legislation, the question of who bears the burden of proof on the issue of amenability to treatment does not depend solely upon the prosecutor's charging decision. As explained below, even when the prosecutor charges a minor with one of the serious felonies listed in AS 47.12.030(a), the burden of proof on the issue of amenability to treatment does not shift to the minor unless and until the State establishes probable cause to believe that the minor has committed one of the felonies listed in the statute. Both former AS 47.10.010(e) and current AS 47.12.030(a) declare that when a 16- or 17-year-old minor "is arraigned" on one of the serious felonies listed in the statute, the delinquency statutes and the Delinquency Rules do not apply to the prosecution, the minor will be "charged, prosecuted, and sentenced in the superior court in the same manner as an adult", and, if the minor is found guilty of some lesser offense, the minor bears the burden of proving their amenability to treatment as a juvenile. Thus, the minor's arraignment is the event that triggers the consequences detailed in the statute. Under Alaska Criminal Rules 5(e) and 10(a), even though a felony offender's initial appearance generally occurs in the district court, and even though other preliminary proceedings may occur in the district court, a felony defendant's "arraignment" does not take place until the defendant is called upon to enter a plea to the charge in the superior court. Before a defendant can be arraigned on felony charges in the superior court, the State must obtain a grand jury indictment (or the defendant must waive the constitutional right to demand indictment). See Article I, Section 8 of the Alaska Constitution and Criminal Rule 7(a)-(b). Further, to obtain an indictment, the State must prove to the grand jury "that the evidence . established] a probability of [the defendant's] guilt". See Criminal Rule 6(q), as interpreted in Sheldon v. State, 796 P.2d 831, 837 (Alaska App.1990). While this standard, "probability of guilt", has not been definitively equated with either "preponderance of the evidence" or "probable cause", at the very least it means a showing of probable cause. Therefore, even though the prosecutor decides what charges to present to the grand jury, no minor can be arraigned on one of the felonies listed in AS 47.12.030(a) unless and until the grand jury finds that the State has demonstrated probable cause to believe that the minor is guilty of that felony (or the minor specifically waives the right to demand a showing of probable cause). This showing of probable cause is the factor that provides a plausible basis for the legislature's decision to make the minor shoulder the burden of proving amenability to juvenile treatment if the minor is convicted of some lesser offense. In essence, even though two minors may be convicted of the same offense (a lesser felony or a misdemeanor), it is rational for the legislature to direct the superior court to treat the minors differently for disposition purposes if there is probable cause to believe that one of the minors has committed one of the serious felonies listed in AS 47.12.030(a). As explained above, a minor can not be arraigned in the superior court on one of the serious felonies listed in AS 47.12.030(a) until the grand jury has indicted the minor for that crime, or until the minor has waived indictment. Thus, the burdenshifting provision of AS 47.12.030(a) is not triggered until the State has convinced the grand jury that there is at least probable cause to believe that the minor committed the charged felony — or until, by waiving indictment, the minor has effectively conceded that the State could establish the required probable cause at a grand jury hearing. Even if the State ultimately fails to prove beyond a reasonable doubt that the minor committed the felony charged in the indictment, and the minor is convicted of only a lesser offense, the fact remains that there has been an independent determination of probable cause to believe that the minor committed the more serious crime. Thus, when the minor faces sentencing for the lesser offense, and the superior court must decide whether the minor should be subjected to a juvenile disposition or an adult disposition for that lesser offense, it is reasonable to treat this minor differently from other juvenile offenders whose conduct has never provided reason to believe that they committed one of the serious felonies listed in the statute. We note that when the legislature changed the law relating to minors older than 16, the legislature simultaneously codified the same burden-shifting rule for younger minors (minors under the age of 16) who are charged with serious felonies against a person. Under the juvenile waiver statute — former AS 47.10.060(f)(2) and current AS 47.12.100(e)(2) — when a minor under the age of 16 is charged with an unclassified felony or a class A felony against a person, and the State petitions the superior court to waive its juvenile jurisdiction over the minor, the minor bears the burden of proof on the issue of amenability to juvenile treatment once the State demonstrates probable cause to believe that the minor has committed the specified serious felony. The ultimate question in this appeal is whether the legislature violated the equal protection clause when it enacted these different burdens of proof on the issue of amenability to treatment. 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 some people differently from others, and the court's real task is to assess whether this different treatment is justifiable. We must ask why the legislature chose to treat the two groups differently, and whether there is in fact a relevant difference between them. If so, then our next task is to examine how the legislature's classification hurts the disadvantaged group of people and 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 v. State, 944 P.2d 1181, 1186 (Alaska App.1997). We have concluded that, once the State demonstrates probable cause to believe that a minor has committed one of the serious felonies specified in AS 47.12.030(a), this showing of probable cause provides a plausible criterion for distinguishing between that minor and other minors who are ultimately convicted of the same lesser offense. We must now apply the "sliding scale" test for equal protection under the Alaska Constitution to see if this factor sufficiently distinguishes the two groups of minors. The first step is to identify the individual right that has been impaired by the legislature's action, and to assess the importance of that right. In the present ease, the superior court believed that the legislature's action (shifting the burden of proof on the issue of amenability to juvenile treatment) impaired an important right of 16- and 17-year-old minors: the right to be treated more leniently than adults for violations of the criminal law. Because the superior court believed that a minor's right to juvenile treatment was a right "of high importance", the superi- or court concluded that the challenged legislation had to be supported by an equally weighty public justification. Obviously, it makes a great deal of difference to a minor whether the superior court can impose adult criminal penalties or whether the court is limited, instead, to imposing a disposition under the juvenile laws. However, people who break the law have only a limited right to insist on the kind of penalty they will face. In Anderson v. State, 904 P.2d 433 (Alaska App.1995), the defendant raised an equal protection challenge to the statute that classified him as a third felony offender for presumptive sentencing purposes. Even though Anderson claimed that the statute affected one of the most basic constitutional interests — the interest of personal liberty — we concluded that Anderson "[could] rightfully complain of no more than an infringement of 'the relatively narrow interest of a convicted offender in minimizing the punishment for an offense'". Id., 904 P.2d at 436, quoting Maeckle v. State, 792 P.2d 686, 689 (Alaska App.1990). The State, on the other hand, "has a strong and direct interest in establishing penalties for criminal offenders and in determining how those penalties should be applied to various classes of convicted felons. In this arena, the legislature has traditionally been afforded broad authority." Anderson, 904 P.2d at 436, citing Dancer v. State, 715 P.2d 1174, 1180-81 (Alaska App.1986). More to the point in the present appeal, this court has held that "[a] juvenile offender has no constitutional right to be tried in a juvenile court." Rather, the privacy and the lesser penalties of juvenile delinquency proceedings are "right[s] granted by the state legislature, and the legislature may restrict or qualify [those] right[s] as it desires, so long as no arbitrary or discriminatory classification is involved." W.M.F. v. State, 723 P.2d 1298, 1300 (Alaska App.1986), citing Woodard v. Wainwright, 556 F.2d 781, 785 (5th Cir.1977). Accord, Hicks v. Superior Court, 36 Cal.App.4th 1649, 43 Cal.Rptr.2d 269, 274 (1995) (a minor has no constitutional right to juvenile treatment, nor a right to a presumption of amenability to juvenile treatment); State in the Interest of A.L., 271 N.J.Super. 192, 638 A.2d 814, 817 (1994) (the legislature can restrict or qualify a minor's right to juvenile treatment so long as it "does not create an arbitrary or discriminatory classification scheme"); Commonwealth v. Wayne W., 414 Mass. 218, 606 N.E.2d 1323, 1326 (1993) (a minor has no constitutional right to juvenile treatment, but only a due process right to "essential fairness" in the classification scheme); Novak v. Commonwealth, 20 Va. App. 373, 457 S.E.2d 402, 406-07 (1995) (rejecting an equal protection challenge to a statute that provided automatic waiver of juvenile jurisdiction for minors convicted of certain serious felonies; the court held that the statute "identifies certain violent crimes against the person as acts inconsistent with the conduct of an offender amenable to treatment as a juvenile"). Thus, a minor does not have a protected "right" to juvenile treatment. In deciding which minors should receive juvenile delinquency dispositions for criminal acts, the legislature can draw distinctions between different groups so long as those distinctions are not arbitrary or based on a discriminatory classification. W.M.F., supra. There is a public interest in "rehabilitating wayward youths" who are in fact "rehabilitatable in their youth". W.M.F., 723 P.2d at 1300. On the other hand, society also has a significant interest in utilizing adult criminal sanctions to "protect[ ] the public from youths who [can not be] quickly rehabilitated", to "provid[e] a longer period of rehabilitation for youths . not so quickly rehabilitated", to "show[] community condemnation for the crimes committed [by such youths]", and to "deter[] the defendant and others from committing the crimes in the future". Id. It is important to remember that the statutory provision challenged in the present appeal does not disqualify any minor from being treated under the juvenile laws. Ladd and other minors like him are not barred from receiving a juvenile disposition for their criminal acts. Rather, the challenged provision merely declares that, when the superior court decides whether to impose an adult disposition or a juvenile disposition, the minor bears the burden of proof on this issue. When the law allocates a "preponderance of the evidence" burden of proof to a party, the effect is to make that party bear the risk that the evidence will be inconclusive — insufficient to persuade the trier of fact that either party is correct. See United Bank Alaska v. Dischner, 685 P.2d 90, 93 (Alaska 1984) (the party bearing the burden of proof "bears the risk of losing if the trier of fact is not persuaded"); see also W.M.F., 723 P.2d at 1301 (the burden of proof "allocat[es] the risk of error"). Basically, the challenged portion of AS 47.12.030(a) constitutes a legislative directive to the superior court: in close eases, when the evidence yields no answer to the question of whether the minor can be rehabilitated within the juvenile system by age 20, the legislature wants the minor to receive an adult penalty. There is a reasonably close fit between the legislature's purpose and the means the legislature has employed to effect that purpose. In cases where the evidence does not disclose whether a minor can be rehabilitated under the juvenile system by age 20, it is reasonable for the legislature to make the decision turn on whether the State has previously established probable cause to believe that the minor has committed one of the serious felonies listed in AS 47.12.030(a). This indication of dangerousness is reasonably related to the criteria for deciding whether a minor should be dealt with under the juvenile system or the adult system. See State v. Morales, 240 Conn. 727, 694 A.2d 758, 764-65 (1997), and State v. Matos, 240 Conn. 743, 694 A.2d 775, 784, 786-87 (1997) (holding that there is a reasonable basis for the legislature's decision to deny juvenile treatment to a minor charged with murder following a probable cause hearing, even though the minor is ultimately convicted only of manslaughter). We therefore conclude that the burden-shifting provisions of former AS 47.10.010(e) and current AS 47.12.030(a) do not violate the equal protection clause of the Alaska Constitution. The decision of the superior court is REVERSED. . AS 47.12.030(a) provides: When a minor who was at least 16 years of age at the time of the offense is arraigned on a charge for an offense specified in this subsection, this chapter and the Alaska Delinquency Rules do not apply to the offense for which the minor is arraigned or to any additional offenses joinable to it under the applicable rules of court governing criminal procedure. The minor shall he charged, prosecuted, and sentenced in the superior court in the same manner as an adult unless the minor is convicted of some offense other than an offense specified in this subsection, in which event the minor may attempt to prove, by a preponderance of the evidence, that the minor is amenable to treatment under this chapter. If the court finds that the minor is amenable to treatment under this chapter, the minor shall be treated as though the charges had been heard under this chapter, and the court shall order disposition of the charges of which the minor is convicted under AS 47.12.120(b). The provisions of this subsection apply when the minor is arraigned on a charge (1) that is an unclassified felony or a class A felony and the felony is a crime against a person; or (2) of arson in the first degree. . Criminal Rule 10(a) states that an "[a]rraignment . shall consist of reading the indictment or information to the defendant or stating to the defendant the substance of the charge[,] and calling on the defendant to plead thereto." Criminal Rule 5(e) states that "[i]f the charge against a defendant is a felony, the defendant shall not be called upon to plead" to the charge in the district court. That is, the arraignment does not occur until the defendant appears in the superior court and is asked to enter a plea. . AS 47.12.100(c)(2) provides that, when the State petitions for waiver of juvenile jurisdiction, the burden of proof that a minor is not amenable to treatment under this chapter is on the state; however, if the [waiver] petition . is based on the minor's alleged commission of an offense that is an unclassified felony or class A felony and that is a crime against a person, the minor (A) is rebuttably presumed not to be amenable to treatment under this chapter; and (B) has the burden of proof of showing that the minor is amenable to treatment under this chapter. Comparable language was found in former AS 47.10.060(f)(2). Thus, even when a minor is younger than 16 and will presumptively be prosecuted under the juvenile system for any crime, if the State files a waiver petition and establishes probable cause to believe that the minor has committed one of the serious felonies listed in the statute, the burden of proof on the issue of amenability to juvenile treatment falls to the minor. That is, for a minor of any age, the burden of proof on the issue of amenability to juvenile treatment will be allocated based on the crime that the minor is alleged to have committed, once the State establishes that the allegation is supported by probable cause.

11875679

ALASKA HOUSING FINANCE CORPORATION, Appellant, v. Pat SALVUCCI, Appellee

Alaska Housing Finance Corp. v. Salvucci

1997-12-19

No. S-7220

1106

1118

950 P.2d 1106

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA HOUSING FINANCE CORPORATION, Appellant, v. Pat SALVUCCI, Appellee.

ALASKA HOUSING FINANCE CORPORATION, Appellant, v. Pat SALVUCCI, Appellee. No. S-7220. Supreme Court of Alaska. Dec. 19, 1997. Thomas P. Owens, Jr., and Scott J. Nordstrand, Owens & Turner, P.C., Anchorage, for Appellant. Jeffrey A. Friedman and Richard H. Friedman, Friedman, Rubin & White, Anchorage, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

6955

44370

OPINION MATTHEWS, Justice. I. INTRODUCTION This is an appeal by the Alaska Housing Finance Corporation (AHFC) from certain rulings of the superior court in favor of former AHFC employee Pat Salvueci. The superior court directed a verdict for Salvueci on his breach of contract claim, ruled that AHFC's termination of Salvueci gave rise to a claim under the Alaska Whistleblower Act, and held that AHFC was not immune from punitive damages under the Act. The jury found AHFC in violation of the Whistleblower Act and awarded Salvucci compensatory and punitive damages. Salvucci also was granted prejudgment interest on lost past and future wages and benefits as well as on punitive damages. We remand the award of prejudgment interest on lost past and future wages and benefits, reverse the award of punitive damages, and affirm in all other respects. II. FACTS AND PROCEEDINGS In 1989 Salvucci was hired by AHFC as its Internal Auditor. At the time of his hire, Salvucci signed a letter stating that his "employment [at AHFC] is at all times subject to AHFC Personnel Rules and any future amendments to those rules." The Personnel Rules divided employees into two groups, the "Regular" and "Executive" Service. Personnel Rule, Section 2.01.0. While the former could be terminated only for cause and only following a disciplinary procedure, the latter could be terminated at will by the Executive Director. All Regular Service employees received contractual employment protection, set forth in Rules 4,11 and 18; only Executive Service employees did not receive the protection afforded by these rules. The Executive Service became a part of AHFC Personnel Rules in August 1989 when AHFC's Board of Directors adopted Personnel Rule 2, Section 2.03.03. One of the positions designated Executive Service by Section 2.03.03 was the Internal Auditor position. Regular Service was defined as "positions within the Corporation that are not in the executive service." The AHFC's Audit Charter, authored by Salvucci and adopted in June 1990, defined the duties and role of the Internal Auditor. The Charter set forth the reporting procedure, specifically that the Internal Auditor reported administratively to the chief executive officer and functionally to the Audit Committee of the Board of Directors. Further, it mandated that the Internal Auditor's removal required the concurrence of the Audit Committee. In 1992 AHFC Personnel Rule 2.03.03 was amended. The amended rule shortened the list of Executive Service positions and omitted the Internal Auditor position from the list of positions in the Executive Service. The definition of Regular Service was not changed. In July 1993 Will Gay became AHFC's Executive Director. In November Gay placed Salvucci on administrative leave, subject to an approval vote by the Audit Committee. In December the Audit Committee concurred in Gay's decision and Salvucci's employment was terminated. Salvucci was not given any reason for his termination and was not afforded a prior disciplinary process, as required for the termination of Regular Service employees. Salvucci filed a grievance, pursuant to Personnel Rule 13. AHFC refused to consider his grievance and also declined to consider his appeal of the grievance refusal, both instances on the ground that the Personnel Rules were inapplicable to the position of Internal Auditor. After the denial of his internal remedies, Salvueei filed a complaint in superior court alleging breach of contract, breach of the implied covenant of good faith and fair dealing, due process violations, and violation of the Whistleblower Act. The superior court denied AHFC's motions for summary judgment on Salvucei's claim for punitive damages and on his Whis-tleblower claim. The court granted a directed verdict for Salvueei on his breach of contract claim, finding that the 1992 amendment removed the Internal Auditor position from the Executive Service, placing the Internal Auditor within the Regular Service, with its accompanying contractual protections. The jury found that AHFC violated the Whistleblower Act. It awarded Salvueei $43,-200 in lost past wages and benefits, $144,234 in lost future wages and benefits, and $500,-000 in punitive damages. The superior court awarded Salvueei prejudgment interest on his wage and benefit award and on his punitive damage award, for a total of $62,493.30 in prejudgment interest. The court did not specify what amount of prejudgment interest was awarded for wages and benefits, and what amount of prejudgment interest was awarded for punitive damages. III. STANDARD OF REVIEW Interpretation of a contract is a question of law on which this court substitutes its own judgment. Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1130 n. 4 (Alaska 1994); Alaska Energy Auth. v. Fairmont Ins. Co., 845 P.2d 420, 421 (Alaska 1993). The court reviews the superior court's decision to grant a directed verdict in the light most favorable to the non-moving party, and affirms only if a reasonable fact finder could not reach a different conclusion. Barber v. National Bank of Alaska, 815 P.2d 857, 860 (Alaska 1991). The remaining issues in this ease are matters of statutory interpretation. This court applies its independent judgment to questions of statutory interpretation. Sauve v. Winfree, 907 P.2d 7, 9 (Aaska 1995). IV. DISCUSSION A The Breach of Contract Claim Contract interpretation generally is the purview of the trial court; the jury interprets the contract only in those cases where the court determines that the contract language is ambiguous as to the parties' intent. Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993); Day v. A & G Constr. Co., 528 P.2d 440, 443 (Alaska 1974). In determining whether the contract language is ambiguous, the court takes into account circumstances existing at the time the contract was made. Stepanov v. Homer Elec. Ass'n, 814 P.2d 731, 734 (Alaska 1991). AHFC contends that the superior court improperly granted a directed verdict for Salvueei on the breach of contract claim. AHFC argues that evidence presented at trial allowed a reasonable jury to conclude either that the Internal Auditor position was never removed from the Executive Service or that the Internal Auditor position enjoyed a unique classification falling outside either the Regular or Executive Service. AHFC argues that the Internal Auditor was a "corporation director" within the meaning of amended Rule 2, Section 2.03.03. It argues in the alternative that, by requiring the Audit Committee to concur in the removal of the Internal Auditor, the Audit Charter created a unique category of employment for the Internal Auditor; it was neither Executive Service (permitting removal by the Executive Director at will) nor Regular Service (permitting removal only for cause and after a series of contractual protections for the employee is implemented). At the time the Audit Charter was passed, the Internal Auditor was an Executive Service position. The Charter did not refer to or alter the Service categorization of the Internal Auditor; rather it created a distinct process of reporting and removal for the Internal Auditor. Pursuant to the Charter, the Executive Director did not have sole discretion to appoint or remove the auditor; any such action required the concurrence of the Board of Director's Audit Committee. In 1991 Barry Hulin, then Executive Director, proposed amending the Personnel Rules to narrow the categories of positions in the Executive Service. The proposal removed the Internal Auditor from the Executive Service. In presenting the proposal to the Board of Directors, Hulin specifically stated that the amendment took the Internal Auditor out of the Executive Service. Hulin also specifically informed the Board that those persons not in the Executive Service are subject to termination only for a "performance-related cause" and cannot be terminated before receiving "progressive discipline" in accordance with contractual employment protections. In 1992 the amendment was adopted. All parties agree that the terms of Salvue-ci's employment contract are governed by his employment letter, the Audit Charter and the Personnel Rules. The text of Section 2.03.03 before and after the amendment makes evident that the Internal Auditor position was included in the Executive Service before the amendment and excluded once the section was amended. Hulin's testimony confirms that one intention of the amendment was to remove the Internal Auditor from the Executive Service, and further confirms that the Board was informed of this intent before it approved the amendment. The record shows that AHFC's Deputy Executive Director and AHFC's Personnel Director were also aware that one purpose of the amendment was to remove the Internal Auditor from the Executive Service. We have held that when the provisions of a personnel manual create reasonable expectations that employees have been granted certain rights, the employer is bound by the representations contained in those provisions. Parker v. Mat-Su Council on Prevention of Alcoholism and Drug Abuse, 813 P.2d 665, 666 (Alaska 1991). Similar reasoning applies in this case. AHFC created a reasonable expectation that Salvueci was granted the rights of Regular Service employees after the 1992 amendment. The employment letter required Salvueci to sign a statement that the Personnel Rules and any subsequent amendments to those rules governed the terms and conditions of his employment. When the Personnel Rules were amended in 1992 to delete the Internal Auditor from the list of Executive Service, Salvueci was bound to accept the amendment and the accompanying obligations or rights imposed by the Personnel Rules. Hulin informed Salvueci that the rules had been changed to remove him from the Executive Service. Salvueci read the transcript of the Board meeting at which the Board was told it was being asked to remove the Internal Auditor from the Executive Service. As Salvueci reasonably believed that he was a Regular Service employee after the amendment, and as the superior court's analysis of the contract turns largely on his reasonable expectation, testimony at trial by Gay and DeSpain that they believed that Salvueci did not have the protections of a Regular Service employee is immaterial. Based on the binding nature of the employment letter, the clear text of Section 2.03.03 before and after amendment, the absence of any language in the Audit Charter creating a category other than Executive or Regular Service for the Internal Auditor, Hulin's statements of intent to remove the Internal Auditor from the Executive Service to the Board before its passage of the amendment, and Salvueei's reasonable expectations, we hold that in 1993, at the time Salvueci was terminated, the Internal Auditor position was in the Regular Service. It is undisputed that in November 1993 Gay informed Salvueci that Salvueci would be placed on administrative leave and, subject to approval by the Audit Committee, would be terminated. It is further undisputed that Salvueci was not given any reason by Gay or the Audit Committee for his termination, and that he was not afforded the protection of progressive disciplinary procedures. Given AHFC's failure to afford Salvucci the contractual protections due Regular Service employees, we hold that the superior court correctly directed a verdict in favor of Salvucci on his breach of contract claim. B. The Whistleblower Act The Alaska Whistleblower Act (the Act), AS 39.90.100-.150, protects public employees who report to public bodies on matters of public concern from retaliation by their employers. AHFC contends that the superior court improperly denied AHFC's summary judgment motion seeking dismissal of the Whistleblower claim because AHFC is not a "public body" within the meaning of the Act. AHFC also argues that the superior court improperly denied AHFC's summary judgment motion on punitive damages. AHFC argues that the Alaska Whistleblower Act does not provide statutory authority for punitive damages against the State. In interpreting any statute, "our primary guide is the language used, construed in light of the purpose of the enactment." Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984). "[U]nless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 (Alaska 1987). This court applies a "sliding scale approach" toward statutory interpretation. Peninsula Marketing Ass'n v. State, 817 P.2d 917, 922 (Alaska 1991). "Under the sliding scale approach, the plainer the language of the statute, the more convincing contrary legislative history must be." Mar-low v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska 1995). 1. The protection of internal memoranda The Alaska Whistleblower Act provides in part: (a) A public employer may not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because (1) the employee, or a person acting on behalf of the employee, reports to a public body or is about to report to a public body a matter of public concern. AS 39.90.100. AHFC concedes for the purposes of this appeal that Salvucci meets all elements required to bring a claim under the Alaska Whistleblower Act except the requirement to report to a "public body." Although AHFC states that "[o]n its face, the statutory definition of 'public body1 includes AHFC," AHFC argues that the Alaska Legislature, in passing the Alaska Whistleblower Act, did not intend for the reporting of a matter of public concern to one's own employer to give rise to protection under the Act. We agree that, on its face, the statutory definition of "public body" includes AHFC. We now turn to AHFC's arguments that the legislative history and a coexisting statute, AS 39.90.110(c), show that the Legislature did not intend for "public body" to include the reporting person's employer. Alaska Statute 39.90.110(c) provides: As part of its written personnel policy, a public employer may require that, before an employee initiates a report on a matter of public concern under AS 39.90.100, the employee shall submit a written report concerning the matter to the employer. AHFC maintains that this statute establishes that a written report to an employer and a report protected under the Alaska Whistle-blower Act are two distinct reports, with distinct legal consequences. In support of its position, AHFC cites testimony from David Otto, Director of the State Division of Personnel, before the House State Affairs Committee regarding House Bill 91, the legislation that became the Alaska Whistleblower Act. Specifically, Otto noted that the department's primary concern was the lack of equal rights for employers in HB 91, including his belief that management would want a chance to correct any adverse situation noted by an employee before the situation was brought to the public's attention. In response to this concern, the Legislature amended HB 91 to include language that was the precursor to AS 39.90.110(c). Nothing in AS 39.90.110(c) or its legislative history indicates that a written report to a State employer is not a report to a public body within the meaning of the Act. AHFC presented no evidence that the Legislature intended a report under AS 39.90.110(c) to go unprotected. The legislative history indicates only that the purpose of AS 39.90.110(c) was to give the employer an opportunity to correct any problems identified by the employee. It serves the public interest to allow the employer a first opportunity to take remedial action because the employer is the body most likely to be in a position to address or cure impermissible conduct.' AHFC's view would leave any State employee reporting impermissible conduct to the State (such as the Attorney General's Office, the Legislature or the Human Rights Commission) without protection from retaliation. A failure to protect such reporting is likely to result in fewer complaints regarding impermissible activity by the State. This result could pose a distinct threat to the public good. In Appeal of Bio Energy Corporation, 135 N.H. 517, 607 A.2d 606 (1992), the New Hampshire Supreme Court found, after employer Bio Energy presented an argument similar to that argued by AHFC, that the New Hampshire Whistleblower Act covered internal reports by State employees to their employer. New Hampshire's Whistleblower Act is comparable to Alaska's Whistleblower Act in substance; it protects employees who report violations of the law and includes a provision, Paragraph II of RSA 275-E:2, requiring that the employee make an internal report of the alleged violation. Id., 607 A.2d at 608. The Bio Energy court stated: We cannot accept Bio Energy's argument that the legislature intended that paragraph II of the Act [comparable to AS 39.90.110(c) ] require a further report to a third party. Under Bio Energy's interpretation of the Act, employers would be able to retain the benefit of notification, while avoiding the burdens imposed if the employee were discharged because of his or her notification to the employer. Such an interpretation would thwart the Act's primary purpose of encouraging employees to report their employers' violations of law. . The interpretation argued by Bio Energy undermines the deterrent effect of the Act; a reading of the statute that required a second report would leave employees . unprotected, despite the statute's clear intent to protect such employees from wrongful discharge. Id. at 608-09. We agree with the Bio Energy court's reasoning. Alaska's Whistleblower Act protects reports made to State employers. See Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 n. 2 (9th Cir.1991) (finding that an internal complaint constitutes whist-leblowing under federal anti-retaliation law). The purpose of the Act is undermined by an interpretation that allows an employer to mandate that an employee report first to the employer, but provides the employee no protection for such reporting. We therefore hold that the superior court properly denied AHFC's summary judgment as to Salvucci's claim under the Whistleblower Act. 2. Punitive damages against the State AHFC argues that the Whistleblower Act does not authorize an award of punitive damages against the State or its instru-mentalities. AHFC claims that the language in AS 39.90.120(a), "including punitive damages," does not create a statutory exception to the State's immunity from punitive damage awards. We agree. We reach our conclusion on the basis of two reasons. First, a presumption exists based on sound public policy which disfavors punitive damage awards against the State. Under the presumption, punitive damages against the State may not be awarded unless there is express and specific statutory authorization. The Whistleblower Act does not expressly and specifically authorize a punitive damage award against the State and therefore punitive damages may not be awarded. Second, the legislative history of the Whistleblower Act clearly shows that punitive damages were written into the Act to ensure that punitive damage awards would be available against individual, not governmental, defendants. a. The presumption disfavoring punitive damages governs this case. Alaska is among the "overwhelming majority of jurisdictions" which endorses the rule that punitive damages may not be awarded against governmental entities in the absence of explicit statutory authorization. See Benjamin W. Baldwin, Jackson v. Housing Authority: The Availability of Punitive Damages in Wrongful Death Actions Against Municipal Corporations, 65 N.C. L.Rev. 1441, 1447 n. 55 (1987). No decision of this court has ever authorized an award of punitive damages against a public entity. Alaska's general tort claims act specifically excludes awards of punitive damages against the State. AS 09.50.280. Further, Salvucci acknowledges that except for the Whistle-blower Act, "public entities [are] not liable for punitive damages in any type of lawsuit" in the state of Alaska. The policy reasons underlying the presumption disfavoring punitive awards against public entities, and the fact that such awards have not been permitted, are clear. We referred to these reasons in Hazen v. Municipality of Anchorage, 718 P.2d 456, 465-66 (Alaska 1986), and they were explained in greater detail by the United States Supreme Court in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). We summarize them here. First, punitive damages are not intended to compensate the victim of a wrongful act. They are over and above full compensation and thus are, from the plaintiffs standpoint, a windfall. Lundquist v. Lundquist, 923 P.2d 42, 50 (Alaska 1996). Punitive damages are therefore not awarded because of the wronged victim's needs. Instead, punitive damages are imposed to punish malicious wrongdoers and to deter future malicious wrongs. Hazen, 718 P.2d at 465-66; Fact Concerts, 453 U.S. at 266-67, 101 S.Ct. at 2759-60. As we observed in Hazen, punishing government punishes the governed, not the malicious official: An award of punitive damages against a [government entity] will only "punish" the innocent taxpayers, the group which is supposed to benefit from the public example set by a punitive damages award. Further, since a [government entity] can have no malice independent of the malice of its officials, damages awarded in order to punish are not sensibly assessed against the [government entity] itself. Id. at 465 (citations omitted). Likewise, the deterrence rationale is not well served by an award of punitive damages against a government entity. If a government official who has acted maliciously is to be deterred by a punitive damage award, an award against the official, rather than against the government, will better serve that end. As the court observed in Fact Concerts: [T]here is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute directly advances the public's interest in preventing repeated constitutional deprivations. In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office. The Court previously has found, with respect to such violations, that a damage remedy recoverable against individuals is more effective as a deterrent than the threat of damages against a government employer. Id. at 269-70, 101 S.Ct. at 2761 (footnote omitted). Finally, as we observed in Hazen, the responsiveness of our democratic institutions makes punitive damage awards against governments unnecessary: [Protection against future misconduct [on the part of a governmental official] can be obtained without resorting to punitive damage awards which the public will have to foot: It is assumed that public officials will do their duty, and if discipline of a wrongdoing municipal employee is indicated, appropriate measures are available through the electorate, or by superior officials responsible to the electorate. Id. at 465-66 (quoting Ranells v. City of Cleveland, 41 Ohio St.2d 1, 321 N.E.2d 885, 888 (1975)). In short, there are a combination of reasons why punitive damage awards against governments are disfavored: punitive damages are not needed to compensate victims; the punishment rationale does not make sense when applied to government; and deterrence of future misconduct is better accomplished by other means, including personal awards of punitive damages against individual wrongdoers. Still, the presumption disfavoring awards of punitive damages against governmental entities can be overridden by "express and specific statutory authority." Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 906 (Alaska 1991). Thus, the question here is whether the Whistleblower Act expressly and specifically authorizes an award of punitive damages against a public employer. The structure of the Whistleblower Act is as follows. Alaska Statute 39.90.100(a) expresses the substantive command: A public employer may not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because . [e.g., the employee has disclosed matters of public concern], Alaska Statute 39.90.120 sets out the remedies for violations. It provides: (a) A person who alleges a violation of AS 39.90.100 may bring a civil action and the court may grant appropriate relief, including punitive damages. (b) A person who violates or attempts to violate AS 39.90.100 is also liable for a civil fine of not more than $10,000. The attorney general may enforce this subsection. (c) A person who attempts to prevent another person from making a report or participating in a matter under AS 39.90.100(a) with intent to impede or prevent a public inquiry on the matter is liable for a civil fine of not more than $10,000. Subsection .120(a) authorizes a person who alleges a violation of section .100 to bring a civil action, and it authorizes the court in which the action is brought to "grant appropriate relief, including punitive damages." Subsection (a) does not, however, specify the defendants against whom the civil action may be brought. It is logical to suppose that any person or entity which is capable of violating or attempting to violate section .100 may be a defendant under subsection (a) of section .120. Subsection .120(b) recognizes that individuals — that is, individual government employees — are capable of violating or attempting to violate section .100. It follows that the defendants who may be sued under sub section .120(a) include individuals as well as public employers. Further, this conclusion is implied by the text of subsection .120(b), which states that "a person who violates . [section .100] is also liable for a civil fine_" The word "also" implies that the person described is also liable under subsection .120(a). With this in mind the question whether the statute expressly and specifically authorizes punitive damage awards against public employers comes into perspective. The statute authorizes actions against public employers and individuals. It says that appropriate relief may be granted, including punitive damages. It does not say that punitive damages are "appropriate" in actions against public employers. Does it then expressly and specifically authorize punitive damage awards against public employers? The answer is "no." 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. Given that the statute is neither express nor specific, the inquiry can end. The presumption disfavoring punitive damage awards against public entities governs, dictating the conclusion that no award of punitive damages is available against public entities under the Act. b. Legislative history shows that reference to punitive damages was added to the Act because of concern that such damages would not be available in actions against private individuals. AHFC also relies on legislative history to support its argument that the punitive damage language was added only to guarantee that private individuals could be liable for punitive damages under the Act. As initially drafted, the bill which became the Whistle-blower Act contained no mention of punitive damages. There was a period after the phrase "may grant appropriate relief' in AS 39.90.120(a). See Committee Substitute for House Bffl (C.S.H.B.) 91,16th Leg., 1st Sess. (1989); House Bffl (H.B.) 91, 16 Leg., 1st Sess. (1989). If the Act had been enacted in that form, it would have been clear that punitive damage awards against public employers would not be available. The bffl was amended and authority to award punitive damages was added. However, the legislative history shows that this amendment was made not to authorize punitive damage awards against public employers, but to ensure that individual defendants would not be immune from punitive damages because of the civil fine provisions of subsections (b) and (c). The deliberations of the legislative committee which considered the bffl are tape recorded. The tapes of the deliberations make clear the intent of the sponsor of the amendment which added the reference to punitive damages. The concern of the sponsor was that the provision for civil fines against individual defendants in subsections .120(b) and (c) might be construed to exclude awards of punitive damages. In order to foreclose such an argument, the phrase "including punitive damages" was added to subsection .120(a). Since civil fines are only available against individual defendants, reference to punitive damages was added to subsection (a) for a reason unique to actions against individual defendants. The legislative history on the amendment is comprehensive and shows no other purpose for the amendment. It therefore seems incontestable that the amendment was not added to authorize punitive damage awards against public employers. In conclusion, AS 39.90.120(a) does not expressly and specifically authorize awards of punitive damages against government entities. The text of the statute is ambiguous as to whether such damages were meant to be authorized against such defendants. The presumption disfavoring punitive damage awards against government entities therefore applies and the statute will not be construed as authorizing such awards. Moreover, the legislative history of the amendment which added reference to punitive damages to the statute shows that the amendment was added not to make government entities liable for punitive damages, but to ensure that individual defendants would not be immunized from punitive damages. That purpose is consistent with the reasons underlying the presumption disfavoring punitive damage awards against government entities. For these reasons we hold that AHFC may not be held liable for punitive damages under the Whistleblower Act. C. Prejudgment Interest The superior court awarded Salvueci prejudgment interest in the amount of $62,-493.30. It is unclear precisely how much prejudgment interest it based on the award for lost past and future wages as well as benefits, and how much it based on the award for punitive damages. AHFC argues that the jury was improperly instructed as to the appropriate date to begin calculation of the damage award to its present value. Alaska law presumes that prejudgment interest will be awarded on verdicts for damages. AS 09.30.070(b). The rate is set at 10.5 percent interest. AS 09.30.070(a). The 10.5 percent interest rate on judgments is increased by five percent per year if final judgment is entered for an amount greater than a valid offer of judgment made by the plaintiff at least ten days prior to trial. AS 09.30.065. Prejudgment interest, for the time between when a complaint is served and judgment rendered, is awarded on damages for lost future earnings if the future loss is reduced to present value as of the date the complaint was served. Navistar Int'l Transp. Corp. v. Pleasant, 887 P.2d 951, 959-60 (Alaska 1994). If future damages are reduced to present value as of the date of trial, no prejudgment interest should be awarded because the award encompasses the period prior to trial. Id. At trial Salvueei's economist presented damage calculations that reduced the future loss to its present value as of the date of the service of the complaint. AHFC's economist presented calculations reducing the same damages to present value as of the date of the first day of trial. The jury did not specify which calculation it used in reaching its damage award for lost past and future wages and benefits. AHFC did not object at trial to the instructions given for calculating the lost future wage and benefit award, nor did it request its own instructions. Failure to object to the instructions at that time waived its right to raise the issue on appeal. Aaska R. Civ. P. 51(a). "[Generally, in the absence of a proper objection, we will not review a jury instruction unless the giving of the challenged instructions was plain error. Plain error will only be found when an obvious mistake exists such that the jury will follow an erroneous theory resulting in a miscarriage of justice." Landers v. Municipality of Anchorage, 915 P.2d 614, 617 (Alaska 1996) (citation omitted). The jury was presented evidence from both economists. The jury is not required to compute damages with mathematical precision; the jury simply needs a reasonable basis on which to base their calculations. City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 224 (Alaska 1978). AHFC concedes that, under Navistar, Salvucci is entitled to prejudgment interest on the $144,234 if the calculations of Salvucci's economist are used. As the figures awarded by the jury reasonably appear to be based on those presented by Salvueci's economist, we hold that the superior court's instructions regarding reduction of the damage award to its present value did not constitute plain error. The superior court did not segregate the amount of prejudgment interest awarded on lost past and future wages as well as benefits and the amount awarded on punitive damages. Since we hold today that the award of punitive damages was improper, prejudgment interest cannot be awarded on this basis. For this reason, we remand to the superior court to determine, consistent with this opinion, the precise amount of prejudgment interest due Salvucci on his lost past and future wage and benefit award. V. CONCLUSION The superior court properly granted Sal-vucci's directed verdict on his breach of contract claim, and properly allowed Salvucci's Whistleblower claim to be submitted to the jury. We AFFIRM the superior court on these issues. The superior court erred by holding that AHFC was not immune from punitive damages. Thus, we REVERSE the award of punitive damages against AHFC. We REMAND the prejudgment interest award on lost past and future wages and benefits to the superior court for determination of the proper amount to be awarded. . These rules set forth procedures for employee probationary periods, separation and demotion, and grievances and hearings. . Section 2.03.03 listed the following as Executive Service positions: Chief Operating Officer, Finance Director, Servicing Operations Director, Investor Marketing Director, Chief Administrative Officer, Information Systems Director, Information Systems Director, Mortgage Operations Officer, Corporate Communications Officer, Senior Planner, Controller, Internal Auditor, Consumer Relations Officer, Personnel Officer, Claims/Servicing Officer, Property Disposition Officer, and Executive Secretary. . Amended Section 2.03.01 listed the following as Executive Service positions: Deputy Executive Director, Division Directors, Deputy Division Directors, all Corporation Directors, Controller, Executive Secretary, Corporate Communications Officer, and Staff Attorney. .Salvucci wrote audits and investigative reports regarding internal problems; specifically, alleged racial slurs, fire safety violations, misuse of corporate vehicles and alleged political hires. Sal-vucci was fired prior to the final version of the personnel audit which included his report concerning the political hires. After his termination, the personnel audit was altered to delete any references to the political hires or the improper hiring practices. Salvucci presented this evidence as proof that he was terminated for "whistleblowing." . Salvueei moved for summary judgment on the breach of contract claim. The superior court denied the motion, stating that an issue of fact existed regarding whether the Audit Charter placed Salvueei in a special classification. After evidence was presented at trial, the court granted a directed verdict for Salvueei, finding that "the evidence is just indisputably clear that the internal auditor here, the plaintiff's position, was taken out of the executive service." . AHFC alternatively argues that Salvucci may not recover punitive damages under the Act because the jury failed to find the prerequisite compensatory damages under the Act. Our review of AHFC's first two contentions is disposi-tive and we need not address this issue. . A public employee is defined as a person who performs a service for wages for a public employer. AS 39.90.140(1). A public employer is defined to include "a public or quasi-public corporation or authority established by state law." AS 39.90.140(2). "Matters of public concern" include "a violation of a state, federal, or municipal law, regulation or ordinance [and] . a clear abuse of authority." AS 39.90.140(3)(A) & (C). A "public body" is defined as including an officer or agency of the state or a political subdivision of the state. AS 39.90.140(4)(B) & (C). . See, e.g., Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 906 (Alaska 1991) (punitive damages not available against State for violation of Alaska Human Rights Act); Hazen v. Municipality of Anchorage, 718 P.2d 456, 465-66 (Alaska 1986) (policy reasons disfavoring punitive damages apply even in cases of gross or intentional misconduct); Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 n. 1 (Alaska 1985) ("We agree with the majority of jurisdictions that hold that punitive damages cannot be awarded against a municipality without statutory authorization."); University of Alaska v. Hendrickson, 552 P.2d 148, 149 (Alaska 1976) (punitive damages cannot be awarded against University of Alaska). . To conclude otherwise, one would have to read subsection (b) as authorizing the attorney general of the state to sue the state for a civil fine which would be paid by Ae state to Ae state. Such a reading would be an absurAty. . "[I]t is Ae sponsors Aat we look to when Ae meaning of statutory words is m doubt." Alaska Pub. Employees Ass'n v. State, 525 P.2d 12, 16 (Alaska 1974) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95, 71 S.Ct. 745, 750-51, 95 L.Ed. 1035 (1951)). . The sponsor of Ae amendment adding Ae reference to punitive damages was Representative Gruenberg. At Ae meeting of Ae House Judiciary Committee of March 7, 1989, Representative Gruenberg spoke in favor of Ae amendment as follows: I'm going to talk about Ais generally and offer a motion on Ae amendment. Generally it clears up an ambiguity in making it very specific Aat you can obtain punitive damages under the Act. The reason we made th — Ais amendment would be helpful is because lawyers m Ae A.G.'s office have informed Mark Handley Aat there is a possible interpretation Aat punitive damages in a private lawsuit would not be awardable because we have subsection A) and (c) on line 26 of page 2 and line 29 of page 2 and a judge might say that if you have a punitive situation, you can't get personal punitive damages, all you can get is a civil fine which inures to Ae state and only the A.G. can enforce Aat. The problem is Aat Ae A.G. may never enforce subsection A) because he'd be enforcing it — he or she would be enforcing it against Ae administration and there'd be a conflict of interest and there's no funding for this. So as a practical matter, subsection (b) may not be very helpful. Same with subsection (c), and having punitive damages may be the only effective form of relief you have. House Judiciary Committee Standing Committee, Mar. 7, 1989. Thus Representative Gruen-berg offered the amendment adding punitive damages to the Act out of concern "that punitive damages in a private lawsuit would not be awardable" because of the civil fine remedies in subsection (b) and (c) of section .120. .The remarks of counsel Mark Handley express the same purpose: [T]he reason I am recommending the amendment is . talking to Jan Strandberg in the court system who had apparently, who has been representing the plaintiff in some wrongful termination suits against the state and various municipal bodies and after talking to the Attorney General's office, I thought it might be a good idea, there seems to be an issue as to whether, under section (b) when we are proposing that there is a civil fine of not more than $10,000, we might be opening this law up to the interpretation that we're foreclosing the possibility of punitive damages in this case, that that is sort of a substitute liquidated punitive section, and we just want to make it clear with this language that the plaintiff in this action is still able to get any punitive damage that they would be able to get under existing law. House Judiciary Committee Standing Committee, Feb. 23, 1989 (emphasis added). The emphasized language suggests no intention to allow punitive damage awards not previously authorized. Since no punitive damages could be awarded against the State previously, Handley's desire to preserve what already existed cannot be read to expand available remedies. . AS 09.30.070(b) provides in part: Except when the court finds that the parties have agreed otherwise, prejudgment interest accrues from the day process is served on the defendant or the day the defendant received written notification that an injury has occurred and that a claim may be brought against the defendant for that injuiy, whichever is earlier. . In this case, the final judgment entered against AHFC on Salvucci's claim exceeded his $400,000 offer of judgment that was made pursuant to AS 09.30.065. Salvueci was awarded $187,434 in lost past and future wages and benefits, $500,000 in punitive damages, and $62,-493.30 in prejudgment interest. The trial court applied a 15.5 percent prejudgment interest rate. However, since we hold today that it was error to award punitive damages, Salvucci's final judgment no longer exceeds his offer of judgment, and increased interest is no longer appropriate. . AHFC calculates that the amount of prejudgment interest on lost future wages and benefits awarded by the superior court is $25,847.52, but does not set forth how it reached this amount. Salvucci does not address the amount of prejudgment interest that he believes should be appropriately awarded on the lost future wages and benefits. We have no record of the superior court's calculation on this award. Moreover, as noted earlier, the superior court should now apply a 10.5 percent interest rate to the wage and benefit award. . Since we hold it was error to award punitive damages, we express no opinion regarding the propriety of awarding prejudgment interest on punitive damages under AS 09.30.065.

11880573

J.W., Appellant, v. R.J., Appellee

J.W. v. R.J.

1998-01-16

No. S-7827

1206

1215

951 P.2d 1206

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

J.W., Appellant, v. R.J., Appellee.

J.W., Appellant, v. R.J., Appellee. No. S-7827. Supreme Court of Alaska. Jan. 16, 1998. Bonnie J. Coghlan, Fairbanks, for Appellant. Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

5481

33197

OPINION EASTAUGH, Justice. I. INTRODUCTION The father and stepfather of a minor child are Alaska Natives who each seek custody of the child following her mother's death. The superior court awarded joint legal custody to the contestants, primary physical custody to the stepfather, and visitation to the father. While the father's appeal from that judgment was pending, the superior court modified the judgment and awarded physical and legal custody to the father. Because the child's tribe was not given an opportunity to intervene and the initial judgment was not supported by fact findings satisfying the test that controls a custody dispute between a parent and non-parent, we remand for further findings and for proceedings consistent with the Indian Child Welfare Act. II. FACTS AND PROCEEDINGS S.R. was born in 1988. E.J. was her mother and J.W. was her father. S.R. had lived since infancy with her mother and her stepfather, R.J. E.J. and R.J. married in 1989. J.W. saw S.R. on her first birthday and did not see her again until August 1995. In 1995 R.J., the stepfather, filed for divorce from E.J., and sought legal and primary physical custody of S.R. J.W. contested custody. E.J., S.R.'s mother, had custody of S.R. until E.J. died in March 1996. The custody contest between the father, J.W., and the stepfather, R.J., then became the only remaining dispute. Following E.J.'s death, the superior court gave the stepfather temporary custody, with visitation to the father. The superior court conducted a custody trial and in August 1996 entered judgment awarding shared legal custody to the father and stepfather, primary physical custody to the stepfather, and visitation to the father. The father appealed from that judgment, arguing that the court erred in failing to apply the Indian Child Welfare Act and that there was insufficient evidence under the state law standard to award custody to a non-parent. The father did not seek a stay when he filed his appeal. Relevant events occurred after entry of the 1996 judgment. The state took custody of S.R. from September 4,1996, to December 4, 1996, following a report that the stepfather had previously abused S.R. sexually. The state placed S.R. with her aunt in Fairbanks during this three-month period. S.R. was returned to her stepfather in Birch Creek on December 4, and remained there until December 18, when she traveled to Fairbanks for Christmas visitation with her father. On January 9, 1997, the father, J.W., moved in the superior court for a stay pending appeal, alleging that the stepfather had sexually abused the child, and that she was at risk if she returned to his custody. J.W. also moved for expedited consideration. The court granted expedited consideration the next day, without giving the stepfather an opportunity to file an opposition. The superior court gave the stepfather until January 15 to respond to the underlying motion, but did not specify the child's custody in the meantime. When the father's lawyer called the judge's secretary and inquired whether S.R. was required to return to the stepfather's custody pending resolution of the motion, the court ordered that the child remain in Fairbanks while the matter was pending. At a January 13, 1997, status hearing, the superior court orally denied the father's stay motion, but set a hearing for January 16 to determine "whether or not there are circumstances that now exist that place [S.R.] at risk in going back to Birch Creek." On January 16 the father moved to modify custody. The superior court heard testimony on January 16 and 17 from the doctor who had examined S.R. in August 1996, the Alaska State Trooper who had interviewed her, and the two contestants. The superior court also accepted the report of the guardian ad litem (GAL). On January 17 the superior court issued an order modifying the August 1996 judgment. The order found that "[c]on-siderable confusion exists as to whether [S.R.] was ever sexually molested and, if so, when and by whom." The order also stated that "[t]he evidence before this court at this time does not suggest that [S.R.] is currently at risk in the [stepfather's] household." Nonetheless, the order found that a change of circumstances had occurred since the 1996 trial, and permanently modified the judgment by giving primary physical custody to S.R.'s father, with visitation to S.R.'s stepfather. Several months later, over the stepfather's objection, the court ordered an in camera interview with S.R. The superior court sua sponte again permanently modified the custody order on May 15, 1997, giving sole legal custody to the father and decreasing the stepfather's visitation. The stepfather, R.J., appeals both 1997 modification orders on the theory that procedural errors denied him due process of law. We here consider the father's appeal from the 1996 judgment and the stepfather's appeal from the 1997 modifications. III. DISCUSSION A. Standard of Review We will disturb the trial court's resolution of child custody issues only "if the record shows an abuse of discretion or if controlling findings of fact are clearly erroneous." House v. House, 779 P.2d 1204, 1207 (Alaska 1989) (citing Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978)). Whether factual findings are sufficient to support an award of custody to a non-parent is a legal issue to which we apply our independent judgment. R.R. v. State, 919 P.2d 754, 755 n. 1 (Alaska 1996). The applicability of the Indian Child Welfare Act of 1978 to this proceeding is a question of law subject to our independent judgment. In re T.N.F., 781 P.2d 973, 975 (Alaska 1989). We will "adopt the rule of' law that is most persuasive in light of precedent, reason and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). B. The Post-Judgment Modification Orders The stepfather, R. J., argues that the superior court erred in 1997 by: (1) entering the order for expedited consideration without allowing him a reasonable time to oppose the motion; (2) amending the order for expedited consideration based on an ex parte contact with J.W.'s counsel; (3) modifying the judgment pending the outcome of a motion for a stay; (4) treating the motion for stay on appeal as a motion for modification; (5) admitting into evidence Dr. Marvin Bergeson's testimony about the child's identification of the perpetrator, Dr. Bergeson's report, and the GAL's testimony about the child's statements; (6) basing the January 1997 modification on issues not identified by the superior court before the hearing; and (7) permanently modifying the 1996 judgment without proper notice and hearing. The father, J.W., argues not that the orders were entered without procedural error, but that any errors are mooted by correcting the error of awarding custody to the stepfather in August 1996. Our resolution of issues concerning the August 1996 judgment moots any need to consider questions about the procedural adequacy of the 1997 orders. C. The August 1996 Judgment 1. Was it an abuse of discretion to award custody ofS.R. to her stepfather, R.J.? The father, J.W., argues that the superior court improperly applied the Alaska standard for resolving a custody dispute between a parent and non-parent. He reasons that under Turner v. Pannick, 540 P.2d 1051 (Alaska 1975), and Carter v. Novotny, 779 P.2d 1195 (Alaska 1989), the superior court must find that the parent is unfit or that it would be harmful to the child's welfare to be placed with the parent before the non-parent is awarded custody. He claims that there is insufficient evidence to make this finding. The stepfather, R. J., argues that the superior court correctly applied the Turner standard and "clearly" found that "placement outside [R.J.j's home would be detrimental to the child...." Turner v. Pannick stands for the proposition that parental custody is preferable and only to be refused where it is clearly detrimental to the child. 540 P.2d at 1055. "Unless the superior court determines that the parent is unfit or has abandoned the child, or that the welfare of the child requires that the non-parent receive custody, the parent must be awarded custody." Id. We reaffirmed these principles in B.J. v. J.D., 950 P.2d 113 (Alaska 1997); Rooney v. Rooney, 914 P.2d 212, 216 n. 8 (Alaska 1996); Buness v. Gillen, 781 P.2d 985, 988-89 (Alaska 1989); Carter, 779 P.2d at 1197; and Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977). We agree with the father that the 1996 judgment is not supported by the fact findings necessary for an award of custody to a non-parent. The superior court recited the Turner standard, as set out in Carter, and also cited to Buness, but found that S.R.'s "psychological and emotional development, as well as her overall welfare, requires that this relationship [with her stepfather] not be traumatically interrupted." The superior court based this finding on the fact that S.R. had lived most of her life with her stepfather, that he had become her psychological father in many ways, and that he could provide her a stable home. The superior court found that S.R.'s father had not known her for most of her life and that they had just recently become reacquainted. Yet the superi- or court also found that both men are "fit parents who desire the best for [S.R.]." After determining that S.R.'s welfare required a parental role for the stepfather, the superior court then seemingly applied the statutory factors under AS 25.24.150 to determine that it was in S.R.'s best interest that the stepfather have custody during the school year and that the father have custody during the school vacations. There was no express finding that it would be detrimental for S.R. to be placed in her natural father's custody. Although use of the word "detrimental" is not mandatory, the findings had to demonstrate that the Turner detriment standard was being applied. The court instead appears to have applied the best interest standard set out in AS 25.24.150. The court may have reasoned that the stepfather's assumption of an in loco parentis status gave him parental rights equal to the father's; its citation of Buness suggests that it may have considered that the relationship between the child and the stepfather conferred a parent-like standing on the stepfather that made it unnecessary to apply the Turner standard. Such an analysis, however, would have been contrary to the essential holding of Turner, that "parental custody . is preferable and only to be refused where clearly detrimental to the child." 540 P.2d at 1055. The relationship between the stepparent and the child, no matter how close, does not justify application of the best interests standard; the court may take the relationship into account, however, in deciding whether awarding custody to the biological parent would be detrimental to the child. Absent a finding in this case that the father is unfit, has abandoned the child or that the welfare of the child requires that a non-parent receive custody, the parental preference controls. We therefore reverse the superior court's 1996 award of custody to the stepfather, R.J., and remand for further proceedings consistent with this opinion. 2. Does the Indian Child Welfare Act apply here? It is undisputed that S.R., her father, and her stepfather are Alaska Natives. The August 1996 order, citing 25 U.S.C. § 1903(1), concluded that "the Indian Child Welfare Act [25 U.S.C. § 1901 et seq.] does not apply to this matter." The order did not explain the reason for that conclusion, but noted that "both parties are Indian." It appears no formal notice of the 1996 and 1997 custody proceedings was given to any Indian tribe, including the village which apparently considers S.R. to be a tribal member. The father, J.W., argues that it was error not to apply the Indian Child Welfare Act (ICWA) to the custody proceedings. He argues that before the superior court could place the child with her stepfather, it had to determine pursuant to § 1912(e) that there was clear and convincing evidence, including expert testimony, that serious emotional or physical damage would likely result if S.R. were placed with her father. He also argues that ICWA would not have applied if S.R. had been placed with him, S.R.'s father. The stepfather, R.J., argues that ICWA does not apply. He alternatively asserts, however, that because he qualifies as S.R.'s "Indian custodian," he is entitled to receive the benefit of ICWA protections against removal of a child, and that applying ICWA for the father's benefit would lead to the "absurd result" of removing the child from her Indian custodian. ICWA's protections, if applicable, include the clear and convincing burden of proof for removing an Indian child from a parent or Indian custodian and a requirement that the child's Indian tribe be allowed to intervene in the proceeding. 25 U.S.C. § 1911, 1912. The legislative history of ICWA reveals that Congress was concerned with two goals: protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families. See H.R.Rep. No. 95-1386, at 8 (1978); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37, 109 S.Ct. 1597, 1602, 104 L.Ed.2d 29 (1989); A.B.M. v. M.H., 651 P.2d 1170, 1172 (Alaska 1982). Although ICWA provides procedural protections for parents and Indian custodians, see, e.g., § 1912(e) (imposing higher burden of proof for foster care placement), it also protects the tribes and the Indian children, see, e.g., § 1911 (giving tribes exclusive jurisdiction in custody disputes on reservations, and the right to intervene in state court custody proceedings). Congress determined that tribal participation in custody proceedings would better reflect Native values, and that placement decisions would better reflect the best interests of Indian children. See 25 U.S.C. § 1901(5); Holyfield, 490 U.S. at 34-37, 109 S.Ct. at 1600-1602; H.R.Rep. No. 95-1386, at 10, 19 (1978). Applying ICWA to custody disputes between parents and non-parents allows the tribe an opportunity to intervene and offer its insight into the relative fitness of the contestants. Congress was also concerned with state action, including judicial action, in custody decisions involving Indian children. See 25 U.S.C. § 1901(5); H.R.Rep. No. 95-1386, at 19 (1978). Although our state standard for awarding custody of a child to a non-parent is higher than the best interests standard usually applied in custody disputes, ICWA imposes an even higher standard of proof before an Indian child may be removed from the custody of a parent or Indian custodian. ICWA applies to "child custody proceedings" involving an Indian child. 25 U.S.C. § 1903(l)(i)-(iv). The only type of "child custody proceeding" relevant here is a "foster care placement," which ICWA defines as: any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. 25 U.S.C. § 1903(l)(i). The definition contains four requirements: (1) an action removing an Indian child from its parent or Indian custodian, (2) temporary placement in a foster home, institution, or home of a guardian or conservator, (3) inability of the parent or Indian custodian to have the child returned upon demand, and (4) absence of termination of parental rights. The last three requirements clearly existed here: S.R.'s 1996 placement with the stepfather was a temporary placement in the home of a guardian; after the court awarded custody to the stepfather, the father could not obtain S.R.'s return upon demand; and no parental rights had been terminated. It also appears that this case involves "an action removing an Indian child from its parent or Indian custodian." All proceedings thus far involved the potential, if not actual, removal of the child from the father. Although he did not previously have physical custody, the proceedings still removed the child from the father's legal custody. See In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925, 937 (1988) (stating that phrase, "from whose custody such child was removed," in § 1914 refers to legal rather than actual physical custody of child); In re Welfare of W.R. and A.R., 379 N.W.2d 544, 549 (Minn.App.1986) (finding § 1912 provision of "the continued custody of the child by the parent" does not refer to the physical custody of the child); In re Adoption of Baade, 462 N.W.2d 485, 490 (S.D.1990) ("the custody referred to in § 1912(f) is legal rather than physical custody"). We consequently conclude that the custody proceeding was a "foster care placement" within the meaning of ICWA, § 1903(l)(i). The stepfather argues that ICWA does not apply because its purpose is "to restrict placements outside the Indian home and away from the existing family thereby causing the breakup of the Indian family." This reading of ICWA's purpose is too narrow. As we noted above, one purpose of ICWA is to permit tribal participation in state custody proceedings. This purpose is advanced by permitting the child's tribe to express its preference or comment on the relative fitness of the contestants. This opportunity increases the likelihood non-Indians will recognize and appreciate cultural and social values thought by the tribe to be important in resolving the custody dispute. Similar proceedings have been held to be foster care placements. The New Mexico Court of Appeals found that the placement of children after a parent's death was a foster care proceeding under ICWA because the children had not been placed with their aunt, who was their Indian custodian under tribal custom, and therefore were "removed" from her. In re Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451, 453 (N.M.App.1993). Other courts, while not specifically addressing the "removal" issue, have held that ICWA applied to custody disputes between parents and non-parents. See In re Custody of A.K.H., 502 N.W.2d 790, 792-93 (Minn.App.1993) (finding that custody dispute between parents and grandparents was a foster care proceeding and that ICWA applied); In re Custody of S.B.R., 43 Wash.App. 622, 719 P.2d 154, 156 (1986) (same). The stepfather also argues that this dispute falls within the exclusion to ICWA for custody disputes between parents in a divorce proceeding. 25 U.S.C. § 1903(1). He reasons that this dispute is really the equiva lent of a custody dispute between two parents because he was S.R.'s Indian custodian and psychological parent, who has acted in loco parentis for most of her life, and who may be treated as a parent under state law. The child custody proceedings to which ICWA applies do "not include a placement based . upon an award, in a divorce proceeding, of custody to one of the parents." 25 U.S.C. § 1903(1). ICWA defines "parent" to mean "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established." 25 U.S.C. § 1903(9). Neither stepparents acting in loco parentis nor Indian custodians are included in this definition. Furthermore, "stepparent" is included in the definition of "extended family member." 25 U.S.C. § 1903(2). A "stepparent" is clearly not a "parent" within ICWA usage, and therefore a dispute between a parent and stepparent does not fall within the ICWA exclusion for custody disputes between parents. We conclude that ICWA applied to the proceedings below. Because the April 1996 interim custody order and the August 1996 judgment violated the provisions of § 1911 and possibly § 1912, they must be vacated and this case remanded for further proceedings consistent with ICWA. 25 U.S.C. § 1914. The effects of this conclusion are not completely clear. Certainly the superior court proceedings removed the child from the legal custody of a parent or Indian custodian without giving the child's tribe an opportunity to participate. As a result, any findings weighing the fitness, of the contestants were made without benefit of the tribe's comments. That deficiency can be remedied only if the proper tribe is given notice and the opportunity to participate on remand. The father invokes § 1912(e) for its requirement of "clear and convincing" evidence before an Indian child is removed from a parent or Indian custodian. The stepfather argues that if ICWA does apply, he qualifies as the Indian custodian, and therefore is also entitled to the benefit of the ICWA protections. It is unclear whether the stepfather is an Indian custodian. Although the stepfather alternatively argued below that he qualified as the child's Indian custodian, he does not appear to have sought a finding of fact to that effect. On remand, the superior court must determine whether the stepfather was S.R.'s "Indian custodian" within the meaning of § 1903(6). If the stepfather does not establish that he was the child's Indian custodian, he has no arguable right to invoke the ICWA heightened standard of proof. Instead, the father will have the benefit of § 1912(e). A finding on remand that the stepfather is the child's Indian custodian will squarely raise the legal question whether § 1912(e) applies reciprocally in a dispute between a parent and Indian custodian. Subsection 1912(e) egresses a strong preference for custody "by the parent or Indian custodian." The subsection treats parents and Indian custodians as coequals, as does the definition of "foster care placement" in § 1903(l)(i). No section of ICWA indicates that Congress preferred a parent to an Indian custodian if the parent did not previously have physical custody. Although § 1916 states that the protections of ICWA do not apply when an Indian child is removed from a foster care home and returned to the parent or Indian custodian from whose custody the child was originally removed, we cannot assume that Congress generally preferred parents to Indian custodians. The purposes behind ICWA are consistent with restricting § 1912(e) to disputes between persons having favored status — parents and Indian custodians — and others who are neither parents nor Indian custodians. There would appear to be no logical reason consistent with the statutory purpose to apply § 1912(e) in a contest between two equally favored contestants. We therefore hold that if the stepfather proves on remand that he is S.R.'s Indian custodian, § 1912(e) will not apply and the superior court should instead apply the Alaska standard for custody disputes between parents and non-parents discussed in Part III.C.l. See 25 U.S.C. § 1921 ("In any case where State or Federal law . provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard."). IV. CONCLUSION Because the 1996 judgment was not based on the fact findings required by state law for awarding custody of the child to the stepfather, and because the provisions of ICWA were not applied in the proceedings below, we VACATE the May 15,1997, Second Modification of Judgment and the August 28, 1996, Findings of Facts, Conclusions of Law, and Judgment, and REMAND for further proceedings to determine under state law whether placement with the father would be clearly detrimental to S.R. Because ICWA applies to this dispute, the child's tribe must be given an opportunity to participate in those proceedings and offer evidence on the fitness of the contestants and on the issue of whether the stepfather, R.J., is an Indian custodian. Any such evidence may be considered in applying the Turner standard. If the superior court concludes under Turner that it would be clearly detrimental to the child to return her to her father, the court will next have to determine whether the father is entitled to the benefit of the "clear and convincing" standard of 25 U.S.C. § 1912(e). Unless it finds that the stepfather is S.R.'s "Indian custodian" under 25 U.S.C. § 1908(6), the court cannot award custody to the stepfather unless he satisfies § 1912(e). If the stepfather was S.R.'s Indian custodian, the ICWA statutory preference will not apply, and custody will turn on the outcome of the Turner ruling. . E.J. and R.J., the stepfather, also had three other children whose custody is not in dispute here. . Some of these issues may arise again, but the legal and factual contexts are likely to differ, rendering our present consideration premature. Nonetheless, the admissibility of Dr. Bergeson's testimony about S.R.'s identification of the alleged perpetrator is particularly likely to arise again. Although we do not decide whether the cited exceptions or other exceptions to the hearsay rule may apply, we note that Sluka v. State, 717 P.2d 394 (Alaska App.1986), and Broderick v. King's Way Assembly of God Church, 808 P.2d 1211 (Alaska 1991), offer guidance on this issue. . "In order to satisfy the 'welfare of the child' requirement, the non-parent must show that it clearly would be detrimental to the child to permit the parent to have custody." Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975). The nonparent has the burden of proving the detriment by a preponderance of the evidence. Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977). Both concurring opinions in Turner expressed reservations about courts' ability to distinguish between a "welfare of the child" test and a "best interests" test. See Turner, 540 P.2d at 1055 (Dimond, J., concurring); Id. at 1056 (Rabinowitz, C.J., concurring). Reservations about how the Turner standard and the parental preference are applied have been expressed on at least one occasion. See Matson v. Matson, 639 P.2d 298, 302 & n. 4 (Alaska 1982) (concern that the categorization between parent and non-parent may be undesirable) (Compton, J., dissenting). It has not been necessary for us to consider parties' arguments for a different standard. See, e.g., Hayes v. Hayes, 922 P.2d 896, 898 (Alaska 1996). The stepfather, R.J., does not argue that we should overturn Turner; he instead argues that the findings satisfied the Turner standard as refined in subsequent decisions. He argues that Turner "may be satisfied by a showing that placement outside the non-parent's home may be detrimental to the child regardless of the fitness of the biological parent." . In context we interpret the court's finding that the child's welfare requires that her relationship with her stepfather "not be traumatically interrupted" to mean that any transfer of custody should be gradual rather than sudden, not that the child's welfare requires that she be permanently placed with her stepfather. . The father argues in his brief that there is insufficient evidence in the record to support a finding that placement with her father would be detrimental to S.R. We decline to decide that there is insufficient evidence as a matter of law. Moreover, the father's counsel acknowledged at oral argument that further proceedings may be necessary to determine custody under Turner. Also, for reasons discussed below, the child's tribe must be given an opportunity to address the fitness of the contestants. . Because they may be relevant to custody issues, the superior court on remand may consider post-judgment events in applying the proper standard. . The Native Village of Birch Creek (NVBC) moved to intervene in another proceeding concerning S.R., and filed with its motion a 1996 Dendu Gwich'in Tribal Council resolution declaring S.R. to be a tribal member of NVBC. NVBC never moved to intervene in the present custody dispute. The Native Village of Fort Yukon (NVFY) moved to intervene in the present custody dispute in 1997, alleging that it was S.R.'s tribe. After initially granting the motion, the superior court ultimately denied it on the ground "the child . is a member of [NVBC] and is not a member of [NVFY]." NVFY did not appeal from the denial of its intervention motion. . 25 U.S.C. § 1912(e) provides: No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. . 25 U.S.C. § 1911(c) provides: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding. . State law requires the non-parent to prove by a preponderance standard that parental placement would be detrimental to the child. See supra note 3. ICWA requires that an order for foster care placement must be supported by clear and convincing evidence of likely serious emotional or physical damage to the child if he or she remains with the parent. 25 U.S.C. § 1912(e). . " 'Indian custodian' means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child." 25 U.S.C. § 1903(6). . The stepfather argues that placement with him was not a placement in a "foster home or institution or the home of a guardian or conservator." He was, however, legally S.R.'s guardian or conservator when she was with him under the 1996 custody orders because he is not her natural or adoptive father. While ICWA does not define "guardian," the rights he acquired under the 1996 orders brought him within the common definition of the term. See Webster's New World Dictionary at 620 (1972) (defining "guardian" as "(1) a person who guards, protects, or takes care of another person . (2) a person legally placed in charge of the affairs of a minor"). See also In re Custody of A.K.H., 502 N.W.2d 790, 792-93 (Minn.App.1993) (finding that placement with grandparent was placement with guardian or conservator); In re Custody of S.B.R., 43 Wash.App. 622, 719 P.2d 154, 156 (1986) (same). . R.J., the stepfather, similarly argues that ICWA does not apply to this case because it is an "intra-family custody dispute." These arguments originate in In re Bertelson, 189 Mont. 524, 617 P.2d 121, 125-26 (1980), which held that ICWA did not apply to a custody dispute between a parent and the grandparents because it was not intended to apply to "internal family disputes." We declined to follow Bertelson in A.B.M. v. M.H., 651 P.2d 1170, 1173 n. 6 (Alaska 1982). The stepfather also argues that applying ICWA for the father's benefit "would cause the absurd result" of removing S.R. from her existing Indian family and from the custody of her Indian custodian. . 25 U.S.C. § 1903(2) provides: "Extended family member" shall be as defined by the law or custom of the Indian child's tribe or, in absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent. . 25 U.S.C. § 1914 provides in pertinent part: [A]ny parent or Indian custodian from whose custody such child was removed . may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title. . 25 U.S.C. § 1903(6) defines "Indian custodian" as: [A]ny Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such a child. The stepfather may be the child's Indian custodian under tribal law or custom, or because the mother transferred physical care, custody, and control of the child to the stepfather. The stepfather may also be an Indian custodian under state law, but because the April 1996 order and August 1996 judgment are vacated, the court should not consider whether he was an Indian custodian under those orders. . It is not inconsistent to apply the state law parental preference here, because we are simply reading the § 1912(e) standard to be inapplicable; ICWA does not clearly express a policy that forbids the state from applying a preference for the claim of the biological parent whose rights have not been terminated by the child's tribe. This case does not involve a ruling by a tribal court that terminates the father's custodial rights in favor of the stepfather.

11876714

EASTWIND, INC., an Alaskan corporation; M-B Contracting, Co., Inc., a foreign corporation; Wilder Construction Co., Inc., a foreign corporation; H & H Contractors, Inc., an Alaskan corporation; and Quality Asphalt Paving, Inc., an Alaskan corporation, Appellants, v. STATE of Alaska, Department of Labor, Wage and Hour Administration, Appellee

Eastwind, Inc. v. State

1997-12-26

No. S-6914

844

851

951 P.2d 844

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

EASTWIND, INC., an Alaskan corporation; M-B Contracting, Co., Inc., a foreign corporation; Wilder Construction Co., Inc., a foreign corporation; H & H Contractors, Inc., an Alaskan corporation; and Quality Asphalt Paving, Inc., an Alaskan corporation, Appellants, v. STATE of Alaska, Department of Labor, Wage and Hour Administration, Appellee.

EASTWIND, INC., an Alaskan corporation; M-B Contracting, Co., Inc., a foreign corporation; Wilder Construction Co., Inc., a foreign corporation; H & H Contractors, Inc., an Alaskan corporation; and Quality Asphalt Paving, Inc., an Alaskan corporation, Appellants, v. STATE of Alaska, Department of Labor, Wage and Hour Administration, Appellee. No. S-6914. Supreme Court of Alaska. Dec. 26, 1997. Mary L. Pate, Eide & Miller, Anchorage, for Appellants. Toby N. Steinberger, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

4349

27997

OPINION RABINOWITZ, Justice. I. INTRODUCTION At issue in this appeal is whether the new wage rate determination provisions of the 1993 amendments to AS 36.05.010 apply to public construction contracts bid on prior to the effective date of the amendments. We hold that they do not. II. FACTS AND PROCEEDINGS Effective September 22, 1993, the legislature amended AS 36.05.010, the Little Davis-Bacon Act (Act). Prior to amendment the Act required that all contractors with public works contracts pay their employees no less than the prevailing wage rate for work of a similar nature in the relevant locale. Alaska Statute 36.05.010 specifically directed contractors to adjust their wage rates every time that the Department of Labor (DOL) issued new prevailing wages. Thus, by contract, a public works contractor agreed to immediately adjust employee wages for the subsequent pay period after each DOL issuance of new prevailing wage rates. In 1993, the legislature amended AS 36.05.010 and AS 36.05.070. Under the system established by the 1993 amendments, which became effective September 22, 1993, minimum wages are fixed at the prevailing wage rates in effect ten days prior to the final date for submission of bids on the public contract. These wage rates remain constant for twenty-four months or the life of the contract, whichever is shorter. Thus, wages are frozen for the first twenty-four months of the contract and the contractor will only have to adjust pay rates when performance of the contract will take longer than twenty-four months. On September 1, 1993, DOL issued an Interpretive Bulletin which concluded that the 1993 amendments applied only to public contracts with a final bid date after September 22,1993. Eastwind, Inc., and the other party corporations are public works contractors who have contracts with bid dates prior to September 22, 1993. Work on their contracts continued after the effective date of the 1993 amendments. The contractors filed a declaratory judgment action, asserting that the amendments in question should apply to their pre-existing contracts and seeking an invalidation of the DOL's Interpretive Bulletin. Both sides subsequently moved for summary judgment. The superior court granted the State's motion for summary judgment. The court held that applying the 1993 amendments to preexisting contracts would "amount to making the statute retroactive," which the legislature did not expressly intend. The State subsequently moved for attorney's fees and was awarded $1,485.04 pursuant to Civil Rule 82. The contractors now bring this appeal. III. DISCUSSION A. Are the Amendments to AS S6.05.010 Applicable to Contracts with a Bid Date Prior to Enactment? We start from the undisputed proposition that all statutes are presumptively non-retroactive. Alaska Statute 01.10.090 provides: "Retrospective statutes. No statute is retrospective unless expressly declared therein." Though the amendments to the Act were made effective September 22, 1998, the contractors contend that the legislature intended to include all pay periods following enactment, regardless of the bid date of the contract. Moreover, the contractors assert that this interpretation of the amendments does not constitute a retroactive application. 1. Legislative history The contractors argue that legislative intent to include pre-enactment contracts in the scope of the amendments is evidenced by several sources. They observe that Representative Gail Phillips, the amendments' sponsor, stated that under the amended version of the Act, the DOL wage rate would "no longer apply immediately to contracts in progress." Representative Phillips' full statement on this subject is as follows: Current law provides that a construction contractor or subcontractor who performs work on public construction in the state shall pay not less than the current prevailing wage for work of a similar nature. However, an increase in the prevailing wage in the middle of a contract creates a financial hardship on the contractor; and anticipation of interim increases may also serve to inflate the cost of construction projects, because the contractor or subcontractor must absorb the costs.... The bill before you proposes to address these concerns. Sponsor Substitute for House Bill 126 was introduced to amend AS 36.05.010 so that the prevailing wage as determined by the Department of Labor will no longer apply immediately to contracts in progress. The wage in effect at least 10 days before final bid submission will remain in effect for 24 months from the date the contract is awarded.... Representatives from Unions, Alaska General Contractors and the Department of Labor worked together to find appropriate language to be introduced, and it is my understanding that the bill now meets with the approval of each. The contractors conclude that the term "in progress" must refer to all contracts already in place at the time of enactment. We disagree. The more plausible interpretation of this phrase is that it is used merely to refer to contracts which are being performed when DOL issues a new determination of prevailing wage rates. Thus in the quoted statement the phrase "contracts in progress" is another way of referring to, as Representative Phillips put it, "an increase in the prevailing wage in the middle of a contract." The phrase is nowhere keyed to the date a particular contract might have been let.. The contractors' reliance on similar statements by legislators and DOL is also misplaced. These pronouncements indicate only that the amendments were intended to relieve contractors of the burden of continually adjusting wages during the term of the contract. While the statements may be generally indicative of legislative motivation for amending the Act, they fail to establish that the amendments were meant to apply to contracts with a bid date prior to September 1993. We conclude that the contractors have not shown that the legislature specifically intended for the 1993 amendments to apply to pre-enactment contracts. We note that in the past this court has strictly applied the requirements of AS 01.10.090 when determining whether a statute is meant to be applied retroactively. For instance, in State, Alco holic Beverage Control Bd. v. Odom Corp., 671 P.2d 375, 377 (Alaska 1983), we stated: AS 01.10.090 provides that no Alaskan statute can be applied retrospectively "unless expressly declared therein." This statute has been applied strictly.... It would have been simple for the legislature to have included in the amendment a statement that the new rates would apply to revenues collected in the 1980 calendar year. No such statement was made. Therefore, the new fees schedule cannot be applied to revenues collected prior to the effective date of AS 04.10.340. (Citations omitted.) See also Hansen v. Stroecker, 699 P.2d 871 (Alaska 1985) (holding that a statute adopting "wait and see" approach to measurement of period in rule against perpetuities could not be retrospectively applied, since statute did not clearly provide for its application); State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d 268, 272 (Alaska 1983) ("Absent clear language indicating legislative intent to the contrary, a law is presumed to operate prospectively only."). Finally, we note that not only did the legislature fail to include a provision specifically regarding retroactivity, it also declined to provide for an immediate effective date. This provides further support for the proposition that the 1993 amendments were intended to have prospective application only. See, e.g., Schultz Constr., Inc. v. Ross, 76 A.D.2d 151, 154, 431 N.Y.S.2d 144 (N.Y.App.Div.1980), aff'd, 53 N.Y.2d 790, 792, 422 N.E.2d 579, 439 N.Y.S.2d 919 (1981) (concluding that an effective date 60 days after an amendment was enacted suggests an intention to apply it prospectively); Deutsch v. Catherwood, 31 N.Y.2d 487, 341 N.Y.S.2d 600, 601, 294 N.E.2d 193, 194 (1973) ("The postponement of the effective date of each amendment furnishes critical and clear indi-cia of intent. If the amendments were to have retroactive effect, there would have been no need for any postponement."). See also 2 Norman J. Singer, Sutherland Statutory Construction § 41.04 (5th ed. 1991) ("Postponement of the effective date for an act indicates that it should have only prospective application."). Because clear legislative intent indicating that the amendments are to be applied to pre-existing public contracts is lacking, we conclude that the amended version of the Act must be interpreted to apply non-retroactive-iy. 2. Retroactive application This court has previously held that a statute will be considered retroactive insofar as it "gives to pre-enactment conduct a different legal effect from that which it would have had without the passage of the statute." Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1093 (Alaska 1985) (citing Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692 (1960)). In the instant case, we must determine whether the contractors' interpretation of the 1993 amendments would give different legal effect to pre-enactment conduct. The superior court answered this in the affirmative, concluding that applying the amendments to contracts bid on prior to September 22, 1993, would indeed constitute a retroactive interpretation of the statute. It stated: The contracts at issue were executed before the amendments were passed. The Contractors bid on those contracts under the old law. Thus, their bids took into account the possibility of wage changes. Applying the amendments to these preexisting contracts would give pre-enactment conduct a different legal effect from that which it would have had without passage of the statute. The contractors dispute, the superior court's determination of the conduct relevant for purposes of assessing retroactivity. They argue that interpreting the amended Act to govern all active contracts and wages paid after September 1993 would constitute a prospective application of the statute, since this interpretation would affect only payrolls issued after the effective date of the amendments. The State asserts that since this interpretation would alter the contractors' rights and duties under an existing contract executed prior to the effective date of the amendments, it constitutes a retroactive application. The essence of the State's argument is as follows: If the 1993 amendments were to be applied as the Contractors contend, the Contractors' pre-enactment conduct would be given a different legal effect from that which it would have had without the passage of the statute_ There is no dispute that the Contractors relied on the law in effect at the time when they bid on public construction contracts that pre-date the September 1993 amendments. But for the amendments, the Contractors would have to pay workers according to the terms of the public construction contracts, which included the requirement to change the pay rates if the Department issued a new Pamphlet. (Citation omitted, emphasis in original.) The question of which conduct is relevant for retroactivity purposes is complicated by the fact that almost any statute or regulation that affects the business environment in some respect — for instance minimum wage laws, building codes, and zoning ordinances— will alter the legal significance of the terms of certain contracts executed prior to enactment. Thus, the fact that interpreting amended AS 36.05.010 to apply to pre-enactment contracts alters the. legal significance of certain contract terms does not alone establish that such an interpretation would constitute a retroactive application. Nonetheless, we conclude that in this case the relevant conduct for purposes of assessing retroactivity is the act of contracting. Other courts have reached a similar conclusion regarding the relevant conduct for purposes of retroactivity analysis. In Schultz Construction, 76 A.D.2d at 151, 431 N.Y.S.2d 144, the court held that an amendment to the prevailing wage .determination statute did not apply retroactively to pre-existing public works contracts. Addressing the issue of whether new procedural requirements applied to contracts executed prior to the amendments, the court's reasoning is instructive insofar as it regards the date of contracting as relevant for purposes of assessing retroactivity. The court stated: In the absence of a clear expression of intent, the amendment and its background are such as to imply prospective application only to contracts entered into on or after its effective date. Id. at 154, 431 N.Y.S.2d 144. In Deutsch v. Catherwood, 341 N.Y.S.2d 600, 294 N.E.2d at 195, the court concluded that amendments to the Labor Law could not apply retroactively to public works contracts executed prior to the effective date of the amendments. After determining that the legislature did not intend the statute to have retroactive application, the court held that the new wage requirements could therefore not be imposed on pre-existing contracts. It concluded: To reach a contrary result in this case would serve to impose new conditions upon and impair the obligations of a contract already existing, under which the parties had fully entered into the performance of their work.... Id. See also Roto-Rooter Services Co. v. Department of Labor, 219 Conn. 520, 593 A.2d 1386, 1389 n. 5 (1991) ("Because the amendment . affects the substantive obligation of employers to pay overtime compensation, and in view of the absence of a clearly expressed legislative intent that the amendment shall apply retrospectively, we agree with the trial court that the amendment is not subject to retrospective application."); F.G. Compagni Constr. Co. v. Ross, 79 A.D.2d 831, 435 N.Y.S.2d 144 (N.Y.App.Div.1980) (holding that amendments to a labor law governing wages paid in performance of public works contracts did not apply to contracts executed prior to the effective date of the amendments). In reaching the conclusion that the relevant conduct for purposes of assessing retro-activity is the act of contracting, we note that the former version of AS 36.05.070(a) required that all public construction contracts "contain a provision stating the minimum wages to be paid . and that the rate of wages shall be adjusted to the wage rate for each period applicable under AS 36.05.010." As a consequence, the pre-1993 scheme was incorporated into every public contract that was executed. Therefore, applying the amendments to AS 36.05.010 to these preexisting contracts would effectively modify the meaning of the contracts as executed and, as such, give pre-enactment conduct a different legal significance. We decline to interpret the statute in this manner. We have previously observed that "[t]he reason for the statutory presumption against retrospective legislation is that people in conducting their business should be able to rely on existing laws with reasonable certainty." Norton, 695 P.2d at 1093. Since application of this statute to pre-enactment contracts would impair this interest insofar as it would alter the practical significance of existing contractual terms, the policy behind this statutory presumption would be subverted. If, on the other hand, these contract provisions were read merely as agreements to abide by the relevant wage determination laws, whatever they may be, we might reach a different result. Under this framework, each pay period would be evaluated under whatever system was in force at the time the pay period commenced. This is the argument advanced by the contractors when they assert that "[sjince the amendments would not apply to payrolls issued prior to September 22, 1993, but only to those arising after the effective date, the application would not be retroactive, but prospective only." Had the pre-1993 wage determination scheme not been explicitly incorporated into the contracts in question, the contractors' argument that the amendments apply to all payrolls issued after September 1993 would be stronger. However, since the relevant contracts at issue specifically provide for the immediate application of new prevailing wages, we conclude that the act of contracting is itself sufficient to constitute the relevant pre-enactment conduct for purposes of retroactivity analysis. In short, since application of the 1993 amendments to pre-existing contracts would give a different legal effect to significant pre-enactment conduct — namely, the agreement to specific contractual terms governing wage determinations — we reject the contractors' interpretation of the 1993 amendments as inconsistent with the statutory presumption against retroactivity. We thus conclude that the superior court correctly held that the amendments apply only to public construction contracts with bid dates after September 22,1993. B. Are the Contractors Public Interest Litigants? The contractors claim that the superi- or court's award of attorney's fees award was improper because the contractors qualify as public interest litigants. We have previously formulated a four-part test for identifying public interest litigation for purposes of attorney's fee awards: (1) whether the ease is designed to effectuate strong public policies; (2) whether, if the plaintiff succeeds, numerous people will benefit from the lawsuit; (3) whether only a private party could be expected to bring the suit; and (4) whether the litigant claiming public interest status would lack sufficient economic incentive to bring the lawsuit if it did not involve issues of general importance. Oceanview Homeowners Ass'n v. Quadrant Constr. and Engineering, 680 P.2d 793, 799 (Alaska 1984) (citing Kenai Lumber Co. v. LeResche, 646 P.2d 215 (Alaska 1982)). Based on these criteria, we conclude that the superior court did not err in awarding attorney's fees to the State. We note that although all of the contractors, except East-wind, Inc., have now paid wages according to the pre-amendment Act, each had a financial interest in the case at the time they filed the declaratory action. See DeNardo v. State, 887 P.2d 947 (Alaska 1994). Thus, the contractors had a substantial economic incentive to bring this suit; had their litigation been successful, the minimum authorized wage presumably would have been frozen at the September 1993 rate and the contractors potentially allowed to reduce the wages of employees governed by pre-enactment contracts. The contractors' argument that "enforcing proper statutory interpretation" is a strong public policy does not alter this conclusion. See Kenai Lumber Co., 646 P.2d at 223. Were we to hold otherwise, every party advancing a statutory interpretation argument would automatically qualify as a public interest litigant. The purpose of the exception would be ill served by adoption of the contractor's rationale. We thus conclude that the superior court did not abuse its discretion in determining that the contractors fail to qualify as public interest litigants and awarding the State attorney's fees pursuant to Civil Rule 82. IV. CONCLUSION We AFFIRM the superior court's order granting summary judgment to the State and awarding attorney's fees against the contractors. . In City and Borough of Sitka v. Construction and General Laborers Local 942, 644 P.2d 227, 232-33 n. 11 (Alaska 1982), we noted that [c]ourts construing federal Davis-Bacon recognize the paternalistic design of the Act: "The language of the Act and its legislative history plainly show that it was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects." U.S. v. Binghamton Cons.Co., 347 U.S. 171, 177, 74 S.Ct. 438, 441, 98 L.Ed. 594, 599 (1954). See Walsh v. Schlecht, 429 U.S. 401, 411, 97 S.Ct. 679, 686, 50 L.Ed.2d 641, 650 (1977). . Prior to the 1993 amendments, AS 36.05.010 read: Wage rates on public construction. 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. (Emphasis added.) . There is no dispute in this case regarding pre-amendment interpretation of the Act or that public construction contracts executed prior to September 1993 were governed by its terms. See former AS 36.05.070(a) (requiring that all public construction contracts "contain a provision stating the minimum wages to be paid . and that rate of wages shall be adjusted to the wage rate for each pay period applicable under AS 36.05.010."). .AS 36.05.010 now provides: Wage rates on public construction. 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 is that contained in the latest determination of prevailing rate of wages issued by the Department of Labor at least 10 days before the final date for submission of bids for the contract. The rate shall remain in effect for the life of the contract or for 24 calendar months, whichever is shorter. At the end of the initial 24-month period, if new wage determinations have been issued by the department, the latest wage determination shall become effective for the next 24-month period or until the contract is completed, whichever occurs first. This process shall be repeated until the contract is completed. (Emphasis added.) . In reviewing questions of statutory interpretation, we apply our independent judgment. Foss Alaska Line, Inc. v. Northland Services, Inc., 724 P.2d 523, 526 (Alaska 1986). . The amendments were signed into law on June 24, 1993, and made effective on September 22, 1993, pursuant to Alaska Const., art. II, § 18 (laws passed by the legislature become effective 90 days after enactment unless otherwise provided). . The Manual of Legislative Drafting, on which Alaska legislators are to rely, states: "Be sure to include a bill section that provides expressly for the retroactive application of the bill or part of the bill. This section should be set out immediately preceding the effective date section. It is good drafting practice to provide an immediate effective date" for sections which are meant to apply retroactively. .Whether application of the post-1993 wage determination scheme to pre-enactment public contracts would amount to a retroactive application of legislation is a pure question of law which we review de novo. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). . Under the contractors' interpretation, the conduct relevant to retroactivity analysis is payroll issuance, as opposed to contract execution. In other words, the contractors contend that the 1993 amendments authorize contractors holding pre-existing contracts to pay wages for the next twenty-four months according to the pamphlet in effect on September 22, 1993, the effective date of the amendments. A retroactive application would give the Contractors a "non-bargained for" unexpected windfall because the state and political subdivisions would still be liáble for the full price of the public construction contract which included an assumption that higher wages may have to be paid throughout the life of the contract.... . In this vein, the contractors note that "[n]ot every modification to a contractual promise violates the Contract Clause." We see no reason to reach this issue, however, since the State does not assert that an inclusive application of the 1993 amendments would violate the Contract Clause. . We have held that whenever a contract is entered into, it implicitly incorporates all applicable laws in existence at that time. In Skagway City School Board v. Davis, 543 P.2d 218, 222 (Alaska 1975) we said: These provisions became a part of the contract for appellee's employment under the general rule that applicable laws in existence at the time of the formulation of the contract and which the parties are presumed to know are incorporated into the contract and become a part of it as though they had been expressly set out in the contract. (Footnote omitted.) See also Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271, 1276 n. 7 (Alaska 1994); Stephan & Sons, Inc. v. Municipality of Anchorage, 629 P.2d 71, 78 n. 19 (Alaska 1981). See note 2, supra, for the text of former AS 36.05.010. . The contractors contend that the prevailing wage in effect at the time of enactment, as opposed to the prevailing wage at time of bidding, ought to apply to all contracts which pre-date enactment. The fact that this approach finds no support in the language of the statute further indicates the weakness of the contractors' position. .Under Article 6.1 (laws to be observed) of the "1984 Municipality of Anchorage Standard Specifications Streets — Drainage—Utilities—Parks" it is provided, in relevant part: The Contract shall be governed by the laws of the State of Alaska. The Contractor at all times shall observe and comply with all Federal, State, and local laws . in any manner affecting the conduct or the work.... It is further provided: The Contractor shall comply with the Provisions of Title 36, Chapter 05 of the Alaska Statutes requiring the Contractor to pay not less than the current prevailing rate for wages. In regard to the June 1993 Municipality of Anchorage, Department of Public Works' contract with Eastwind, Inc., for construction of the Baxter Road Street Improvements Project, it is stated in Section 90.02 of the Special Provisions section: This Contract is subject to and hereby incorporates by reference the "Municipality of Anchorage Standard Specifications Streets— Drainage — Utilities—Parks" dated 1984_ . Admittedly this holding could lead to the situation where employees of public works contractors are paid non-uniform minimum wages. Nevertheless, for the reasons discussed above, we think it inappropriate to apply the text of the questioned amendments literally. . We review a trial court's determination that a party is not a public interest litigant for abuse of discretion. Anchorage Daily News v. Anchorage School Dist., 803 P.2d 402, 404 (Alaska 1990). . The "public interest litigant" exception was established in response to concern that citizens would be deterred from litigating questions of public importance out of "fear of incurring the expense of the other party's attorney's fees." Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222 (Alaska 1982). . We think the claim that the general public would save money on public construction under the interpretation advanced by the contractors unpersuasive, since there is no evidence to suggest that cost to the public of pre-enactment contracts is not already fixed by the former terms of the Act. As the State persuasively argues, "[I]t is the Contractors, not the State, [who] would benefit financially if the 1993 amendments apply retroactively."

11872666

Dewell Wayne PEARCE, Appellant, v. STATE of Alaska, Appellee

Pearce v. State

1998-01-09

No. A-5915

445

448

951 P.2d 445

951

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Dewell Wayne PEARCE, Appellant, v. STATE of Alaska, Appellee.

Dewell Wayne PEARCE, Appellant, v. STATE of Alaska, Appellee. No. A-5915. Court of Appeals of Alaska. Jan. 9, 1998. Michael D. Dieni, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Cynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,' Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER, J. and JOANNIDES, District Court Judge. Sitting by assignment of the chief justice made pursuant to Article IV, Section 16 of the Alaska Constitution.

1615

10059

OPINION MANNHEIMER, Judge. This case presents an unusual issue that arose during jury selection. The selection process was complete, in the sense that the parties had waived their remaining peremptory challenges and had accepted a panel of twelve jurors, but the court adjourned for the evening without requiring the twelve selected jurors to take their trial oath. During this evening adjournment, the defense attorney received new information about one of the jurors. Based on this information, the attorney wished to challenge the juror in question. For this purpose, he asked the trial judge to allow him to exercise one of the remaining peremptory challenges that he had waived the day before. The trial judge refused to allow this. For the reasons explained below, we conclude that the judge should have granted the de fense attorney's request. We therefore reverse the defendant's conviction and remand this case for a new trial. Dewell Wayne Pearce was being tried for attempted kidnapping, third-degree assault, and third-degree misconduct involving weapons (felon in possession of a concealable firearm). AS 11.41.300(a)(1)(C), AS 11.41.220(a)(1)(A); AS 11.61.200(a)(1). Jury selection lasted throughout the first day of trial. During the selection process, Superior Court Judge Glen C. Anderson addressed several questions to the prospective jurors as a group. Some of these questions involved the jurors' feelings about the kind of charges that would be litigated at Pearce's trial. Specifically, Judge Anderson asked the prospective jurors to indicate if they or a member of their immediate family had "been the victim of a crime, particularly one similar to the kind that is alleged in the complaint— kidnapping, attempted kidnapping, or assault". A little later, the judge asked the prospective jurors if they felt any prejudice against Pearce, or believed they would have difficulty being impartial, based on the nature of the allegations against him. By the end of the day, voir dire was complete. The parties indicated that they would not exercise their remaining peremptory challenges and would accept the twelve people seated in the jury box. Due to the lateness of the hour, Judge Anderson chose to delay administering the trial oath to the jurors; instead, he released the jurors, un-sworn, for the night. Later that evening, Pearce's attorney received an anonymous telephone call. The caller told the defense attorney that a woman juror had not been "completely honest" during voir dire; in particular, this woman juror had expressed strong feelings about assaults. According to the caller (as related by the defense attorney), the woman juror declared that she had been able to conceal her feelings about assaults because the voir dire questions had not been specific enough to force her to reveal this information. When the parties appeared in court the next morning, Pearce's attorney informed Judge Anderson of this telephone call. The woman juror in question was identified as D.C.. Judge Anderson called D.C. into court for additional voir dire. During D.C.'s initial voir dire (the day before), D.C. had told Judge Anderson that her answer was "no" to the questions the judge had posed as to whether she or a family member had been the victim of a crime, and as to whether she would have difficulty being impartial in a trial involving attempted kidnapping and assault. Now, when D.C. was questioned by Pearce's attorney, she gave the following answers: DEFENSE COUNSEL: Have you ever been assaulted? D.C.: No. Well,— DEFENSE COUNSEL: Has anyone in your family ever been assaulted? D.C.: No. DEFENSE COUNSEL: Okay.... You said "well". What does that mean? Does that mean that'something did occur? D.C.: An incident when I was very, very young, but I . guess I — I would not classify that as an assault. DEFENSE COUNSEL: Okay. When you were a child. Can you go on — can you explain that further? D.C.: I was molested when I was — was a youngster. DEFENSE ATTORNEY: Okay. D.C.: But not violently.... More coercion] than violence. D.C. then described the incident: I was maybe ll[or] 12 years old, and [I] was molested by the parent of the children I was baby-sitting for. It was a one-time deal; it was never reported; and I just [made sure] to not further associate with that family. D.C. declared that she had not been violently assaulted or physically coerced; rather, she had been "talked into it". D.C. again assured the court and the attorneys that she could be impartial, and she denied that she had said anything to the contrary to anyone else. Following this additional voir dire of D.C., Pearce's attorney asked Judge Anderson to allow him to peremptorily challenge D.C.. The defense attorney told the judge that he would have challenged D.C. if this information had been revealed during the original voir dire. The State opposed the defense request, arguing that D.C.'s prior experience of sexual abuse would not impair her ability to act impartially as a juror in Pearce's trial. Judge Anderson denied the defense request to re-open peremptory challenges. The judge concluded that D.C. had answered the previous day's questions truthfully — that none of the questions posed to D.C. the day before had necessarily required her to reveal the sexual abuse she experienced as a child. The judge based this conclusion on the fact that D.C. had been asked to reveal only "similar" crimes and "information [the parties] should be concerned with". The judge found that D.C. could have answered such questions in good faith without revealing her experience of sexual abuse. The judge therefore held the defense attorney to his previous decision to waive his remaining peremptory challenges. A few minutes later, the twelve jurors took the trial oath, and presentation of the case began. A trial judge has considerable discretion in deciding what to do when problems arise during jury selection. For example, the judge has discretion to grant or deny a request for additional peremptory challenges. Graybill v. State, 672 P.2d 138, 139 n. 1 (Alaska App.1983), rev'd on other grounds, 695 P.2d 725 (Alaska 1985); Ketzler v. State, 634 P.2d 561, 566 (Alaska App.1981). The decision confronting Judge Anderson in this case — whether to allow an attorney to retract a previous waiver of their remaining peremptory challenges — is similarly entrusted to the judge's discretion. On appeal, we are obliged to defer to that discretion. However, under the facts of this case, we conclude that Judge Anderson should have granted the defense attorney's request to re-open peremptory challenges (so that the defense attorney could use one of his remaining challenges against juror D.C.). Peremptory challenges must be exercised in a timely manner or they are waived. In Pearce's case, the defense attorney announced that he did not intend to exercise any of his remaining peremptory challenges against the twelve selected, jurors. Under Alaska Criminal Rule 24(d), the attorney's decision constituted a waiver of his right to peremptorily challenge those jurors. However, the Alaska Supreme Court has stated that the door truly closes on peremptory challenges when the jurors are sworn. Grimes v. Haslett, 641 P.2d 813, 816 (Alaska 1982). In Pearce's case, Judge Anderson did not require the jurors to take the trial oath at the end of the day of jury selection; instead, he put this off until the following day. The jurors were still unsworn the following morning when the defense attorney unsuccessfully sought to peremptorily challenge juror D.C.. We thus conclude that Judge Anderson retained the discretion to release the defense attorney from his waiver of peremptory challenges if there was good cause for doing so. It is true that the defense attorney had previously announced himself satisfied with D.C. and the other eleven jurors. However, in light of D.C.'s answers during the next morning's voir dire, there was good reason to allow the defense attorney to reevaluate that decision. Even though Judge Anderson found that D.C. had not lied during voir dire, the record demonstrates a strong possibility that D.C. had purposely shaded her answers to avoid revealing information about her background — information that she knew, or reasonably should have known, was pertinent to the voir dire inquiry and would be considered important by the lawyers. D.C.'s answers were sufficient to raise a significant doubt concerning her ability to be fair. This doubt was perhaps not sufficient to establish legal cause for D.C.'s removal, but it was sufficient to demonstrate that the defense attorney was acting in good faith, and for good cause, when he sought to exercise his previously-waived peremptory challenge. We note, moreover, that granting the peremptory challenge would not have disrupted or delayed Pearce's trial, since an alternate juror was available to take D.C.'s place. For these reasons, we conclude that the trial judge abused his discretion when he denied the defense attorney's request to exercise a belated peremptory challenge to juror D.C.. Compare Nelson v. State, 781 P.2d 994, 998 (Alaska App.1989) (indicating that when a party's peremptory challenges have been exhausted and there is significant doubt about a remaining juror's ability to be fair, a trial judge should be lenient in granting a request for an additional peremptory challenge). The judgement of the superior court is REVERSED. Pearce is entitled to a new trial.

10467350

Otto W. EVANS, Appellant, v. STATE of Alaska, Appellee

Evans v. State

1976-05-28

No. 2392

830

847

550 P.2d 830

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Otto W. EVANS, Appellant, v. STATE of Alaska, Appellee.

Otto W. EVANS, Appellant, v. STATE of Alaska, Appellee. No. 2392. Supreme Court of Alaska. May 28, 1976. Max F. Gruenberg, Jr., of Gruenberg, Willard & Smith, Anchorage, for appellant. Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee,

9510

58555

OPINION Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and ERWIN, JJ- RABINOWITZ, Justice. Otto W. Evans brings this appeal from a criminal conviction for possession of narcotics in violation of AS 17.10.010. On November 4, 1973, Larry Grant arrived at the. apartment of George Pollard late in the evening. According to his own testimony, Grant was at that time employed by the Alaska State Troopers as a "special officer" assigned to narcotics investigations. His purpose that evening was to purchase illicit drugs from Pollard, and after some bargaining they agreed to the sale of six "balloons" of heroin for the sum of $100. Pollard placed the balloons on his coffee table and invited Grant to open them and inspect their contents, which he did. According to his testimony, Grant then "simulated" sniffing the heroin he was purchasing. At this point Evans, who was "beebopping around", entered the room, approached the men, and "kind of asked, or told" Grant that he wanted some of the heroin. Grant allowed him to take a small quantity sufficient for a "fix", then Grant snatched up the three bags he had opened. According to his testimony, Grant gave the narcotics to Evans out of fear that he might otherwise expose himself as an undercover police agent. After taking the narcotic, Evans remarked that he would return one fourth of a balloon the next day, which Grant responded was fine with him. After wrapping his purchase in a paper towel, at Evans' suggestion, Grant departed and telephoned the state police to report the purchase. A short time later he turned the evidence over to the state troopers. A chemical test conducted by an expert medical technologist determined that the contents of the balloons were heroin. Evans was subsequently indicted for possession of heroin. Prior to trial defense counsel moved for a judgment of acquittal on the grounds that the facts made out a defense of entrapment as a matter of law. The superior court declined to rule on the motion at that stage in the development of evidence. In response to a prosecution motion, the superior court did grant a protective order which prevented the introduction at trial of evidence concerning various facets of Grant's background. As summarized by Superior Court Judge Kala-marides at the outset of trial, the protective order precluded evidence of Grant's previous criminal charges and convictions, his history of heavy narcotics use prior to the incident in question, his involvement in similar narcotics cases in the Anchorage area, and the circumstances of his original employment as an undercover police agent. From the very inception of the trial it was brought home to the jury that Grant's credibilty was a major issue, as his was the only testimony linking Evans to criminal conduct. Evans attempted to undermine Grant's testimony by establishing that Grant was biased in favor of the police and had a personal interest in securing Evans' conviction. It was Evans' theory that Grant entertained an overriding desire to become a uniformed police officer, which was frustrated by his previous record of criminal misconduct and drug use and which fostered in Grant a perceived need to demonstrate his effectiveness in law enforcement by obtaining narcotics convictions. Counsel for Evans did adduce testimony that Grant's career objective was to be a regular police officer, but the superior court denied his motion to vacate the protective order and he was precluded from exploring the basis of Grant's purported bias before the jury. Later Evans was allowed to cross-examine somewhat more broadly on Grant's use of narcotics, after favorable character evidence had been presented by the state. Grant testified that he had been addicted for a period of three months some years earlier while in Washington. However, the superior court denied Evans' request that Grant display his track marks to the jury. George Pollard was called as a witness by the prosecution. Out of the presence of the jury, counsel for Evans propounded two questions, which Pollard declined to answer on advice of his counsel and in the exercise of his fifth amendment privilege. Pollard was thereupon excused as a witness. At the close of evidence Evans moved for a judgment of acquittal on three grounds: entrapment as a matter of law; that Grant was an accomplice whose testimony lacked the corroboration required by AS 12.45.020; and the insufficiency of the prosecution's evidence. The superior court denied all three motions, as well as instructions requested by Evans based on entrapment and complicity. The jury found Evans guilty of possession of narcotics in violation of AS 17.10.010. The presentence report contained a full confession by Evans apparently taken in violation of his constitutional rights. At sentencing the superior court announced its intention to disregard that portion of the report. Evans took the stand and testified generally about his background, employment, and prior criminal record. On cross-examination the prosecutor raised several matters to which counsel for Evans vigorously but unsuccessfully objected. The court sentenced Evans to five years' imprisonment with two years suspended. Evans' first contention is that the trial court unduly restricted the scope of cross-examination of the state's chief witness, Larry Grant, in violation of his right of confrontation guaranteed by the United States and Alaska constitutions. Specifically, Evans was prohibited by the protec tive order and superior court rulings from inquiring into the following matters: 1. Grant's 1969 felony conviction for grand larceny, which was later annulled by a certificate of rehabilitation; 2. Grant's FBI "rap" sheet, which would have revealed a 1962 conviction for petty theft, a 1964 charge for grand larceny, and a 1970 charge for petty larceny; 3. The circumstances under which Grant went to work for the Seattle police in 1969; 4. The details of Grant's narcotics addiction; and 5. Grant's modus operandi as an undercover police operative at the time he charged Evans. The record does not fully reflect the basis for the superior court's decision to enter the protective order. However, from the briefs, the memoranda, and various portions of the trial transcript it can be surmised that the 1969 conviction was excluded pursuant to Criminal Rule 26(f)(3), the FBI record was shielded pursuant to Criminal Rule 26(f)(2), and Civil Rule 43(g)(11) [b], and the other matters were excluded because they were collateral and did not result in conviction. The testimony of Grant was critical to the state's case, and Evans' basic attack went to possible bias and prejudice. Specifically, Evans contended that Grant's strong desire to become a regular, uniformed police officer was frustrated by his criminal record and his pattern of ongoing criminal conduct. To establish his credentials for police work, Grant was allegedly driven to perform extraordinary services which would demonstrate his effectiveness. In other words, he was unconsciously or consciously motivated to falsify or at least color his testimony in order to establish a good record by securing convictions. Evans urges that each aspect of the evidence which he sought to adduce on cross-examination would have gone to establish that bias. The 1969 felony conviction remained a detriment to Grant's employment prospects, despite the subsequent certificate of rehabilitation. The other criminal charges, even though too remote or untrustworthy to constitute impeachment evidence in a criminal trial, were matters which no police department would overlook in reviewing his credentials for employment. His record of prior heavy narcotics use was another stumbling block to regular employment, and, of course, evidence of renewed addiction would have been even more detrimental. The circumstances of his original employment with the police in Washington suggested, at least to Evans, that Grant worked as an informant in exchange for deferral of possible drug charges. According to Evans, this was germane to show that Grant had been operating not as a salaried "special agent" but as an informant seeking to curry continued favor with the authorities. Equally relevant would have been Grant's alleged modus operandi, which was to dispense heroin as a prelude to apprehending the beneficiaries of his largesse. Even if undertaken in his line of work, the alleged distribution could have subjected Grant to renewed criminal prosecution and may have been a further source of anxiety to him. Moreover, this unsavory mode of securing convictions was arguably indicative of the lengths Grant would go to to establish his effectiveness as an undercover agent. Taken together, Evans contends these evidentiary pieces would have established that . . Larry Grant had a vital, direct, and substantial financial and occupational interest in obtaining the defendant's conviction." The state's response to Evans' constitutional claim is that his right of confrontation was not infringed because the right to cross-examine is not absolute. The state argues each issue was sufficiently raised and explored to satisfy constitutional norms, and beyond that, the scope of ex-animation is a matter for the sound discretion of the trial judge. In this case it is urged that the superior court's rulings were not an abuse of that discretion. The sixth amendment to the United States Constitution guarantees an accused the right of confrontation in all criminal matters, which entails the right of cross-examination. This right is secured through the 14th amendment in state as well as federal criminal proceedings. The Alaska Constitution also guarantees this right. The right of cross-examination has been described ". . . .as beyond any doubt the greatest legal engine ever invented for the discovery of truth." To that end, it is the vehicle by which the credibility of adverse witnesses is tested. One traditional method of impeachment is to demonstrate that a witness harbors bias or prejudice toward one of the parties or a personal interest in the outcome of the trial which can be expected to color his testimony and undermine its reliability. Numerous decisions have expressed the view that a trial court must be particularly solicitous of cross-examination intended to disclose such bias or prejudice. For example, broad opportunity for examination should be allowed if its object is to establish that an adverse witness in a criminal matter is giving his testimony in anticipation of favorable personal treatment by the state. Although cross-examination to show bias in a particular case should be given greater latitude than a general, broadside attack on the credibility of a witness, even the right to cross-examine as to bias is not absolute and unqualified. It does not entail the right to harass, annoy, or humiliate a witness on cross-examination, nor to engage in repetitive questioning, nor to inquire into matters which would expose the witness to danger of physical harm. Misconduct which is so old that it has little probative bearing on a witness' present impartiality is properly excludable. Thus, the question before this court is whether Evans was given the opportunity to adduce before the jury facts sufficient to support his contentions regarding Grant's purported bias and self-interest. The record discloses that the state established Grant's aspiration to become a regular police officer and the circumstances under which Grant had been recruited by Alaskan enforcement authorities. Grant also conceded that he at one time had maintained a $100 per day heroin habit, that he had suffered one brief relapse, and that he had twice illegally dispensed narcotics in recent undercover work. There is little question but that the additional evidence sought by Evans would have bolstered his argument that Grant had a special reason to curry favor with the authorities, both to avoid slipping into the status of criminal suspect and hopefully to advance into the ranks of the uniformed police. The prior felony conviction and other criminal charges would have made his "major career goal" appear considerably more untenable, his situation that much more desperate. Proof of continued illegal conduct would have enhanced Evans' portrait of a frustrated man both wary of the police and anxious to please. Helpful as such evidence would have been, the issue is whether it was constitutional error to foreclose it to Evans. In R.L.R. v. State, 487 P.2d 27 (Alaska 1971), we reviewed a juvenile's adjudication of delinquency for the sale of LSD to a police informant. The superior court had sustained objections to cross-examination of the informant directed at the circumstances and frequency of his employment by the police, on the grounds of relevancy. We condemned those rulings as unduly restrictive of R.L.R.'s right of cross-examination: Had Want [the informant] been required to show how his employment came about, he might have been shown to have an incentive to bring about RLR's conviction in order to secure leniency for himself with respect to some past crime, as in Whitton v. State. Limiting RLR's attorney to asking Want if he was paid to act as an informer unduly restricted cross-examination, since money is not the only inducement which might have been offered to Want. '[GJreat liberality should be given defense counsel in cross-examination of a prosecution witness with respect to his motive for testifying.' Cross-examination to show bias because of expectation of immunity from prosecution is one of the safeguards essential to a fair trial, and undue limitation on such cross-examination is reversible error without any need for a showing of prejudice. The trial court committed reversible error in unduly limiting cross-examination of Joseph Want. A similar result was reached in Doe v. State, 487 P.2d 47, 57-58 (Alaska 1971). In Whitton v. State, 479 P.2d 302, 316— 17 (Alaska 1970), the accused attempted in his cross-examination of a prosecution witness to establish that the witness had separate criminal charges pending against him and may have anticipated leniency from the police in exchange for his incriminating testimony. The trial court precluded examination into these other criminal charges, apparently relying upon Civil Rule 43 (g) (11) [b]. This court reversed, holding that Rule 43 was not violated when the purpose of the cross-examination was not to undermine the witness' general credibility but to establish the probability of bias. We said that great latitude should have been afforded the defense where the objective was to demonstrate partiality attributable either to formal pending criminal charges or merely to recent criminal conduct which might be the subject of future prosecution. See also Smith v. State, 431 P.2d 507, 509-10 (Alaska 1967). In Hutchings v. State, 518 P.2d 767 (Alaska 1974), appellant was convicted of selling amphetamines, largely on the testimony of a single undercover police agent. At trial Hutchings attempted to elicit on cross-examination that the undercover agent had been subsequently discharged from the police force and was at that time seeking reinstatement. The state's objection to these questions as immaterial and irrelevant was sustained. We reversed, concluding that the purpose of the cross-examination had been to establish bias and that the Whitton and R.L.R. opinions were largely controlling. These decisions bear closely upon the case at hand. . Indeed, the facts of R.L. R. are so akin to those of the case at bar that we regard it as dispositive of this appeal. There, as here, the only evidence connecting the defendant to an illicit drug sale was the testimony of a police informer; and there, as here, a line of questioning which might have indicated a prosecution bias was excluded. It is true that in R.L.R. defense counsel sought to ascertain whether the informer-witness hoped to avoid or mitigate criminal punishment by testifying for the state, while here reinstatement with the police force was the potential source of prosecution bias; but this is a distinction without a difference. What is material is that the opportunity of the witness to achieve either of these objectives could serve as a powerful motivation to shade one's testimony, either unconsciously or intentionally. This being so, the appellant should have been allowed to explore the possibility of bias presented by the fact of [the agent's] discharge and his subsequent efforts to be reinstated. In Fields v. State, 487 P.2d 831, 844-47 (Alaska 1971), we disapproved of the use of evidence of narcotics use or addiction to impeach on the assumption that a witness is, by sole virtue of his addiction, inherently unreliable. However, we held it permissible to elicit evidence of addiction to heroin " . . . where such evidence would be independently admissible under some other theory," such as bias or prejudice. Further, in Davis v. State, 499 P.2d 1025 (Alaska 1972), we upheld restrictions in the cross-examination of a prosecution witness designed to adduce evidence of bias. The superior court had precluded examination of the witness' probationary status as a youthful offender, in conformity with Rule 23 of the Alaska Rules of Children's Procedure. The United States Supreme Court reversed, holding that the state's interest in the confidentiality of juvenile records was overridden by the accused's sixth amendment right to impeach the credibility of the witness by cross-examination directed to possible bias. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). With these precedents in mind we hold that the restrictions on Evans' right to cross-examine Grant were too severe. Fear of criminal prosecution has been recognized as a possible source of witness bias at least since Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), and Whitton v. State, 479 P.2d 302 (Alaska 1970), establishes that the mere possibility of future criminal charges is sufficient to open the area. Thus, Evans had the right to explore Grant's apprehension of possible criminal charges stemming from continued narcotics use or from admittedly illegal conduct in his undercover work. Moreover, if one accepts Evans' contention that Grant was striving to get on the regular police force, his position is not unlike that of the discharged agent in Hutchings v. State, 518 P.2d 767 (Alaska 1974). Our decision there demonstrates that, in a case built upon the testimony of a single undercover state operative, the prospect of future employment by the police can operate as a source for potentially conscious or unconscious bias in that witness. In such circumstances the accused has the right to fully explore that possibility of bias. In order to inform the jury of possible improper motivation, the accused is entitled to examine the witness' employment expectations and those circumstances which might otherwise substantially frustrate achievement of those aspirations. While this does not give the accused license to ferret out every shortcoming and misstep by such a witness since early childhood, the accused does have the right to explore those circumstances which might give rise to a compulsion to curry special favor with the authorities. In the case at bar we conclude that Evans was not afforded that opportunity. The matter of the 1969 felony conviction would seem to be controlled by the reasoning of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974). A jury could reasonably infer, in light of Grant's professed ambition, that this serious blot on his credentials was a source of motivation to secure Evans' conviction. The state interest in the confidentiality of Grant's rehabilitated conviction is not appreciably stronger than the state's interest in Davis, which was required to yield to the accused's constitutional right to a full cross-examination. The other criminal charges also should have been available as evidence of possible bias. Rules of procedure governing evidence admissible for general impeachment of a witness are not barriers to that evidence when it is sought for the specific purpose of showing bias. Further, this is a case where evidence of an extensive history of narcotics use was sought to establish bias rather than to bring the witness into general disrepute. In Fields v. State, 487 P. 2d 831, 845-47 (Alaska 1971), we approved the introduction of drug addiction evidence for that particular purpose. Therefore, Evans should have been allowed to develop more fully his theory that Grant repeatedly used narcotics and that the police were fully aware of this use, which Evans contends began even before Grant commenced his undercover work in 1969. Inasmuch as we have concluded that the superior court erred in unduly restricting the exercise of Evans' constitutional right of cross-examination, we must consider the effect of this error. It is evident after Davis that the appropriate standard of review in a case of this nature is the constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Inasmuch as our own decisions are not entirely consistent on this point, we take this opportunity to reaffirm that when a criminal defendant is denied his constitutional right to confront and cross-examine his principal accuser, the Chapman standard controls the effect of that error. That standard requires reversal unless this court can declare a belief that the error was "harmless beyond a reasonable doubt." Under the facts of this case, we can make no such declaration and conclude that the superior court's cross-examination rulings cannot be characterized as harmless error beyond a reasonable doubt. Although our resolution of Evans' first point of appeal makes it unnecessary to decide the other points raised, we deem it advisable to briefly discuss those issues so as to facilitate a disposition of this criminal case at the new trial. At the close of evidence in the first trial, Evans moved for a judgment of acquittal pursuant to AS 12.-45.020, on the grounds that as a matter of law Grant was an accomplice whose testimony was uncorroborated. AS 12.45.020 provides : A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission. In the alternative, Evans, requested two jury instructions which defined complicity and duress, and which would have instructed the jury to acquit him if it found that Grant had been a willing accomplice whose testimony was uncorroborated. Both motions were denied by the trial court on the grounds that, as a matter of law, Grant was not an accomplice because he had acted under duress. Evans now asserts that these rulings were erroneous. An accomplice is " . one who in some manner, knowingly and with criminal intent aids, abets, assists, or participates in a criminal act." To qualify as an accomplice a person need not commit every element of the offense with which the defendant is charged. However, it is essential that he in some way . . associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." Mere presence at the scene of the crime is not in itself enough to make out complicity. Moreover, neither knowledge that a crime is being committed nor the concealment of that knowledge by itself makes a person an accomplice. Complicity is established only if there is conduct voluntarily undertaken for the purpose of participating or assisting in the completion of a crime. By these standards it is clear that the facts adduced at Evans' first trial did not establish a case of complicity on the part of Larry Grant. Evans acted alone when he approached Grant and took possession of the contraband in question. According to Grant's testimony, Grant responded to Evans' actions in order to protect himself. There was certainly no evidence that Grant offered the narcotic to Evans or otherwise helped him gain possession of the contraband. Under these circumstances, the trial court's ruling that Grant was not an accomplice as a matter of law was correct. On the other hand, if upon retrial Evans elicits evidence tending to prove that Grant played a more active role in Evans' crime, or if the evidence shows that Evans' modus operandi was to dispense drugs as a prelude to ap prehending the recipient of his largess for possession of those drugs, it would be proper to submit the issue of complicity to the jury. Evans next contends that this court should apply the "policies" of AS 12.45.020 and Criminal Rule 30(b)(2) and order a judgment of acquittal where a conviction rests entirely upon the uncorroborated allegations of a member of a class of persons viewed with distrust. Both the statutory requirement of corroboration and Rule 30(b)(2) are limited by their terms to the testimony of an accomplice. Nonetheless, Evans argues a corroboration requirement should be imposed on the testimony of "addict informers", who are suspectible to a "special motive to lie". Howard v. State, 496 P.2d 657 (Alaska 1972), largely dictates the conclusion that this argument should not be adopted. In Howard the contention that a corroboration requirement should be imposed on all witnesses addicted to heroin was rejected. Elsewhere this court has recognized that addict informers may have a special motive to fabricate testimony, and for this reason extensive cross-examination as to bias should be allowed. However, where the informer is not in the status of accomplice, broad cross-examination and argument is sufficient to suggest to the jury the possibility of prevarication on the informer's part. We therefore decline to extend the corroboration requirement to all addict informers or to extend the Fresneda requirement of a cautionary jury instruction regarding the testimony of certain informers. Evans submitted a proposed instruction which reads: The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against defendant. The superior court gave instead Instruction No. 8, reading: The testimony of an informer or any witness whose self-interest or attitude is shown to be such as might tend to bring forth testimony unfavorable to the accused solely because of such self-interest or attitude, should always be considered with caution and weighed with great care. Evans contends that it was error to give this instruction, inasmuch as, under his interpretation of its language, this instruction directed the jury to distrust Grant's testimony only if it found that Grant was motivated solely by self-interest. Counsel for Evans failed to object to Instruction No. 8 at trial and concedes as much in his brief. Normally this would preclude consideration of this point on appeal. Alaska Criminal Rule 30(a); Avery v. State, 514 P.2d 637, 643 (Alaska 1973). However, Evans urges this court to adopt a rule governing the Fresneda informer instruction analogous to that which governed the accomplice instruction formerly required by Alaska Criminal Rule 30(b). That instruction was mandatory, and thus the trial court erred if it failed to give the accomplice instruction regardless of whether trial counsel requested it or failed to object to the court's omission of it. Anthony v. State, 521 P.2d 486, 490 (Alaska 1974); Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). Evans overlooks, however, the fact that the mandatory nature of the accomplice instruction flowed from the very terms of Alaska Criminal Rule 30(b). The former terms of that provision expressly released the parties from any procedural obligation to assist the trial court in formulating the accomplice instruction or applying the law. Anthony v. State, 521 P.2d 486, 490 (Alaska 1974). Thus, Rule 30(b) created an exception when the accomplice instruction was involved to the requirement of Rule 30(a) that objections must be timely made to preserve the point for appeal. No similar exception covers the Fresneda informer instruction, and in the face of the express language of Rule 30(a) none should be created. Thus, Evans' failure to preserve this point on appeal precludes further consideration of this matter. This court is, of course, at liberty to take notice of "(p)lain errors or defects affecting substantial rights . . . ." However, the defect if any in Instruction No. 8 does not warrant notice in this case. To constitute "plain error" the defect must be both obvious and substantial. The giving of an incorrect instruction should be recognized as plain error only when necessary to prevent a miscarriage of justice. Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969). The defect must have been obviously prejudicial. Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968). If it appears that failure to give defendant's proposed instruction did not contribute to the verdict, reversal is not required. Thomas v. State, 522 P.2d 528, 532 (Alaska 1974). In this case, we do not find persuasive Evans' proferred interpretation that Instruction No. 8 required the jury to conclude self-interest was Grant's sole motivation before it was to view his testimony with distrust. A more reasonable interpretation of the instruction was that the jury should view with caution Grant's testimony if it was shown that he harbored self-interest or an attitude which might of its own force tend to prompt unfavorable testimony. In other words, caution should be exercised if Evans demonstrated that Grant held a bias or self-interest likely to influence him. Read in this fashion, the instruction was eminently fair and reasonable. Alaska recognizes entrapment as a defense to criminal charges. In contrast with the rule prevailing in federal courts, we have embraced the "objective" theory of entrapment, which holds that unlawful entrapment occurs when a public law enforcement official, or a person working in cooperation with him, in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement which would be effective to persuade an average per son, other than one who is ready and willing, to commit such an offense. Conversely, instigations which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit do not constitute entrapment. In the case at bar Evans urged below and in this appeal the adoption of a second, distinct rule of entrapment, the so-called "Bueno theory" of entrapment. This dpctrine has been limited in scope to contraband cases. It holds that when un-controverted evidence establishes that one police agent provided the illicit drugs which defendant then illegally possessed or dispensed to a second agent, the defense of entrapment is made out as a matter of law. The rationale for this rule is clear: Frequently, it is permissible law enforcement practice for an undercover agent to obtain evidence of unlawful traffic in narcotics by purchasing heroin from a suspected drug peddler. But when the government's own agent has set the accused up in illicit activity by supplying him with narcotics and then introducing him to another government agent as a prospective buyer, the role of government has passed the point of toleration. Moreover, such conduct does not facilitate discovery or suppression of ongoing illicit traffic in drugs. It serves no justifying social objective. Rather, it puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing. In recent years a number of federal and state courts have embraced the Bueno doctrine, including at least one jurisdiction which previously adopted the objective theory of entrapment. However, subsequent to the arguments in the case at bar, the United States Supreme Court considered and rejected the Bueno variant of the defense of entrapment. In two opinions a majority of five Justices reaffirmed the "subjective" theory of entrapment : in federal cases, entrapment can never be made out where the predisposition of the defendant to commit the crime is established, regardless of the degree of governmental misconduct in the case. Nonetheless, a separate majority of five insisted that other defenses based on outrageous police tactics were still available. Thus, when police activity goes beyond permissible limits, criminal prosecution may be barred, either in the exercise of the court's supervisory power over the federal judiciary, or because that activity transgressed principles of due process. Speaking for this majority, Justice Powell emphasized the obligation of federal courts to scrutinize law enforcement practices: [W]e should not disregard lightly Mr. Justice Frankfurter's view that there is a responsibility 'necessarily in [the Court's] keeping . to accommodate the dangers of overzealous law enforcement and civilized methods adequate to counter the ingenuity of modern criminals.' In Alaska, it was expressly for the purpose of ensuring adequate supervision of law enforcement practices that we adopted the objective theory of entrapment. Thus, the Bueno theory would appear quite compatible with the existing law of entrapment in this jurisdiction. However, we are of the opinion that, even if expressly adopted, the Bueno variant of entrapment would be inapplicable to the case at bar. The evidence presented in this matter does not present a case of government sponsored criminality, nor can it be said that the police wilfully sought to place in the hands of Evans the narcotics which were the basis of this indictment. On the contrary, the facts adduced demonstrate rather clearly that Grant acceded in Evans' taking of the narcotics for the best of motives, to preserve his cover in suspicious surroundings so as to proceed with his undercover investigative work. In this case Grant's actions or, rather his inaction, was apparently undertaken to " . facilitate discovery or suppression of ongoing illicit traffic in drugs." On the record before us it cannot be said that the government was engaged in the kind of criminal creativity which was properly condemned in Bueno and its progeny. Absent some further evidence on retrial suggesting that Grant instigated or in some fashion assisted Evans in taking possession of the contraband, the Bueno variant of the defense of entrapment properly has no place in this case. We thus conclude that the trial court did not err in ruling that the evidence failed to show entrapment as a matter of law. Out of the presence of the jury Evans' counsel proposed to ask George Pollard whether at the time of the transaction he was an undercover narcotics agent working for the federal government. Pollard's attorney advised his client to invoke the fifth amendment, which he did. The trial judge concurred, making no further inquiry into the basis of the claim or the relevance of the proposed questions to the claim. Evans now urges that the superior court's ready acceptance of the fifth amendment claim was in error. We disagree, concluding that Pollard's refusal to respond was ultimately protected by his rights under the fifth amendment and Alaska's constitution. This court has recognized that the privilege against self-incrimination extends ". . . not only to answers that would in themselves support a conviction but also to those which might furnish 'a link in the chain of evidence' leading to a conviction." McConkey v. State, 504 P.2d 823, 826 (Alaska 1972). Prior to Evans' trial, Pollard had been indicted for the crime of. unlawfully selling heroin to Grant. At the time of trial this count was still pending against Pollard. From the record it appears that the superior court was aware of the pending felony charges against Pollard and sustained the assertion of the privilege in light of this fact. However, inasmuch as a new trial has been ordered we take this occasion to set forth some guidelines concerning the appropriate judicial response to the claim of privilege in this type of case. The Fifth Circuit has recently ruled that the trial judge should explore out .of the presence of the jury whether the witness' fear of self-incrimination is well founded. United States v. Gomez-Rofas, 507 F.2d 1213, 1219 (5th Cir. 1975), citing Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1957); United States v. Waddell, 507 F.2d 1226, 1228 (5th Cir. 1975). See also McConkey v. State, 504 P.2d 823, 824-25 (Alaska 1972). The privilege against self-incrimination is in constant conflict with the accused's right to present an effective defense. We reiterate that a trial judge should endeavor to accommodate those rights to the fullest extent possible and, in case like the one at bar, should explore the basic validity of the witness' claim out of the presence of the jury. United States v. Anglada, 524 F.2d 296, 300 (2d Cir. 1975). Finally, Evans contends that the sentence hearing was defective insofar as certain inadmissible evidence was erroneously considered. At one point in the sentencing proceedings, the prosecutor questioned Evans concerning his most recent disorderly conduct charge, to which Evans had pled guilty. This charge and plea arose after the completion of the narcotics trial in question in this appeal but before sentencing. Counsel for Evans was unaware of the matter until it was raised at the sentence proceeding. Evans contends that consideration of this conviction by the sentencing court was error because the conviction was secured under the circumstances that appellant did not have the assistance of counsel. The state concedes that if the conviction was, in fact, obtained in the absence of counsel, its use for sentencing purposes would have been error. We agree the record does not fully reflect the circumstances surrounding this conviction. Inasmuch as a new trial is required, if a conviction on the heroin charge is again obtained, the superior court should refrain from considering this disorderly-conduct conviction if it was secured in violation of Evans' right under Alaska's constitution to the assistance of counsel. Evans also challenges the introduction of testimony of two police agents which tended to establish that in 1972 he was arrested for the sale of narcotics to an undercover agent. This police contact did not result in a conviction but was dismissed by the state. Evans contends that such testimony should have been excluded because its anticipated use had not been revealed to him and because it went to the kind of unresolved police contact condemned by this court in Mattern v. State, 500 P.2d 228, 235 (Alaska 1972), and earlier cases. Whatever prejudice Evans suffered by his lack of preparedness to respond to this evidence could have been avoided had Evans moved for a continuance of the hearing. He cannot complain on that ground. It is true that this court has repeatedly cautioned that ". . .a court should not place undue weight on the defendant's prior police contacts during the sentencing process." However, we have also approved judicial consideration of "verified information concerning additional crimes" which do not result in actual convictions, ". . . where the defendant is informed of the information and given an opportunity to explain or admit it." More recently in Burleson v. State, 543 P. 2d 1195, 1203 (Alaska 1975), we commented on appellant's contention that the sentencing court placed improper reliance upon reference to. police contacts which appeared in the presentence report. In rejecting this contention, we said: The incidents here referred to had some bearing on the crime committed, and Mr. Burleson had adequate opportunity to explain or deny the incidents. We are not presented with a case of unexplained police contacts or records of arrest. In the case at bar the superior court could properly consider the testimony of the two police agents regarding the purported 1972 transaction under the authority of Burleson v. State, Adams v. State; and Hixon v. State, Here there were apparently reliable witnesses who would testify, based on personal knowledge, to Evans' misconduct. Of particular significance is the fact that Evans was afforded the opportunity to cross-examine these witnesses and to rebut their testimony. Thus, the circumstances in the case at bar are distinguishable from unexplained police contacts where the ultimate disposition was not disclosed. Reversed and remanded for a new trial in conformity with the foregoing. BURKE, J., not participating. . U.S.Const. Amend. VI; Alaska Const. art. 1 § 11. . Apparently the order was granted May 1, 1974, during a hushed conversation at the bench which was inaudible to the recording system. When the trial resumed almost four months later, Judge Kalamarides summarized his understanding of the scope of the protective order. . Alaska R.Crim.P. 26(f)(3) provides: Evidence of a conviction is inadmissible under this rule if: (i) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and (ii) the procedure under which the same was granted or issued required a substantial showing or rehabilitation or was based on innocence. .Alaska R.Crim.P. 26(f) (2) provides: Evidence of a conviction under this rule is inadmissible if a period of more than 5 years has elapsed since the date of the conviction of the witness. Alaska R.Civ.P. 43(g) (11) [b], made applicable to this case by Crim.R. 26(a) provides : A witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief. He may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime. .Evans also claims that some of the excluded material would have been relevant for purposes other than to show bias. Specifically, the circumstances under which Grant went to work for the police and his record of performance with the Alaskan authorities would have revealed that Grant was an informer being compensated on an irregular basis, with both monetary and nonmonetary remuneration. This would have directly contradicted testimony that Grant was a "special officer" of the Alaska State Troopers on a regular salaried basis. Further, exploration of Grant's heroin use,would have undermined his denial of continued addiction. If contradictory evidence had been forthcoming, it would have also impeached Grant's testimony that on the night in question he was not under the influence of heroin and only "simulated" sniffing the contraband. The excluded evidence relating to Grant's modus operandi would have been highly relevant to establish entrapment and complicity. Finally, much of the evidence excluded under the protective order relating to Grant's prior criminal misdeeds and his narcotics use would have been relevant to rebut Officer Needham's testimony that Grant came "highly recommended" as a man of impeccable character. In light of the disposition of this appeal, it is unnecessary for us to consider these aspects of Evans' argument. . Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347, 353 (1974) ; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934, 937 (1965). . Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) ; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923 (1965). . Alaska Const. art. 1 § 11. . 5 J. Wigmore, Evidence § 1367, at 32 (Chadbourn rev. 1974). . Whitton v. State, 479 P.2d 302, 313-17 (Alaska 1970). . Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) ; Thomas v. State, 522 P. 2d 528 (Alaska 1974) ; Gonzales v. State, 521 P.2d 512 (Alaska 1974) ; Smith v. State, 431 P.2d 507 (Alaska 1967). . Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) ; United States v. Harris, 501 F.2d 1 (9th Cir. 1974) ; United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972) ; United States v. Rodriguez, 439 E.2d 782 (9th Cir. 1971) ; Doe v. State, 487 P.2d 47 (Alaska 1971) ; R. L. R. v. State, 487 P.2d 27 (Alaska 1971) ; Whitton v. State, 479 P.2d 302 (Alaska 1970). . "There is a plain distinction between attacking credibility in a general way, and showing motive to testify falsely as to a particular matter." Whitton v. State, 479 P.2d 302, 317 (Alaska 1970) (footnote omitted). See also Gonzales v. State, 521 P.2d 512, 514-15 (Alaska 1974). . Davis v. Alaska, 415 U.S. 308, 321, 94 S.Ct. 1105, 39 L.Ed. 347, 356 (1974) (Stewart, J., concurring) ; United States v. McKinley, 493 F.2d 547 (5th Cir. 1974) ; Gonzales v. State, 521 P.2d 512 (Alaska 1974). . Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624, 629 (1931). . United States v. Dickens, 417 F.2d 958, 961 (8th Cir. 1969). . Kirschbaum v. United States, 407 F.2d 562 (8th Cir. 1969) ; United States v. Rich, 262 F.2d 415 (2d Cir. 1959). . Snyder v. Coiner, 510 F.2d 224, 226 (4th Cir. 1975) ; cf. Gonzales v. State, 521 P.2d 512 (Alaska 1974). . 487 P.2d at 44 (footnotes omitted). . 518 P.2d at 769. United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972), was not a dissimilar ease in which a narcotics prosecution was built around the testimony of a single undercover agent. The informer had been discharged from the police depart ment, possibly for continued heroin use, and his relationship with the authorities at the time of trial was nebulous. The Court of Appeals held that cross-examination of the' agent as to his motivation in testifying had been unduly restricted. In view of the dependence of the Police Department on his testimony, the stated reason for his dismissal was a fair target for cross-examination. First of all, the stated reason might not have been the only reason. More importantly, however, there were also the additional possibilities implicit in such circumstances, that his testimony might have been affected by fear of prosecution or hope of favor growing out of the circumstances of his termination. He might have been promised immunity or other advantage. These are possibilities that cannot he overlooked when prior narcotics users are used as narcotics agents — that may have been the case here. It is central to the conclusion here reached that the agent was the principal prosecution witness and in such circumstances a very wide latitude should be allowed in his cross-examination. Id. at 666. . We note that criminal charges remote in time, lacking a direct offer of proof as to relevancy, may be excluded by the trial court in its discretion. . In the particular factual context presented by this record, we cannot say that the superior court erred in forbidding the display of Grant's "track marks" to the jury. There was no offer of proof made with respect to the track marks. Given the impression left by Evans' counsel that the purpose of the demonstration was to prove past addiction, the superior court was well within its discretion in deciding the value of the cumulative evidence was outweighed by its prejudicial effect. Lewis v. State, 469 P.2d 689, 695 (Alaska 1970). Since the evidence was excluded on the grounds that it was cumulative, we cannot say that an abuse of discretion occurred. On retrial if Grant's "track marks" become important to show Grant's addiction or the possibility that he is still a narcotics user, then Evans' counsel should be afforded the opportunity, out of the presence of the jury, to require Grant to make an appropriate display in order to ascertain where there are fresh indications of narcotics use. If the evidence so indicates, then the jury should be permitted to view the track marks. . 415 U.S. at 318, 94 S.Ct. 1105, 39 L.Ed. 2d at 355. See also Snyder v. Coiner, 510 F.2d 224, 227 (4th Cir. 1975) ; United States v. Harris, 501 F.2d 1, 9 (9th Cir. 1974) ; United States v. Dickens, 417 F.2d 958, 962 (8th Cir. 1969) ; State v. Hilling, 219 N.W. 2d 164, 171 (N.D.1974). . In R.L.R. v. State, 487 P.2d 27, 44 (Alaska 1971) (footnote omitted), we squarely endorsed use of the Chapman standard: Cross-examination to show bias because of expectation of immunity from prosecution is one of the safeguards essential to a fair trial, and undue limitation on such cross-examination is reversible error without any need for a showing of prejudice. (footnote omitted) (emphasis added) More recently, however, we have reversed convictions in apparent reliance on the non-constitutional harmless error standard of Love v. State, 457 P.2d 622 (Alaska 1969). See Hutchings v. State, 518 P.2d 767, 770 n. 10 (Alaska 1974) ; cf. Thomas v. State, 522 P.2d 528, 534 (Alaska 1974). We note that these cases were decided prior to the United States Supreme Court decision in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). To the extent they suggest that the Love standard is appropriate, they would not be followed today. . 386 U.S. at 24, 87 S.Ct. 824, 17 L.Ed. 2d at 711. . Gordon v. State, 533 P.2d 25, 29 (Alaska 1975) ; Beavers v. State, 492 P.2d 88, 97 (Alaska 1971) ; Flores v. State, 443 P.2d 73, 78 (Alaska 1968) ; Taylor v. State, 391 P.2d 950 (Alaska 1964) ; Mahle v. State, 371 P. 2d 21, 25 (Alaska 1962). . Gordon v. State, 533 P.2d 25, 29 (Alaska 1975) ; Anthony v. State, 521 P.2d 486, 495 (Alaska 1974). . Gordon v. State, 533 P.2d 25, 29 (Alaska 1975), quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). . Fresneda v. State, 458 P.2d 134, 144 (Alaska 1969). . Daniels v. State, 383 P.2d 323, 324 (Alaska 1963). . We find it unnecessary to reach the question of duress, which was the basis of the trial court's ruling, and express no opinion whether the facts of this case made out the legal defense of duress. . Flores v. State, 443 P.2d 73, 80 (Alaska 1968). . Alaska R.Crim.P. 30(b) formerly provided in part: The court . . . shall give the following basic instructions on all proper occasions : (2) That the testimony of an accomplice ought to be viewed with distrust and the oral admissions of a party with caution. Subsequent to the filing of the briefs in this case, this provision was deleted from Rule 30 by amendment. Supreme Court of the State of Alaska, Order No. 222. . Fields v. State, 487 P.2d 831, 844-46 (Alaska 1971). .In Fresneda v. State, 483 P.2d 1011, 1015 ( Alaska 1971), we stated: It would appear appropriate because of the known unreliability of certain types of accomplice and informer testimony to adopt in Alaska the requirement that the jury be instructed henceforth from the date of this opinion that the testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. Justice Erwin defined the prerequisites of this required instruction with some care, and we decline to expand the applicability of this instruction. . Alaska R.Crim.P. 47(b). . McKay v. State, 489 P.2d 145, 149-50 (Alaska 1971) ; Grossman v. State, 457 P. 2d 226 (Alaska 1969). . See Hampton v. United States, - U.S. -, 96 S.Ct. 1646, 48 U.Ed.2d 113, 19 Crim. L.R. 3039 (1976) ; United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) ; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). . Grossman v. State, 457 P.2d 226, 229 (Alaska 1969). See also Comment, Entrapment: An Objective Test for Alaska, 8 Alaska L.J. 224 (1970). . United States v. Bueno, 447 F.2d 903 (5th Cir. 1971). . United States v. West, 511 F.2d 1083, 1085 (3d Cir. 1975) (Hastie, J.). . United States v. West, 511 F.2d 1083 (3d Cir. 1975) ; United States v. Mosley, 496 F. 2d 1012 (5th Cir. 1974) ; United States v. Oquendo, 490 F.2d 161 (5th Cir. 1974) ; United States v. Bueno, 447 F.2d 903 (5th Cir. 1971) ; United States v. Chisum, 312 F. Supp. 1307 (D.Cal.1970) ; United States v. Dillet, 265 F.Supp. 980 (S.D.N.Y.1966). . State v. Overmann, 220 N.W.2d 914 (Iowa 1974) ; Lynn v. State, 505 P.2d 1337 (Okla. Cr.App.1973) ; People v. Hanken, 179 Colo. 70, 498 P.2d 1116 (1972) (dicta) ; People v. Dollen, 53 Ill.2d 280, 290 N.E.2d 879 (1972) ; State v. Boccelli, 105 Ariz. 495, 467 P.2d 740 (1970) ; People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765 (1961). Cf. State v. Golightly, 495 S.W.2d 746 (Mo.App., Kan.Cty.Dist. 1973) (rejecting Bueno). . Iowa, which followed our Grossman opinion in State v. Mullen, 216 N.W.2d 375 (Iowa 1974), adopted the Bueno variant in State v. Overmann, 220 N.W.2d 914 (Iowa 1974). At least one jurist has noted that the Bueno defense is more compatible with a basic objective theory of entrapment than with the Sorrells-Shermam "subjective" rationale. See United States v. West, 511 F. 2d 1083, 1087 (3d Cir. 1975) (Weis, J., dissenting) . . Hampton v. United States, — U.S. -, 96 S.Ct. 1646, 48 L.Ed.2d 113, 19 Crim.L.R. 3039 (1976). . Id. at -, 96 S.Ct. 1646, 19 Crim.L.R. at 3040-41 (Rehnquist, J.) ; - U.S. -, 96 S.Ct. 1646, 19 Crim.L.R. at 3042 n. 2 (Powell, J.). . - U.S. -, 96 S.Ct. 1646, 19 Crim.L.R. at 3044 (Powell, J.) ; - U.S. -, 96 S. Ct. 1646, 19 CrimL.R. at 3043 (Brennan, J.). . - U.S. -, 96 S.Ct. 1646, 19 Crim.L.R. at 3042, quoting Sherman v. United States, 356 U.S. at 381, 78 S.Ct. 819. . "[U]nder standards of civilized justice, there must be some control on the kind of police conduct which can be permitted in the manufacture of crime." Grossman v. State, 457 P.2d 226, 230 (Alaska 1969). . We deem it immaterial that Evans was charged with possession of contraband rather than sale to a second government agent, as was the case in Bueno. With reference to the Bueno doctrine, a number of courts have spoken expansively of an illegal sale or possession brought on by entrapping tactics. See United States v. Hampton, 507 F.2d 832, 835 (8th Cir. 1974) ; United States v. Oquendo, 490 F.2d 161 (5th Cir. 1974) ; People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, 768 (1962). . Evans further contends that, assuming the Bueno defense of entrapment is available on retrial, he should be allowed to carry that defense to the jury with appropriate instructions. This court in Grossman v. State, 457 P.2d 226, 230 (Alaska 1969), held that the court rather than the jury should decide the issue of entrapment, for the policy reasons expressed by Mr. Justice Frankfurter in his concurrences in Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 823, 2 L.Ed. 2d 848, 855 (1958), and Masciale v. United States, 356 U.S. 386, 389, 78 S.Ct. 827, 829, 2 L.Ed.2d 859, 861 (1958). Evans contends that this allocation of functions deprives him of the constitutional right to trial by jury. This claim is without merit. Notwithstanding the importance of the constitutional right, it is recognized that trial judges can and must be charged with the responsibility of deciding certain factual matters during the course of a trial without any derogation of the rights of the accused. It is the court's obligation to assess the legality of police conduct in certain respects, and to invoke exclusionary rules where necessary to deter impermissible police activities. See, e. g., United States v. Anderson, 394 F.2d 743 (2d Cir. 1969). The purpose of the defense of entrap ment in this state is to deter law enforcement activities that go beyond the bounds of sound public policy. In a case raising the defense of entrapment, a general jury verdict of "not guilty" would shed no light on the jury's assessment of the police conduct in that particular case, hence the purpose of the defense would not be served. Consequently, we reaffirm that the defense of entrapment is a question for the judge rather than the jury. See People v. Cushman, 237 N.W.2d 228, 18 Crim.L.R. 2436 (Mich.App., 1976) ; People v. Moran, 1 Cal.3d 755, 83 Cal.Rptr. 411, 463 P.2d 763 (1970) (Traynor, C. J., dissenting) ; Lynn v. State, 505 P.2d 1337, 1344 (Okla.Cr.App. 1973). . Alaska R.Crim.P. 16(b) (1) (vi) was not violated because, assuming arguendo that the provision governs the sentence proceeding, it requires disclosure by the state only of defendant's conviction, not his arrests. . Mattern v. State, 500 P.2d 228, 235 (Alaska 1972) (footnote omitted) ; Griggs v. State, 494 P.2d 795 (Alaska 1972) ; Robinson v. State, 492 P.2d 106, 107 (Alaska 1971) ; Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971) ; Robinson v. State, 484 P.2d 686, 690 n. 11 (Alaska 1971) ; Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971). . Sixon v. State, 508 P.2d 526, n. 1 (Alaska 1973) ; Adams v. State, 521 P.2d 516, 517 (Alaska 1974). . The presentence report referred to an incident when Mr. Burleson apparently entered his former wife's home in violation of a restraining order, and a second instance when, immediately after the divorce, Mr. Burleson assaulted his former wife. Each incident was related in considerable detail in the presen-tence report. . 521 P.2d 516, 517 (Alaska 1974). . 508 P.2d 526, 527 n. 1 (Alaska 1973). . See Peterson v. State, 487 P.2d 682, 683 (Alaska 1971) ; Robinson v. State, 484 P.2d 686, 690 (Alaska 1971) ; Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971). . Because of our disposition and the possibility that Evans will be resentenced, we do not at this time deem it appropriate to pass on the question of whether the sentence is excessive.

10349780

Joseph M. RUDDEN, Appellant, v. STATE of Alaska, Appellee

Rudden v. State

1994-09-30

No. A-4769

328

332

881 P.2d 328

881

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Joseph M. RUDDEN, Appellant, v. STATE of Alaska, Appellee.

Joseph M. RUDDEN, Appellant, v. STATE of Alaska, Appellee. No. A-4769. Court of Appeals of Alaska. Sept. 30, 1994. David B. Koch, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2318

15142

OPINION BRYNER, Chief Judge. A jury convicted Joseph M. Rudden of attempted first-degree murder. AS 11.41.-100(a)(1); AS 11.31.100(a). Attempted first-degree murder is an unclassified felony, punishable by a minimum term of five years and by a maximum term of ninety-nine years. AS 12.55.125(b). Superior Court Judge Thomas E. Schulz sentenced Rudden to serve thirty-five years in prison. Rudden contends that this sentence is excessive. Rudden was convicted of attempted first-degree murder for shooting a service station mechanic twice at close range, once in the chest and once in the hip. Rudden's victim suffered severe and lasting injuries as a result of the shooting. The state's evidence established that the shooting was virtually unprovoked. In convicting Rudden of the offense, the jury rejected his claim of self-defense and declined the option of convicting him of lesser-included offenses ranging from first- through fourth-degree assault. Rudden was forty-eight years old at the time of the offense. Although nominally a first felony offender, Rudden had an extensive criminal history. Between 1966 and 1990, Rudden was convicted of theft-related offenses on five occasions. In 1973, he was convicted of assaulting a police officer and assault with a deadly weapon. He repeatedly absconded from probation on the latter charge. When Rudden committed his current offense, three misdemeanor assault charges were pending against him in the state of Washington. A pretrial psychiatric evaluation discloses that Rudden "probably has an antisocial personality disorder" and notes that he "becomes angry and threatening when he perceives himself to be threatened or when others do not act according to his wishes...." While incarcerated in the interim between his arrest on January 9, 1992, and his sentencing almost a year later, Rudden amassed an institutional record of repeated violent outbursts. As an institutional probation officer incisively noted: "[Bjasically, Mr. Rud-den has a short fuse." In imposing sentence, Judge Schulz emphasized the serious and unprovoked nature of Rudderis crime. The judge also considered Rudden's criminal record and poor performance on probation, which, although "spread out over a period of time," demonstrated "that he has had a significant problem, a significant difficulty over the years in complying with the law." In Judge Schulz' view, Rudden "was well aware of what he was doing when he took the gun out and pulled the trigger." The judge noted that Rudden had demonstrated that "when he gets mad, he's dangerous." These factors led Judge Schulz to assess Rudden's potential for rehabilitation as follows: "I don't think it's very good in this ease." The judge thus elected to downplay rehabilitation and give priority to the goals of deterrence and community condemnation. The state requested that Rudden be sentenced to a term of fifty years' imprisonment. Judge Schulz rejected the state's request, finding that a fifty-year term would be excessive. Rudden, for his part, compared his offense to a first-degree assault. First-degree assault is a class A felony; had Rudden been convicted of the offense, he would have been subject to a presumptive term of seven years and to a maximum term of twenty. Rudden characterized his case as a "significantly aggravated first-degree assault case" and urged the court to determine an appro priate sentence based on this characterization. Judge Schulz refused Rudden's attempt to liken his conduct to an aggravated first-degree assault, commenting that it would be entirely improper, it would do substantial injustice to the Chaney criteria to treat this case as an aggravated first-degree assault, both because of the nature of the offense and because I think this court would be dealing kind of high-hand-edly with the jury verdict in this case. Judge Schulz sentenced Rudden to a term of thirty-five years. On appeal, Rudden takes issue with Judge Schulz' failure to give greater weight to rehabilitation as a sentencing goal. However, determining the priority and relationship of the various goals of sentencing is primarily a matter for the sentencing court; the court need not emphasize rehabilitation in all cases, or even in all cases involving first offenders. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). The record supports Judge Schulz' conclusion that Rudden's prospects for rehabilitation are relatively poor. Given the seriousness of Rudden's crime, Judge Schulz was not clearly mistaken in deciding to emphasize sentencing goals other than rehabilitation. Rudden next urges us to bear in mind that, until 1988, attempted first-degree murder, like first-degree assault, was a class A felony and was punishable by a maximum term of only twenty years' imprisonment. Rudden further argues that the legislature's decision to increase the maximum penalty for attempted first-degree murder "does not necessarily establish a legislative intent to increase sentences for those offenses across the board." Williams v. State, 809 P.2d 931, 937 (Alaska App.1991). This argument has little actual bearing on the outcome in Rud-den's case, regardless of its accuracy. Assuming that the legislature's upgrade of attempted first-degree murder from a class A felony to an unclassified felony did not necessarily signal its desire for an across-the-board upgrade in sentencing for the crime, the upgrade appears to have been intended at least to reflect the exceptionally broad range of conduct encompassed within the definition of attempted first-degree murder and the consequent need for a correspondingly broad range of sentencing alternatives. At one extreme, an attempted first-degree murder might cause no injury at all to the victim and might involve conduct falling far short of any immediate threat of deadly harm — the type of slight step beyond mere preparation that minimally qualifies as an attempt. By contrast, at the opposite extreme, an attempted first-degree murder might consist of a completed act of calculated deadly force that, through no lack of effort or intent by the offender, happens to fall slightly short of the mark, causing lasting and near-fatal injuries instead of death. While the legislature may have contemplated little change in sentencing practices for typical attempts — cases falling in the middle of this spectrum — its decision to reclassify attempted first-degree murder was plainly meant to diminish sentencing discretion at the low end of the spectrum, where a mandatory minimum term is now prescribed, and to provide significantly greater leeway at the high end, where the maximum term is now equivalent to the maximum available for the completed crime of murder. The underlying reason for the legislature's decision to authorize similar maximum penalties for attempted murder and murder is not difficult to discern. As the gap between attempt and completion narrows, the justification for disparate treatment of an offender convicted of attempted murder, on the one hand, and an offender convicted of the completed crime, on the other, diminishes commensurately; as the crimes grow similar, so should the sentences. We certainly do not suggest that attempted murderers and murderers should be treated alike, even in extreme cases of attempt. An offender convicted of attempted murder deserves to be sentenced for that crime, not for the completed crime of murder; due regard must always be given to the paramount sanctity our law accords to the value of human life and to the fact that an attempted murder does not involve the taking of a life. Yet when an all-but-eompleted act of first-degree murder fortuitously skirts death, inflicting grave and lasting injuries instead, there is sound reason to conclude that the offender convicted of attempted first-degree murder deserves a sentence falling closer to that which would have been appropriate for the completed crime than to that which would have been appropriate for a lesser form of assault. Judge Schulz' sentencing remarks establish the judge's recognition of the significance of the fact that Rudden's victim had not been killed — that Rudden had committed and was to be sentenced for attempted murder, not murder. Nevertheless, in terms of both conduct and harm, Rudden's crime verged on a completed act of murder and unquestionably fell near the most serious extreme for attempted first-degree murder. Judge Schulz also recognized this fact. Under these circumstances, the judge was not clearly mistaken in declining to treat Rudden's crime as merely an aggravated case of first-degree assault. Rudden further argues that his thirty-five-year term is excessive in light of Sam v. State, 842 P.2d 596 (Alaska App.1992). In Sam, another attempted first-degree murder case, we approved a sentence of forty-five years with fifteen years suspended. Our decision emphasized that, although a nominal first offender, Sam was awaiting sentencing on a prior felony assault charge when he committed the attempted murder. We also noted that Sam's motives for the attempted murder and the prior assault wei'e "seemingly incomprehensible." Sam, 842 P.2d at 603. Judge Schulz paid considerable attention to Sam in imposing Rudden's sentence, not-tag that the two eases' were comparable in many respects. Rudden maintains, however, that Judge Schulz failed to recognize significant differences between the two cases. In particular, Rudden points out that Sam was awaiting sentencing on another felony assault charge when he committed his offense, whereas Rudden merely had three pending misdemeanor assault charges, which had not yet been resolved. Moreover, although Rud-den has previously been convicted of a felony assault, that conviction occurred almost twenty years previously; the sentencing record . is unclear as to whether the offense would amount to a felony under current law. Finally, Rudden notes that his own conduct was not as inexplicable and irrational as Sam's. In view of these distinctions, Rudden argues that Judge Schulz was clearly mistaken in sentencing him to a term of unsuspend-ed incarceration that is five years longer than the unsuspended portion of the sentence Sam received. Rudden's comparison of his case to Sam's misses the mark. The ultimate question in the present case is whether Rudden's thirty-five-year term is clearly mistaken. Comparison with similar cases is useful in resolving this question, but is not determinative. To determine whether Rudden's sentence is clearly mistaken, the precise issue we must resolve is whether the totality of circumstances peculiar to Rudden's ease places his sentence within "a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify!.]" State v. McPherson, 855 P.2d 420, 422 (Alaska 1993) (quoting State v. Bumpus, 820 P.2d 298, 305 (Alaska 1991)). The fact that Rudden received an unsus-pended term that is five years longer than Sam's under circumstances that were perhaps marginally more mitigated than those in Sam's case does not, in itself, provide a compelling basis for concluding that Rudden's sentence is clearly mistaken — that it exceeds the permissible range of sentences that are reasonable in light of the totality of the circumstances in this case. In Sam, while we approved as not clearly mistaken a sentence of forty-five years with fifteen years suspend ed, nowhere did we indicate that a longer term would have been impermissible. The record establishes that, in imposing Rudden's sentence, Judge Schulz was aware of and fully considered the distinctions between Rudden's case and Sam's. Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below was not clearly mistaken. McClain v. State, 519 P.2d 811, 818-14 (Alaska 1974). The sentence is AFFIRMED. . We note that there is sound reason to question the accuracy of this argument in the context of the amended first-degree murder statute. The legislature's decision to enact a substantial increase in the maximum penalty for attempted first-degree murder might, standing alone, indicate nothing more than a desire to make higher sentences available in the most serious cases of attempted first-degree murder. However, the legislature's decision to require a mandatory minimum sentence of five years' imprisonment, a provision that governs even the most mitigated cases, necessarily reflects a significantly broader legislative intent. . Nor have we found other cases suggesting that Rudden's sentence is excessive. This court has not previously had occasion to contemplate an appropriate benchmark term for attempted first-degree murder. Indeed, Sam appears to be the only published sentence appeal reviewing an attempted first-degree murder sentence since the 1988 amendment making the offense an unclassified felony. In a number of unpublished decisions, however, we have reviewed sentences for the now unclassified felony of attempted first-degree murder. See Sauve v. State, Memorandum Opinion and Judgment No. 2837 (Alaska App., December 15, 1993) (50 years with 20 years suspended for attempted first-degree murder); Jimenez v. State, Memorandum Opinion and Judgment No. 2763 (Alaska App., August 11, 1993) (40 years for first felony offender convicted of attempted first-degree murder); Pruitt v. State, Memorandum Opinion and Judgment No. 2655 (Alaska App., March 31, 1993) (45 years with 10 years suspended for second felony offender convicted of attempted first-degree murder, first-degree assault, and third-degree assault); Jackson v. State, Memorandum Opinion and Judgment No. 2565 (Alaska App., December 9, 1992) (36 years with 5 years suspended for third felony offender convicted of attempted first-degree murder, attempted first-degree assault, fourth-degree assault, and probation revocation for two burglaries). Because these decisions are unpublished and have no precedential effect, citation to or reliance on them for any proposition of law would be inappropriate. See Alaska Appellate Rule 214(d). Nevertheless, viewed collectively as expressions of historical fact, our unpublished decisions are reflective of past sentencing practices; like other collections of empirical sentencing data, they can provide the necessary context for a rough estimate of how a given sentence compares to sentences previously imposed for a particular crime. When viewed in this manner, these decisions can play a helpful role as a resource for identifying seemingly exceptional sentences that warrant a heightened level of scrutiny. Viewing Rudden's case in the context of our past decisions, we find no cause for suspicion: Rudden's sentence appears unremarkable.

10357977

In the Matter of ADOPTION OF J.M.F. J.F. and R.F., Appellants, v. C.M.H., Appellee

J.F. v. C.M.H.

1994-09-30

No. S-6043

1116

1119

881 P.2d 1116

881

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

In the Matter of ADOPTION OF J.M.F. J.F. and R.F., Appellants, v. C.M.H., Appellee.

In the Matter of ADOPTION OF J.M.F. J.F. and R.F., Appellants, v. C.M.H., Appellee. No. S-6043. Supreme Court of Alaska. Sept. 30, 1994. Allison E. Mendel, Mendel & Huntington, Anchorage, for appellants. James F. Vollintine, Anchorage, for appel-lee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1794

10656

OPINION RABINOWITZ, Justice. J.F. and R.F. (the F.s) appeal the superior court's determination that C.H.'s failure to support her child, J.M.F., was with justifiable cause, and that C.H.'s right to consent to the adoption had therefore not been terminated. I. FACTS AND PROCEEDINGS C.H. placed her child, J.M.F., with her brother J.F. and sister-in-law R.F. two days after J.M.F.'s birth on June 1, 1988. At the time of placement both C.H. and the F.s contemplated that the F.s would adopt the child. In November 1991, when J.M.F. was 3½ years old, C.H. demanded that the child be returned to her. During the time between J.M.F.'s placement with the F.s and C.H.'s demand for return of the child, the F.s had not instituted a formal adoption. In January 1992, after the F.s refused to return J.M.F., C.H. filed a suit seeking custody of J.M.F. At the conclusion of the custody action the superior court awarded C.H. and the F.s joint custody, with C.H. to receive sole custody of J.M.F. in the autumn of 1994. In regard to this custody judgment the F.s appealed only from the award of attorney's fees to C.H. While the parties were litigating C.H.'s custody action, the F.s, in a separate proceeding, filed a formal petition to adopt J.M.F. In their petition the F.s asserted that C.H.'s consent to their adoption of J.M.F. was not required, because she had failed, without justifiable cause, to support J.M.F. while the child was in the care of the F.s. See AS 25.23.050(a)(2)(B). At the adoption hearing the F.s argued that C.H. lacked justifiable cause for failing to support J.M.F. Although she had purchased food, clothing, and toys for J.M.F. while her child was with the F.s, C.H. did not provide regular financial support for the child, because the F.s did not ask for it, and because she assumed that the F.s would adopt the child and expect no support. The record establishes that the F.s never asked her for support on the same assumption. C.H. testified that she would have provided support had the F.s requested it. The F.s also argued that C.H. had relied upon Yupik customs, under which parents may turn their children over to relatives for adoption with the understanding that the biological parents cannot later reclaim the children. The F.s contended that C.H. should not be able to use the law to force J.M.F.'s return while simultaneously relying on cultural practices to establish justifiable excuse for failure to support the child. C.H. had knowledge of such "cultural adoptions," but the record does not indicate that she relied upon this custom. Instead, she testified that at all times that the F.s had J.M.F., she understood that they would "legally in court adopt" the child, and that "that was the . adoption term we were using." J.F. also testified that the F.s had intended to seek a decree of adoption from the Alaska courts, but had never followed through on this plan. Applying the law for a formal statutory adoption, the superior court ruled that C.H. had justifiable cause for not providing support: [N]o one on the [F.] side asked for or expected support from [C.H.], nor did [C.H.] feel obligated to pay support. . The reason no support was paid was that everyone thought that [J.M.F.] was being adopted. That is the reason, and it is a justifiable reason. Beyond being merely justifiable, it would have been unusual, unexpected and probably contrary to the anticipated adoption if she had paid support. [C.H.] said that she would have been more than willing to pay support if asked. [R.F.] said it never came up because they were adopting and never expected [C.H.] to pay support. This justifies the lack of support as contemplated by Alaska Statute 25.23.050(a)(2)(B). Accordingly, the superior court dismissed the F.s' petition for adoption. The superior court expressly declined to reach the issue of whether ICWA preempted AS 25.23.-050(a)(2)(B). The F.s appeal from the superior court's dismissal of their petition for adoption of J.M.F. II. THE EFFECT OF AS 25.23.-050(a)(2)(B) Consent to adoption is not required of "a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause . to provide for the care and support of the child as required by law or judicial decree." AS 25.23.050(a)(2)(B); see also In re J.J.J., 718 P.2d 948, 953-54 (Alaska 1986). The party seeking to terminate parental rights in connection with an adoption proceeding bears a high burden of proof. We have held that the petitioner for adoption must prove by clear and convincing evidence that the natural parent failed to support the child. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). Once the petitioner has made this showing, the natural parent bears the burden of producing evidence of justifiable cause for his or her failure to support the child. Upon the natural parent's introduction of such evidence, the petitioner must show by clear and convincing evidence that the natural parent's failure to support was without justifiable cause. Id. The long-established and continuing rule in Alaska is that absent the element of willfulness, a parent does not lose the right to consent under AS 25.23.050(a)(2). See, e.g., In re K.L.J., 813 P.2d 276, 281 & n. 5 (Alaska 1991). Here, the superior court relied upon the testimony of both C.H. and the F.s that the F.s did not expect support because they anticipated that they would formally adopt the child. Additionally, the superior court relied upon C.H.'s uncontrovert-ed testimony that she would have been more than willing to provide support had the F.s asked her to do so. This testimony is sufficient to establish that C.H.'s failure to support J.M.F. was not willful and thus that her failure to support J.M.F. was justifiable. It is the underlying agreement between C.H. and the F.s, to the effect that it was not anticipated that C.H. would support J.M.F. given the contemplated adoption, which negates any element of willfulness on C.H.'s part and demonstrates that her failure to support the child was not without justifiable cause. Thus we hold that none of the supe rior court's controlling findings of fact are clearly erroneous and that the superior court did not err in its determination that absent C.H.'s consent to the petition for adoption, the petition should be dismissed. AFFIRMED. . This court recently upheld the fee award. . C.H. subsequently filed two motions to dismiss the F.'s adoption petitions, contending that the Indian Child Welfare Act (ICWA) preempted AS 25.23.050(a)(2)(B), and that because the F.s could have raised the adoption petition during the custody proceeding, the doctrines of res judi-cata and collateral estoppel barred the petition. The superior court denied both motions. Because C.H. is Yupik, J.M.F. is an Indian child subject to ICWA. See 25 U.S.C. § 1901-1963. .The F.'s expressly declined to argue that any "cultural adoption" in accordance with Yupik custom had the effect of a formal adoption. The superior court admitted testimony on cultural adoption because it could have been relevant to a determination of the parties' intent and to the issue of consent. . In re Adoption of Female Child X, 537 P.2d 719 (Wyo.1975), presents a factual situation similar to the one in the case at bar. The natural mother in Child X left her child with her parents. Id. at 721. The mother's parents neither requested nor expected support, and neither the mother nor her husband offered any. Id. The mother's parents petitioned to adopt the child, relying upon a Wyoming statute that made the natural parent's consent unnecessary in cases of abandonment or in cases where the parent willfully failed to support the child for one year or more. Id. at 720; see also Wyo.Stat. § 1-22-110 (formerly § 1-710.2). The Wyoming Supreme Court affirmed the lower court's dismissal of the petition, in part on the following grounds: The fact is that petitioners were clearly volunteers and that no request or suggestion was ever made that respondents contributed to the support of this child.... To now claim advantage for what was never intended would be unfair. It would appear obvious that such a holding would be dangerous, and if we were to hold otherwise a natural parent might be lulled into security and lose the right to a child under such circumstances without warning of the intention of those with whom the child is left. Id. at 722. . For purposes of this appeal, we assume without deciding the question that despite the others' agreement that it was not anticipated that C.H. would support J.M.F., C.H. was required "by law," for purposes of AS 25.23.050(a)(2)(B), to provide for the care and support of J.M.F. In In re J.J.I., 718 P.2d 948, 955 (Alaska 1986), this court considered the natural father's argument that because he allegedly had an agreement with the mother not to provide support as long as she received public assistance for their son's care, his failure to support the child was excused. We upheld the superior court's determination that the claim was meritless. The case at bar presents a situation that is far different from J.J.J. In a considerable amount of evidence indicated that the father willfully refused to provide support. His attempt to link the failure to support with his ex-wife's reluctance to allow visitation clearly indicated that the failure was the product of a conscious decision. See id. at 955. The Child Support Enforcement Agency had to garnish his wages in order to obtain support payments. Id. at 950. No such elements are present in C.H.'s case. . The F.s assert that injustice would result from C.H.'s alleged reliance on "cultural adoption" practices to establish justifiable cause. It is evident that all parties in this litigation contemplated that the F.s would obtain a formal decree of adoption. Therefore, the superior court's finding that J.M.F. was placed for adoption with C.H.'s brother and sister-in-law "for statutory formal adoption" is not clearly erroneous. . We deem it unnecessary to address any of the remaining contentions of the parties given our conclusion that the superior court's holding— that the F.s failed to show by clear and convincing evidence that C.H.'s failure to support J.M.F. was without justifiable cause — was not clearly erroneous.

11792942

Arthur Earl WILSON, Jr., Appellant, v. STATE of Alaska, Appellee

Wilson v. State

1998-10-23

No. A-6396

98

105

967 P.2d 98

967